# Wright v. Roseberry/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
121 U.S. 488
Wright v. Roseberry
There are numerous cases in the history of the country where congress after confirming to parties title to lands, has directed that patents of the United States should be issued to them; yet it has been held that the patent in such cases operated merely as record evidence of the title, and added nothing to the title itself. An illustration of this is presented in the case of claims confirmed to lands in the Northwest territory which originated previously to its cession to the United States. By the act of congress of March 26, 1804, (2 St. 277, c. 35,) every person claiming lands within certain designated limits of that territory, by virtue of a legal grant made by the French government prior to the treaty of Paris of the tenth of February, 1763; or by the British government subsequent to that period, and prior to the treaty of peace between the United States and Great Britain, on the third of September, 1783; or by virtue of any resolution or act of congress subsequent to that treaty,-was was required to deliver, on or before the first of January, 1805, to the register of the land-office of the district in which the land was situated, a notice stating the nature and extent of his claim, together with a plat of the tract or tracts claimed. The register of the land-office and the receiver of public moneys were constituted commissioners within their respective districts for the purpose of examining the claims. It was made their duty to hear, in a summary manner, all matters respecting them, to examine witnesses, and to take any testimony that might be adduced before them, and decide thereon according to justice and equity, and to transmit a transcript of their decisions in favor of claimants to the secretary of the treasury, who was required to lay it before congress at the ensuing session.
Among the claims presented under this act was one by the heirs of Jean Baptiste Tongas for lands in the neighborhood of Vincennes, the claim being founded upon an ancient grant to their ancestor. The commissioners decided in favor of the heirs, and confirmed their claim, and transmitted a transcript of their decision to the secretary of the treasury, who laid the same before congress. By the act of March 3, 1807, (2 St. 446, c. 47,) this and other decisions in favor of persons claiming lands in the same district of Vincennes, transmitted to the secretary of the treasury, were confirmed. The act declared that every person, or his legal representative, whose claim was confirmed, and who had not prei ously obtained a patent therefor from the governor of the territory north-west of Ohio, or of Indiana territory, should, whenever his claim was located and surveyed, have a right to receive from the register of the land-office at Vincennes a certificate, which should entitle him to a patent for his land, to be issued to him in like manner as is provided by law 'for the other lands of the United States.' A survey of the tract thus confirmed was made in 1820, but no patent was issued until 1872, when one was issued, reciting the confirmation by the act of 1807 of the decision of the commissioners under the act of 1804. The patent purported 'to give and grant' to the heirs of Tongas the tract in question in fee. A party claiming under the heirs brought ejectment for the premises. The defendant claimed as tenant under one who had been in actual possession under claim and color of title for thirty years. The question for decision was, when did the title to the land vest in the heirs of Tongas? The court below held that it vested, by the act of confirmation of 1807, when the land was located and surveyed in 1820, and that the patent was not itself the grant of the land by the United States, but merely evidence that a grant had been made to the heirs of Tongas. The defendant, therefore, had judgment. The case being brought to this court, the judgment was affirmed. Langdeau v. Hanes, 21 Wall. 521. In deciding the case, the court said: 'In the legislation of congress a patent has a double operation. It is a conveyance by the government, when the government has any interest to convey; but, where it is issued upon the confirmation of a claim of a previously existing title, it is documentary evidence, having the dignity of a record, of the existence of that title, or of such equities respecting the claim as justify its recognition and confirmation. The instrument is not the less efficacious as evidence of previously existing rights, because it also embodies words of release or transfer from the government. In the present case the patent would have been of great value to the claimants, as record evidence of the ancient possession and title of their ancestor, and of the recognition and confirmation by the United States, and would have obviated, in any controversies at law respecting the land, the necessity of other proof, and would thus have been to them an instrument of quiet and security. But it would have added nothing to the force of the confirmation. The survey required for the patent was only to secure certainty of description in the instrument, and to inform the government of the quantity reserved to private parties from the domain ceded by Virginia.'
The grants by the United States of land to aid in the construction of reilroads, in relation to which we have had many cases before us, are in many particulars analogous to the grant by the swamp-land act. They are usually of a specified number of sections of land on each side of the proposed route of the road, with a reservation of certain sales or of other disposition made before such road becomes definitely fixed. The usual words of grant in such cases are similar to those in the swamp-land act-'there is hereby granted.' Though it is impossible to locate the land granted until the route is fixed, yet when that is fixed the grant takes effect as of the date of the act. This would be equally the case were the mode prescribed to fix the boundaries more complicated and difficult. Thus, in the case of Leavenworth, L. & G. R. Co. v. U.S., 92 U.S. 733, the language was: 'There be, and is hereby, granted to the state of Kansas;' and in reference to it the court said: 'It creates an immediate interest, and does not indicate a purpose to give in future. 'There be, and is hereby, granted,' are words of absolute donation, and import a grant in proesenti. This court has held that they can have no other meaning, and the land department, on this interpretation of them, has uniformly administered evr y previous similar grant. They vest a present title in the state of Kansas, though a survey of the lands and a location of the lands are necessary to give precision to it, and attach it to any particular tract. The grant then becomes certain, and by relation has the same effect upon the selected parcels as if it had specifically described them.' See, also, Railroad Co. v. Baldwin, 103 U.S. 426; Missouri, K. & T. Ry. Co. v. Kansas Pac. Ry. Co., 97 U.S. 491; Schulenberg v. Harriman, 21 Wall. 44, 60; Rutherford v. Greene's Heirs, 2 Wheat. 196.
