Morrow v. Warner Valley Stock Co.

Mr. Justice Slater delivered the opinion of the court.

1. The principal effort of counsel for plaintiffs, in the trial of the case in the court below, appears to have been *322 directed mainly to establish that the land in question was not swamp and overflowed land, and was not thereby rendered unfit for cultivation within the intent and meaning of Act March 12,1860, c. 5, 12 Stat. 3 , at the date thereof, but that the land was then, and continued to be for some years thereafter, the bed of a permanent lake, described, upon the plats of the United States survey made in 1875, as Warner Lake. But whether this land was swamp land or not is a question of fact, solely for the consideration and determination of the Land Department of the United States, and its judgment thereon is final and conclusive in the absence of fraud or mistake: Burfenning v. Chicago, St. Paul Railway Co., 163 U. S. 321 (16 Sup. Ct. 1018: 41 L. Ed. 175 ); Smelting Co. v. Kemp, 104 U. S. 636 ( 26 L. Ed. 875 ); Johnson v. Drew, 171 U. S. 93 , (18 Sup. Ct. 800: 43 L. Ed. 88 ); Small v. Lutz, 41 Or. 570 ( 67 Pac. 421 : 69 Pac. 825 ). It appears from the record in this case that, on March 16, 1903, the Secretary of the Interior, having jurisdiction of the matter, and considering a large mass of testimony offered by the respective claimants at a hearing held on July 19, 1899, at Lake-view, Oregon, respecting the physical character of the land in controversy, and a large amount of adjacent land in the same situation, decided that these lands were swamp and overflowed at the date of the grant, and were not the bed of a lake or permanent body of water, but were subject at times to be entirely overflowed, and at all seasons were thereby rendered unfit for cultivation: Morrow v. State of Oregon, 32 Land Dec. Dep. Int. 54. There is not sufficient allegation of fraud, or other cause, giving an equity court jurisdiction further to consider that matter. Hence the alleged equitable rights of the plaintiff, if any, must depend upon other facts than that the' lands in question were not swamp and overflowed lands' at the date of the grant, which must be taken as established against plaintiff’s contention.

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2. It may also be now stated that when the Secretary of the Interior, on March 16, 1903, finally adjudicated the character of this land to have been swamp land, he also held that neither settlement, nor filing under the preemption law, nor both such settlement and filing, constituted a sale or disposal of the land by the United States,, such as excludes it from the grant; but that a perfection of the entry of a pre-emptor constituted a sale and disposal of the lands, and, having been made under a law enacted prior to March 12, 1860, and also prior to the confirmation of the title to the State, the lands embraced in such an entry are excluded' from the grant, also that the homestead law, under which the plaintiff J. L. Morrow and his son Joseph A. Morrow claim, was enacted after March 12, 1860, and therefore a claim under that act, although perfected constituted no basis for the exclusion of such lands from the swamp land grant under any circumstances. Hence it was ordered that the claim of the State be preferred, and all of the claims adverse to the State, excepting any existing pre-emption claim which had been, or might be, perfected before that decision was carried into effect, were ordered canceled or rejected. The Land Department was therein directed by the Secretary of the Interior to prepare and submit for his approval a new swamp land list, embracing such of the lands in controversy as would properly pass to the State under that decision. But in a later case (State of Oregon v. Frakes, 33 Land Dec. Dep. Int. 101), arising out of the same facts and the same investigation,- Acting Secretary of the Interior Ryan modified the former decision of March 16, 1903, of that office, holding that, having finally ascertained and identified the character of the land to be such as passed under the grant, the power of the department thereafter to make a disposal of the land to another than the State was gone, and that land which had not been previously disposed of to a pre-emptor, who had *324 filed upon and complied with the law, but had not made final proof or received a final certificate entitling him to a patent, was not thereby excluded from the grant, and Frakes’ pre-emption filing was canceled. This conclusion was deduced from the construction of the act of March 12, 1860, granting swamp lands to the State, under which the defendant claims. If, however, the officers of the general government, through the application of an erroneous principle of law, or a wrong interpretation of that statute, have confirmed the title to . the State, when the plaintiff Morrow and his sons, upon a correct interpretation of the law, had acquired the equitable title to the land in controversy, or a vested right therein, nevertheless they are in a position to maintain this suit to determine their right to the legal title, without regard to presence of fraud or mistake of fact of which plaintiffs could rightfully complain: Stark v. Starrs, 6 Wall. 402 ( 18 L. Ed. 925 ); Silver v. Ladd, 7 Wall. 219 ( 19 L. Ed. 138 ); Shepley v. Cowan, 91 U. S. 340 ( 23 L. Ed. 424 ); Kerns v. Lee (C. C.) 142 Fed. 985 .

3. The important questions, then, to be determined in this case are: Has a qualified pre-emptor or homesteader, who has settled upon the land, which at the time is fit for cultivation in the usual and customary manner, although it may have been swamp and overflowed land within the meaning and intent of Act March 12, 1860, c. 5, 12 Stat. 3 (Eev. St. U. S. § 2490 [U. S. Comp. St. 1901, p. 1591]), at the date thereof, a right to have his filing received by proper officials of the United States land office, without having a condition imposed thereon that his application is subject to the claim of the State, and without being required to furnish, in addition to the requirements of the statute, additional proof, as a condition to the acceptance of his entry, that the land applied for is not swamp, when the State may at the time be claiming the same as swamp land ? Also, if such an entry has been received with such *325 condition attached, but treated by the land office officials as valid in all other respects, before the lands entered have been selected and approved by the Secretary of the Interior as swamp land inuring, to the State under said act, does the entryman thereby lose all rights thereto, when the same has been thereafter selected and approved by the Secretary as swamp land? The determination of these questions depends upon the proper construction of the act of March 12, 1860.

On September 28, 1850, an act of Congress of the United States was approved, providing:

“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. 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 said lands shall vest in the said State of Arkansas, subject to the disposal of the legislature thereof. * *

“Sec. 3. 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.” 9 Stat. 519 , c. 84 (Rev. St. U. S. §§ 2479-2481 [U. S. Comp. St. 1901, pp. 1586, 1587]).

