Clarkson v. Buchanan

Wagner, Judge,

delivered the opinion of the court.

This was an action of ejectment to recover the possession of a tract of land in Macon county containing forty acres.

The petition was in the usual form, and the answer was a simple denial, raising the general issues. The plaintiff to show title in himself, read in evidence :

First — An act of Congress, approved September 28th, 1850, entitled “ An act to enable the State of Arkansas, and other States, to reclaim the swamp lands within their limits.”

Second — The act of the General Assembly of the State of Missouri, entitled “An act donating certain swamp and overflowed land to the counties in which they lie;” approved March 3d, 1851.

Third — A deed to the land in-question from Macon county, executed by the Swamp Land Commissioner of that county.

Fourth — A certified copy of the list of swamp land selected in Macon county, on file in the office of the Register of Lands, which -list embraced the land in controversy.

The plaintiff, further to maintain his title, prpved by the testimony of witnesses, that they knew the land in 1850 ; that it was swamp land subject to overflow and was unfit for cultivation. This last evidence was objected to by the defendant, but the objection was overruled.

The defendant held possession by purchase from the Hannibal & St. Joseph Railroad Company, and, to show that plaintiff had no legal title, he offered in evidence; an act of Congress, approved June 10th, 1852, entitled “An act granting the right of way to the State of Missouri and a portion-of the public lands to aid in the construction of certain railroads in said State;” an act of the General Assembly of the State of Missouri, approved September 20th, 1852, entitled “An *568 act to accept' a grant of land made to the State of Missouri by the Congress of the United States, to aid in the construction of certain railroads in this State, and to apply a portion thereof to the Hannibal & St. Joseph Railroada copy of the resolutions of the Board of Directors of the Hannibal & St. Joseph Railroad Company, adopted March 7th, 1853, accepting the grant of land made to the State of Missouri by the Congress of the United States; an exemplified copy of the map of the definite location and route of the Hannibal' & St. Joseph Railroad, from the City of Hannibal to the City of St. Joseph, Missouri, with a line on the same denoting the line of said road, and with lines and figures designating the sections, townships and ranges; also evidence showing, that the Hannibal & St. Joseph Railroad was completed in February, 1859, and that the land in question was within six miles of the road.

A list of lands was produced and given in evidence, which were approved to the Hannibal & 'St. Joseph Railroad Company by the Commissioner of the General Land Office, which list embraced the land in question, and also a list of said lands filed for record in the Recorder’s office of Macon county.

The above constituted the evidence in the cause, and upon which the court declared the law to be, that if the land in controversy was swamp, and overflowed land on the 28th of September, 1850, and unfit for cultivation, and the same was selected by Macon county as swamp and overflowed land, and was embraced in the list of swamp land in said county transmitted to the Governor of the State of Missouri, and by him filed in the office of the Register of Lands, under the act of Congress of September 28th, 1850, then the title, on the transmission of said lists and plats by the Secretary of the Interior to the Governor of the State, and by an act of the General Assembly of March 3d, 1851, vested in Macon county.

The court refused all the instructions offered by the defendant.

The first one was predicated on the ground, and asserted *569 the proposition, that no title accrued to the State for swamp or overflowed land till a patent was issued therefor.

The others declared, that the title to the land vested in the Hannibal & St. Joseph Railroad Company, provided the company had complied with certain conditions embraced within the acts above alluded to.

There was a verdict and judgment for plaintiff.

The several acts of Congress, together with’the acts of the State Legislature, touching the subject matter of this suit, are set out in the statement of the case in Hannibal & St. Joseph Railroad Co. vs. Smith ( 11 Mo., 310 ), and need not be here copied in this opinion. \

It is obvious, that the main question, which underlies this whole controversy and which must decide it, is, whether under the act of September 28th, 1850, a patent was necessary and requisite to the vesting of a title to the swamp and overflowed lands in the State.

If the act was a direct grant, and vested the title by its own terms, then the subsequent act of Juné 10th, 1852, donating lands for railroad purposes, did not include or operate on the lands previously granted.

In the Hannibal & St. Joseph Railroad Co. vs. Smith, ubi supra, where a cognate question was presented, it was held, that the'act of Congress of September 28th, 1850, to enable the State of Arkansas and other States to reclaim the swamp land within their limits, operated as a reservation upon the grant of land made to the State of Missouri for the construction of the railroads described in the act of Congress of June 10th, 1852, and, that in a suit of ejectment brought by the railroad corporation claiming title under said act, parol evidence was admissible to prove, that the land sued for was swamp and overflowed land, made thereby unfit for cultivation so as to bring such land within the terms of the grant or reservation made by the act of September 28th, 1850, although the lists and plats to be made by the Secretary of the Interior, provided for in the act, had not been made and transmitted to the Governor, and no’ patents had issued.

*570 The ease referred to was appealed to the Supreme Court of the United States, where the judgment of this court was affirmed. (See Hannibal & St. Joseph R. R. Co. vs. Smith, 9 Wall., 95 .)

It was declared in the United States Supreme Court, that the act concerning swamp and overflowed lands confirmed a present vested right to such lands, though the subsequent identification of them was a duty imposed upon the Secretary of the Interior, and that these lands were excepted from the subsequent railroad grants.

Mr. Justice Miller, who wrote the opinion of the court, says: “The first section of the act, after declaring the inducements to its passage, says, that the whole of these swamp and overflowed lands, made thereby unfit for cultivation, and unsold, are hereby granted to the States. * * * *

By the second section of the act of 1850, it was made the duty of the Secretary of the Interior to ascertain this fact, and furnish the State with the evidence of it. 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. As that officer had no satisfactory evidence under his control to enable him to make out these lists, as is abundantly shown by the correspondence of the land department with the State officers, he must, if he had attempted it, rely, as he did in many cases, on witnesses whose personal knowledge enabled them to report as to the character of the tracts claimed to be swamp and overflowed. Why should not the samp kind of testimony, subjected to cross examination, be competent, when the issue is made in a court of justice, toshowthat they are swamp and overflowed, and so excluded from the grant under which plaintiff claims; a grant which was also a gratuity?

The matter to be shown is one of observation and examin *571 ation, 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. Any other rule results in this, that because the Secretary of the Interior has failed to discharge his duty in certifying these lands to the States, they, therefore, pass under a graht from which they are excepted beyond a doubt; and this, when it can be proved by testimony capable of producing the fullest conviction, that they were of the class excluded from plaintiff’s grant.”

The above case is conclusive authority, that the swamp land act constituted a present grant, vesting an absolute title in the States that were entitled to them; that the failure of the Secretary of the Interior to afterwards perform his duty did not in anywise interfere with or impair the title, and that parol evidence was admissible for the purpose of identifying the subject matter of 'the grant. But the defendant further insists, and his third instruction was asked on that point, tliat as the'action is ejectment and plaintiff must recover on the strength of his own title, he must show, that in accordance with the law the Secretary of the Interior had made out an-accurate list and plat of the swamp lands, including the land in controversy. The plaintiff produced in evidence a list of the swamp lands in Macon county, certified from the office of the Register of Lands, embracing this tract, and that was prima facie evidence. The presumption is, that the list was legally and correctly there. The same evidence was acted upon in the case of Railroad Co. vs. Fremont county (9 Wall, 89), and was adjudged sufficient. There the county was the actor, and the only evidence of title to the swamp lands in the county was the lists filed in the land office, and this was held sufficient to enable the county to maintain its suit. I see no distinction in this respect between the two cases.

I am of the opinion that the judgment should be affirmed ;

all the Judges concur, except Judge Adams who is absent.