It is plain that the difficulty of identifying the swamp and overflowed lands could not defeat or impair the effect of the granting clause, by whomsoever such identification was required to be made. When identified, the title would become perfect as of the date of the act. The patent would be evidence of such identification, and declaratory of the title conveyed. It would establish definitely the extent and boundaries of the swampand overflowed lands in any township, and thus render it unnecessary to resort to oral evidence on that subject. It would settle what otherwise might always be a mooted point, whether the greater part of any legal subdivision was so wet and unfit for cultivation as to carry the whole subdivision into the list. The determination of the secretary upon these matters, as shown by the patent, would be conclusive as against any collateral attacks, he being the officer to whose supervision and control the matter is especially confided. The patent would thus be an invaluable muniment of title, and a source of quiet and peace to its possessor. But the right of the state under the first section would not be enlarged by the action of the secretary, except as to land, not swamp of overflowed, contained in a legal subdivision, as mentioned in the fourth section; Nor could it be defeated, in regard to swamp and overflowed lands, by his refusal to have the required list made out, or the patent issued, notwithstanding the delays and embarrassments which might ensue.
The conclusion which the land department reached upon its examination of the character of the grant soon after the passage of the act was that the title passed to the state at the date of the act. In a communication to the commissioner of the general land-office, under date of December 23, 1851, Mr. Stuart, then secretary of the interior, referring to the act of 1850 and the act of 1849, to aid Louisiana to drain her swamp lands; and stating that the first question involved was as to the period when the grants took effect,-whether at the date of the law, or at the date of the approval of the selections by the secretary,-said: 'In each case, the granting clause is in the first section, and the words employed, viz., 'are hereby granted,' seem to me to import a grant in proesenti. They confer the right to the land, though other proceedings are necessary to perfect the title. When the selections are made and approved, or the patent issued, the title therefor becomes perfect, and has relation back to the date of the grant. And, further: 'As the grants are regarded as taking effect from the date of the laws making them respectively, and as vesting the inchoate title in the states, it follows that any subsequent sale or location of swamp or overflowed lands must be held illegal, and the purchase money refunded, or a change of location ordered.' Lester's Land Laws, 549, No. 578.
This construction of the grant has been followed by the secretary's successors to this day. In a communication to the commissioner of the general land-office, April 19, 1877, Secretary Schurz said: 'The legal character of this grant [of 1850] has often been passed upon by the courts, and it has been uniformly held that the act was a present grant, vesting in the state, proprio vigore from the day of its date, title to all the land of the particular description therein designated, wanting nothing but the definition of the boundr ies to make it perfect.' And therefore he held that swamp lands were not, in March, 1853, when the pre-emption laws were extended to California, public lands, and for that reason could not be entered and sold under those laws. 'The act of September 28, 1850,' he added, 'was notice to the world that all of the swampy lands in California were thereby granted in proesenti to the state, and were not subject to pre-emption, entry, or sale thereafter; and the person who files a declaratory statement on lands actually swampy does so with full notice that they are not public lands, and that he cannot obtain any right thereby.' 2 Copp, Public Land Laws, 1048.
In a communication to the commissioner of February 25, 1886, Secretary Lamar said: 'The principle has been formerly established by the decisions of the courts and of this department that the grant of swamp lands made to the several states was a grant in proesenti, and conferred a present vested right to such lands as of the date of the grant, and that the field-notes of survey may be taken as a basis in determining the character of the laud, if the state so selects.' 4 Dec. Dept. Int. 415.
A similar construction of the grant was given by Atty. Gen. Black in an official communication to the secretary of the interior, under date of November 10, 1858. In February, 1853, congress had made a grant of land to the states of Arkansas and Missouri to aid in the construction of a railroad, and under this grant a part of the lands previously granted to the state of Arkansas by the act of September 28, 1850, under the designation of 'swamp lands,' was included; and the question asked of the attorney general was, which of the two acts gave the better title? In reply, he said: 'Where there is a conflict between two titles derived from the same source, either of which would be good if the other were out of the way, the elder one must always prevail, prior in tempore potior est in jure solved if the mere grant, [of 1850,] as you call it, gave the state a right to the land from the day of its date. That it did so there can be no doubt. In an opinion which I sent you on the seventh of June, 1857, concerning one of the same laws now under consideration, I said that a grant by congress does of itself, proprio vigore, pass to the grantee all the estate which the United States had in the subject-matter of the grant, except what is expressly excepted. I refer you to that opinion for the reasons and authorities upon which the principle is grounded. It is not necessary that the patent should issue before the title vests in the state under the act of 1850. The act of congress was itself a present grant, wanting nothing but a definition of boundaries to make it perfect, and to attain that object the secretary of the interior was directed to make out an accurate list and plat of the lands, and cause a patent to be issued therefor. But when a party is authorized to demand a patent for land, his title is vested as much as if he had the patent itself, which is but evidence of his title.' 9 Op. Attys. Gen. 254.