Until the decision of the case of Michigan L. & L. Company v. Rust, 168 U. S. 589 (18 Sup. Ct. 208: 42 L. Ed. 591 ), rendered on December 13, 1897, the courts generally, though not universally, had held that the act of September 28, 1850, was a grant in praesenti, by which *326 the legal title to the lands of the character therein granted at once became vested in the state, and that the subsequent issuance of the patent, upon identification of the lands by the Secretary of the Interior, operated merely as a further assurance of title. But it was there held that, whenever the granting act specifically provides for the issuance of a patent, the legal title remains in the government until the issuance of said patent, with power to inquire into the extent and validity of rights against the government. This decision was affirmed and followed by that court in the later case of Brown v. Hitchcock, 173 U. S. 473 (19 Sup. Ct. 485: 43 L. Ed. 772 .) interpreting these decisions, Mr. Justice Bean, in Small v. Lutz, 41 Or. 577 ( 67 Pac. 421 : 69 Pac. 825 ), remarked that:

“It was for a time supposed, and so held by the courts and the land department, that the swamp land act was a grant in praesenti, so that the title of the State to such land dated from the passage of the act, and consequently that the government of the United States thereafter had no title that it could transfer to a homestead or pre-emption claimant. Hence a patent to such a claimant was void, and of no force or effect whatever. According to recent decisions, particularly Michigan L. & Lum. Co. v. Rust , and Brown v. Hitchcock , this was an erroneous interpretation of the law; and, although the act is in its terms a grant in praesenti, the legal title to the land remains in the general government, subject to its control and disposition, until a patent has issued therefor.”

By the act of Congress, approved March 12, 1860, 12 Stat. 3 (Rev. St. U. S. § 2490), the provisions of the act of September 28, 1850, in part above stated, were extended to the states of Minnesota and Oregon, wherein it was enacted that “the provisions” of said act “be, and the same are hereby, extended to the states of Minnesota and Oregon: Provided, that the grant hereby made shall not include any lands which the government of the United States may have reserved, sold, or disposed of (in pursuance of any law heretofore enacted) prior to the confirm *327 ation of title to be made under the authority of the said act.” In construing these statutes they must be read together as one act, and, being, a grant without consideration, it must be construed more strictly in respect to the grantee as against others claiming under the same grantor under general laws, for a consideration paid, or to be paid.

The general rule of construction of grants of public lands by a sovereignty to corporations or individuals is that it must be construed liberally as to the grantor and strictly as to the grantee, and that nothing shall pass by implication (26 Am. & Eng. Enc. Law [2 ed.] 425), and especially is this the rule where the grant is gratuitous (Id. 426), and this rule has been applied to grants to a state for the purpose of aiding in public, or quasi public, improvements (Id. 428) ; and, in construing a statute, the court may with propriety recur to the history of the times when the act was passed, and this is frequently necessary in order to ascertain the reasons, as well as the meaning, of particular provisions (Id. 428). But it must be borne in mind that the decisions of the Supreme Court of the United States heretofore rendered respecting controversies arising out of the swamp land grant have been confined to the consideration of the act of September 28, 1850, and necessarily the force and effect of the limitations put thereon by the proviso attached to the act of March 12, 1860, were not considered. The later act was before this court in the case of Gaston v. Stott, 5 Or. 48 , decided in 1873. The opinion delivered by Mr. Justice McArthur in that case is an able exposition of the law as it was then understood relative to the proper construction of the act of September 28, 1850. That learned justice, having arrived at the conclusion that the grant made by that act was one in praesenti, by which the fee-simple title to all unsold swamp land at the date of the act, immediately passed to all the states affected thereby, held that a subse *328 quent act of Congress could not dimmish the estate, nor clog it with new conditions, nor except from the operation of the grant any swamp and overflowed lands not originally excepted. He then applied that conclusion to the construction of the act of March 12, 1860, and held that the proviso thereof was repugnant to the grant, and was therefore void and inoperative. The majority opinion in Miller v. Tobin, 16 Or. 540 ( 16 Pac. 161 ), cited and followed the case of Gaston v. Stott, 5 Or. 48 , but Mr. Justice Strahan, in a separate opinion, while concurring in the result, dissented from the reasoning of both of these cases. That learned justice states the case thus:

“If the act of Congress extending the swamp land grant to Minnesota and Oregon be a grant in praesenti, without qualification or reservation the title to all such lands passed to the state. * * Any subsequent grant or sale by the government of the same lands would be a nullity; but, if the proviso in the act is a limitation upon the granting clause, or in the nature of a reservation, then I am inclined to think that the government was authorized to make sales of swamp lands in Oregon at any time prior to the confirmation of title to be made under the authority of said act.”

After stating the terms of the two acts he refers to the case of Gaston v. Stott, 5 Or. 48 , and dissents from the view there expressed that the proviso attached to the act of March 12, 1860, is void, and he concludes:

“That, when Congress extended the swamp land grant to Minnesota and Oregon, the proviso was inserted by way of reservation of the power to dispose of such lands pend-, ing the adjustment of the grant, so that there should be no question whatever touching the title. A good reason for the insertion of this proviso is apparent. Experience has shown that occasional settlements would be made on lands alleged to be swamp and,overflowed, generally in those cases where the swampy character of the land was doubtful. Congress designed the reservation then, not to deprive the state of the benefits to be derived from the grant, but to relieve the title of a settler from all doubt, *329 leaving the state to pursue such remedy for her lands, if any, as Congress had or might provide. The act of September 28, 1850, must be read with the proviso under consideration appended or inserted at the end of the first section, so that the granting clause in said act is expressly limited and controlled by the words of the proviso. The effect of this construction is that the grant does not include any lands which the government of the United States may have reserved, sold, or disposed of in pursuance of any law theretofore enacted ‘prior to the confirmation of title to be made under the authority of said act.’ ”

When, however, the United States Supreme Court at a later date held in Michigan L. & L. Co. v. Rust, 168 U. S. 589 , (18 Sup. Ct. 208: 42 L. Ed. 591 ), and still later in Brown v. Hitchcock, 173 U. S. 473 (19 Sup. Ct. 485: 43 L. Ed. 772 ), that the legal title did not immediately pass to the state under the grant, but only on delivery of the patent, the reasoning upon which Gaston v. Stott, 5 Or. 48 , and the majority opinion in Miller v. Tobin, 16 Or. 540 ( 16 Pac. 161 ), was based, was overthrown, so that in Small v. Lutz, 41 Or. 577 ( 67 Pac. 421 : 69 Pac. 825 ), the two former cases were no longer recognized as an authority, and, impliedly at least, were considered as overruled. It follows, therefore, that the reasoning of Mr. Justice Strahan and his conclusions more correctly stated the law which we are now inclined to follow.

