People ex rel. County of Houghton v. Commissioner of State Land Office

• Decision Date: 11 July 1871
• Citation: 23 Mich. 270
• Court: Michigan Supreme Court
• Parties: The People on the Relation of the County of Houghton v. The Commissioner of the State Land Office

23 Mich. 270

The People on the Relation of the County of Houghton v. The Commissioner of the State Land Office

Supreme Court of Michigan

July 11, 1871

Heard April 6, 1871 [Syllabus Material]

Application for mandamus.

The facts are fully set forth in the opinion.

Relator entitled to a mandamus as prayed.

Norris & Uhl, for the relator.

Dwight May, Attorney-General, for the respondent.

OPINION

Christiancy J.:

This is an application for a mandamus, to compel the commissioner of the state land office to cause patents to be issued to the county for certain selections of swamp lands, appropriated to the county by the act of March 20, 1863, for the construction of the Mineral Range State Road.

The third section of the act provides "that whenever any ten consecutive miles of sad road shall be completed and approved of by the board of supervisors of the county in which said road shall have been built, and such approval certified to by the chairman of such board of supervisors, the clerk thereof shall serve notice of such approval on the commissioner of the state land office, who shall issue patents to the county in which said work shall have been so completed, conveying to said county twenty sections of said swamp lands to be selected by such board of supervisors."

Section 4 provides "that there shall be withheld from sale, not exceeding 1,280 acres of the swamp lands in the Upper Peninsula (not otherwise appropriated), for each mile of said road, from, and after, the time said counties through which said road runs shall notify the commissioner of the state land office of the selection of the same; and said lands shall be so withheld from sale for the period of four years from the passage of this act." This act was subsequently extended by the amendment of February 20, 1865 (act No. 65), so as to read "six years from the passage of the act." This fourth section was evidently intended to give to the respective counties the right to make the selection at any time after its passage, as well before, as after, the work was done. But it withdrew nothing from market until the commissioner should be notified of the selection. The time which would govern, as to the right of selection, would, therefore, necessarily be the time of such notice to the commissioner. If the land selected was not then excepted or reserved from the operation of the appropriation made by the act, the county would be entitled to patents for the due proportion of the lands thus selected, as each ten consecutive miles of the said road should be completed, according to the provisions of the third section.

On the 21st of April, 1863, the county of Houghton, by unanimous resolution of the board of supervisors, accepted this appropriation. The whole length of the said road through the county of Houghton was forty-two miles, and the whole quantity of land, therefore, which the county was entitled to have reserved from sale, and for which (when the road should be completed) it would be entitled to patents, was fifty-three thousand seven hundred and sixty acres.

On the 20th day of June, 1863, the county of Houghton duly notified the commissioner of the land office, of the selection of a long list of lands, containing in the aggregate twenty-seven thousand and eighty-three and forty-four one-hundredths acres, fully describing them in said list (which was duly filed in the office), by their proper land-office descriptions, according to the public surveys. And on the 23d day of June, 1863, the county filed in the office of the commissioner another list of lands selected by the county, and thereby notified him of such selections, properly describing the lands, and which amounted in the aggregate to thirty-one thousand four hundred sixty-nine and ninety-four one-hundredths acres, making with the twenty-seven thousand and eighty-three and forty-four one-hundredths acres, fifty-eight thousand five hundred and fifty-three and thirty-eight one-hundredths acres. But, being entitled in all, to only fifty-three thousand seven hundred and sixty acres, there was an excess of four thousand seven hundred and ninety-three and thirty-eight one-hundredths acres, beyond the amount to which the county was entitled, arising, of course, from the excess in the list selected June 23, 1863.

These selections were made from plats forwarded to the county of Houghton, from the state land office, purporting to show unentered state swamp lands. And the excess upon the last list of selections was doubtless intended to make up for any deficiency which might have been caused by sales made in the meantime, and for any errors which might have occurred, etc. But the county had no right to select or keep out of market any more than the fifty-three thousand seven hundred and sixty acres, and, as more was selected, we think the right of selection must be held to attach to each parcel in the order of its selection, or, in other words, in the order in which the several descriptions were mentioned on the lists, beginning at the head of the first list of June 20th, and going through that in consecutive order, and then proceeding with the second list (that of June 23d) in the same order until the quantity selected should, in the aggregate, amount to fifty-three thousand seven hundred and sixty acres. The remainder, not being subject to selection, could not be affected by it. But in pursuing this order, any particular tract or tracts which might have been sold before the commissioner was notified of the selection, and any tract for any cause not liable to be selected (if any such there were), must be entirely omitted, and the list treated, in all respects, as if such tract or tracts had never been included among the descriptions.

An analogous question is raised by the petition and return, as to the order in which the county is entitled to demand patents for the land as the several ten-mile sections of the road were completed. Whether, for instance, upon due proof of the completion of the first ten miles, the county is entitled to select the corresponding twelve thousand eight hundred acres as it pleases, from the whole fifty-three thousand seven hundred and sixty, without reference to the order of their selection as shown by the lists of selections, or, whether patents can only be demanded in the order of selection as shown by the lists. The commissioner insists that the county can only demand the patents, in such case, in the order of selection, as shown by the lists. He alleges that this rule has been adopted by him in the office, and insists that it is reasonable and just to individuals and to the state.

Had the commissioner adhered to this rule, we are inclined to think he would have been justified in that course, not because it was a rule adopted by the office, but because it would have been in harmony with the design and purpose of the act. If upon the completion of the first ten miles, the county was entitled to demand patents for such lands as it might select from the entire list selected for the whole road, it might obtain perhaps, half, or more, in value of the whole appropriation, for only ten miles of the road, which would be out of due proportion for the amount completed, and this would leave less inducement to complete the balance. But the commissioner, when the first demand was made for patents, did not adhere to any such rule. The list of lands, for which patents were demanded, did not follow this order, and the commissioner, in the main, patented the lands according to the list demanded, refusing some on the ground that they were mineral lands, others upon other special grounds, and many others upon no grounds which we have been able to discover, but departing with those he did patent widely from the order of selection as shown by the selection lists. The order being thus broken by the commissioner himself, it became impracticable to observe such order of selection for the future with reference to the selected lists, and either the county must be allowed to select, or the commissioner, or no further patents could be issued. Under such circumstances, we think the county, rather than the commissioner, was entitled to select the lands to be patented.

The completion of the first ten miles of the road was duly certified, and filed with the commissioner, in September, 1865; and on the fourth day of June, 1869, like proof of the completion of another ten miles; and in each case, a list was presented to the commissioner, of lands for which patents were demanded, but neither list was in the order in which the lands had been originally selected by the county, in 1863.

The answer of the commissioner insists that some of the lands selected, and for which patents were demanded, were reserved by the state as mineral lands, and not subject to selection under this appropriation, and he refuses to patent them for this reason, and that some of them have, since the selection, been sold by the commissioner to other parties. These parties have been notified, also, to show cause in this proceeding, but have not appeared.

The question whether these lands were reserved as mineral lands so as not to be liable to selection under this act, is the most important...