The same view of the act as a present grant, vesting in the state from its date the title to all the land within its limits of the particular description designated, wanting only a definition of boundaries to render the title perfect, was taken at an early period by the highest courts of several states within which swamp and overflowed lands existed. It was so held by the supreme court of Arkansas in 1859, in Fletcher v. Pool, 20 Ark. 100; in 1866, in Branch v. Mitchell, 24 Ark. 431, 444; and in 1874, in Ringo's Ex'r v. Rotan's Heirs, 29 Ark. 56.
In Fletcher v. Pool the court said: 'That the act was a present grant, vesting in the state, proprio vigore, from the day of its date, title to all the land of the particular description therein designated, wanting nothing but the definition of boundaries to make it perfect, no doubts can be entertained. The objecto f the second section was not to postpone the vestiture of title in the state until a patent should issue, but was to provide for the ascertainment of boundaries, and to prevent a premature interference with the lands by the state legislature before they were so designated as to avoid mistake and confusion.'
In Branch v. Mitchell the court said: 'We continue satisfied with the decisions heretofore made, and again hold that all the lands in the state, which were really and in fact swamp and overflowed, and thereby unfit for cultivation, passed to and vested in the state on the twenty-eighth of September, 1850. The case is the same as if the grant had been of all the prairie land, or all the woodland, or all the alluvial land, in the state; the difficulty of ascertainment of its character not affecting the question. The words of grant-the operative words-are direct and positive,-'shall be, and the same are hereby, granted to the state;' and the provision of the second section, that the secretary of the interior should make out and transmit to the governor a list and plats of the land described, and at the request of the governor cause a patent to issue to the state, and that 'on that patent the fee-simple to said lands shall vest in the said state,' can no more be held to limit the effect of the present grant in the first section than if, in a deed, after immediate and express conveyance of lands by some general description, it should be provided that, when the numbers should be ascertained, another deed should be made, 'on which the fee-simple should vest.' This would make the title of the state to any of the land depend on the request of the governor for a patent. The words of the second section must be held to be simply a definition of the nature of the title which the state took under the grant, and not a postponement of the period at which the title should vest.' 24 Ark. 444, 445.
And in Ringo's Ex'r v. Rotan's Heirs the court held that the title of the state to the swamp and overflowed lands granted to her by the act of September 28, 1850, accrued from the date 28, 1850, accrued from the date the state took precedence over a grant by the United States subsequent to that time.
The same view was held by the supreme court of California in 1858, in Owens v. Jackson, 9 Cal. 322; and in Summers v. Dickinson, Id. 554; and in 1864, in Kernan v. Griffith, 27 Cal. 87; and in 1882 was assumed to be the correct view in Sacramento Valley Reclamation Co. v. Cook, 61 Cal. 342. In the first of these cases, which was an action for the possession of swamp and overflowed lands held under a patent of the state, the defendant demurred to the complaint, on the ground that it did not show that the land had been surveyed and patented to the state. The demurrer was sustained in the court below, but the supreme court reversed the decision, holding that the state had the right to dispose of lands of that character granted to her by the act of 1850, prior to the patent of the United States. 'The act of congress,' said the court, 'describes the land, not by specific boundaries, but by its quality, and is a legislative grant of all the public lands within the state of the quality mentioned. The patent is matter of evidence and description by metes and bounds. The office of the patent is to make the description of the lands definite and conclusive, as between the United States and the state.' The same conclusion was reached in 1861 by the supreme court of Iowa, in Allison v. Halfacre, 11 Iowa, 450, which was subsequently followed in all its decisions on the subject.
At a later day the supreme courts of Missouri and Oregon held the same doctrine. Clarkson v. Buchanan, 53 Mo. 563; Campbell v. Wortman, 58 Mo. 258; Gaston v. Stott, 5 Or. 48. The supreme court of Illinois, in 1863, expressed the same view in Supervisors v. State's Attorney, 31 Ill. 68; then receded from it in Grantham v. Atkins, 63 Ill. 359; and in 1873, in Thompson v. Prince, 67 Ill. 281; but returned to its first conclusion in 1875, in Keller v. Brickey, 78 Ill. 133.