4. Some aid may be obtained, in determining what was the intent of Congress when it added the proviso to the act of March 12, 1860, extending the benefits of the act of September 28,1850, to the State of Oregon, by considering the difficulties previously encountered by the land department when administering the provisions of the latter act. In the case of Railroad Co. v. Fremont County, 9 Wall. 89 ( 19 L. Ed. 563 ), a general review of these difficulties is presented in the statement of facts in that case, which arose in the state of Iowa. Fremont County, the defendant, claimed under the grant of .September 28, 1850, and the plaintiff claimed under a subsequent grant, in aid of *330 the construction of a railway. After setting forth in its entirety the act of 1850, we find this historical statement:

“In this connection it may be proper to refer to Act March 2, 1855, c. 147, 10 Stat. 634 , which is ‘An Act for the relief of purchasers and locators of swamp and overflowed lands.’ It provides, in substance, that patents shall be issued to purchasers or locators who had made entries of the public lands claimed as swamp lands prior to the issue of patents to the states, under the second section of the swamp land grant of 1850, and providing for an indemnity to the states. Conflicts had arisen between these purchasers, and locators, on the one side, and the states claiming the land under the swamp land grants. As these lands were not withdrawn from sale till the filing of the lists in the local land office, they were supposed to be open to entry or location, and a portion of them had been thus appropriated. On the other hand, the states claimed that the grant to them by the act of Congress was- a grant in praesenti, and vested the title immediately. Such had been the opinion expressed by the land commissioner, and also by the Attorney General. The embarrassments of the land department growing out of this controversy between the states and the settlers were removed by this act of 1855, which confirmed the title of the settlers, and compensated the states for the land of which they were deprived. The second section of the act provides that compensation should be allowed to the states only in respect to subdivisions taken up by the settlers, which were swamp lands within the true intent and meaning of the act of 1850; that is, where the greater part were ‘wet and unfit for cultivation.’ And the land department, therefore, allowed parties to contest the claim of the states, and to give evidence before the proper officers that the subdivision was not of the character contemplated by the law. As a consequence, under this construction of the act, controversies increased between the settlers and the states, and, as stated by one of the commissioners of the land office, the contesting applications pending before the department involved, by estimate, 3,000,000 of acres, and, on investigation being ordered, papers came into the office by bushels. Pending these proceedings Congress intervened and passed the act of March 3, 1857. 11 Stat. 251 . This act is entitled ‘An Act to confirm to the several *331 states the swamp and overflowed lands selected under the act of September 28, 1850, and the act of March 2, 1849.’ The act contains but one section, and it provides: ‘That the selection of swamp and overflowed lands granted to the several states by the act of Congress approved September 28, 1850, and the act of 2d of March, 1849, heretofore made and reported to the Commissioner of the General Land Office, so far as the same shall remain vacant and unappropriated, and not interfered with by an actual settlement under any existing laws of the United States, be, and the same are hereby confirmed, and shall be approved and patented to the several states in conformity with the provisions of the act aforesaid, as soon as may be practicable.’ ”

Soon thereafter the act of March 12, 1860, was passed, extending the benefits, or provisions, of the act of 1850 to this State, with a proviso attached thereto, which is now under construction. It would appear to be a fair conclusion that said proviso was intended by Congress to remedy and put an end to the evils experienced under the administration of the act of 1850.

At this point it is also proper to call attention to a legislative construction of the proviso attached to the act of March 12, 1860, which seems to have been heretofore overlooked. At the first, session of the Forty-third Congress, 1873-74, the statutes of the United States were revised, and the swamp land acts were re-enacted, and appear in such Eevised Statutes as Section 2479 and 2490, inclusive (U. S. Comp. St. 1901, pp. 1586-1591). In the former section there is set forth the substance of Section 1 of the act of September 28, 1850, which read as follows:

“To enable the several states (but not including the states of Kansas, Nebraska and Nevada) to construct the necessary levees and drains, to reclaim the swamp and overflowed lands therein — the whole of the swamp and overflowed lands, made unfit thereby for cultivation, and remaining unsold on or after the twenty-eighth day of September, A. D., eighteen hundred and fifty, are granted and belong to the several states respectively, in which *332 said lands are situated; provided, however, that said grant of swamp and overflowed lands, as to the states of California, Minnesota, and Oregon, is subject to the limitations, restrictions and conditions hereinafter named and specified, as applicable to said three last-named states respectively.”

The extension of the grant to the State of Oregon by the act of March 12, 1860, is expressed in Section 2490, with the proviso attached:

“That the grant shall not include any lands which the government of the United States may have sold or disposed of under any law, enacted prior to March 12, 1860, prior to the confirmation of title to be made under the authority of said act.”

