Statement of the Case.

of said State, subject to the approval of the Secretary of the Interior, from any land within said State subject to private entry." The State accepted this grant by acts of its legislature approved respectively February 5 and February 12, 1853, Session Laws 1853, Nos. 38 and 61, pp. 48, 86, and authorized commissioners of the State to enter into a contract for the building of such canal. In pursuance of this authority a contract was entered into between the State and certain designated parties for the construction of the ship canal, by the terms of which the parties undertaking its construction, or their assignees, were to receive from the State of Michigan 750,000 acres of land at $1.25 per acre, to be located under the provisions of the act of August 26, 1852. The terms of this contract need not be specially set forth, as no question arises thereon.

The parties undertaking the construction of the canal subsequently assigned and transferred all their rights and privileges in the contract to the St. Mary's Falls Ship Canal Company. By the act of the legislature authorizing the contract for the construction of the canal, the State undertook the selection of the lands under said grant, and the contractors were to receive the lands so selected in payment for the work of building the canal. The fifth section of the act of the state legislature provided that "when and as fast as the lands shall have been selected and located, an accurate description thereof, certified by the persons appointed to select the same, shall be filed in the office of the commissioner of the state land office, whose duty it shall be to transmit to the Commissioner of the General Land Office a true copy of said list, and to designate and mark upon the books and plats in his office the said lands as St. Mary's Canal lands."

By section 6 it was provided that after the completion of the canal, within the time specified, to the satisfaction of, and the acceptance thereof by, the commissioners, the governor, and engineer, and a certificate of that fact filed in the office of the state land office, it was made the duty of said commissioner "forthwith to make certificates of purchase for so much of said lands as by the terms of the contract for the construc

VOL. CXLIX-6

Statement of the Case.

tion of said canal are to be conveyed for the purpose of defraying its costs and the expenses herein before provided for, which certificates shall run to such persons and for such portions of said lands so selected and to be conveyed as the contractor may designate, and shall forthwith be delivered to the secretary of State, and patents shall immediately be issued thereon, as in other cases."

The St. Mary's Falls Ship Canal Company, as the assignee of the construction contract, completed the canal and became entitled to the consideration which the State was to pay therefor.

The agents appointed by the State to select and locate the lands granted for the purpose of building the canal made selections to the amount required, the list of which was filed in the general land office of the State, and was certified to the Secretary of the Interior, who, under date of January 24, 1855, duly approved the same to the State of Michigan, under the act of Congress of August 26, 1852. The list of selected lands under this grant, and so approved by the Department of the Interior, included the demanded premises, and on May 25, 1855, the governor of the State, in pursuance of the foregoing legislation and contract on the subject, issued a patent to the St. Mary's Falls Ship Canal Company for a large portion of these selected lands, including therein, by particular description, the premises in controversy, which by mesne conveyances passed to the defendant in error, which entered into possession of the same, and was in actual possession thereof at the commencement of the present suit. This conveyance was duly recorded, and after the expiration of five years from the date of the patent, during which they were exempt from taxation, the lands so patented to the canal company have been continually subject to taxes by the State.

It is shown from the foregoing statement of facts, and it is conceded, that the demanded premises had never been selected as a part of the swamp lands granted to the State, nor had the same ever been approved to the State as such, and that no list or plat of swamp lands in Michigan, made by, or by the authority of, the Secretary of the Interior, contained or

Statement of the Case.

described the tract in question as swamp land, although a portion of the land in the vicinity thereof, and in the same township, was included in the lists of such lands which were selected and approved by the Secretary of the Interior.

It thus appears that the plaintiff and the defendant have each a conveyance from the State of Michigan for the particular tract of land in controversy, and that the conveyance to the defendant in error was prior in time to the conveyance to the plaintiff in error. The latter, however, claims that the demanded premises were a part of the swamp and overflowed lands granted to the State by the act of Congress of September 28, 1850, and as such were conveyed to him by the patent of the State issued on November 3, 1887, and that he thereby acquired a title to the same, superior to that which the defendant in error acquired under the prior patent to the canal company, through which the defendant in error derives its title. In support of this contention it is urged that the swamp land act was in effect a grant in præsenti, so that the title of the State to such lands dated from the date of that act, and consequently the State did not and could not acquire title to the tract in question under the act of August 26, 1852.