The question came before this court at the December term, 1869, in Railroad Co. v. Smith, 9 Wall. 95, and the same doctrine as to the character of the grant was affirmed. On the tenth of June, 1852, congress had made to the state of Missouri a grant of land to aid in the construction of certain railroads, and the legislature of the state had conveyed the land to the Hannibal & St. Joseph Railroad Company. One Smith held certain swamp and overflowed lands, which he had obtained from the state, and the question presented was whether the grant to the state in aid of the railroads covered the swamp and overflowed lands granted to her by the act of September 28, 1850, the latter not having been certified to the state by the secretary of the interior, not patented to her. After referring to the first section, the court said: 'Here is a present grant by congress of certain lands to the states within which they lie, but by a description which requires something more than a mere reference to their townships, ranges, and sections to identify them as coming within it. In this respect it is precisely like the railroad grants, which only become certain by the location of the road.' And after stating that it was the duty of the secretary of the interior to ascertain the character of the lands as swamp and overflowed, and to furnish the state with evidence of it, the court continued: 'Must the state lose the land, though clearly swamp land, because that officer has neglected to do this? The right of the state did not depend on his action, but on the act of congress, and, though the states might be embarrassed in the assertion of this right by the delay or failure of the secretary to ascertain and make out lists of these lands, the right of the states to them could not be defeated by that delay.' The court added that, as the secretary of the interior had no satisfactory evidence under his control to enable him to make out these lists, he must, if he attempted, it, rely on witnesses whose personal knowledge would enable them to report as to the character of the tracts claimed to be swamp and overflowed; 'that the matter to be shown was one of observation and examination, and, whether arising before the secretary, whose duty it was primarily to decide it, or before the court, whose duty it became because the secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose.' And it was held that the grant in aid of the railroads did not include the swamp and overflowed lands.
In French v. Fyan, 93 U.S. 169, which was before this court at October term, 1876, the same view was taken of the grant, and the effect to be given to a patent of the United States for swamp lands was stated. That was an action of ejectment for such lands for which a patent had been issued to the state of Missouri under the act of 1850. The lands had been conveyed to the Missouri Pacific Railroad Company by the state as part of the land granted to aid in the construction of its road by the act of June 10, 1862, and the plaintiff had by purchase become vested with the title of the company. To overcome the prima facie case made by him, the defendant gave in evidence the patent of the state under the swamp-land act of 1850, from which he traced title by regular conveyances. The plaintiff then offered to prove by witnesses who had known the character of the land from 1849 down to the time of the trial that the land was not swamp and overflowed, and made unfit thereby for cultivation, and that, since 1849, the greater part was not, and never had been, in that condition. The court below held that the question was concluded by the patent of the United States to the state for the land as swamp land under the act of September 28, 1850, and rejected the ts timony. The admissibility of the testimony was thus presented for determination. In giving our decision we said: 'This court has decided more than once that the swamp-land act was a grant in proesenti, by which the title to those lands passed at once to the state in whcih they lay, except as to the states admitted into the Union after its passage. The patent, therefore, which is the evidence that the lands contained in it had been identified as swamp lands under that act, relates back and gives certainty to the title of the date of the grant. As that act was passed two years prior to the act granting lands to the state of Missouri for the benefit of the railroad, the defendant had the better title on the face of the papers, notwithstanding the certificate to the railroad company for the same land was issued three years before the patent to the state under tha act of 1850; for while the title under the swamp-land act, being a present grant, takes effect as of the date of that act, or of the admission of the state into the Union when this occurred afterwards, there can be no claim of an earlier date than that of the act of 1852, two years later, for the inception of the title of the railroad company.' And upon the admissibility of parol testimony to show that the land in the patent was not swamp land, the court said that, by the second section of the act, the power and duty were conferred upon the secretary of the interior, as the head of the department which administerted the affairs of the public lands, of determining what lands were of the description granted, and made his office the tribunal whose decision on that subject was to be controlling. The parol evidence, therefore, was held to be inadmissible. 93 U.S. 172.
In commenting upon the case of Railroad Co. v. Smith, upon which reliance was placed for the admission of the parol testimony, the court said: 'The admission was placed expressly on the ground that the secretary of the interior had neglected or refused to do his duty; that he had made no selections or lists whatever, and would issue no patents, although many years had elapsed since the passage of the act.' 'There was no means,' it added, 'as this court has decided, to compel him to act; and if the party claiming under the statute in that case could not be permitted to prove that the land which the state had conveyed to him as swamp land, was in fact such, a total failure of justice would occur, and the entire grant of the state might be defeated by this neglect or refusal to do his duty.'
This view of the character of the grant was recognized in Rice v. Sioux City & St. P. R. Co., 110 U.S. 695, 4 Sup. Ct. Rep. 177, (decided at the October term, 1883.) The question there was whether the swamp-land act extended to territories upon their subsequent admission as states into the Union. It was held that it did not. Said the court, speaking by the chief justice: 'That the swamp-land act of 1850 operated as a grant in proesenti to the states then in existence, of all the swamp lands in their respective jurisdictions, is well settled;' citing the cases of Railroad Co. v. Smith, 9 Wall. 95; French v. Fyan, 93 U.S. 169; and Martin v. Marks, 97 U.S. 345. And again: 'The grant under the act of 1850 was to Arkansas and the other states of the Union. Arkansas was an existing state, and the grant was to all the states in proesenti. It was to operate upon existing things, and with reference to an existing state of facts.' 'It was to take effect at once, between an existing grantor and several separate existing grantees.'
