Warren County v. Nall

• Decision Date: 15 April 1901
• Citation: 29 So. 755,78 Miss. 726
• Court: Mississippi Supreme Court
• Parties: WARREN COUNTY ET AL. v. EDWARD H. NALL, STATE LAND COMMISSIONER. [*]

29 So. 755

78 Miss. 726

WARREN COUNTY ET AL. v. EDWARD H. NALL, STATE LAND COMMISSIONER. ^[*]

Supreme Court of Mississippi

April 15, 1901

FROM the chancery court, first district, of Hinds County. HON HENRY C. CONN, Chancellor.

Warren county and another, appellants, were complainants in the court below; Nell, state land commissioner, was defendant there. The opinion fully states the case.

Judgment reversed and remanded with leave.

Miller Smith & Hirsh and F. R. Foster, for appellants.

It is competent for the legislature to grant swamp lands to the different counties in the state and empower them to sell the hinds and devote the proceeds to general county purposes. Rock v. Rinehart, 88 Iowa 37; Killer v Brickey, 78 Ill. 133; Whiteside County v Burchell, 31 Ill. 68; Beaurreau County v. Thompson, 38 Ill. 566.

That the words employed in the act of 1852 constituted a grant in proesenti has already been determined by this court, and is not now open to discussion. Fore v. Williams, 35 Miss. 533; Killer v. Brickey, 78 Ill. 133; Smith v. Miller, 105 Iowa 688; Bailey v. Callanan, 87 Iowa 108; Railroad Co. v. Smith, 9 Wallace, 95; Shaw v. Kellog, 107 U.S. 312; Wright v. Roseberry, 121 U.S. 488.

The validity of legislative grants does not depend upon technical terms. Ward v. Bartholomew, 6 Pick. , 409; Rutherford v. Green's heirs, 2 Wheat., 196.

In the case at bar the legislature conveyed all the swamp lands in Warren county, between the Mississippi river and the hills, to said county, and authorized the county to sell and make good and valid titles. This language is plain, unambiguous and needs no construction, and if there is any doubt created, it is by the terms of the proviso. But the defendants seem to argue this case as if the proviso constituted the entire act, by seeking to maintain that the language of the proviso is indefinite and uncertain as to the land conveyed, and, by practically ignoring the granting part of the act, attempt to defeat the county's title. The title of the county does not depend upon the proviso, but upon the granting clause, and the language there, as stated, is unmistakable and the character and boundaries of the land conveyed are defined with technical accurateness. But considering the proviso with the granting part of the act and there can be no difficulty in determining the will of the legislature. All the land was conveyed to the county of Warren for a specific purpose, and being thus vested with the legal title to all the land, the legislature, possibly owing to the uncertainty as to the extent of the area granted, and not knowing positively whether there were fifty, sixty or more thousand acres in the grant, limited the county's beneficial interest under the provisions of that act, in the property to 50,000 acres.

It placed the title of all of it in the county with the right to convey good and valid title, but the county can sell only 50,000 acres thereof under the act. This state of facts does not present a case of the conveyance of 50,000 acres of unidentified lands, and all the authorities, therefore, applicable to uncertainties of description are not important. Statutes should receive a sensible construction, such as will effectuate the legislature's intention and avoid, if possible, an unjust or absurd conclusion. In Re Chapman Petitioner, 166 U.S. 661; United States v. Denver & Rio Grande Railroad Co., 156 U.S. 1; Wisconsin Central Railroad Co. v. Forsythe, 159 U. S. S. 570; Mitchell v. Wells, 37 Miss. 241; Lemonius v. Meyer, 71 Miss. 514; Smith v. Furbish, 47 L. A. Rep., 226.

Mayes & Harris, on same side.

The act of 1852 cannot be properly understood or valued without a preliminary consideration of the history of the swamp land grants made by the United States to the various states in the year 1850. The court will find that statute set forth in full in Wright v. Roseberry, 121 U.S. 488. The grant was properly accepted by the various states, and the lands were appropriated to the purposes designed.