On the other hand, the defendant in error insists that the act of the State and of the Department of the Interior, in the selection of lands under the swamp land act, amounted to an adjudication or a determination on the part of the Department of the Interior, that the parcel of land in question was not embraced within the provisions of the act of 1850, and that the same, having been affirmatively and particularly selected and certified to the State, under the grant of August 26, 1852, was a direct adjudication, that it came properly within the canal grant; that the legal effect and operation of the two selections, considered together, made with the consent and concurrence of the State, was to exclude, by implication, the particular premises here involved from the operation of the former grant, and to expressly include the same within the latter grant; and that this adjudication or determination of the department cannot be collaterally attacked or called in question in an action at law. The defendant in error further

Statement of the Case.

contends that, even conceding that the title of the State to the lands in question was derived under the act of 1850, it acquired the superior title thereto, under and by virtue of the conveyance made to the St. Mary's Falls Ship Canal Company by the State's patent of May 25, 1855, which operated to pass to said company whatever title the State had to the premises in question, independently of the source from which it had derived its title.

On the trial of the case by the court and jury the plaintiff, to maintain the issues on his part, introduced his patent from the State, and offered oral evidence to prove that the tract conveyed thereby, and involved in the suit, with the exception of about seven acres thereof, was in fact swamp and overflowed land, being wet and unfit for cultivation, within the meaning of the swamp land act of Congress, and was so at the time of the approval of the act. To this evidence the defendant objected, and the court, reserving its ruling thereon until after the defendant had introduced its proof, sustained the objection, and refused to allow the evidence to go to the jury, to which ruling the plaintiff excepted.

After all the evidence in the case had been introduced, the plaintiff, by his counsel, requested the court to direct the jury to return a verdict in his favor. This the court refused to do, and instructed the jury to bring in a verdict for the defendant, which was accordingly done, and judgment was entered thereon, to which the plaintiff excepted; and to reverse this judgment the present writ of error is prosecuted.

The opinion of the court below is reported in 36 Fed. Rep. 665; and its action in rejecting the oral testimony and in directing a verdict for the defendant was rested upon two grounds: First, that after the Secretary of the Interior had discharged his duty and approved the list of swamp lands, made, in accordance with his suggestion, from field-notes of government surveys with the consent of the State, which selection and identification did not include the parcel of land in question, although embracing other lands in the same township, there was in effect a determination that the land in controversy was not covered by or embraced within the swamp

Argument for Plaintiff in Error.

land grant; and, secondly, that the State, having accepted the parcel of land in question, under the grant of 1852, and having conveyed the same to the canal company, was estopped from thereafter asserting any title thereto.

Mr. James K. Redington and Mr. J. M. Wilson, (with whom was Mr. Frank E. Robson on the brief,) for plaintiff

in error.

I. Upon the facts shown by the record the title of the plaintiff in error is good, and he was entitled to a verdict and judgment without oral proof of the actual character of the

land.

That the swamp land act of 1850 operated as a grant in præsenti to the States then in existence, including the State of Michigan, and vested title as of the date of its passage, is settled by abundant and uninterrupted authority. Railroad Co. v. Smith, 9 Wall. 95; French v. Fyan, 93 U. S. 169; Martin v. Marks, 97 U. S. 345; Rice v. Sioux City &c. Railroad, 110 U. S. 695; Wright v. Roseberry, 121 U. S. 488.

Starting with this fundamental consideration, it is entirely clear that if the tract in controversy is shown by the record to have been swamp and overflowed at the date of the act of September 28, 1850, then the plaintiff has the paramount and conclusive legal title. In other words, if by any proper and legitimate means, identification of the tract in question as swamp and overflowed land appears in the record, then the charge of the court below was error, the jury should have been charged to find for the plaintiff and the judgment of this court should remand the case for new trial.

Such an identification, independently of any present investigation as to the fact, appears in the record. The Surveyor General, while the official plat of this land was still within his custody, placed thereon the usual official mark to show that the entire forty-acre tract was to be classed as swamp and so returned to the General Land Office. There can be no reasonable doubt that it was the intention of that officer at the time of making up his list to be reported to the Com