The result of these decisions is that the grant of 1850 is one in proesenti, passing the title to the lands as of its date, but requiring identification of the lands to render the title perfect; that the action of the secretary in identifying them is conclusive against collateral attack, as the judgment of a special tribunal to which the determination of the matter is it rusted; but, when that officer has neglected or failed to make the identification, it is competent for the grantees of the state, to prevent their rights from being defeated, to identify the lands in any other appropriate mode which will effect that object. A resort to such mode of identification would also seem to be permissible where the secretary declares his inability to certify the lands to the state for any cause other than a consideration of their character.
The legislation of congress subsequent to the act of 1850, for the purpose of giving it effect, has been in consonance with the view stated of the nature of the grant. It has uniformly recognized the paramount character of the state's title, and has endeavored to correct the evils which in many cases followed from the delay of the secretary of the interior in identifying the lands, and furnishing to the state the required lists and plats. The legislatures of the several states in which such lands existed very generally themselves undertook to identify the lands, and to dispose of them, and for that purpose passed appropriate legislation for their survey and sale, and the issue of patents to the purchasers. Much inconvenience, and in many instances conflicts of title, arose between those claiming under the state and those claiming directly from the United States. To obviate this, on the second of March, 1855, congress passed an act 'for the relief of purchasers and locators of swamp and overflowed lands.' 10 St. 634, c. 147. The act provided that the president of the United States should cause patents to be issued to purchasers and locators who had made entries of the public lands claimed as swamp and overflowed lands with cash or land warrants, or scrip, prior to the issue of patents to states under the act of 1850: 'provided, that in all cases where any state, through its constituted authorities, may have sold or disposed of any tract or tracts of such land to any individual or individuals, and prior to the entry, sale, or location of the same under the pre-emption or other laws of the United States, no patent shall be issued by the president for such tract or tracts until such state, through its constituted authorities, shall release its claim thereto in such form as shall be prescribed by the secretary of the interior.'
The act also provided 'that, upon due proof by the authorized agent of the state or states, before the commissioner of the general land-office, that any of the lands purchased were swamp lands within the true intent and meaning of the act aforesaid, the purchase money shall be paid over to said state or states; and when the lands have been located by warrant or scrip, the said state or states shall be authorized to locate a quantity of like land upon any of the public lands subject to entry at $1.25 an acre, or less, and patents shall issue therefor upon the terms and conditions enumerated in the act aforesaid.'
There is here a plain recognition of the prior right of the state to the swamp lands within her limits, by the declaration that no patent of the United States shall be issued to purchasers from them of such lands without a release from the state, and that, in case of completed purchases from them, the purchase money shall be paid to the state, or, if the purchase was made by warrant or in scrip, the state may locate an equal quantity of land upon any other public lands subject to entry. By act of March 3, 1857, (11 St. 251, c. 117,) 'to confirm to the several states the swamp and overflowed lands selected under the act of September 28, 1850, and the act of March 2, 1849,' the act of March 2, 1855, was continued in force, and extended to all entries and locations of lands claimed as swamp, made since its passage.
The act of congress of March 12, 1860, (12 St. 3, c. 5,) extending the provisions of the swamp-land act to Minnesota and Oregon, recognizes in its second section their right and that of other states to make selections of the swamp lands, or rather to provide for their identification, without waiting for the action of the secretary of the interior. That section provides that the selection to be made from lands already surveyed in each of the states should be made within two years from the adjournment of the legislature of the state at its next session after the date of the act, and, as to all lands thereafter to be surveyed, within two years from such adjournment at the next session, after notice by the secretary of the interior to the governor of the state that the surveys have been completed and confirmed.
By an act passed on the twenty-third of July, 1866, entitled 'An act to quiet land titles in California,' (14 St. 219, c. 219,) congress changed the provisions of law for the identification of swamp and overflowed lands in that state. It no longer left their identification to the secretary of the interior, but provided for such identification by the joint action of the state and federal authorities.
As early as 1855 the legislature of California undertook to control and dispose of those lands. The secretary of the interior had neglected to make out any list and plats of the lands of this character, and to transmit them to the governor of the state, as required by the second section of the act of 1850. The state, therefore, proceeded in 1855 to assert her ownership over the lands, by providing for their survey and sale, and the issue of patents to the purchasers. Further legislation was also had on the subject in 1858 and 1859; and, in 1861, an act was passed providing for their reclamation and segregation, making it the duty of the county surveyors to segregate these lands in their respective counties from the high lands, and to make a complete map of the lands in legal subdivisions of sections and parts of sections, and to transmit a duplicate thereof to the surveyor general of the state. Laws Cal. 1861, 355.
