Edward Hines Yellow Pine Trustees v. State ex rel. Moore, 97 So. 552

97 So. 552 | Miss. | 1923

Anderson, J.

delivered the opinion of the court.

The case first styled above is an appeal from the circuit court of Pearl River county; the second case is an appeal from the chancery court of that county (For convenience the appellee in the first case, who is the appellant in the second, will be referred to as “the state,” while the adversary parties, who are the same in each case, will be referred to as “the Hines trustees.”) These cases are considered and decided together because there are questions in common, the determination of which disposes of both, rendering it unnecessary to decide any other questions involved.

Both are suits by the state for damages alleged to have been suffered by it (thirty thousand dollars in the circuit court case, and fifty thousand dollars in the chancery could case) by reason of the ITines trustees having boxed for turpentine and cut and removed a large number of valuable trees from lands owned by the state (about four hundred acres in one case and about two thousand in the other), title to which it had acquired from the federal goyernment under the Swamp Land Act of September 28, 1850. And in addition in the chancery court case there was a prayer that the title of the state to the lands involved be established and confirmed.

The Hines trustees defended on the ground that they owned the land in question and not the state, that - the state had patented said lands under chapter 34, Laws of 1852 (the Pearl Eiver Swamp Land Act) to c.ertain,per-sons more than forty years before the bringing of these suits, who thereby acquired the state’s title to said lands, and that the Hines trustees were their successors in title by mesne conveyances.

In the circuit court case there was a directed verdict for the state for fifteen thousand dollars, which had been agreed on by the parties as the damages if the Hines trustees should be adjudged liable. In the chancery court case a decree was rendered dismissing the state’s bill. ''From that judgmnt and that decree these appeals are prosecuted.

The state’s case is that the patents to the lands involved, issued by the state under chapter 34, Laws of 1852, to the predecessors in title of the Hines trustees, are void, and therefore conveyed no title because said lands were not “lying and situated on Pearl river” as required by said act. The case of Hines trustees is that the location of said lands is a closed question; that the listing of said lands by the secretary of state' to the commissioners of the southern district of Pearl river under section 7 of said act, and the sale thereof by said commissioners in pursuance of said list, followed by patents therefor issued by the G-overnor and secretary of state in pursuance of section 3 of said act was a final determination of the question whether said lands came within the provisions of said statute.

The controlling facts in each of these cases are the same and are as follows: The state acquired title to the lands involved by patents from the federal government, issued under the Swamp Land Act of September 28, 1850. The predecessors in title of the Hines trustees received patents from the state to said lands under the Pearl River Swamp Land Act (chapter 34, LaAvs 1852). The lands involved are neither lands washed by the waters of Pearl river nor subject to the flood Avaters thereof, nor are they in the watershed drained by Pearl river, but are' several miles away, and in a watershed drained by another stream. Said lands are now situated in Pearl River county, but prior to the formation of that county Avere in Marion county. The Federal Swamp Land Act provides among other things:

“To enable the several states [named in the grant] . . to construct the necessary levees and drains, to reclaim the SAvamp and overfloAved lands therein—the Avhole of the swamp and overfloAved 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 Avhich said lands are situated. ... It shall be the duty of the secretary of the interior to make accurate lists and plats of all such lands, and transmit the same to the Governors of the several states in which such lands may lie, and at the request of the Governor of any state in Avhich said SAvamp and overfloAved lands may be, to cause patents to be issued to- said state therefor, conveying to said state the fee-simple [title] of said land. . . . In making out lists and plats of the lands aforesaid all legal subdivisions, the greater part whereof is Avet and unfit for cultivation, shall be included in said lists and plats, but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom.” Sections 2479 to 2481, inclusive, 8 Fed. Stat. Ann. (2d Ed.), pp. 708, 716 and 720 (U. S. Comp. St. sections 4958 — 4960).

Under the provisions of this Swamp Land Act the secretary of the interior listed and platted tbe lands involved in this case as swamp and overflowed lands, and in pursuance thereof the federal government patented' the same to the state, and the state owned the same on the 12th day of March, 1852, when chapter 34, Laws of 1852, was approved (the Pearl River Swamp Land Apt), and for some years thereafter.

There have been several amendments made to the Pearl River Swamp Land Act, none of which makes any change in the act which materially affects the rights of the parties to this cause. The first section of that act provides among other things that the boards of police of Marion, Lawrence, Hancock, Copiah, and Simpson counties shall each appoint for their respective counties two commissioners to be known as the commissioners of the southern district of Pearl river.

