MICHIGAN LAND & LUMBER CO. V. RUST

Decision Date18 December 1897
Citation168 U. S. 589
CourtU.S. Supreme Court
ERROR TO THE CIRCUIT COURT OF

APPEALS FOR THE SIXTH CIRCUIT

Syllabus

The Act of September 28, 1850, c. 84, granting swamp lands to the several states, was a grant in praesenti, passing title to all lands which at that date were swamp lands, but leaving to the Secretary of the Interior to determine and identify what lands were, and what lands were not, swamp lands.

Whenever the granting act specifically provides for the issue of a patent, the legal title remains in the government until its issue, with power to inquire into the extent and validity of rights claimed against the government.

Although a survey had been made of the lands in controversy which indicated that they were swamp lands, it was within the power of the land office at any time prior to the issue of a patent to order a resurvey and to correct mistakes made in the prior survey.

The facts in this case clearly show an adjustment of the grant upon the basis of the resurveys, and their acceptance by the officer of the state charged by the act of Congress with the duty of so doing, and this makes such adjustment final and conclusive.

The Act of March 3, 1857, c. 117, did not operate to confirm to the Michigan the title to all lands marked on the approved and certified list of January 13, 1854, as swamp and overflowed lands, and direct the issue of a patent or patents therefor, but it simply operated to accept the field notes finally approved as evidence of the lands passing under the grant, leaving to the Land Department to make any needed corrections in the surveys and field notes.

The decision in Martin v. Marks, 97 U. S. 345, does not conflict with this construction of the act of 1857.

This was an action of ejectment, commenced in the Circuit Court of the United States for the Eastern District of Michigan, on February 11, 1888. On November 28, 1892, the case came on for trial before the court and a jury. At the close of the testimony, the jury, under the instructions of the court, returned a verdict for the defendant. On May 7, 1895, this judgment was affirmed by the court of appeals, 31 U.S.App. 731, and to review such judgment, the case was brought

Page 168 U. S. 590

here on writ of error. The land in dispute is situated in Clare County, being the S.E. 1/4 of S.E. 1/4 of sec. 20, N.W. 1/4 of S.W. 1/4 of sec. 21, N.W. 1/4 of S.E. 1/4 of S.E. 1/4 of sec. 22, N.W. 1/4 of N.W. 1/4 of sec. 28, N. 1/2 of S.W. 1/4 of sec. 29, N. 1/2 of N.E. 1/4 of sec. 35, township 18, range 3 W., and E. 1/2 of S.W. 1/4 of sec. 1, township 18, range 4 W., and amounting to 400 acres, the undivided half of which only was claimed by plaintiff.

The contention of the plaintiff, generally speaking, is that this was swamp land, and granted to the State of Michigan by the Act of Congress of date September 28, 1850, c. 84, 9 Stat. 519, granting swamp lands to the several states; that it was included in a list of such lands in the Ionia Land District, approved by the Secretary of the Interior, and forwarded to the Governor of Michigan on January 13, 1854; that the Act of March, 3, 1857, c. 117, 11 Stat. 251, confirmed the action of the Secretary of the Interior, and thereby passed the title to the State of Michigan, by which state it was, on October 14, 1887, conveyed to plaintiff's grantor.

The defendant, on the other hand, contends that the original surveys of the public lands in the State of Michigan were erroneous; that at the instance of the state, Congress ordered resurveys, which resurveys were carried on from the years 1842 to 1857; that, while it is true this land was by the original surveys classed as swamp land, and included in the Ionia land district list approved and certified to the State of Michigan, the resurveys showed that it was not land of that description; that a new list for that district, not including this land, was in 1886 made out and certified to the state; that such new list was accepted by the state as correct, and a patent for the lands described therein issued to and received by it; that, after all this had taken place, and in 1870, the land in question was sold by the officers of the United States at auction, after public advertisement, and that patents were duly issued upon such sale, under which patents the defendant claims title.

Page 168 U. S. 591

MR. JUSTICE BREWER, after stating the facts in the foregoing language, delivered the opinion of the Court.

This case involves questions of the power of the Land Department over the matter of the identification of the particular lands passing under the Swamp Land Act of 1850, of the finality of the action of the Secretary of the Interior in approving and certifying to the governor of the state a list of such lands, and of the effect of the confirmatory act of 1857. There is no testimony showing what was in fact the condition of the land, whether swamp or not at the time of the passage of the act of 1850, and the case turns wholly upon the documentary evidence.

