Sawyer v. Osterhaus

• Decision Date: 07 February 1914
• Docket Number: 15,069.
• Citation: 212 F. 765
• Parties: SAWYER v. OSTERHAUS et al.
• Court: U.S. District Court — Northern District of California

212 F. 765

SAWYER v. OSTERHAUS et al.

No. 15,069.

United States District Court, N.D. California.

February 7, 1914

The complaint is in the usual form, alleging that the plaintiff is the owner and seised in fee of the premises, and that defendant is in possession, and excluded plaintiff therefrom. The answer admits defendant's possession-- in the capacity and for the purposes above stated-- denies plaintiff's ownership, and sets up: (1) Title in the United States; (2) that the action is barred by the statute of limitations; and (3) an estoppel in pais.

Plaintiff's asserted title to the premises in dispute is founded upon the claim that the tract was swamp and overflowed land at the date of the passage of the Swamp Land Act of 1850, above adverted to, which passed to the state under that act, and the subsequent acquisition of the title of the state under proceedings had in conformity with an act of the Legislature of the state providing for the sale of such lands, approved April 28, 1855 (St. Cal. 1855, p. 189). To sustain this claim plaintiff introduced evidence of a survey of the tract designated as swamp and overflowed land survey No. 34, and other steps required by the last-mentioned act, culminating in a patent from the state to one David N. Darlington bearing date March 18, 1857, followed by sundry mesne conveyances, vesting in plaintiff any title carried by that patent. When the patent was offered in evidence it was objected to by defendant on the ground, among others, that it does not appear that the state had title to the land at the date of the patent; that there is no evidence that the United States ever in any way recognized the land as swamp and overflowed or that the Secretary of the Interior has ever segregated or listed the land to the state, as required by section 2 of the Swamp Land Act, or that a patent has ever issued therefor from the United States to the state, as provided by that act. In response to this objection, while admitting there has never been an identification of the character of the land, or any listing thereof by the Secretary of the Interior, or a patent to the state from the government, plaintiff offered parol evidence to show that at the date of the Swamp Land Act the land was in fact of the character granted by that act. This parol evidence was objected to as incompetent to establish the fact, but it was tentatively admitted, subject to the objection, and was put in, with the result to be hereinafter noted.

Frank R. Devlin, of Vallejo, and M. W. McIntosh, of San Francisco, for plaintiff.

Robert T. Devlin, John L. McNab, John W. Preston, U.S. Atty., and Earl H. Pier, Asst. U.S. Atty., all of San Francisco, Cal., for defendants.

VAN FLEET, District Judge (after stating the facts as above).

Upon the facts several obstacles present themselves as standing in the way of a recovery by the plaintiff. construction and effect of the Swamp Land Act, which is the essential basis of his title, if he have any. The action being in ejectment, the first inquiry is whether plaintiff has shown legal title to the premises involved, since he must recover, if at all, upon the strength of his own title, regardless of the weakness of that of his adversary (Christy v. Scott, 14 How. (U.S.) 282, 14 L.Ed. 422; Fussel v. Gregg, 113 U.S. 550, 5 Sup.Ct. 631, 28 L.Ed. 993; McGuire v. Blount, 199 U.S. 144, 26 Sup.Ct. 1, 50 L.Ed. 125), and it must be a legal title as distinguished from a mere equity (McCormick v. Hayes, 159 U.S. 332, 339, 16 Sup.Ct. 37, 40 L.Ed. 171).

The plaintiff's theory is that the Swamp Land Act was an absolute grant in praesenti, vesting at once in the state, and subject to its immediate disposition, legal title to all the lands falling within the class therein described, dependent only on their identification as such and without the necessity of a patent from the United States to the state; that this identification, if not had through the Secretary of the Interior and the formal issuance of a patent to the state, as provided by section 2 of the act, may be shown by one holding evidence of title under the state through the introduction of parol evidence establishing the character of the land as swamp and overflowed at the date of the taking effect of the act; and, upon that fact being shown, a perfect legal title is made out upon which ejectment may be maintained.