The second section of the act grants these commissioners of the southern district of Pearl river, “the swamp and overflowed lands, lying and situated on Pearl river, in the above-named counties, and included in the grant of such lands made by the act of Congress, of September 28th, A. D. 1850, to this State,” and directs that said commissioners shall devote said lands to the purpose of reclaiming and draining said swamp and overflowed land “by ditching, levying, or removing obstacles from said river.”

The third section of the act authorizes the commissioners to sell said lands for the-purposes mentioned, issuing to the purchasers certificates of sale with the description of the lands sold under the seal of the said board, and provides that, upon presentation of such certificates to the secretary of state, the latter, with the Governor of the state, shall issue patents in the name of the state to such purchasers.

Section 7 of the act is in this language: “Be it further enacted, that the secretary of state is hereby required to furnish the commissioners of the southern district of Pearl river, with a list of the lands according to the field notes required to be furnished him by the different registers of the land officer, of lands situated in said counties on said river, and embraced in the terms of the grant of swamp and overflowed lands, made by the Congress of the United States to this state by act, approved September 28th, A. I). 1850; and also, all lands hereafter located by any agent or commissioner of the state within said counties, and on or near said river coming within the provisions of the grant aforesaid.”

In considering the questions involved it will be well to have in mind certain well-established principles with reference to the construction of land patents by the Federal and state governments. A patent to land constituting part of the public domain of the sovereign is the very highest evidence of title.’ The Federal Government is the source from which all titles are derived (except the lands in the original thirteen states), and when through its properly constituted officers it grants a part of its public domain there can be no higher source of ownership. Carter v. Spencer, 4 How. 42, 34 Am. Dec. 106; Sweatt v. Corcoran, 37 Miss. 516; Bledsoe v. Little, 4 How. 13; 22 R. C. L., p. 270, 271, section 33.

Such a patent carries with it the presumption that all the legal prerequisites necessary to its issuance have been complied with; the presumption that the officers charged with executing land grants have performed their duties in regard to the several acts,'to be done by them. Harris v. McKissack, 34 Miss. 464; Surget v. Little 24 Miss. 118; Sweatt v. Corcoran, supra; Bledsoe v. Little, supra; Carter v. Spencer, supra.

A patent to land issued by the sovereign cannot be questioned either in a court of law or equity, except on the ground of fraud or mistake. Carter v. Spencer, supra; Sweatt v. Corcoran, supra.

Unquestionably the grant made in this case by the state to the commissioners of the southern district of Pearl river was for public purposes. It was made for tbe purpose of providing funds for tbe reclamation of tbe swamp and overflowed lands on Pearl river in said five counties. A grant of land by tbe state to» a functionary of tbe state, to be used for public purposes, is to be liberally and not narrowly construed. Board of Commissioners of Vigo County v. Davis, 136 Ind. 503, 36 N. E. 141, 22 L. R. A. 515, 517, 518; U. S. v. D. & R. Railroad Co., 150 U. S. 1, 14 Sup. Ct. 11, 37 L. Ed. 975, 979.

It will be observed that tbe grant of these lands by tbe state to tbe swamp land commissioners of tbe southern district of Pearl river was for exactly tbe same purpose as tbe grant from tbe Federal government of said lands to tbe state; namely, for tbe purpose of reclaiming such swamp and overflowed lands. Tbe grant from tbe Federal government to tbe state describes tbe lands as swamp and overflowed lands, while in the grant from tbe state to tbe commissioners of tbe southern district of Pearl river they are described as swamp and overflowed lands lying and situated on or near Pearl river. However, section 2481 of tbe Federal Swamp Land Act, 8 Fed. Stat. Ann. (2 Ed.), p. 720, defines what is meant by that act by tbe terms “swamp” and “overflowed” lands, as lands, “tbe greater part whereof is wet and unfit for cultivation.” Tbe course of dealing of tbe Federal government with tbe lands granted the states under tbe Swamp Land Act of September 28, 1850, throws light on tbe question as to what tbe legislature meant in tbe Pearl River Swamp Land Act by tbe terms “swamp” and “overflowed” lands on or near Pearl river. According to tbe common understanding “swamp and overflowed lands” are very restricted terms; they simply mean the bottom lands subject to overflow by tbe flood waters of tbe stream on which tb'ey are situated, or lands rendered wet and swampy by their proximity to such flooded lands; in other words, tbe bottom lands on or near tbe stream. This was substantially tbe definition given by tbe Federal Swamp Land Act as above shown.

