The state rights democrat. [volume] (Albany, Linn County, Oregon) 1865-1900, 1881-02-04

| include lands sold or otherwise dis
posed Of" as did tho reservation in the
railway grant, cited by counsel from
Railway Go. v. Fremont county, Wall.
~. but only Indian and milita~ reser-
vations and tho like lands withdrawn
Upon tho question Of admitting oral
evidence to contradict the patent in
this respect, Mr.. Justice Miller, in do
liyering the opinion of tho court, after
citing the case of Johnson VIZ. Towslry,
l3 Wall. ~, TO tho effect that tho nc.
ton OF the land office in issuing pat
ent IL conclusive upon tho legal title,
subject, however, TO tho power Of n
court Of squity in certain cases, to cor.
rect or set il aside for fraud or mistake,
says 1--WE Bee nething in tho case
before us To take il out of tho opera
tion OF that rule and we are Of the
opinion that, in this action NJ law, il
would be departure from sound lhin-
ciplc, and contrary To we'll considered
Judgments in this court, and in othors
of high authority, To permit the vnIidi.
ty OF tho patent TO the State 10 bc sub
jected TO tho test of tho verdict of a
jury on such oral testimony as naY be
brought before it. 1t would be substi.
tuting tho jury or the court sitting M
jury, for tho tribunal which Congress
has provided TO determine the qscstion,
and would bo making patent of tho
United States cheap and unstable 10.
liauco as title FOR lands which IL pur-
ported To convey"
And in Sharp w. Stephens (August
%, 1879 this court held, that the de.
fendnnt, could not, at law, prove, in
opposition to patent under the dona-
tion act, that the person named therein
as the wife of the settler, Was not hi.
wilo and therefore not entitled 10 her
half Of the donation.
Nor was i. in allowing and issuing
this patent alono that the secretary
passed upon tho question TO what grant
the premises belonged. In approving
the lists selected under the wagon road
grant in 1871, he did tho same thing !;
for As yet, patent WAS not authorized
and the grant WAS complcle upon the
approval by the sec AIRY Of the lists
OF land selected under il. The patent
issued under tho subsequent act of
June IS. 1874, supra, did not pas. the
title, but Is only record evidence Of the
previously sSiAting grant by statuts
gnd the identity Of tic lands included
IN IL. IangdeRu vs.. Haze, II Wall.
$50.
In the face Of F,"urh y Fyar. aud
even upon general pr,t,ir!c.. counsel
for the defendant iu.u. uul ,i..nv, Lut
that if the PATENT tsi issued &. ,,...
State for tie lnrmis'-. ui,i..g iii,. s.sninp
land act, II wnuli h.' caurlu.i.m in iiis
action HH to the character of tl,p l,nd
bat it - nnverth, lt.,s c.,hIrnd.d that
the. patent aotually i1sned To Ih. Site
uiiiur tho wagon rua,. grant i i,nt Auch
evidence that the lands nr- not AwanI.
because in the confederation hn.l deter.
nluntion IN tho lsud depart ...rnt 81 the
| question whether tho prouis's were
witbiu the wagon road giant ur not the
question OF whether they were swamp,
was not necessarily involved and there.
fore cannot he said to have Lecn cuu.
kidered or decided.
But this reasoning is more ingenious
than sound
The ctIec, Of the decision Of the scc
retary does not depend on the exist
ence Of mn actual or formal controversy
before him, carried Oh by parties AL
sersely interested therein, but upon the
fact that it was duly made ia tue regu
lar course Of the administration or ex
ecution OF the law relating to the sub
ject.
Rotk the swamp land and wn.or
road grant were before tho department
for consideration and patent.
Under the circumstances il Was tn
duty Of tho secretary in selecting an,
patenting lands ilder the wagon roa'
grant to ascertain that they were no
included in the prior grant of swami
: land. And whether, as n matter O
fact this was consciously and purpssel,
done, with regard to tho particular laut
in controversy or not, i0 contemplation
of law it ceytGinly was. For il wa
impossible for the secretary to decide q
, he did, absolutely, that the land bC
longed to the wagon road grant, with
out at tho Samo time deciding that
did not belong the swanp land grant
This latter conclusion is necessar
, elemsnt of the former, and therefor
the law considers that before the patton
to the premises WAS isauad M and ~
wagon road land, it WAS decided tia
they were not swamp. Tor. civ. code
. 1863
1t also appears to ne that the Stat
) is esstopped to say, as against il
grantee, this plaintiff, that this is nc
wagon road land. Tho State granite
\ this land to plaintiffs vendor as wago
t road land, and allowed it to be ssleote
and approved as such by tho secretary
l without objection, long before it sold
70 the defendant as swamp land.
t The defendant has no title to thi
0 property. lie is only purchaser i
possession without the purchase none
p being paid, and stands, therefore, in tll
0 relation of tenant to the State who's
8 alleged title under the swamp land sC
he sets up in bar Of the action. 1t fo
t lows that if tho State would be esstol
r ped to set up this title, or, what
!. equivalent thereto, to deny that tn
q premises are wagon road land, the DE-
s fendant ia also,
!, The State was the grantee in bot
: these grants. 1t accepted the premise
@ as part of the wagon road grant, or a
!. lowed its grantees to do so, without o.
J, ieetion on its part. If, however, til