"Soon after the passage of this act, the question arose as to the time the grant took effect; whether at the date of the act or on the issuance of the patent to the state upon the request of the governor after the lists and plats of the lands were made out by the secretary of the interior and transmitted to him. . . The language of the first section of the act indicates a grant in praesenti to each state of lands within its limits of the character described. Its words, 'shall be, and are hereby, granted' import an immediate transfer, not a promise of a transfer in the future. It was only when the other sections of the act were read that a doubt was raised as to the immediate operation of the act. On the one hand it was contended that those sections postponed the vesting of title in the state until the lands granted were identified and a patent of the United States for them was issued. On the other hand, it was insisted that effect must be given to the clear words of the granting clause of the first section, which, ex vi termini, import the passing of a present interest, and that, in consistency with them, the other provisions of the act should be regarded as simply providing the mode of identifying the lands and furnishing documentary evidence of their identification, and not as a limitation upon vesting the right to them in the state." Wright v. Roseberry, 121 U.S. 488.

The court will note carefully this decision, which is the accumulation of a long line of previous decisions on the same subject, that the inchoate title to these lands vested immediately in the state by the grant itself, and the fact that the statute called for the execution of a subsequent patent was not an arrest or suspension of the vestiture of the title until the patent should issue. The swamp land grant so made was for the specific purpose of protecting the lands so granted from overflow through their management and sale by the state, the manifest object of congress being to augment the values of property and of the lands in the states themselves, whereby the United States government would derive an immediate, though a secondary, benefit, the federal government not being provided with the machinery for developing the lands through its own agencies. It is true that, an subsequently has been decided, this grant did not constitute a contract between the state on one hand and the United States on the other that the proceeds should be applied exclusively to levee or drainage purposes, nor did it constitute a technical trust of such proceeds, but it was the institution of a relation between the state and the United States based on good faith between the sovereignties, and while no citizen could interfere in case such good faith was not observed, yet, nevertheless, the obligation of honor and good faith did exist, and is expressly asserted in the decisions of the supreme court of the United States. United States v. Louisiana, 127 U.S. 182, and earlier cases therein cited. It was this interest so created in 1850 with which the legislature of Mississippi in the year 1852 (being the first session of the legislature after the passage of the act of congress making the grant) undertook to deal.

At the regular session of 1852 the following acts were passed:

1. An act, approved March 3, 1852 (laws 1852, p. 132), granting 35,000 acres of the swamp lands in Homochitto swamp to the commissioners of the Homochitto river, and also granting all swamp and overflowed lands on Leaf river to the commissioners for Leaf river. Sections 1 and 10.

2. An act, approved March 12, 1852 (laws, p. 99), granting the swamp and overflowed lands on Pearl river in certain counties named, to the commissioners of the southern district of Pearl river. Section 2.

3. An act, approved March 15, 1852 (laws, p. 41), providing for the issuance of land scrip to the counties of DeSoto, Tunica, Coahoma, Bolivar, Washington, Issaquena and Sunflower, such scrip to be located, among other lands, on the swamp lands aforesaid situated within said counties. Section 12.

4. An act, approved March 16, 1852 (laws, p. 31), making it the duty of the governor to take steps necessary to procure from the United States the location of the lands under the swamp land grant and the patents thereof from the secretary of the interior.

5. An act, approved March 16, 1852 (laws, p. 33), providing that, "on all of the rivers and streams east of the western base of the hills bordering; on the Mississippi bottom, from the Louisiana line to a point opposite the mouth of the Yazoo river, and on all the rivers and streams east of the western base of the hills bordering on the bottoms of the Yazoo and Tallahatchie rivers, the swamp lands donated as above should be and were granted to the counties in which such lands were situated; and also appropriating 60,000 acres of the swamp lands situated in the counties of Tallahatchie, Holmes, Carroll and Sunflower to the improvement of the navigation of the Yazoo, Tchula and Tallahatchie rivers up to the mouth of Coldwater. Sections 1 and 7.

It will be observed that in all this legislation there was no provision for Warren county and no appropriation or donation of the lands lying therein. The entire subject was not exhausted; wherefore, at the succeeding session of the legislature, which was a special session, of October, 1852, among other minor bills, the following additional legislation was had:

1. An act approved October 18, 1852 (laws, p. 73), appropriating to the county of Tunica 100,000 acres, and to the county of DeSoto 36,000 acres of the swamp lands aforesaid.

2. An act approved October 19, 1852 (laws, p. 94), entitled "An act to aid the construction of levees in Warren county and for other purposes," ceding 50,000 acres of...