6 F. Cas. 487 | U.S. Circuit Court for the District of Michigan | 1854
OPINION OF
This is an action of ejectment, to recover the possession of one hundred and sixty acres of land claimed by the plaintiff, and of which the defendant is alleged to be in possession. The plaintiff claims under a patent from the state of Michigan, on a public sale. It was agreed that the land in controversy was advertised by the commissioner of the state land office, four weeks; that pursuant to the notice, Alfred Williams, for the sum of two thousand five hundred dollars, became the purchaser; that at the time of the sale he paid six hundred and forty dollars in part, and that afterwards he paid the full amount of the purchase money, and received the state land commissioner’s certificate, which entitled him to a patent, and that in pursuance of the certificate the patent was issued to him. It is also admitted, that on the 19th of May, 1852, Williams, for the nominal consideration of ten thousand dollars, sold and conveyed the land by a quit claim deed to the plaintiff. The patent was in evidence, and also the de»d from Williams to Cooper. In the compact made between the United States and Michigan, on its admission as a state into the Union, it is provided that, “section numbered 16 should be reserved for schools, in every township of the public lands within the state; and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to the state for the use of schools.” By an act of 1844, the state of Michigan established a land office, and appointed a commissioner, &c. And the same act provided that the “commissioner shall have the general charge and supervision of all lands belonging to the state, or which hereafter may become its property; and also all lands in which the state has an interest, or which may be held in trust by the state for any purpose mentioned in this title, and may superintend, lease, sell and dispose of the same in such manner as shall be directed by law.” By a subsequent act, the Michigan legislature provided, that, “the minimum of the unsold and unimproved school lands shall be four dollars per acre; but no lands shall be otherwise sold until they shall once have been offered at public auction. Twenty-five per centum was required to be paid at the time of purchase; and a certificate of the purchase was to be made out by the com-
The defendants alleged that the "above patent was fraudulently procured; and witnesses were called to establish the fraud. To this evidence the plaintiff objected, that fraud could not be shown. But the court held, that fraud at law might be shown in the execution of a deed, or in the procurement of a patent, as well at- law as in chancery; but that at law the fraud was limited to the execution of the instrument, and no matter behind that transaction was admissible as evidence to show fraud. Mr. Gibson, who is deputy secretary of state, filled up the patent, the governor having signed in blank. At the time, Governor Barry was not at the seat of government, and Mr. Gibson states that the patent was issued according to usage. Mr. Williams, the patentee, states, that the purchase was made by Bacon, in the name of the witness, without his knowledge or assent In another instance a similar act was done by Bacon, and in that ease as in this, he executed a quit claim deed. The consideration named in the deed to the plaintiff was nominal, so far as the witness was concerned. By the 57th section of the act of 1844, the legal assignee of a purchaser at the sale, is vested with the same rights as the original purchaser. Evidence was offered, to show that Bacon, who was substantially the purchaser, knew that the school section contained a valuable mine, and deceived the commissioner, &c. But the court held this was a question between the state and the purchaser.
1. The defendant’s title consisted" in the assignment of a miner’s lease, dated 1845. 2. In a patent from the United States, dated 9th of April, 1S52, reserving any right the state might have as school land. The reservation in the patent was, “any right which the state of Michigan may have in and to the east half of the northeast quarter, and the east half of the southeast quarter of section sixteen in town fifty, under or by virtue of the provisions of the act of 23d June, 1830” [5 Stat 59]. The patent to the defendant was issued under the act of congress, 1st March, 1847 [9 Stat 146], which was an act “to provide for the sale of mineral lands in the state of Michigan.” The second section of this act requires, “that the secretary of the treasury shall cause a geological examination and survey of the lands embraced in said district, to be made and reported to the commissioner of the general land office. And the president is hereby authorized to cause such of said lands as may contain copper, lead, or other valuable ores, to be exposed to sale, giving six months’ notice of the time and places, &c., showing the number and localities of the mines known, the probability of discovering others, the qualities of the ores,” &e. “And all the lands embraced in said district, not reported as aforesaid, shall be sold in the same manner as other lands are sold under acts now in force for the sale of the public lands, excepting and reserving from such sales section sixteen in each township for the use of schools, and such reservation as the president shall deem necessary for public use.” The third section provides, “that all those persons who are in possession, by actual occupaney, of any portion of the district described in the first section of this act, under authority of a lease from the secretary of war, for the purpose of mining thereon, and who have fully complied with all the conditions and stipulations of said lease, may enter and purchase the same at any time during the continuance of such lease, to the extent of such lease, and no less, by paying to the United States therefor at the rate of two dollars and fifty cents per acre. Provided, that said entry and purchase shall be made to include the original survey of such lease, as near as may be, conforming to the lines of the public surveys of sections and subdivisions thereof. And all those persons who are in possession by actual occupancy, of any of said lands, for mining purposes, under authority of a written permit from the secretary of war, and who have visible landmarks and muniments as boundaries thereon, and who have in other respects complied with the conditions and stipulations contained in such permit, may enter and purchase the same, to the extent of the tract selected by them, and reported to the secretary of war, as required by said permit and no less, in the same manner as those who held under leases, and at the same price:” provided such entry and purchase be made before the day said land shall be offered for sale by order of the president; and in the same section, all who were in actual occupancy of mines before the law, and had paid rents, were authorized to purchase, &c. The fourth section provides, that all mineral lands shall be offered for sale in quarter sections, and no bid shall be received at a less rate than five dollars ' per acre.