It appears, therefore, that Congress by this revision has designated the proviso to the grant of 1860 as a limitation, restriction, or condition upon the grant of 1850, the effect of which is to reserve to the general government, not only, the legal title of all such lands until confirmation of title, as provided in the act of September, 1850, but also the right in the future, and prior to the confirmation of title, to reserve, sell, or dispose of any of such lands under any law enacted prior to March 12,1860. The state, therefore, was not entitled to all land that was in fact swamp and overflowed at the date of the act, but only that part of such lands that had not been reserved, sold, or disposed of by the government of the United States prior to confirmation of title. Hence, prior to the selection and approval by the Secretary of the Interior, the government of the United States was under no obligation to refrain from reserving, selling, or disposing of such lands, or to reserve from settlement, under the general laws, any of the land which the state might claim to be swamp, so that it might be preserved for the state, and the title thereto be confirmed to it in the future. Nor could the state by any contract with third parties, prior to any survey or selection and identification of the lands by the Secretary of *333 the Interior, after survey, interfere with the proper and orderly execution by the department of other land laws, or interfere with the acts of intending settlers thereunder, for the land was subject to settlement and entry at any time before certification thereof by the Secretary of the Interior to be swamp land. Humbird v. Avery, 195 U. S. 501 (25 Sup. Ct. 123: 49 L. Ed. 286 .)

5. It will be noticed that the word “reserved,” occurring in the act ( 12 Stat. 3 ), has been omitted from Section 2490 of the Revised Statutes above referred to. This fact may account for the tenor of the decision of July 12, 1904, by Acting Secretary of the Interior Ryan, in the case of the State v. Frakes, 33 Land Dec. Dep. Int. 101, where the rights of the pre-emptor are made to depend solely upon the legal effect of the word “sold,” used in that proviso. But the omission of the word “reserved” in the Revised Laws must be taken as an accidental omission, and not intended as an amendment. The object of that revision was to simplify and bring together all statutes, and parts of statutes which, from similarity of subject, ought to be brought together, to expunge redundant and obsolete enactments, and make such alterations as might be necessary to reconcile contradictions and amend imperfections in the original text of the pre-existing statutes. Dwight v. Merritt, 140 U. S. 213 (11 Sup. Ct. 768: 35 L. Ed. 450 .) It was not the duty of the revisors to change the law, but to consolidate it, and, as they were authorized to omit only redundant or obsolete enactments, to make such alterations as might be necessary to reconcile contradictions, supply omissions, and amend .the imperfections of the original text (Act June 27, 1866, c. 140, § 2, 14 Stat. 75 [U. S. Comp. St. 1901, p: 3755]), it is clear that the omission of the word “reserved” was not necessary, and was not within any of the authorized objects of the revision, and the section must be read as if it were there, or as equivalent to the word “disposed,” which was retained.

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6. The grant to the State of Oregon, therefore, does not, proprio vigore, invest the grantee immediately on the date of the enactment with a title, but it is a limited and conditional grant, to invest the state with title only to such lands as the government may not have reserved, sold, or disposed of prior to confirmation of title. Nor is there any language in the grant that necessarily withdraws such lands from settlement and entry, under other general laws, by qualified citizens of the United States, but, on the other hand, the language of the proviso expressly retains in the general government the fee-simple title, with the right to reserve, sell, or dispose of any thereof. The pre-emption law declares that:

“All lands bélonging to the United States, to which the Indian title has been or may be hereafter extinguished, shall be subject to the right of pre-emption, under the conditions and stipulations provided by law.” Eev. St. U. S. § 2257.

Certain classes of lands were by that act expressly reserved from the right of pre-emption, but swamp land is not one of those excluded by the act from disposition by the United States under that law, which was enacted September 4, 1841 ( 5 Stat. 455 , c. 16), and is therefore prior to the act of March 12, 1860. We have no doubt, therefore, that land, although swamp and overflowed, is subject to entry under the pre-emption law at any time before it has been segregated from the public domain by the Secretary of the Interior, acting under the authority of said act.

7. A question more difficult of solution is encountered when we come to consider the right of homestead entry upon such lands as are claimed by plaintiff J. L. Morrow. The grant to the state is manifestly a mere gratuity, and is an unexecuted gift until selection and identification by the Secretary of the Interior and acceptance thereof by the state have taken place. No title whatever, either legal or equitable, is vested in the state prior to confirmation *335 of title as provided in the grant. The government has expressly reserved to itself thé “fee-simple” title until issuance of patent, and has also retained the right to sell or dispose of the land (in pursuance of any law heretofore enacted) prior to the confirmation of title to be made under the authority of the act of September 28, 1850. But the parenthetical clause does not have the effect to inhibit or preclude the disposal thereof by any general law thereafter enacted by Congress. There was no “vested right” in the state to any particular tract of such lands until identification by the Secretary of the Interior as swamp land, and at any time prior thereto Congress had the power to repeal the act of March 12, 1860, and put an end to the grant so far as the lands had not been so selected and accepted by the State. So, too, Congress possessed the power to withdraw any particular tract from its operation, and provide for its disposition under any general law it might see fit to enact. All of this could have been done under the absolute power of Congress to legislate for the disposal of the public domain, of which such lands would remain a part until listed or selected and approved by the secretary as swamp land. Frisbie v. Whitney, 9 Wall. 187 ( 19 L. Ed. 668 ); The Yosemite Valley Case, 15 Wall. 77 ( 21 L. Ed. 82 .)

A further matter of inquiry is whether Congress exercised this power in enacting the homestead law, approved May 20, 1862. That act granted to every person being the head of a family, or 21 years of age, and a citizen of the United States, or having filed his declaration of intention to become such, the right “to enter one quarter-section or a less quantity of unappropriated public lands, upon which such person may have filed a pre-emption claim, or which may at the time the application is made, be subject to pre-emption * * in conformity to the legal subdivisions, of the public lands, and after the same has been surveyed” ( 12 Stat. 392 , c. 75: Rev. St. U. S. § 2289 *336 [U. S. Comp. St. 1901, p. 1388]), and secure a patent therefor on final proof of residence and cultivation and payment of fees prescribed to cover the costs of such entry and the administration of the law. This right was necessarily confined by the express words of the grant to apply to surveyed lands only. But subsequently an act was passed by Congress, and was approved May 14, 1880, “for the relief of settlers on public lands,” which provided :

“Sec. 3. That any settler who has settled, or who shall hereafter settle, on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead applications and perfect, his original entry in the United States land office as is now allowed to settlers under the preemption laws to put their claims on record, and .his right shall relate back to the date of settlement, the same as if he settled under the pre-emption laws.” 21 Stat. 141 , c. 89 (U. S. Comp. St. 1901, p. 1393.)

