# Wright v. Roseberry

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United States Supreme Court
121 U.S. 488
Wright v. Roseberry
This is an action to recover possession of a tract of land situated in the county of Yolo, in the state of California, consisting, according to the public surveys, of portions of sections 24, 25, and 36, of township 11 N., range 2 E., in that county, and embracing 560 acres. Thel and is particularly described as follows: The N. 1/2 of the S. E. 1/4, and the S. E. 1/4 of the S. E. 1/4, of section 24, the E. 1/2 of the N. E. 1/4, and the S. W. 1/4 of the N. E. 1/4, of section 25, the S. E. 1/4 of section 25, and the N. E. 1/4 of section 36, all in township 11 N., range 2 E., Mount Diablo base and meridian. It is alleged to be swamp and overflowed land, which was granted to the state by the act of congress of September 28, 1850, 'to enable the state of Arkansas and other states to reclaim the swamp lands within their limits.' 9 St. 519. The complaint is in the usual form in such actions, alleging the plaintiff's seizin in fee of the land, and his right of possession, the unlawful entry thereon of the defendants, and their ousting him therefrom; and their continued withholding of the possession, to his damage of $1,000. It also alleges that the rents and profits of the land are of the value of $560 a year. The prayer is for judgment of restitution of the premises, and for the damages, rents, and profits claimed.
Two of the defendants united in their answer, one of them being a tenant of the other; the other defendants answered separately. All denied the alle gations of the complaint, and, except in the case of the tenant, asserted ownership in fee of portions of the demanded premises, which they described in their respective answers; and all set up the statute of limitations in bar of the action.
The action was twice tried by the state district court in which it was commenced, and, by stipulation of parties, without a jury. At both trials the plaintiff asserted title to the premises as swamp and overflowed lands by conveyance from parties who had purchased them from the state. The defendants claimed the premises through patents of the United States, issued under the pre-emption laws to them, or to parties from whom they derived their interest. On the first trial the court found that 160 acres were swamp and overflowed land on the twenty-eighth the act of congress of that date, and the act of congress of that dateAnd gave judgment in favor of the plaintiff for their possession; but, as to the other portions of the premises, the court failed to find whether or not the plaintiff was the owner thereof or entitled to their possession. For this failure the supreme court of the state, on appeal, reversed the judgment, and remanded the cause to the district court, with directions to find upon those issues from the evidence already taken, and such further evidence as might be adduced, and to render judgment upon the whole case. Upon the second trial thus ordered, further testimony was accordingly taken. The court thereupon set aside its previous findings, found on all the issues in favor of the defendants, and gave judgment in their favor. On appeal to the supreme court this judgment was affirmed.
John Mullan, for plaintiff in error.
W. C. Belcher, for defendants in error.
[Argument of Counsel from pages 490-494 intentionally omitted]
FIELD J.
It does not distinctly appear what caused the district court to change its first decision with respect to those lands, which it had originally held to be swamp and overflowed; but as it admitted in evidence the patents of the United States, and held that they passed the title to the defendants, it probably had reached the conclusion which the supreme court subsequently announced, that the plaintiff could not maintain an action upon the title to swamp and overflowed lands until they had been certified as such to the state, pursuant to the fourth section of the act of congress of July 23, 1866, 'to quiet land titles in California.' For want of such certificate, the court decided that the title to the demanded premises never vested in the state, and that she could not convey a title to the plaintiff upon which he could maintain an action of ejectment against persons in possession under patents of the United States. This ruling constitutes the alleged error for which a reversal is sought. To determine its correctness, it will be necessary to consider the nature of the grant to the state of the swamp and overflowed lands, the proceedings taken under the laws of the state and of the United States to ascertain and define their boundaries, and the effect of the act of July 23, 1866, and of section 2488 of the Revised Statutes, as confirmatory of previous segregations by the state. The following is the swamp-land act of September 28, 1850.
'An act to enable the state of Arkansas and other states to reclaim the 'swamp lands' within their limits.
'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, 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 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, cause a patent to be issued to the state therefor; and on that patent the fee-simple to the 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 levess and drains aforesaid.
'Sec. 3. And be it further enacted, that in making out a list and plats of the land 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.' 9 St. 519.
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 issue of the patent to the state upon the request of the governor, after the list and plats of the lands were made out by the secretary of the interior and transmitted to him. The question was one of great importance to all the states in which there were swamp and overflowed lands. These lands amounted to many millions of acres. In California alone there were, according to the reports of the land department, nearly 2,000,000 of acres.
The object of the grant, as stated in the act, was to enable the several states to which it was made to construct the necessary levess and drains to reclaim the lands; and the act required the proceeds from them, whether from their sale or other disposition, to be used, so far as necessary, exclusively for that purpose. The early reclamation of the lands was of great importance to the states, not only on account of their extraordinary fertility when once reclaimed, but for the reason that until then they were the cause of malarial fevers and diseases in the neighborhood.
The language of the first section of the act indicates a grant in proesenti to each state of lands within its limits of the character described. Its words, 'shall be, and are hereby, granted,' import an immediate transfer of interest, 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 these 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 insise d 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 dentification, and not as a limitation upon vesting the right to them in the state, as this would make the investiture dependent upon the request of the governor, and not upon the act of congress. It was also urged that identification of the lands could be made in a majority of instances from simple examination of them, and that no policy of the government could be advanced by postponing the passing of the title until the identification by the secretary of the interior; and that the clause providing that upon the issue of the patent the fee should pass, was merely declaratory of the nature of the title, the patent operating merely by way of further assurance.
The question thus brought to the attention of the department, under whose supervision the act was to be carried into effect, was one upon which men might very well differ; but after its solution had been reached, and the conclusion was acted upon, necessarily affecting titles to immense tracts of land, there should be the clearest evidence of error, as well as the strongest reasons of policy and justice controlling, before a departure from it should be sanctioned.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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