But that act was not so construed either by the officials of the federal government or of this state in dealing therewith, as is evidenced by the fact that under the grant the state received patents to large bodies of land as swamp and overflowed lands on Pearl river, which were neither flooded by the waters of that river nor affected thereby in any manner whatsoever, nor adjacent to such flooded or affected lands, but in the hills and valleys often far removed therefrom, and in some instances (as is true of the lands here involved) located in other watersheds of streams of minor importance. A liberal construction was given the grant, not a narrow one. These lands were of practically no value to the Federal government, but it was thought that they could be made very valuable to the states in which they were located. It was utterly impracticable for the- act of Congress making the grant to undertake to describe by metes and bounds the lands intended to be granted, and this was equally true with reference to the grant by the state to the commissioners of the southern district of Pearl river. The lands had to be described in general terms, and the selection, listing, and patenting had to be intrusted to an administrative agency. If these grants had not been given a liberal construction by the state and Federal authorities dealing therewith they would have been wholly inadequate to accomplish the purpose for which they were intended, namely, the reclaiming of the swamp and overflowed lands by means of “levees and drains.” How far would the strictly bottom lands of Pearl river, not already patented to others by the Federal government when the Federal Swamp Land Act was passed, have gone in accomplishing this purpose? It is evident that such lands would not have furnished the means of making more than a start to that end. The terms of the national act defining swamp and. overflowed lands to be lands “wet and unfit for cultivation,” meaning of course by reason of being flooded or affected by the waters of some stream, are terms more restricted in meaning than the terms “swamp and overflowed lands lying and situated on or near Pearl river,” used in the Pearl River Swamp Land Act.

The legislature provided in chapter 13, Laws of 1852, a scheme by which it was sought to largely increase the quantity of lands available to the state under said Federal Swamp Land Act. It provided for the appointment of agents with authority to negotiate with the Department of Interior, Surveyor Generals office, and registrars of land offices in this state, with a view of having the national government patent to the state other and additional lands to those shown by the field notes in the different land offices in this state, or by the field notes in the General Land Office at Washington to be swamp and overflowed. (Section 5 of said act.) And these special agents for this purpose, as provided in section 3 of the act, were to receive as compensation for their services ten dollars for every section for which they obtained a patent for the state, and at the same rate for any fraction not amounting to a section. In other words, this statute evidences a legislative plan to induce the Federal government to give a very broad meaning to the terms “swamp and overflowed lands.” And that was done. The Governor, secretary of state and the commissioners of the southern district of Pearl river, following the example of the Federal government with reference to said act of Congress' of September 28, 1850, gave said Pearl River Swamp Land Act a most liberal construction in favor of the grantees of the lands' covered thereby. Why, therefore, should not one be construed by the courts as liberally as the other?

The Pearl River Swamp Land Act constituted the secretary of state a special tribunal to determine what lands were embraced in the grant to the commissioners of the said Pearl River district, as may be done under our Constitution (Jackson County v. Neville, 131 Miss. 599, 95 So. 626); and the selection, listing, and patenting of said lands by the secretary of state to said commissioners and their grantees is conclusive as to the character and location of said lands, and as to whether they come within the terms of said act, unless there was fraud or mistake in such listing and patenting. By this act substantially the same powers were conferred upon the secretary of state as were conferred upon the' secretary of the interior by the Federal Swamp Land Act. .

In French v. Fyan, 93 U. S. 169, 23 L. Ed. 812, the Supreme Court, in construing the Federal Swamp Land Act of 1850, held that a patent to land granted under the authority of said act was evidence that the lands had been properly identified as such and related back and gave title to such lands as of date of the act, and superseded any subsequent title granted by the United States, that by said act it was made the duty of the secretary of the interior and the power was conferred upon him to determine what were swamp lands as defined in said act, and that the determination of the secretary of the interior that any lands were swamp lands under said act was conclusive (except from attack for fraud or accident in the proper tribunal), and parol evidence would not be heard to the effect that the land patented was never in fact swamp and overflowed land. Rose’s notes to this case, as found in 9 Rose’s Notes on U. S. Rep., pp. 311-318, contains notes of the decisions of the supreme court of the United States on this question. The consensus of the cases referred to in said notes is that the action of the secretary of the interior under said Swamp Land Act, in selecting and patenting lands to the states entitled thereto under the provisions of said a'ct, is an adjudication of the matter, that he is constituted a special tribunal with quasi-jo-dicial powers to pass on the question whether lands under said act are swamp and overflowed lands, and that his action is unassailable, except for fraud or mistake. The holding of this court is substantially to the same effect. Carter v. Spencer, supra; Sweatt v. Corcoran, supra.