The act of congress of twenty-third of July, 1866, was intended to effect the purpose indicated in its title. Previously to its passage there had been great confusion and uncertainty in relation to land titles in California. This arose with respect to other lands than swamp and overflowed lands, principally from the delay in extending the public surveys of the government, and the action of the state authorities in attempting to select and dispose of the lands granted to her in advance of such surveys. With respect to the swamp and overflowed lands, the confusion had arisen principally from the delay of the secretary of the interior in listing such lands to the state, and from inaccuracies of description arising from the want in many parts of the country of the public surveys. The act of July 23, 1866, tended to remove this uncertainty and confusion, principally by recognizing the action of the state in disposing of the lands granted to her, in cases where such disposition was made to parties in good faith, and did not interfere with previously acquired in terests, and by providing a mode for identifying the swamp and overflowed lands in the future without the action of the secretary of the interior. The first section of the act declared that in all cases where the state of California had made selections of any portion of the public domain, in part satisfaction of any grant made to her by act of congress, and had disposed of the same to purchasers in good faith under her laws, the lands so selected should be, and were thereby, confirmed to the state, subject to certain exceptions. This section does not, as supposed by counsel, apply to the swamp and overflowedlands. It was not in satisfaction of a grant of those lands that the state could select lands from any part of the public domain. All she could do was to ascertain where those lands were. She had no power of selection, though that term is sometimes used when merely the power of ascertainment or identification is intended. Secretary Schurz in Kile v. Tubbs, (July 15, 1879,) 6 Copp, 108; Secretary Teller in State of Calf ornia, (December 21, 1883,) 2 Dec. Dep. Int. 643; Sutton v. Fassett, 51 Cal. 12.
It is the fourth section of that act which applies to swamp and overflowed lands. That section, among other things, provides 'that in all cases where township surveys have been, or shall hereafter be, made under authority of the United States, and the plats thereof approved, it shall be the duty of the commissioner of the general land-office to certify over to the state of California, as swamp and overflowed, all the lands represented as such, upon such approved plats, within one year from the passage of this act, or within one year from the return and approval of such township plats. The commissioner shall direct the United States surveyor general for the state of California to examine the segregation maps and surveys of the swamp and overflowed lands made by said state; and, where he shall find them to conform to the system of surveys adopted by the United States, he shall construct and approve township plats accordingly, and forward [them] to the general land-office for approval.' As thus seen, lands represented as swamp and overflowed on the approved plats of township surveys, made under authority of the United States, were, after that date, to be certified to the state; and lands were to be represented as swamp and overflowed on the township plats which were found on the state segregation maps and surveys of such lands; the approval to the township plats to be made by the land-office.
Under the act of California of 1861, the surveyor of the county of Yolo, in 1862, segregated the swamp and overflowed lands in that county, and made a map thereof, entitled 'Supplemental Segregation of Swamp and Overflowed Land in Yolo County, by Amos Matthews, County Surveyor,' on which all the lands in controversy were designated as swamp and overflowed lands, and deposited the same in the state surveyor general's office. A copy of such segregation map, duly certified by the surveyor general of the state, was given in evidence, accompanied with the following certificate of the surveyor general of the United States:
'U.S. SURVEYOR GENERAL'S OFFICE, SAN FRANCISCO, CALIFORNIA.
'I hereby certify that this diagram has been compared with the original by me, and that the same is a correct transcript of a plat embracing townships eleven north, range two east; twelve north, two east; twelve north, one east, (fractional;) and eleven north, one east,-Mount Diablo meridian; said plat having been filed in this office between the twenty-second of March and fourth of April, 1872, and being plat of survey made by the county surveyor of Yolo county, under and in pursuance of the statutes of the state of California then in force, and showing the segregation lines of the swamp and overflowed land in said townships; and, further, that the whole of that portion of said plat is designated thereon as swamp and overflowed land; that I have compared the certificate of approval of said plat with the original indorsed thereon, and that the same is a full, true, and correct transcript thereof.
'Witness my hand and the seal of this office this twenty-second day of September, A. D. 1873.
J. R. HARDENBURGH,
[Seal.]
'U.S. Surveyor General, California.'
Objection was taken to a copy of this map, because the one deposited in the office of the surveyor general of the state was not marked as filed. If such was the case, the omission was one of that officer, and could not affect the validity of the map as evidence. It was in proof that the county surveyor deposited the map in that office, and that ever since it had remained there. No other segregation map was ever in the office.
On the first of July, 1861, the swamp and overflowed lands in the county, in controversy in this case, and designated as such on this map, subsequently made, were purchased by different parties from the state, as shown by certificates of purchase issued to them bearing that date, which were produced in evd ence. These certificates were assigned to the plaintiff. They are made by statute prima facie evidence of legal title in the holders thereof, and upon them ejectment can be maintained for the land described. Act April 13, 1859; Richter v. Riley, 22 Cal. 639.
On the tenth of January, 1866, a plat or map of the township, in which the lands in controversy are situated, was approved by L. Upson, United States surveyor general for California, on which map only one parcel of the lands was designated as swamp and overflowed land. The map showed on its face that the survey of the township was made in the field in 1864. On the fourth of April, 1872, J. R. Hardenburgh, United States surveyor general for California, who had succeeded Mr. Upson, compared this map with the segregation map of swamp and overflowed lands in the township, made by the surveyor of the county under the laws of the state, which conformed to the system of surveys adopted by the United States, and amended the township plat in accordance with the segregation, and forwarded the same to the general land-office, where it was officially used as an approved plat. Upon this amended map all the lands in controversy are designated as swamp and overflowed. The following letter of the surveyor general accompanied the map:
'U.S. SURVEYOR GENERAL'S OFFICE, SAN FRANCISCO, April 19, 1872.