I am of opinion that neither proposition involved in this contention can be sustained. While the construction thus claimed for the granting clause of the act finds countenance in an early opinion of the Attorney General (9 Opinions, Attys. Gen. 254), and in cases from the Supreme Court of California, and while there is some language tending more or less directly to support it in Wright v. Roseberry, 121 U.S. 488, 7 Sup.Ct. 985, 30 L.Ed. 1039, and in San Francisco Savings Union v. Irwin, supra, which followed it, it must now be regarded as definitely settled by the later cases from the Supreme Court that, while concededly the act was by its terms a grant in praesenti, the legal title to the lands granted thereby vests in the state only upon definite identification of the lands to which it attached in the manner provided in the act, and that, until the ascertainment of that fact and the issuance of patent, the legal title remains in the government, and that of the state is merely inchoate. Rogers' Locomotive Works v. Emigrant Co., 164 U.S. 568, 17 Sup.Ct. 188, 41 L.Ed. 552; Michigan Land, etc., Co. v. Rust, 168 U.S. 589, 18 Sup.Ct. 208, 42 L.Ed. 591; Brown v. Hitchcock, 173 U.S. 476, 19 Sup.Ct. 485, 43 L.Ed. 772; United States v. Chicago, etc., Ry. Co., 218 U.S. 242, 31 Sup.Ct. 7, 54 L.Ed. 1015; McCormick v. Hayes, 159 U.S. 338, 16 Sup.Ct. 37, 40 L.Ed. 171; Chapman & Dewey Lumber Co. v. St. Francis Levee District, 232 U.S. 186, 34 Sup.Ct. 297, 58 L.Ed. . . ., decided January 26, 1914.

Thus in Rogers v. Emigrant Co., after a full review of the authorities, it is said:

'While, therefore, as held in many cases, the act of 1850 was in praesenti, and gave an inchoate title, the lands needed to be identified as lands that passed under the act; which being done, and not before, the title became perfect as of the date of the granting act. L.Ed. 1039) et seq.; Tubbs v. Wilhoit, 138 U.S. 134, 137 (11 Sup.Ct. 279, 34 L.Ed. 887); Chandler v. Calumet & Hecla Mining Co., 149 U.S. 79, 91 (13 Sup.Ct. 798, 37 L.Ed. 657).'

In Brown v. Hitchcock the question is put in these plain and unequivocal terms:

'Under the Swamp Land Act the legal title passes only on delivery of the patent. So the statute in terms declares. The second section provides that the Secretary of the Interior, 'at the request of said Governor' (the Governor of the state), shall 'cause a patent to be issued to the state therefor; and on that patent the fee simple to said lands shall vest in the said state.' '-- citing cases.

'In this case the record discloses no patent, and therefore no passing of the legal title. Whatever equitable rights or title may have vested in the state, the legal title remained in the United States.'

And again in Michigan Land Co. v. Rust:

'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. Emigrant Co., 164 U.S. 559, 574 (17 Sup.Ct. 188, 192 (41 L.Ed. 552)) 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."

Logically, the principles there announced would end plaintiff's case at the threshold, it being conceded that in this instance no patent has ever passed from the United States to the state for this land, and as a consequence the legal title still remains in the United States.

Plaintiff very strenuously contends however that in Railroad Co. v. Smith, 76 U.S. (9 Wall.) 95, 19 L.Ed. 599, and in Wright v. Roseberry, recognition was given to the title of the state or its grantee to such lands in the absence of a patent or of any formal identification or listing by the Secretary of the Interior, and countenanced a resort to parol evidence to establish the character of the land, and that the doctrine of those cases has application in the present case. But a careful consideration of the real questions involved in those cases will, I think, show clearly that they lend no substantial support to this claim.

Railroad Co. v. Smith was one of two companion cases, decided at the same term, the other being Railroad Co. v. Fremont County, 9 Wall. 89, 19 L.Ed. 563, immediately preceding the report of the Smith Case. As several references are made in the latter to the Fremont Case, it will be well to briefly state the facts of that case in order that such references may be more clearly appreciated. In the Fremont Case the county was the complainant in the court below, suing the railroad company to quiet its title to a large body of land which it claimed to have acquired from the state (Iowa) under the Swamp Land Act, and to which the railroad company laid claim under an act making a grant of a later date to the state in aid of the construction of railroads. Under neither grant had patent formally passed to the state from the United States, but it appeared that under the Swamp Land Grant the lands had been definitely identified and listed to the state by or under the authority of the Secretary of the Interior, at a date prior to the definite location of the line of the...