San Francisco Sav. Union v. Irwin

• Decision Date: 08 July 1886
• Citation: 28 F. 708
• Court: United States Circuit Court, District of California
• Parties: SAN FRANCISCO SAV. UNION and others v. IRWIN.

28 F. 708

SAN FRANCISCO SAV. UNION and others v. IRWIN.

United States Circuit Court, D. California.

July 8, 1886

S. O Houghton and Geo. A. Nourse, for plaintiff.

S. G Hilborn, U.S. Atty., and A. L. Rhody, for defendant.

Before FIELD, Justice, and SAWYER, J.

FIELD J.

This is an action to recover possession of a tract of land situated partly in the county of Napa, and partly in the county of Solano, consisting of 7,413 acres and a fraction of an acre. It is alleged to be swamp and overflowed land, and that the title to it therefore passed to the state by the act of congress of September 28, 1850, 'to enable the state of Arkansas and other states to reclaim the swamp lands within their limits.' 9 St. 519.

The first section of that act grants to the state of Arkansas 'the whole of those swamp and overflowed lands, made unfit thereby for cultivation,' which were unsold at the date of its passage. The fourth section extends the provisions of the act to, and confers their benefits upon each of the other states of the Union in which swamp and overflowed lands are situated.

The act is a grant in praesenti, to each state then in the Union, of lands situated within its limits of the quality described. Its language is that they 'shall be, and the same are hereby, granted to said state,'-- words which import an immediate transfer of interest, and not one in the future.

The provisions of the second section, making it the duty of the secretary of the interior, as soon as practicable after the passage of the act, to make out an accurate list and plat of the lands described, to transmit the same to the governor of the state, and, on his request, to cause a patent to be issued to the state, and declaring that 'on that patent the fee-simple to said lands shall vest in the state,' subject to the disposal of the legislature thereof, did not prevent the immediate passing of the title. The patent, with the definite description by metes and bounds of the lands which it would furnish, would serve a useful purpose. It would render it unnecessary for the state, or grantees from the state, to make any further proof of the character of the land should any controversies arise respecting it. In many ways, doubts might be created on the subject. The evidence might be conflicting as to whether the greater part of a legal sub-division fell within the description required, as being 'wet and unfit for cultivation.' In all such cases the patent would solve the doubt; for the determination, in that respect, of the secretary of the interior would be controlling. The ascertainment and designation of the lands, as those described, would be conclusive as against collateral attack. But the title of the state to the lands, they being swamp and overflowed, cannot be defeated, nor in any way impaired, by the delay or refusal of the secretary of the interior to have the required list made and patent issued. The state and her grantees might be embarrassed in the assertion of their rights, but no other consequence would follow.

Such is the purport of the advice given to the secretary of the interior by the attorney general of the United States in his communication of November 10, 1858. 'It is not necessary,' he said, 'that the patent should issue before the title vests in the state under the act of 1850. The act of congress was itself a present grant, wanting nothing but a definition of boundaries to make it perfect; and to attain that object the secretary of the interior was directed to make out an accurate list and plat of the lands, and cause a patent to be issued therefor; but, when a party is authorized to demand a patent for land, his title is vested as much as if he had the patent itself, which is but evidence of his title.' 9 Op.Attys.Gen. 254.

Such is also the purport of several decisions of the supreme court of California. In Owens v. Jackson, 9 Cal. 322, which was an action, like the present one, for the possession of swamp and overflowed lands under a patent of the state, the defendant demurred to the complaint because it did not show that the land had been surveyed and patented to the state. The demurrer was sustained in the court below, but the supreme court reversed the decision, holding that the state had the right to dispose of the swamp and overflowed lands granted to her by the act of 1850, prior to a patent f rom the United States, so as to convey a present title to the patentee as against a trespasser. 'The act of congress,' said the court, 'describes the land, not by specific boundaries, but by its quality, and is a present legislative grant of all the public lands within the state of the quality mentioned. The patent is matter of evidence and description by metes and bounds. The office of the patent is to make the description of the lands definite and conclusive, as between the United States and the state. ' See, also, Summers v. Dickinson, 9 Cal. 554, and Kernan v. Griffith, 27 Cal. 87.

In Railroad Co. v. Smith, 9 Wall. 95, the question was presented to the supreme court of the United States whether the grant by the act of congress of June 10, 1852, to Missouri, of lands to aid in the construction of certain railroads, covered the swamp and overflowed lands granted to her by the act of September 28, 1850, no patent for those lands having been issued to her. After observing that there was a present grant by congress of certain lands to the states within which they lie, but by a description requiring something more than a mere reference to townships, ranges, and sections to identify them, and that it was made the duty of the secretary of the interior to ascertain the character of the lands, and furnish the state with evidence of it, the court said:

'The right of the state did not depend on his action, but on the act of congress; and, though the states might be embarrassed in the assertion of this right by the delay or failure of the secretary to ascertain and make out lists of these lands, the right of the states to them could not be defeated by that delay.'

And the court further observed that, as the secretary had no satisfactory evidence under his control to enable him to make out these lists, he must, if he attempted it, rely on witnesses whose personal knowledge enabled them to report as to the character of the tracts claimed to be swamp and overflowed; that 'the matter to be shown is one of observation and examination; and whether arising before the secretary, whose duty it was primarily to decide it, or before the court, whose duty it became because the secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose.'

In French v. Fyan, 93 U.S. 169, this subject is further considered, and the circumstances under which parol evidence to show that lands claimed as swamp and overflowed will be received, are stated with greater precision. That was an action of ejectment for swamp and overflowed lands, and the only question raised related to the refusal of the court below to receive oral testimony to impeach the validity of a patent issued by the United States to the state of Missouri for the land in question under the act of 1850; the purpose of the testimony being to show that the land in controversy was not, in point of fact, swamp land within the meaning of that act. The land had been certified, in 1854, to the Missouri Pacific Railway Company as part of the land granted to aid in the construction of its road by the act of June 10, 1852, and the plaintiff had become vested with the title of the company. To overcome this title, the defendant gave in evidence the patent to the state under the swamp-land act, under which he claimed by regular conveyances. The plaintiff then offered to prove, by witnesses who had known the character of the land in dispute since 1849, that it was never wet and unfit for cultivation. The court below refused to receive the testimony, and the propriety of its ruling was thus brought before the supreme court. After observing that it had been more than once decided that the swamp-land act was a grant in praesenti, by which the title to those lands passed at once to the state in which they lay, except as to states admitted to the Union after its passage, and that the patent, therefore, which is the evidence that the lands contained in it had been identified as swamp lands, relates back and gives certainty to the title as of the date of the grant, the court said that by the second section of the act the power and duty devolved upon the secretary of the interior, as the head of the department which administered the affairs of the public lands, of determining what lands were of the description granted, and made his office the tribunal whose decision on this subject was to be controlling, and it was his duty to have accurate lists and plats of the lands described made out and transmitted to the governor of the state, upon whose request a patent was to be issued. Parol evidence to show that the land covered by the patent to the state was not swamp and overflowed land was therefore held to be inadmissible. In commenting upon the case of Railroad Co. v. Smith, 9 Wall. 95, which was supposed to justify the offer of the parol...