State of Michigan v. Jackson, L. & S.R. Co.

Decision Date02 July 1895
Docket Number266.
Citation69 F. 116
PartiesSTATE OF MICHIGAN v. JACKSON, L. & S.R. CO. et al.
CourtU.S. Court of Appeals — Sixth Circuit

The bill in this case was filed on December 13, 1887, on behalf of the state of Michigan in the circuit court of the state for the county of Ingham. It was subsequently removed on petition of the defendants into the circuit court of the United States. The object of filing the bill was to remove a cloud alleged to have been cast upon the complainant's title to about 50,000 acres of land in the southern peninsula of the state by patents of the United States issued to the defendant railroad company, to restrain the cutting of timber thereon, and to obtain an accounting for timber already removed therefrom. The grounds upon which the state claims in its bill, to establish its title are these: First, that by the act of congress of September 28, 1850, all the swamp and overflowed lands as of the character granted by the act was intrusted to the secretary of the interior; third, that the secretary proffered to the state its choice of certain methods for the ascertainment of the lands covered by the grant, one of which methods, namely, that of adopting the field notes of the survey on file in the surveyor general's office as the test of the character of the lands, was accepted by the state; fourth, that the lands in question were by that test swamp lands, and so within the grant; fifth, that in pursuance of instructions from the general land office the surveyor general prepared maps and lists showing what lands were swampy, and that this was an identification of the lands, binding upon the United States and the state of Michigan; sixth (by an amendment of the bill), that the lists so prepared by the surveyor general were reported to the land department, and were approved by the secretary, and that, in consequence of that approval and the several acts of congress confirming those lists, the state's title became full and complete.

The defendants, in respect to such of the land in controversy as they now or at any time have claimed to own, rely upon patents of the United States issued to the defendant, the Jackson, Lansing & Saginaw Railroad Company, in the years 1869 to 1873, inclusive, in execution of the grant of lands to the state of Michigan, to aid in the construction of certain railroads therein, by act of congress of June 3 1856, and which grant, in respect of the lands here in controversy, was conferred upon the Amboy, Lansing & Traverse Bay Railroad Company by the act of the legislature of Michigan of February 14, 1857. Lists of the lands passing by the grant were made and certified to the state by the secretary of the interior and filed in the office of the state land commissioner at various times extending from March 14, 1861, to May 12, 1864,--that is to say, about eight years, in the average, before they were patented. The defendants claim that the benefit of this grant inured to the Jackson, Lansing & Saginaw Railroad Company by virtue of a contract between it and the Amboy, Lansing & Traverse Bay Railroad Company, made under the provisions of an act of the legislature of Michigan approved March 14, 1865, authorizing such a contract and a transfer of the grant to the Jackson Lansing & Saginaw Railroad Company, and another act, that of February 7, 1867, in confirmation of the rights of the last-named company under said contract. Prior to this contract the Amboy, Lansing & Traverse Bay Railroad Company had earned a part of the lands granted, and they were patented to that company. Those, although claimed by the complainant in this bill, did not pass to the Jackson Lansing & Saginaw Railroad Company by the contract, and the title thereto is not represented by the parties to this suit. Others of the lands claimed in the bill, amounting to nearly one-half of the whole, had been sold and conveyed, prior to the institution of this suit, to other parties, whose title is likewise here unrepresented. The lands in which the defendant railroad company retains a beneficial interest are held in trust by the defendants Ledyard, Pond, and Barnes to secure the payment of the bonds of said company under a contract made by it with the Michigan Central Railroad Company. Other facts, relating in the main, to the administration of the swamp-land grant in Michigan, and to the appropriation of the lands in controversy to the railroad grant of June 3, 1856, are stated or referred to in the opinion.

Fred. A. Maynard, Atty. Gen. (Frank E. Robson, of counsel), for the State of Michigan.

Ashley Pond and O. M. Barnes, for appellees.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

Having stated the nature of the case as above, SEVERENS, District Judge, .

Shortly prior to the hearing of the present case the decision of this court was announced in the case of Lumber Co. v Rust, 68 F. 155, and two other cases of Same Plaintiff v. Other Defendants, 68 F. 170, all of which came here on writs of error from the same court from which the present appeal was taken. They were actions of ejectment brought by parties deriving title under patents from the state of Michigan to recover the possession of lands which were claimed to have inured to the state under the swamp-land act of 1850 against parties holding under patents from the United States by purchase. The leading facts were, in the main, similar to those involved in the present suit, but some new features are developed in this which were not disclosed in the former cases; and they also differed in this, that those were actions at law while this is upon a bill in equity. A brief account of so much of the proceedings taken in behalf of the United States and of the state of Michigan for the adjustment of the swamp-land grant as was deemed material to the decision of those cases was given in the statement preceding the opinion in the principal case. Some further, and in some respects more definite, facts are brought to our attention in the present case, which will be alluded to as we proceed. The claim of title in the state as to some of the lands mentioned in the bill is based upon the proposition that the acceptance by the state of the offer to take the field notes then on file in the surveyor general's office as the basis on which the state would receive the granted lands operated as a binding agreement between the two governments whereby an identification of the lands was accomplished, and that thereupon the title passed to the state. The title to other tracts is based upon the preceding facts, supplemented by the additional fact that the surveyor general, in pursuance of instructions, made from the original surveys, and certified, lists, including these tracts, to the land department, wherein they were described as swamp lands. As to others, the title rests upon the foregoing and the further facts that the lists then made from the original surveys in which they were included were approved by the secretary of the interior.

In respect to such of the lands as were included in any list which had then been filed in the land department, it is claimed that the title was confirmed to the state by the act of March 3, 1857. These are of two classes: First, lists made up before the resurvey from the notes and maps of the old survey, but which latter were superseded by the former, which showed they were not swamp; and, second, a few descriptions which are shown to be swamp by the resurvey, but were not by the old, and which descriptions are in townships in which the adjustment of the grant was made upon the basis of the old survey. As to the first of these classes, the contention that the title to the lands was confirmed in the state by the act of 1857 rests upon the supposition that congress intended to confirm lists which had been under consideration by the secretary of the interior, ascertained and determined to be founded on fraud and error, set aside and replaced by lists which were based on surveys which the department accepted as correct. As to the second, they were found in localities in which the old survey had been, by mutual consent of the state and the general government, made the basis upon which the lands were selected, and upon which they had been actually patented. The question in respect to what effect should be given to the selection and patenting of the land upon the old survey arose during the pendency of the proceedings for settling the grant. The position of the land department was that, in so far as the townships in which the land had been patented upon the old survey and lists, and the errors contained therein had passed beyond correction by the department, the selections should stand, and not be affected one way or the other by the resurvey. This was eminently fair to the state, and by it the state on the whole secured a great advantage, for the uplands described in the first survey as swamp, and patented, far exceeded the lands not therein described as such, but afterwards found to be swamp. And this position was acquiesced in by the state, and it became a part of the basis on which the settlement was reached. With respect to this, as in respect to the other matters adjusted in the course of the administration of the grant, it would be manifestly unjust for the judicial department to overhaul the proceedings, and, while not releasing one party from the bonds imposed upon it, give to the other free license to gather what it can reach.

It has been repeatedly held by the commissioners of the general land office that, after the patenting of all the lands in townships found by the old survey to be swamp,-- such patenting having been based upon the old survey,-- the state was not entitled to come in with a claim to take under the new...

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