8. It is the established doctrine of the United States Land Department that swamp and overflowed lands, within the meaning of the act of March 12, 1860, are “Public lands of the United States,” and subject to preemption until the particular tracts thereof have been surveyed and segregated from the public domain by the approval of the lists and plats thereof by the Secretary of the Interior (Morrow v. State of Oregon, 32 Land Dec. Dep. Int. 54), but subject to the limitation that final proof and payment of the purchase price shall have been made before such approval (State v. Frakes, 33 Land Dec. Dep. Int. 101). Now, the homestead law grants to any qualified person the right to settle upon and enter any tracts of public lands that are unappropriated and subject to pre-emption, provided only that it was suitable at the time for residence and cultivation. Swamp lands are not considered as appropriated until they have been segre *337 gated from the general mass of public lands by identification by the Secretary, of the Interior as inuring to the state under the grant. We are inclined to adopt the conclusion of plaintiff’s counsel that there is no other theory upon which the law could be administered with beneficial effect. In many instances the persons desiring to settle and enter under the provisions of the homestead law, under a different construction of the law, would have no means of knowing, in advance of official action by the authorities of the general government and the state, whether he would ultimately acquire the title, and thereby retain the benefit of his labor and expenditures in improving the land and enhancing its value. The result would be confusion, embarrassment, and delay upon the part of the government in the disposal of the public land to actual settlers, who are the object of special solicitude by the government, for its settled policy is to induce settlement and cultivation of vacant lands, and the settler, whether a pre-emptor or .homesteader, would never be secure in his title, as against a claim by the state, until he had complied with all the requirements of the law entitling him to a patent. In the light of such experiences as transpired under the original grant of September 28, 1850, we are persuaded to e,ntertain the opinion that Congress, in attaching to the grant of March 12, 1860, the limitations referred to, never contemplated any such results, and therefore never intended to subject the settler to any such hazard.

9. Now, entertaining the view that such lands may be reserved, sold, or disposed of under the pre-emption or homestead laws by the United States at any time before confirmation of title to the State, the question recurs: What is necessary to accomplish such reservation, sale, or disposition? In Hastings Railroad Co. v. Whitney, 132 U. S. 357 -363 (10 Sup. Ct. 112, 114, 115: 33 L. Ed. 363 ) where a homestead entry was under consideration, Mr. Justice Lamar says:

*338 “Under the homestead law three things are needed to be done in order to constitute an entry on public lands: First, the applicant must make an affidavit setting forth the facts which entitle him to make such an entry; second, he must make a formal application; and, third, he must make payment of the money required. When these three requisites are complied with, and the certificate of entry is. executed and delivered to him, the entry is made — the land is entered. If either one of those integral parts of an entry is defective — that is, if the affidavit be insufficient in its showing, or if the application itself is informal, or if the payment is not made in actual cash — the register and receiver are justified in rejecting the application. But if, notwithstanding these defects, the application is allowed by the land officers, and a certificate of entry is delivered to the applicant, and the entry is made of record, such entry may afterwards be canceled on account of these defects by the commissioner, or on appeal, by the Secretary of the Interior; or, as is often the practice, the entry may be suspended, a hearing ordered, and the party notified to show, by supplemental proof, a full compliance with the requirements of the department, and on failure to do so, the entry may then be canceled. But' these defects, whether they be of form or substance, by no means render the entry absolutely a nullity. So long as it remains a subsisting entry of record, whose legality has been passed upon by the land authorities, and their action remains unreversed, it is such an appropriation of the tract as segregates it from the public domain, and therefore precludes it from subsequent grants.”

In Whitney v. Taylor, 158 U. S. 85, 92, 95 (15 Sup Ct. 796: 39 L. Ed. 906 ), which referred to a pre-emption claim, it was said:

“That when on the records of the local land office there is an existing claim, on the part of an individual under the homestead or pre-emption law, which has been recognized by the officers of the government, and has not been canceled or set aside, the tract in respect to which that claim is existing, is excepted from the operation of a railroad land grant containing the ordinary excepting clauses and this, notwithstanding such claim may not be enforceable by the claimant, and is subject to cancellation by the *339 government at its own suggestion, or upon the application of other parties. * * In this respect notice may also be taken of the rule prevailing in the land department, where the filing of the declaratory statement is recognized as the assertion of a pre-emption claim, which excepts a tract from the scope of a railroad grant like this.”