The jury will observe that by the second section of the above act, the secretary of the treasury is to cause to be made a geological survey of the entire land district, in which shall be specially noted the exteht and quality of the mines, and the distance from market. All lands not reported to be mineral lands, excepting a reservation of number 16 for schools, and such other reservations as the president might make, were directed to be sold on six months notice. And by the third section, rights of pre-emption were given to all those who
It is proper here to consider the effect of the above act of 1S47. It withholds the mineral lands from sale under the general ' law. This is clear from the geological survey in which mineral lands were to be noted, the express provision that such lands should ■not be advertised and sold as the other lands, the pre-emption rights given to all who were in possession of mines, and the differ■ent prices at which such lands were permitted to be entered, without being offered ■at public auction. All the other lands, except section sixteen, which was reserved for school purposes, were to be sold. And lands not occupied nor claimed, on which there were mines, were not to be sold under five -dollars per acre. If the mineral lands were withdrawn from the operation of the general law; if a different appropriation of them was made by the act of 1847, the sale to the defendants is a matter between them and the government. And here a question arises whether congress had power to dispose of section sixteen, as was done under this act. There is no controversy as to the fact, that a part of the school section is included in the patent of the defendant, which is referred to in his patent. And it is proved that the mine of the defendant, under the license, occupies a part of section 10 — that from twelve to twenty thousand dollars have been expended on it, and one of the witnesses says, the mine is very rich, and worth two hundred thousand dollars. It must be observed that section 16, for school purposes, is not an absolute grant to the state. It was impossible to locate the grant until the surveys were made: there was this uncertainty on the subject; and to avoid any embarrassment arising out of this uncertainty, or the exercise of the powers of congress, it was provided, that where such section had been sold or otherwise disposed of, other lands equivalent thereto, and as •contiguous as may be, shall be granted to the state for the use of schools. This left congress free to exercise its discretion in selling or reserving section 10. The grant is fulfilled literally by giving any other section as near to section 10 as may bo practicable. By the act of 1847, all mineral land in the land district was reserved for special disposition. Now, the only objection to this reservation is, that it interfered with section 16 previously reserved for schools. The answer to this is, that section 16 was not given absolutely for school purposes; but only on condition that such section, when ascertained, should not have been sold or otherwise disposed of. This refers to the location of the tract by the surveys. But before this is ascertained, the mining lands within the district are not only reserved from the mass of the other lands, but an absolute right of pre-emption is given to those who occupy the mining lands, for mining purposes. The sale is made to them absolutely, if the land be embraced in the lease, and the terms of the lease have been complied with. The lease is proved in this case, and the rents have been punctually paid. All the conditions required to malre the right absolute, if claimed, with the further condition that the miner shall purchase all the lands included in his lease, have been performed. And there seems to be no ground on which this purchase can be defeated, except by the prior vested right of the state to the school section. And it appears that no such right was vested in the state. It had a claim to a section, under the circumstances, as near to the section numbered 16 as practicable. Aside from the sale of this school section there is no hardship in the case, as the state receives what the United States were bound to give, and the state agreed to receive. In this view the sale was prematurely made, for the reservation of mining lands had disposed of a part of section 16, which must have been known to the purchaser, from the fact that large and expensive mining works had been constructed on the land, which were in operation at the time of the purchase and for years before, of which the purchaser is presumed to have had notice. The geological surveys too, which were filed in the general land office at Washington, and in the land office of the United States, in Michigan, which gave a description of the mineral lands in the district, might have been examined. The purchaser of this section from the state had at least the means of knowledge, and this is notice. But, this is not a question, gentlemen of the jury, which turns on notice. It is simply a question of power in the United States, to reserve the mineral lands and give a pre-emption .right, as has been done in this case. Of this, as a matter of law, there would seem to be little doubt.
It has been long the policy of the United States to reserve mineral lands, salt springs, &c. Under the act of 8th May, 17S6, the first act that authorized the sale of public lands, salt springs were reserved. The act of the 30th April, ÍS02 [2 Stat. 173], to authorize the people of the eastern division of the
Exceptions were taken to the points ruled, and the case is now in the supreme court - on a writ of error, and if the judgment shall ' be reversed, it will relieve the circuit court: from a painful responsibility.