There is no pretense on the part of the state that any fraud was practiced by the Governor and secretary of state and the. commissioners of the southern district of Pearl river in listing, selling, and issuing patents for these lauds, nor is there any grounds shown why said patents should be set aside on the ground of mistake, except, it appears that said lands are not in fact on Pearl river according to the present common use of those terms. If fraud or mistake is shown, it consists simply in the fact that the state authorities in construing the Pearl River Swamp Land Act pursued exactly the same liberal policy as the Federal government did in construing its Swamp Land Act. No one could have been deceived. If fraud was perpetrated, by whom was it perpetrated? If by accident or mistake the lands were not on Pearl river, at whose door should .the fault be laid? If the Commissioners of the Pearl river district and the secretary of state and the Governor £ot all the land they could under said act for the commissioners of said district, the state authorities were only doing with, reference to said Pearl river district what the state authorities in connection with the Federal authorities had done for the state in construing the Federal Swamp Land Act. It must be remembered that the Federal government is the source of title through whom both the state and the Hines trustees claim this land. If the Pearl River district perpetrated a fraud upon the state, then the state perpetrated exactly the same sort of fraud upon the Federal government. If there was accident or mistake on the part of the officials in carrying out the grant of the state to the Pearl River district, then the same kind of accident or mistake took place in carrying out the grant from the Federal government to the state government. If the state got its patents from the Federal government as a result of fraud, accident, or mistake, it seems it would not be very high morals for the state to complain that its patents to this land had been gotten by ■the Pearl River district by virtue of the same character of fraud, accident, or mistake-

However, if there were any doubt about this question it seems that such doubt would be set as rest by section 1, chapter 44, Laws of 1890, which reads as follows:

“Be it enacted by the legislature of the state of Mississippi,, that it is hereby made the duty of the attorney-general of the state to institute without unnecessary delay, in the chancery court of the first district of Hinds county, which shall have jurisdiction without regard to the locality of the lands or- residence of defendants, legal proceedings to cancel all entries of swamp and overflowed lands which, in his opinion, were made in violation of law and where the interest of innocent purchasers under said fraudulent! entries do not intervene to prevent such cancellation.”

It will be observed that this statute made it the duty of the attorney-gen eral to institute suits without delay in the chancery court of Hinds county to cancel all entries of swamp and overflowed lands which in his opinion were made in violation of law, “and where the interest of innocent purchasers under said fraudulent entries do not intervene to prevent such cancellation

If this statute did not go to the extent of ratifying and confirming every patent issued for swamp and overflowed lands by the state, regardless of whether the same had been procured by fraud, accident, or mistake, provided the rights of innocent purchasers had intervened, then certainly it went to the extent of being a declaration of the legislative policy of this state to that effect. It seems that this act simply confines the powers of the attorney-general to proceedings to cancel patents procured by fraud. There is no pretense of a showing in these cases that the Hines trustees are not innocent purchasers.

It is argued that, under the provisions of section 6, article 8, of the Constitution of 1868, which provides among other things that there shall be established a common school fund which shall consist “of the proceeds of lands now belonging to the state, heretofore granted by the United States, and of tlie lands known as ‘swamp lands,’ except the swamp lands lying and situated on Pearl river, in the counties of Hancock, Marion, Lawrence, Simpson and Copiah,” etc., as construed by Tynes v. Southern Pine Co., 100 Miss. 129, 54 So. 885, these patents are void. As we understand that case the question on which these cases turn was not decided. In effect it was agreed by the parties to that suit that the lands in question did not come within the provisions of the Pearl River Swamp Land Act—that they were not on or near Pearl river within the meaning of that act. The demurrer to the bill admitted that. Therefore the court held that the defendant admitted itself out of court. We do not look upon that case as authority for the contention of the state. The purpose of the constitutional provision in question is plain enough; it expressly excluded from its operation the lands involved in these causes, provided they came within the provisions of the Pearl River Swamp Land Act as we hold that they do. And furthermore the court did not have before it in that case chapter 44, Laws 1890, above referred to.

Both the Federal and state officials, in constructing the swamp land grants of their respective governments, proceeded upon the idea that it took not only the swamp and overfloAved lands to accomplish the purposes intended but in addition the outlying hills and valleys, and in some instances the lands beyond the crest of the hills in other watersheds. This construction has been too long acquiesced in to be now disturbed by the courts; the consequences of its overturning at this late day would be too disastrous to innocent purchasers.

It follows from these views that the circuit court case is reversed and dismissed, and the chancery court case is affirmed.

Reversed and dismissed as to the first case, and affirmed as to the latter.

Reversed and dismissed.

Affirmed.