The act of 1850 made a grant in praesenti -- in other words, the title then passed to all lands which at that date were swamp lands, and the only matters thereafter to be considered were those of identification. Railroad Company v. Smith, 9 Wall. 95; French v. Fyan, 93 U. S. 169; Martin v. Marks, 97 U. S. 345; Rice v. Sioux City & St. Paul Railroad, 110 U. S. 695; Wright v. Roseberry, 121 U. S. 488; Tubbs v. Wilhoit, 138 U. S. 134. But, while the act operated as a grant in praesenti, the determination of what lands were swamp lands was entrusted to the Secretary of the Interior. Section 2 contains this provision:

"That it shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor of the State of Arkansas, and at the request of said governor, cause a patent to be issued to the state therefor, and on that patent, the fee simple to said lands shall vest in said State of Arkansas, subject to the disposal of the legislature thereof. "

Page 168 U. S. 592

It may be remarked in passing that while the first and second sections refer specifically to the State of Arkansas, section 4 of the act makes it applicable to all the states. It is true that, in the first section, Congress defines the lands granted as "swamp and overflowed lands, made unfit thereby for cultivation;" and section 3, referring to the lists and plats ordered by section 2 to be made out by the Secretary of the Interior, contains this further specification as to the character of the lands granted:

"That in making out a list and plats of the lands aforesaid, all legal subdivisions, the greater part of which is 'wet and unfit for cultivation' shall be included in said list and plats, but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom."

But while Congress thus defined what it intended to grant as swamp and overflowed lands, it entrusted, as appears from section 2, the identification of those lands to the Secretary of the Interior.

It will be perceived that the act contemplated the issue of a patent as the means of transferring the legal title. In Rogers Locomotive Works v. American Emigrant Co., 164 U. S. 559, 574, it was said, speaking in reference to this matter, and after a full review of the previous authorities:

"When he [that is, the Secretary of the Interior] made such identification, then, and not before, the state was entitled to a patent, and 'on such patent' the fee simple title vested in the state. The state's title was at the outset an inchoate one, and did not become perfect, as of the date of the act, until a patent was issued."

Generally speaking, while the legal title remains in the United States, the grant is in process of administration, and the land is subject to the jurisdiction of the Land Department of the government. It is true a patent is not always necessary for the transfer of the legal title. Sometimes an act of Congress will pass the fee. Strother v. Lucas, 12 Pet. 410, 37 U. S. 454; Grignon's Lessee v. Astor, 2 How. 319; Chouteau v. Eckhart, 2 How. 344, 43 U. S. 372; Glasgow v. Hortiz, 1 Black 595; Langdeau v. Hanes, 21 Wall. 521; Ryan v. Carter, 93 U.S.

Page 168 U. S. 593

78. Sometimes a certification of a list of lands to the grantee is declared to be operative to transfer such title, Rev.Stat. § 2449; Frasher v. O'Connor, 115 U. S. 102; but wherever the granting act specifically provides for the issue of a patent, then the rule is that the legal title remains in the government until the issue of the patent, Bagnell v. Broderick, 13 Pet. 436, 38 U. S. 450, and while so remaining, the grant is in process of administration, and the jurisdiction of the Land Department is not lost.

It is, of course, not pretended that when an equitable title has passed, the Land Department has power to arbitrarily destroy that equitable title. It has jurisdiction, however, after proper notice to the party claiming such equitable title, and, upon a hearing, to determine the question whether or not such title has passed. Cornelius v. Kessel, 128 U. S. 456; Orchard v. Alexander, 157 U. S. 372, 383; Parsons v. Venzke, 164 U. S. 89. In other words, the power of the department to inquire into the extent and validity of the rights claimed against the government does not cease until the legal title has passed.

"A warrant and survey authorize the proprietor of them to demand the legal title, but do not in themselves constitute a legal title. Until the consummation of the title by a grant, the person who acquires an equity holds a right subject to examination."

Miller v. Kerr, 7 Wheat. 1, 20 U. S. 6. After the issue of the patent, the matter becomes subject to inquiry only in the courts and by judicial proceedings. United States v. Stone, 2 Wall, 525, 69...

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