'Hon. Willis Drummond, Commissioner General Land-Office, Washington, D. C.-SIR: I transmit in a separate roll, by to-day's mail, certified plats, also certified descriptive lists, of the following townships, showing all tracts which the state of California claimed as swamp and overflowed prior to July 23, 1866; also showing the segregation of swamp and overflowed lands made by the United States, viz.: Township eleven north, range one east; township eleven north, range two east; township twelve north, range two east,-Mount Diablo meridian. The list of said tracts contain annotations in red ink, made by the register of the U.S. land-office at Marysville, stating all titles to said lands adverse to the claims of the state of California, together with the register's certificate testifying to the correctness of such annotations, as appears from the records of this office. These plats and lists are sent you in accordance with the instructions contained in your letter of July 7, 1871, which inclosed for my guidance a copy of a letter addressed to L. Upson, U.S. Surveyor General, dated September 13, 1866.
'Very respectfully, your obedient servant,
'J. R. HARDENBURGH,
'U.S. Surveyor General for California.'
The commissioner, Mr. Williamson, who succeeded Mr. Drummond in office, certifies, under date of January 12, 1878, to a copy of this plat of township 11 N., range 2 E., of Mount Diablo meridian, as one received with the surveyor general's letter of April 19, 1872, and 'since which time it has been officially used as approved plat made in accordance with section 2488, Rev. St. U.S.' This section declares that 'it shall be the duty of the commissioner of the general land-office to certify over to the state of California, as swamp and overflowed lands, all the lands represented as such upon the approved township surveys and plats, whether made before or after the twenty-third day of July, 1866, under the authority of the United States.'
Subsequently, in July 1877, the state surveyor general forwarded to the commissioner of the land-office certified copies of certain swamp-land surveys, with a statement that the lands described in them were all sold by the state in good faith as swamp and overflowed lands, prior to July 23, 1866, and requested that the lands not already listed, which included those in controversy, be certified to the state. The commissioner replied that the lands in the township had all been disposed of, and patents issued to settlers under the laws of the United States, and upon that ground alone he refused the application. This refusal was approved by Mr. Schurz, secrt ary of the interior, the latter observing, in justification of it, that it had been decided by the supreme court of the United States that a patent, when issued and delivered to and accepted by the grantee, passed the legal title to the land, and all control of the executive department over it ceased. 'If any lawful reason exists,' said the secretary in his communication to the commissioner, 'why the patent should be canceled or annulled, such as fraud on the part of the grantee, or mistake or misconstruction of the law on the part of your office, the appropriate remedy is by a bill in chancery, and an action may be maintained by the United States, or any contesting claimant; but you are not authorized to reconsider the facts on which a patent was issued, and to recall or rescind it, or to issue one to another party for the same tract;' citing U.S. v. Hughes, 11 How. 552; U.S. v. Stone, 2 Wall. 525; Hughes v. U.S., 4 Wall. 232; and Moore v. Robbins, 96 U.S. 530. There was no suggestion by either the commissioner or the secretary that the lands were not swamp and overflowed, as designated upon the township plat.
The question, therefore, is whether, upon the proof thus presented for the segregation of the lands in controversy as swamp and overflowed lands by the authorities of the state of California, and their designation as such lands on a plat of the township made by the surveyor general of the United States, and approved by him, and forwarded to the general land-office pursuant to the fourth section of the act of 1866, and approved by the commissioner, as shown by its official use, the plaintiff can maintain an action for the recovery of the lands, they never having been certified over to the state, as required by section 2488 of the Revised Statutes, or patented to her under the act of 1850. According to the decisions we have cited, the holders of the certificates of purchase had a good title to the lands if in fact they were swamp and overflowed lands on the twenty-eighth of September, 1850.
The certificates were conclusive as evidence against the state that they were such lands. The statute of California, as already stated, makes them prima facie evidence of legal title to the premises in the holders, and upon them ejectment can be maintained in the state courts. The case of the plaintiff was therefore prima facie established by the production of the certificates, and showing their assignment to him. Richter v. Riley, 22 Cal. 639, cited above.