After reviewing this and other decisions of the Supreme Court of the United States respecting the effect of grants of public lands, it was said, in U. S. v. Chicago, M. & St. P. Ry. Co. (C. C.) 148 Fed. 884 -890, that “it is thus settled that to segregate lands from the public domain so that they may not pass under subsequent grants by Congress, they must have been previously reserved or withdrawn from sale by competent authority acting for or on behalf of the United States.” That case was brought to recover'from the defendant the value of certain lands in the State of Iowa, claimed to have been erroneously patented by the officers of the Interior Department to the State of Iowa, and by it to the defendant, as inuring to it under an act of Congress of 1864, granting lands, within certain limits, to aid in the construction of a railroad, but excluding from the grant lands' sold or reserved by the United States, or to which a pre-emption or homestead claim has attached. The map of the definite location of the proposed road was filed August 80, 1864, and the lands in dispute were within the limits of the grant. But it was claimed on the part of the government that, at the time of the definite location of the road, the lands in dispute were covered by claims, of record in the office of the Commissioner of the General Land Office, in the nature of swamp selections made by the grantees pf the State, and as its agent, under the act of September 28, 1850, which selections were pending before the Department of the Interior for adjudication at the time of the attachment of the rights under the railroad grant, and that said lands were excepted from the operation of the grant. After setting *340 forth the method employed in making selections of such lands, which is substantially the same as is used here, that court proceeds to say: “It is plain that the lists furnished by the State authorities would be without effect to withdraw or segregate the lands therein described from the public lands of the United States, unless they were approved by the Secretary of the Interior, or other competent authority of the United States. Citing Railroad Co. v. Price, 133 U. S. 496 -511, 512 (10 Sup. Ct. 341: 33 L. Ed. 687 ; Humbird v. Avery, 195 U. S. 480, 507-508 (25 Sup. Ct. 123: 49 L. Ed. 286 ); Sjoli v. Dreschel, 199 U. S. 564 -569 (26 Sup. Ct. 154: 50 L. Ed. 311 ). * * The Secretary of the Interior only was authorized primarily to identify what lands were embraced within the swamp land grant. Citing French v. Ryan, 93 U. S. 169 (23 Sup. Ct. 812); Barden v. Northern Pac. Ry. Co., 154 U. S. 288 -320 (14 Sup. Ct. 1030: 38 L. Ed. 992 ); Rogers Locomotive Works v. American Emigrant Co., 164 U. S. 559 -574 (17 Sup. Ct. 188: 41 L. Ed. 552 ).” Nothwithstanding the existence of the previous swamp land grant of September 28, 1850, and on' account of the absence of any selection and approval by the Secretary of the Interior of these lands as swamp lands under said act, it was there held, in effect, that these lands were “public lands,” on the authority of Railroad Co. v. United States, 92 U. S. 733 ( 23 L. Ed. 634 ), and Newhall v. Sanger, 92 U. S. 761 ( 23 L. Ed. 769 ), where it is said:

“The words ‘public lands’ are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.” And the court concludes that “the title of the United States to the lands in . question was complete on May 12, 1864, and at the time of the definite location of the road under the provisions of the act of that date, no claims, or rights of any kind to any of said lands had been previously recognized by any authority of the United States, save under said act. The lands, therefore, might have been sold by the United States, or the right of pre-emption [or] of homestead *341 entry might have attached to them at any time before the definite location of the road, and the complete title thereto would have passed under such sale, or under such entries, if they were subsequently perfected.”

Now, let us hpply the law as above stated by the federal courts to the facts of this ease. The land involved here was swamp and overflowed land .on March 12, 1860, rendering it unfit, at that time, for cultivation, but on November 20, 1885, when plaintiff and his three sons settled thereon, it was mostly dry land, “a bed of dust,” suitable for cultivation by the usual and customary methods. It was unsurveyed, excepting some irregular pieces or lots on the north side of the section, described as lots 1, 2, 3, and 4, and containing 44.90 acres, which were included in the survey of 1875, and were claimed by R. F. and Martin McConnaughy under a deed from the State of Oregon, issued January 18, 1883, and were within their inclosure. The rest of the section, with a large amount of other adjacent lands of the same character, was surveyed" in 1887, and the survey was approved by the commissioner of the General Land Office on November 6, 1888. In the latter part of December following, the plats were filed in the local land office, and on the 29th of that month the State, by its agents, for the first time made and filed in that office lists of lands claimed by it as swamp lands. About the same time plaintiff Morrow and his sons, and many other settlers, applied to make pre-emption filings and homestead entries, but they were told by the land officers to wait until the State had made its selections, and on January 15, 1889, their filings were received and entered on the records. But the defendant alleges and claims that these filings were received and recorded subject to the claim of the State. However, there is no proof offered by the defendant of such conditional acceptance. Plaintiff Morrow admits in his testimony that he and his sons, before *342 the acceptance of their filings, were required’ by the land officials to furnish an affidavit, corroborated by two disinterested witnesses, to the effect that the land was not swamp or overflowed land, which they did. This, no doubt, was done in compliance with rules of the department governing entries and filings on swamp lands, issued December 13, 1886, (5 Land Dec. Dep. Int. 279), as follows:

“(1) When any settler upon such lands or applicant to enter the same under the public land laws of the United States shall apply to make a filing or entry under ■said laws, accompanied'by a statement under oath corroborated by two witnesses, that the land in its natural state is not swamp and overflowed and rendered thereby unfit for cultivation, the register and receiver will allow such filing or entry ‘subject to the swamp land claim.’ ”

“(2) Upon the admission of any such filing or entry the register will at once notify the Governor of the State thereof, and allow him sixty days within which to object to the perfection of the entry and to apply for a hearing in behalf of the State to prove the swampy character of the land.”

“ (3) When a hearing is ordered between the State and claimant under the public land laws, the burden of proof will be upon the State to establish the character of the land.” „

“(4) When no protest or application for a hearing is presented on the part of the State, as herein provided, the State will be deemed concluded from thereafter asserting a claim to the land under the swamp land grant.”

But if such condition became attached to the filing or entry by force of the above rules, without proof of the actual indorsement of the substance thereof on the certificate, which is not shown, it amounts to nothing in our opinion. For if the land applied for was public, unappropriated land, the mere fact that the State was making claim to it as swamp land did not operate to withdraw or segregate it from that class, and the filing or entry when received by the officers was a legal filing or entry, *343 notwithstanding any condition, not authorized by law, imposed thereon by the executive officers of the government. Unless the State by force or effect of its grant had a vested.or preferred right to other claimants, which, we think, it did not have, such condition would be of no effect. Instead of finding such right in favor of the State expressed in the law, we find in the grant a right retained in the government to reserve, sell, or dispose of such lands at any time before confirmation of title. None of these lands were selected and approved as swamp land until in March, 1903, long after the rights of the plaintiff and his sons had become attached theretb.

