PENGRAtI·. MUNZ.
of the selection 21, :Urider the act of 1864, by the secretary of the interior in April, 1871, gave the road company a perfect title thereto. The subsequent passage of the act df'1874, authorizing patents to issue in such cases, did not affect 1the title already vested.. The effect of a :under that act, is not to pass the title, but to give patent, when the patentee record' evidence of an already existing one. Lrtngdeau v; Hanes; 21 Wall. 529. Wherefore it is of no moment that it does not appear that a patent has issued to the state or itsgrrntee for the premises. The title of the latter was on the approval by the secretary in 1874 of the selection of seCtion 2.1 under the act of 1864. As has been shown by the terms of the swamp-land act, the fee of any tract of land does not pass to the state until the secretary has ascertained that it comes within its operati(>U, and causes a patent to issue therefor; The official certificate that the land is swamp only-gives the state an eqUity or right to a patent. Such an interest cannot be set up as a defense in this actionagainst the prima Jacie legal title of the plaintiff.. But admitting that the listing of the land as swamp vests the fee in the state, and that the patent thereon is a mere formal matter, which follows of course,the listing of section 21 as swamp land in 1882, more than three years after the same was certified to the state under the wagon-road grant, did not or affect the rights of the parties. Such listing, even if it had been deliberate and intentional, in the face of the fact that the land had already been duly listed to the state under the wagon-road grant, was simply void. Smithv. Ewing, 23 Fed. Rep. 741. But the truth is, it was a mere mistake,-probably a clerical misprision,-which the department cim:ected as soon as attention was called to it by the register and receiverMthe proper land-office. The power to correct such a mistake is necessarily implied from the power to approve the selection, and ia supported by authority. Carroll v. SaffOTd, 3 How. 460; LeRoy v. (J/Q,yton, 2 Sawy. 493; Bell v. Hearne, 19 How. 252. And lis the aot which oonstituted the mistake was void, and the right to the land had alrae.dy been duly ascertained and set forth, the result would be the same if it never had been corrected. The authority to determine to which of the two grants to the state this section 21 properly belonged was vested...in the secretary of the interior, generally, by section 441· of the Revised Statutes, which gave him supervision-final control-of the public business relating to the public lands, and specililly and particularly as to the grant of swamp land, by the act making the same. In awarding this section to the wagon-road grant, or rather approving of its selection thereunder, the secretary must, in legal contemplation, have decided that it was not swamp. The decision, so far as it appears', was duly made, in the regular COurse of business, in the administration of the law relating to the subject, and with the evidence contained in the public surveys as to the character of the land before him or within his official reach. The decision that the land belonged to the wagon;.road grant was, in legal effect, also a. decision that it did not belong to the swamp-land, grant. The latter conclusion, under the circumstanees,isa. necessary element of the former. Nor can this con-
836
FEDERAL REPORTER.
Qlusion be impeached or contradicted in this action by oral evidence as to the character of the land, Sul;>ject to the power of a court of equity in certain cases to correct or set asid!3 the final action of the department for fraud or mistake, not am.ere error of judgment, in disposing of the public lands, its decisions on questions of fact cannot be rev:iewed or cl;tlled in question elsewhere. TowsleJY, 13 Wall. 72; Sharp v. Stephens, 6 Sawy. 48. Therefore oral evidence offered by the defendant, concerning the sfampy character of this land, is incompetent, and cannot be considered. . . . The state was the granteEdn both these grants. Itaccepted the land as part of the wagon-road grant, or 8,llowed: its grantee or agent to do so. At least there is no evidence that it ever selected this section under the grant, and presented it for certification as part thereof. And while this. may have been dqne, it is morally certain that it was not done until after the prElmisElS were cElrtified to the grantee of the state unde.the wagon-road grant, nor until the grant had lapsed, for want of selection, .within the time prescrjbed. The non-action of the state in this matter probably arose from the fact that it was. thought best that the land should go to the construction of the wagon road, which was then. regardEld as a meritorious enterprise. For long after this swampland grant was made no interest was taken in it, nor was it generally understood that there was any considerable quantity ofland in the state .to which it was at all applicable. For 10 years the state took no steps to secure any land under it, preferring, as it appears, to make its selections under the grants for. the benefit of roads and schools. The fact that some portions of these selections were damp enough to be called swamp was no objection to them, but often a recommendation; and in my.judgment, it would have been well if that policy had been continued. But. be.that as it may, in the meantime this land was formally selected and certified to the state as wl1gon-road land, with its acquiescence, if not active concurrence, and it is now estopped, as against the plaintiff, to deny that the premises are iJ;pluded in such grant, or to assert. that it acquired them under the swamp-land grant. And if the state is so estopped, so is its grantee, .thedefendant. . The defendant defends for whole of the W. ! of section 21, but it does not appear, from his own showing, that he has any claim to the N. ! thereof. His purchase from the state only includes the E. ! and the S. W. i of the section. But the claim of the defendant to be the owner of any part of the premises on the facts proven must fail on either of the following groun,ds: (1) At and before the defendant's purchase from the state under the swamp-land grant, the right of the state thereunder had lapsed and become of no effect. (2) The land was already certified to the grantee of the state,under the wagon-road grant by the secretary of the interior, which certification is a decision of the question as to the character of the land, and the grant under which it properly belonged, by a tribunal having exclusive jurisdiction of the same. (3) The defendant, as the grantee of the state, against the plaintiff, is estopped to assert or maintain that the preplises inured to the stj],te under the