The representation of the lands as swamp and overflowed on the approved township plat would be conclusive, as against the United States, that they were such lands, if they had not been patented before the return of such township plat to the land-office. The act of congress intended that the segregation maps prepared by authority of the state, and filed in the state surveyor general's office, if found upon examination by the United States surveyor general to be made in accordance with the public surveys of the general government, should be taken as evidence that the lands designated thereon as swamp and overflowed were such in fact, except where this would interfere with previously acquired interests. In this case the defendants trace title by patents of the United States purporting to be issued to settlers under the pre-emption laws, in 1866, 1867, 1868, and 1871, upon declaratory statements made in 1864, three years after the purchase from the state by the grantors of the plaintiff, and two years after a map segregating these lands had been made by the surveyor of the county, pursuant to the law of the state, and deposited in the surveyor general's office. These patents were evidence that whatever title the United States then held passed to the patentees, and, as against a mere intruder without claim of title from a paramount source, were conclusive that the lands were of the character which by the patents they were represented to be. This was thec ase in Ehrhardt v. Hogaboom, 115 U.S. 67, 5 Sup. Ct. Rep. 1157. There the plaintiff claimed by a patent issued to his grantor under the pre-emption laws. The defendant admitted he was in possession of 20 acres, and contended that these were swamp and overflowed lands which passed to the state under the act of 1850. It appeared, however, that the certificate of purchase which he produced did not embrace the lands in controversy, and his offer to prove the character of the land as swamp and overflowed by parol was rejected. The court said: 'He was, as to the twenty acres, a mere intruder without claim or color of title. He was therefore in no position to call in question the validity of the patent of the United States for those acres, and require the plaintiff to vindicate the action of the officers of the land department in issuing it.' And again: 'It is the duty of the land department, of which the secretary is the head, to determine whether land patented to a settler is of the class subject to settlement under the pre-emption laws, and his judgment as to this fact is not open to contestation in an action at law by a mere intruder without title.'
But this doctrine has no application where a party, whether plaintiff or defendant, asserts title to premises in controversy from a paramount source, or by a prior conveyance from a common source. The doctrine that all presumptions are to be indulged in support of proceedings upon which a patent is issued, and which is not open to collateral attack in an action of ejectment, has no application where it is shown that the land in controversy had, before the initiation of the proceedings upon which the patent was issued, passed from the United States. The previous transfer is a fact which may be established in an action at law as well as in a suit in equity.
As we said in Smelting Co. v. Kemp, 104 U.S. 641: 'When we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it; that is to say, in a case where the lands belonged to the United States, and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would, in that event, be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act.'
And again, in the same case, we said, (page 646:) 'A patent may be collaterally impeached in any action, and its operation as a conveyance defeated, by showing that the department had no jurisdiction to dispose of the lands; that is, that the law did not provide for selling them, or that they had been reserved from sale or dedicated to special purposes, or had been previously transferred to others. In establishing any of these particulars the judgment of the department upon matters properly before it is not assailed, nor is the regularity of its proceedings called into question; but its authority to act at all is denied, and shown never to have existed.'
'There are cases,' said Chief Justice MARSHALL, 'in which a grant is absolutely void, as when the state has no title to the thing granted, or when the officer had no authority to issue the grant. In such cases the validity of the grant is necessarily examinable at law.' Polk's Lessee v. Wendal, 9 Cranch, 87, 99. Indeed, it may be said to be common knowledge that patents of the United States for lands which they had previously granted, reserved for sale, or appropriated are void. Easton v. Salisbury, 21 How. 426; Reichart v. Felps, 6 Wall. 160; Best v. Polk, 18 Wall. 112. It would be a most extraordinary doctrine if the holder of a conveyance of land from a state were precluded from establishing his title simply because the United States may have subsequently conveyed the land to another, and especially from showing that years before they had granted the property to the state, and thus were without title at the time of their subsequent conveyance. As this court said in New Orleans v. U.S.: 'It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face it is conclusive, and cannot be controverted; but, if the thing granted was not in the grantor, no right passes to the grantee. A grant has been frequently issued by the United States for land which had been previously granted, and the second grant has been held to be inoperative.' 10 Pet. 663, 731.
The court below held, and placed its decision upon the ground, that, because the commissioner of the general land-office had not certified the lands in controversy to the state as swamp and overflowed, when this action was commenced in 1870, there was no title in the state by the grant of 1850 which could be enforced, thus making the investiture of title depend upon the act of the commissioner instead of the act of congress; whereas the certificate of that officer, when the previous requirements of the law have been complied with, is only an official recognition that the lands are of the character designated, and of the completeness of their segregation. The decision is in conflict with its previous decisions, and with the adjudged cases to which our attention has been called.
In Sacramento Valley Reclamation Co. v. Cook, decided as late as 1882, that court recognized the swamp-land grant of 1850 as one in proesenti. Its language was: 'It is as well settled as anything can be by the courts that the donation of swamp and overflowed lands by the United States to the states in which such lands were situated at the date of the passage of the act of September 28, 1850, 'was a grant in proesenti, by which the title to those lands passed at once to the states in which they lay, except as to states admitted into the Union after its passage;" citing French v. Fyan, 93 U.S. 169.
For the error in holding that the certificate of the commissioner was necessary to pass the title of the demanded premises to the state, the case must go back for a new trial, when the parties will be at liberty to show whether or not the lands in controversy were in fact swamp and overflowed on the day that the swamp-land act of 1850 took effect. If they are proved to have been such lands at that date, they were not afterwards subject to pre-emption by settlers. They were not afterwards public lands at the disposal of the United States. Parties settling upon such lands must be deemed to have done so with notice of the title of the state, and, after the segregation map was deposited with the surveyor general of the state, with notice also that they were actually segregated and claimed by the state as such lands.
Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.

## 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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