10. It is contended by the defendant that there is no proof by plaintiff that either he, or any of his sons, under whom he also claims, was a qualified entryman at the time of filing, and hence its counsel concludes and claims that there is no valid filing or entry shown. But it is alleged in the complaint, in substance, that each of the pre-emptors duly made and filed his declaratory statement in the United States Land Office at Lakeview, Oregon, for the. land desired, and paid all fees required by law, and received his receipt therefor, and, in respect to the homesteader, that he duly made and filed his application and entry, paying fees, etc. The answer, as to the former, admits that the declaratory statements were filed but alleges that the above-mentioned condition was attached thereto; and, as to the latter, it admits that a homestead entry was made, but subject to the claim of the State. This is an admission that each of the several filings, and the entry, was regular and legal in all respects and that the applicants were qualified to enter public lands: Barnhart v. Ford, 41 Kan. 341 ( 21 Pac. 239 ); Hastings Railroad Co. v. Whitney, 132 U. S. 357 -363 (10 Sup. Ct. 112, 114, 115: 33 L. Ed. 363 ).

11. It is also claimed by the defendant that, because plaintiff Morrow admitted, when being examined as a *344 witness in his own behalf, that he and his sons broke into the inclosure of R. F. McConnaughy, who was claiming the land as swamp land, to make settlement, no preemption or homestead rights could be acquired by such means. The admission, however, is not so strong as claimed, as we understand the record. Only a portion of the north half of the north half of the section was within his inclosure, but to get to the remainder of the section, these settlers were obliged to cross McConnaughy’s land and through his fences. When they first went there, the gates were open, through which they passed to the land on which they settled. Afterwards, when they came back, these gates were locked, and to get beyond they were obliged to cut the wire of the fence. Defendant relies upon the case of Atherton v. Fowler, 96 U. S. 513 ( 24 L. Ed. 732 ), but the facts of that case are quite distinct from this case. It will be sufficient, however, for the present purpose, to refer to what we had occasion to say in reference to that case in Pacific Live Stock Co. v. Isaacs, 52 Or. 54 ( 96 Pac. 460 ). We there held that every qualified locator has the right to initiate a lawful claim to unappropriated public lands by a peaceable adverse entry upon it, while it is in the possession of those who have no superior right to acquire title, or to hold possession, citing Belk v. Meagher, 104 U. S. 279 ( 26 L. Ed. 735 ), and Thallmann v. Thomas, 111 Fed. 277 ( 49 C. C. A. 317 ).

12. It is again urged by the defendant that, when a patent for these lands was issued to the State on October 6, 1903, the legal title conveyed thereby related back to the date of the grant, and made valid its contracts and deeds of the State executed intermediate the grant-and the patent. This undoubtedly has been the expression of many courts when determining the rights of parties under the act of September 28,1850, because it was being construed strictly as a grant in praesenti, and it has been *345 so declared by this "court in Warner Stock Co. v. Colderwood, 36 Or. 228 ( 59 Pac. 115 ). But the conclusion there announced was reached b5r the learned chief justice, who wrote the opinion, solely from an inspection of opinions rendered by . the Supreme Court of the United States when considering swamp land titles arising under the act of September 28, 1850, unaffected by the limitations imposed thereon by the proviso attached to the act of March 12, 1860. No consideration whatever appears to have been given to that limitation, or any weight attached to it. This case was later cited in Warner Valley Stock Co. v. Morrow, 48 Or. 263 ( 86 Pac. 369 ), without further review of the question involved.

It is said by Mr. Justice Field, in Gibson v. Chouteau, 13 Wall. 100 ( 20 L. Ed. 534 ), that the doctrine of relation means “that principle by which an act done at one time is considered, by á fiction of law, to have been done at some antecedent period. It is usually applied when several proceedings are essential to complete a particular transaction, such as a conveyance or a deed. The last proceeding which consummates the conveyance is held, for certain purposes, to take effect by relation as of the day when the first proceeding was had.” But the doctrine is a fiction of law, resorted to for the promotion of justice, and of the lawful intentions of the parties, by giving effect to acts and instruments which, without it, would be invalid. 24 Am. & Eng. Enc. Law (2 ed.) 275. It is not to be applied where it will thwart the intention of the law and do injustice, and so it has been held that where the contract provided for the delivery of a deed at a certain time, the deed, if subsequently delivered, will relate back only to the time when it was due by the terms of the contract (24 Am. & Eng. Enc. Law (2 ed.) 276) ; and, where its nondelivery was not caused by any failure of the party seeking the relief (Cheney v. Woodruff, 45 N. Y. 100 ). The application of the doctrine must neces *346 sarily be controlled by the intention of the parties as to when and under what circumstances title was to pass. If the grant was one in praesenti without reservation or limitation, then a patent, issued at a future time named in the grant, would, with propriety, be operative by relation from the date of the grant, but under the terms of the limitation imposed by the act of March 12, 1860, such retroactive effect could not take place so as to affect any lands previously reserved, sold, or disposed of by the United States, because it would destroy the very object of the limitations. It is there expressly stated: “That the grant hereby made shall not include any lands which the government of the United States may have reserved, sold or disposed of * * prior to the confirmation of title.” Although the legal title may have passed to the State by the patent, which we assume without deciding, yet it does not follow, for the reasons above stated, that it must be assumed as a legal proposition that the legal title so transferred existed by relation in the State from the date of the act, and thereby gave stability to the deeds of the State,' executed prior to the receipt of the patent in favor of the defendant and its grantors. For to do so it might destroy the equitable rights of pre-emptors and homesteaders, acquired by sanction of the United States within the terms of the proviso. But the State took the legal title with notice of, and subject to, such equities, and if it still retains the legal title, it would be bound in equity to convey it to them.

13. The several conveyances of the State to the defendant and its grantors affecting the land here in dispute are bargain and sale deeds, purporting on their face to deal with the full title, and therefore, under the rule announced by this court in the leading case of Taggart v. Risley, 4 Or. 235 , they are sufficient to transfer to the grantée therein an after-acquired title. These deeds, so far as they affect these lands, were issued as follows: *347 January 19, 1883, conveying lots 1, 2, 3, and 4 to R. F. McConnaughy and Martin McConnaughy; March 23, 1893, conveying lots 5, 6, 7, 8, 10, 11, and 12 to R. F. McConnaughy; and June 23, 1899, conveying to the defendant the south half of the north half, and the north half of the south half, and lot 9. All of these deeds, excepting the first one, being subsequent in time to the settlement, filing, and entry by plaintiff Morrow and his sons, and with full knowledge thereof by the respective grantees, and therefore subject to plaintiff’s equities.

