CHANDLER ". CALUMET & H. MIN. CO.
665
CHANDLER t1. CALUMET
& H. MIN.
Co.
(Ot'rcuit Oourt,
w: D. Michigan. No D.
November 14, lSSS:)
1.
PuBLIC LANDS-SWAMP LANDS-PAROL EVIDENCE.
Under the provisions of the act of congress of September 28, 1850, conferring swamp lands, and the Michigan act of June 28, 1851, evidence in pal' that .a parcel of land was at the date of the first· named act of the quality therein described, is incompetent. after the secretary of the interior has discharged his duty, and approved lists of swamp lands, made under his directions from the field-nores of survey, which lists do not contain the land in question. although embracing other lands in the township in which it lies, and where no judicial or other proceedingshave been bad to modify his action, or to extend or renew his powers, over lands not so approved. In such ease the state can-. not claim that lands not so approved passed to it under the language of the act of congress.
2.
The state of Michigan, having accepted from the United States a grant of lands to build a canal, provided for the selection of the same by its own agents, subject to approval by the secretary of the interior, made a contract with a corporation for its construction, and patented the land in question, (with other lands,) duly selected and approved, in accordance with its legisla· tionand that of congress on the subject, to such contractor, in 1855, who received the same bona .fide, is estopped from setting up that the land inured to it under the swamp grant. and not under the canal grant. 10 St. at Large, 35; Sess. Laws Mich. 18G3, No. 38, p. 48. (Syllabu8 by the Court.)
SAME-EsTOPPEL BY STATE.
At Law. The action was ejectment for the S. E. t of the N. W. t of s{)ction 23, township 56N., range 33 W., in Houghton county, Mich. This lanq lies close to the outcrop of the Calumet lode, the lode underlying the whole of it. Plaintiff claimed the land under a patent issued by Michigan to him, November 3, 1887, describing the land as "swamp" land. By the act of congress of September 28, 1850, the United States gave to Michigan (and other states) the whole of the swamp and overflowed lands made unfit thereby for cultivation, within the state, and made it the duty of the secretary of the interior to make accurate lists and plats of all such lands, and transmit the same to the governor of the state, and at his request to cause patents thereof to issue to the state, conveying to it the fee-simple of such lands. It appeared on trial, by the records of the land-offices of Michigan and the United States, that the secretary had, in 1854, "listed" and approved to Michigan a large number of descriptions lying in the above township and range as swamp lands; the laIfd in dispute not being included therein, nor in any list of l:lwamp lands made at any time by the secretary. It appeared also that in 1850, after the passage of the above act of congress, the secretary of the interior had written to the United States surveyor general a letter of instructions as to the mode of selecting or segregating the swamplands from the other public lands, in which he had directed that in cases where the field-notes ,of the United States survey of lands should be accepted by the state as the basis of segregation, and tpe intersections of the lines of sw.amp or 'Overflow with those of the i::urvey alone were given, those intersecti()ns
666
FEDERA.L REPORTER.
might be connected by straight lines; and all legal subdivisions, the by those lines to be within the greater part of which swamp or overflow, should be certified to the state as swamp lands. Michigan, by act onts legislature of June 28, 1851, accepted the grant, and adopted the notes of the United States surveys as the basis upon which they would receive the swam.p lands. The surveyor general for Michigan, under the legislation and letter of instructions, caused plats to be made in accordance with the field-notes, and made lists of the swamp lands, including those in the township mentioned, and transmitted the This list did not contain the land same to the United States in question, and the list was approved by the secretary, as above mentioned. The plats so made by the surveyor general from the field-notes were, after the swamp selections had been listed by him from them, lodged in the Michigan land-office at Lansing. The plat of this township showed a numper of lines in pencil upon it, supposed to have been drawn in accordance with these instructions, and a number of parcels marked "S"in pencil,.anq among those so appearing to be marked was the land in question. The plaintiff claimed that the land in question, being marked "S," and being more than half within pencil lines so drawn, was swamp land, although never. listed as such by the surveyor general, and never listed or approved as such by the secretary. and offered the plat with said pencil notations as proof thereof. He claimed further that the evidence of witnesses was competent to prove that the land in question was, in 1850, in fact swamp land, thereby made unfit for cui· tivation,and offered such evidence; By act of congress of August 26, 1852, there was granted to Michigan, for the purpose of building the Sault Ste. Marie canal, 750,000 /).cres of publiclandsj to be selecterl by agents to be appointed by the governor, of Michigan, subject to the approval of the secretary of the interior, from any lands in Michigan subject to private entry. Michigan accepted this grant by act of February 5, 1853, empowering the governor to appoint agents to select the land, to contract of the canal, and to confer upon the builders the grant, for the or such part thereof as should be agreed upon as the price for doing the work. It appeared that the contract was made, the entire grant being the price agreed upon, and the canal was built in accordance therewith, and the lands(illc1uding the lalld in question) were patented by the state to the conttlibtor after having been duly selected by the state agents, and duly approved by the secretary. One of these patfmts, including the land in question, was executed by the state in 1855. The Michigan act provided that patents should be issued by the state of the lands "Selected by the state agents. The defendant introduced deeds and records showing' itself the owner of the land in question by intermediate conveyances from the first patentee of the state. Ball&: Hanscom, Prank E. Robson, and Isaac Marston, for plaintiff. T. L. O!tadbou'r'ne and Ashley Pood, for defendant. . I '
SEVERlllNS, J., (after stating the facts as above.) In giving effect to the grant of 1850, it has been held by the supreme court of the United States
CHANDL:E;R
CALUMET & H. MIN. CO.
