Tolleston Club of Chicago v. State

• Decision Date: 28 September 1894
• Citation: 141 Ind. 197,38 N.E. 214
• Parties: TOLLESTON CLUB OF CHICAGO et al. v. STATE.
• Court: Indiana Supreme Court

141 Ind. 197

38 N.E. 214

TOLLESTON CLUB OF CHICAGO et al.

v.STATE.¹

Supreme Court of Indiana.

Sept. 28, 1894.

Appeal from circuit court, Lake county; J. H. Gillett, Judge.

Action by the state of Indiana against the Tolleston Club of Chicago and others to recover the possession of land. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

J. W. Youche, E. D. Crumpacker, J. B. Peterson, and J. Kopelke, for appellants. A. G. Smith, Atty. Gen., Leon O. Bailey, Dep. Atty. Gen., and M. Winfield, for the State.

HOWARD, J.

This was an action for the recovery of certain overflowed lands along the Little Calumet river, in Lake county, and was brought against the appellants by the appellee, the state of Indiana. The land is claimed by the state under provisions of an act of congress approved September 28, 1850, known as the “Swamp-Land Act,” which reads as follows:

“Be it enacted,” etc., “that, to enable the state of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp lands and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby, granted to said state.

Sec. 2. And be it further enacted, 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, caused 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 of Arkansas, subject to the disposal of the legislature thereof. Provided, however, that the proceeds of said lands, whether from sale or by direct appropriation, in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.

Sec. 3. And be it further enacted, 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.

Sec. 4. And be it further enacted, that the provisions of this act be extended to and their benefits be conferred upon each of the other states of the Union in which such swamp and overflowed lands, known and designated as aforesaid, may be situated.”

This act has been interpreted in numerous decisions of the courts, both state and federal. After a very full examination of these decisions, this court, in the case of State v. Portsmouth Sav. Bank, 106 Ind. 435, 7 N. E. 379, reached the following, among other, conclusions: (1) That the act was a present grant to the several states of the swamp lands therein situated; (2) that whether or not any particular tract was or is swamp land within the terms of the grant was and is a question for the decision of the secretary of the interior; (3) that the decision of the secretary is final, and cannot be overthrown by parol evidence; (4) that it is not necessary that this decision should be evidenced by a patent to the state, but it is sufficient that the lands have been selected as swamp lands, and such selection approved by the secretary; (5) that when the selection has been so approved, and the particular tracts so identified as swamp lands, the title of the state relates back to the date of the grant, September 28, 1850. From the record it appears that the lands here in controversy were surveyed by the United States surveyors in 1834. On November 21, 1850, the commissioner of the general land office issued instructions for determining what lands fell to the states under the swamp land act. In these instructions it was said: “This act clearly and unequivocally grants to the several states those lands which, from being swampy or subject to overflow, are unfit for cultivation.” The registers of the local land offices were directed to “make out lists of these lands as early as practicable” according to forms given, “one copy of which,” they were told, “you will transmit to the land officers and another to this office.” The officers were further instructed that “the only reliable data in your possession from which these lists can be made out are the [field] notes of the surveys on file in your office; and if the authorities of the state are willing to adopt these as the basis of their lists, you will so regard them.” As to the lands in this case, it was admitted by all the parties in open court “that the state of Indiana, in accepting the swamp lands, adopted the same lot numbers as were given in the survey of 1834 for lands bordering upon that impassable morass, and adopted the plats made by the United States surveyors as its plats of swamp lands.” Under date of April 15, 1851, a list of swamp lands selected by the state authorities, including a part of the lands claimed by the state in this action, was reported to the general land office. That list, so far as concerns the lands in question, together with the official certificates accompanying it, is as follows:

“Department of the Interior, General Land Office, Washington, D. C., October 13th, 1893. I, S. W. Lamoreaux, commissioner of the general land office, do hereby certify that the annexed paper, being a copy of list No. 1 of the swamp land selected in Winamac land district, Indiana, reported under date of April 15th, 1851, in so far as the same relates to lands in T. 26, R. 8 west, is a true and literal exemplification of the original list on file in this office. In testimony whereof I have hereunto subscribed my name, and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written. [Seal.] S. W. Lamoreaux, Commissioner of the General Land Office.”

“List of Swamp Land, Winamac District.

+---------------------------------------------------+
                ¦Part of Sections.               ¦Sec.¦Acres.¦Hdths.¦
                +--------------------------------+----+------+------¦
                ¦Township No. 36, range 8 west   ¦    ¦      ¦      ¦
                +--------------------------------+----+------+------¦
                ¦All of 2, 3, 6, 7, 8, 9, 10 & 11¦    ¦4,454 ¦95    ¦
                +--------------------------------+----+------+------¦
                ¦12, 15, 17, 18, 19 & 20         ¦    ¦2,443 ¦67    ¦
                +--------------------------------+----+------+------¦
                ¦All of 21 & 22                  ¦    ¦588   ¦85    ¦
                +--------------------------------+----+------+------¦
                ¦N. W. 1/4                       ¦23  ¦283   ¦20”   ¦
                +---------------------------------------------------+
                

“Register's Office, Winamac, Indiana, April 15th, 1851. I do hereby certify that I have compared the foregoing selections of lands selected by the state authorities as swamp and overflowed land, agreeable to act of congress of Sept. 28th, 1850, and instructions from commissioners of general land office, dated November 21st, 1850, with the township plats on file in this office, reported by the agents of state under oath, in forty-acre tracts, or quarter-quarter sections, setting forth that the greater portion of each legal subdivision is wholly unfit for cultivation without artificial drainage, and falls to the state of Indiana, under the act of September 28th, 1850, and believe it to be correct. Witness my hand, Daniel Sigler, Register.”

Doubts having arisen in several cases as to the regularity of the selections of swamp lands made in the several states under the act of September 28, 1850, congress, by an act approved March 3, 1857, declared: “That the selection of swamp and overflowed lands, * * * heretofore made and reported to the commissioner of the general land office, * * * be and the same are hereby confirmed, and shall be approved and patented to the said several states.” It is contended by counsel for appellee that by this act of March 3, 1857, congress fully confirmed the title of the state to the lands here in dispute, being those described in the list hereinbefore set out under certificate of the general land office, to wit, sections 12, 15, 17, 18, 19, 20, 21, 22, and N. W. 1/4 23, in township 36, range 8 W., and that the title of the state to said lands would have been complete on the passage of said act, even without the issuance of a patent therefor by the secretary of the interior, inasmuch as the title so confirmed by act of congress could not fail by reason of any fault or neglect of duty on the part of the secretary. Counsel for appellants, however, contend that it is not shown that the selection of the lands so made was reported to the commissioner of the general land office prior to March 3, 1857, and consequently was not confirmed by the act of that date. Turning again to the list of lands as hereinbefore set out, we find that S. W. Lamoreaux, commissioner of the general land office, under date of October 13, 1893, certifies “that the annexed paper, being a copy of List No. 1 of the swamp land selected in the Winamac land district, Indiana, reported under date of April 15, 1851, in so far as the same relates to lands in T. 36, R. 8 west, is a true and literal exemplification of the original list on file in this office.” From this certificate it appears that the original list was on file in the general land office October 13, 1893, and that it was “reported under date of April 15, 1851.” That it was reported under date of April 15, 1851, also appears from the date of the register's certificate accompanying the list and certifying that it is a true list of the lands selected by the state. While it is clear, therefore, that the report of the list of lands selected by the state was prepared by the register on April 15, 1851, and also clear that such report and original list is now on file in the general land office, and was so on file October 13, 1893...