14. To charge the holder of the legal title to land under a patent of the United States as a trustee of another, it must appear that, by the law properly administered in the Land Department, the title should have been awarded to the latter, and it is not sufficient to show that there was error in adjudging the title to the patentee: Bohall v. Dilla, 114 U. S. 47 (5 Sup. Ct. 782: 29 L. Ed. 61 ). But this means no more than .that the claimant against the patent must so far bring himself within the laws as to entitle him, if not obstructed or prevented to compete his claim: Duluth & Iron Range Railroad Co. v. Roy, 173 U. S. 587, 590 (19 Sup. Ct. 549: 43 L. Ed. 820 ); Ard v. Brandon, 156 U. S. 537 (15 Sup. Ct. 406: 39 L. Ed. 524 ).

15. The record shows clearly that plaintiff Morrow resided continuously on his homestead from the time of his entry on January 15, 1889, until he made his final proof on June 3, 1895, a period of more than six years, during which time he cultivated the land and raised large crops of hay; that he paid to the proper officers the fees required by law, which were received and receipted for; that his son John W. Morrow erected a dwelling house on the south half of the north half of the section about the time he filed his declaratory statement and continued to reside on his claim and to improve it until he died, some time later in the year 1889. Plaintiff J. L. Morrow, *348 being the sole heir at law, succeeded to the rights of his son by Section 2269, Rev. St., made final proof May 15, 1903, paid the sum of $200 to the receiver of the Lake-view land office, and received from that officer a final receipt, dated September 21, 1903.

Jesse B. Morrow erected a residence upon his claim, and resided thereon from the time he filed his declaratory statement until he made final proof in 1895. But we must infer that he did not make payment until October 31, 1903, as that is the date of the receiver’s receipt, which acknowledges payment by “Joseph L. Morrow, the assignee of Jesse Morrow of Lake County, Oregon, of the sum of two hundred dollars and no cents, being in full for lots one, two, three, four, five, six, seven, and eight of section number 33, in township number 39 south of range number twenty-four east of the W. M., containing 160 acres and no one hundredths acres at $1.25 per acre.” It is alleged in the answer “that subsequent to making said entries and pre-emption filings, and prior to issuing any receipt or making final proof thereon, the said Jesse B. Morrow, Joseph A. Morrow, and John W. Morrow, by deed duly executed, conveyed all of their right, title, and interest in and to all of said section 33 to the plaintiff Joseph L. Morrow, who now claims the same by virtue of such deed.” These deeds were not offered in evidence, nor were the, dates of their execution shown. Plaintiff Morrow, however, testified that he purchased his sons’ interests after they made final proof, and, in explanation of the date of the receipt, says that his sons made final proof in 1895 at the same time he did; but, before the proofs were forwarded to the General Land Department, the local land office, and the records contained therein, were destroyed by fire, and that they (Morrow and his sons) were obliged to make final proof again in 1903. There is nothing to controvert this testimony, and we must infer that the conveyances referred to were made *349 after the first proof and before the second one, which would not be in contravention of law. As to these three claims we are satisfied that each of the respective claimants had complied with all requirements of the law, and were entitled to patents thereto, and that an equitable title had become vested in J. L. Morrow prior to the issuance of patent to this State. But, as to the claim of J. A. Morrow, the proof that he had fully complied with the law so as to entitle him to a patent is indefinite and uncertain. It is alleged in the complaint that he had settled upon and filed his declaratory statement January 15, 1889, for the south half of the south half of the section, and continuously thereafter for over five years, and until July 5, 1895, resided upon, cultivated, and improved said land in good faith, in full compliance with all of the requirements of the pre-emption, as well as the homestead laws of the United States, and that on the latter date he made his final proof of settlement, continuous residence upon and cultivation of the land for more than five years from the time of filing his declaratory statement, and was then permitted by the register and receiver to commute his pre-emption claim into a homestead, and, upon payment of the fees, he received his final certificate or receipt entitling him to a patent under the homestead law.

16. The receipt offered in evidence is of that date, and signed by the receiver only, and shows upon its face that it was for the sum of $5.75, paid as the balance required by law for the entry of lots 9, 10, 11, and 12 of section 33, containing 154.10 acres, under Act June 14, 1878, c. 189, 20 Stat. 113 . This act provides “that any person who has made a settlement on the public lands under the pre-emption laws, and has subsequent to such settlement changed his filing in pursuance of law to that for a homestead entry upon the same tract of land shall be entitled, subject to all the provisions of law relating to home *350 steads to have the time required to perfect his title under the homestead laws computed from the date of his original settlement heretofore made, or hereafter to be made, under the pre-emption laws.” But, plaintiff Morrow having testified that his son had sold his. pre-emption claim to one Jack Rice and left the country, the son could not, in fairness, claim the benefit of his settlement and residence prior to such sale: Love v. Flahive, 206 U. S. 356 (27 Sup. Ct. 729: 51 L. Ed. 1092 ). As to this claim J. L. Morrow has not shown that his son J. A. Morrow was entitled to a patent from the United States.

From the foregoing we conclude that the plaintiff J. L. Morrow is the owner of the equitable title to lots 1, 2, 3, 4, 5, 6, 7, and 8, and to the south half of the north half and the north half of the south half of said section 33, as against the State of Oregon and the defendant, who took the legal title thereto with notice of that equity. The decree will therefore be reversed, and one entered here adjudging J. L. Morrow to be the equitable owner of the land last above described, and entitled to a conveyance to him of the legal title thereto by the defendant, and requiring the defendant to convey to plaintiff J. L. Morrow, said land by proper deed, executed by its officers, within 90 days from the date of the filing of the mandate in the court below, and in default thereof the decree shall stand and operate as a conveyance.

Further prosecution of the action of ejectment will be perpetually enjoined as to all of said section, excepting lots 9, 10, 11, and 12 thereof.

Reversed: Rehearing Denied.