667
tpat, in order that the grant should accomplish its purpose, rather than fail, where the secretary of the interior had taken no action inexecuting a duty devolved upon him of designating the lands which should be included in the grant,and where, after the lapse of a reasonable time for the segregating of the lands in that way, nothing h,ad been dOlle in that direction, parol proof might be received for the purpose of showing that the lands were of the character described in the general language of the act. .There is some analogy in this to the case of an appointed arbitrator or umpire, who refuses or fa.ils to act. Other means are then allowable to determine the matter, because justice should not be withheld, even though the instrumentalities to it, more especially in contemplation, fail. That was tbe consideration which led to the decision of the court in Railroad Co. Smith, 9 Wall. 95. This, however, does not at all impugn the general proposition that,tbe secretary of the interior was intended by congress to act as tbe agent of the government in determining the lands, in respect oftheir character, upon which the grant should operate; nor the further proposition that, where the secretary has discharged hisduty, and made the determination throughout a state., or a comprehensive 10ca.lity, and no objection bas been made by the state to the mode and result of the exercise of that duty, and no proceedings, judicial or otherwise, have been resorted to for the purpose of moiifying the secretary'E'l action, or extending or renewing the exercise of his powers over other lands, the state cannot assume that other lands, not claimed theretofore under tbe act, and never li!'ted or approved under it, passed to it by the general language of the act, and rest its right to them upon evidence in pais in to their quality. Such a course would render nugatory the substantial purpose of appointing the secreta.ry at all, which manifestly was to identify the lands, and thus fix the grant. It was a matter of great public convenience and importance that this extensive grant of parcels out of the government lands should be identified; and that identification is nothing, if, after it has taken place, tbe whole matter remains at large. These are the conclusions which I think result from the course of adjudication in the supreme court from the case of Railroad Co. v. Smith, 9 Wall. 95, to Wright v. Roseberry, 121 U. S. 483,7 Sup. Ct. Rep. 985. But upon another /!round I am of the opinion that the plaintiff cannot prevail. That the swamp-land grant of 1850 conferred upon the states complete dominion over the granted lands, and absolute proprietorship therein, so far as third persons are concerned, bas been repeatedly beld. The question has been somewhat widely discussed as to whether there was anything in the nature of a trust between the general government and the state, in respect of these lands, but the result of the discussion upon it is that it is settled in the negative. The authorities which may be cited in support of this general proposition are the cases known as the "Iowa Railroad Cases,"-Emigrant Co. v. COU?lty oj Adams, 100 U. S. 61; Mills Co. v. Railroad Cos., 107 U. S. 557, 2 Sup. Ct. Rep. 654; and the cases in Louisiana, Hagarv. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. Rep. 663, and U. S. v. Louisiana, 127 U. S. 182, 8 Sup. Ct. Rep.
668 1047. lt was an absolute gift to the states, without any limitation in the nature ·'Of a property trust, or anything to prevent the application by the state ()f the swamp-land fund to general purposes. The obligation of the state should be commensurate with the proprietary rights accorded to it, and its dealings. with such rights, tested by the principles applicable to a proprietor. The most that can be claimed on the facts, interpreted most favorably to the plaintiff, is that the state-the state of Michigan, in this case-had a right to have this land listed and approved by the secretary of the interior as swamp land, and thus designated as part of the grant. But it was a right which was not asserted by the state. If it had been, it might have been disputed by the secretary; and, if he had denied it, it would never have ripened into title. At least, this would be so unless some further proceedings should be taken to vindicate and enforce that right. Instead of insisting upon this right, if it had it, the state selected and received this description under another grant, and veyed it fora valuable consideration to a third person, who took it bona fide. The state could not, after this had been done, be heard to say that it would repudiate its own course, and, dishonoring its patent, claim title under the act of 1850, and resell it to another. Certainly this could not be done without a judicial proceeding instituted for that purpose. How that might have resulted, it is not for me to say, but it is the inclination of my opinion that the result here indicated must be the result even in such a proceeding as that, or anywhere where these facts came in controversy. The result of tpese views is that the offers of oral evidence will be declined. The oral evidence offered to show that these lands were swamp lands mentioned in the grant, is, upon what appear to be undisputed facts, rejected; and the court will therefore instruct the jury that, upon the facts as they are made to appear in this case, the defendant is entitled to the. verdict. The jury were instructed accordingly.
AMADOR ME:DE:AN GOLD MIN. CO. V. SOUTH SPRmG HILL GOLD MIN.
et al.
(Oircuit Court, No D. Oalifornia. November 5, 1888.)
MINES AND MINING-MINING LODES-DIPPING INTO AGRICULTURAL LANDS. : An owner under a patent of mineral lands. including a gold-bearing vein 01
s. PUBLIC LANDS-AGRICULTURAL LANDS-EQUITABLE TITLE.
lode having its apex within the boundaries of the land patented, is not entitled to follow his vein or lode down on the dip, across his exterior bounda· ries, into the lands of an adjacent proprietor, holding an elder title under a patent for agricultural lands.
The equitable title to public lands vests in the purchaser immediately upon the lawful entry, payment of purchase money, and issue of certificate of purchase thereon.. After such entry, no proprietary or pecuniary interest remains in the United States. and no subsequent grant Qf any character can affect the right of such prior purchaser. (SyllabUS Ihe Oourt.)