67 Mo. 19 | Mo. | 1877
This was an action of ejectment, instituted on the 8th day of November, 1873, to recover the possession of lots numbered one and two, in block numbered thirty-four, in the town of Lathrop, the same being a part of the n. e. qr. of the s. w. qr.. of section 25, T. 55, R. 31, situate in Clinton county. The plaintiff claimed title under the following acts of Congress and laws of Missouri, to-wit: First. The act of Congress, entitled “ An act to enable the State of Arkansas, and other States, to reclaim the swamp lands within their limits,” approved September 28th, A. D. 1850. (9th U. S. S. at Large, p. 519.) Second. The 1st, 2nd, 3rd and 4th sections of the act of the General Assembly of the State of Missouri, entitled “ An act donating certain swamp and overflowed lands to the counties in which they lie,” approved March 3rd, 1851. (Sess. Acts 1851, 238, 239.) Third. The'act of Congress, approved March 3rd, 1857, being an act entitled “An act to confirm to the several States the swamp and overflowed lands selected under the' act of September twenty-eighth, eighteen hundred and fifty; and the act of the second of March, eighteen hundred and forty-nine.” (11 U. S. S. at Large, 251.) Fourth. An act of the General Assembly of Missouri, approved November 4th, 1857, being an act entitled “ An act amendatory of an act entitled ‘ An act donating swamp and overflowed lands to the counties in which they lie, approved December 13th, 1855.’” (Sess. Acts 1857, 32.)
Plaintiff read in evidence: First. An order of the county court of Clinton county, Missouri, made on the 4th day of August, 1853, appointing John T. Johnson, swamp land commissioner, to make selection of swamp lands- of said county. Second. The certificate of the Register in Lands of Missouri, that 'the land in controversy was select
Accompanying the foregoing was the following certificate :
Department oe the Interior, General Land Oeeioe, 1 "Washington, D. C., Dec. 30th, 1873. j
I, W. W. Curtis, Acting Commissioner of the General Land Office, do hereby certify that the annexed papers marked A and B, are true and literal. copies of the original swamp land selections on file in this office, so far as the same relates to * * * * s w qr of Sec. 25, T. 55, R. 31. * * * * In testimony whereof, &c.
Also, the following:
Oeeice oe Register oe Lands, 1 Jeeebrson City, Mo., May 12, 1875. j
This is to certify that the foregoing is a true and correct' copy of a certified copy made December 30, 1873, at the General Land Office, of an additional list of swamp and overflowed lands in the Plattsburg district, Mo., which certified copy is on file in this office.
P^- S.] George Deigel,
Register of Lands.
The defendant claimed title under an act of Congress 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,” approved June 10th, 1852; also, an act of the General Assembly of the State of Missouri, entitled “ An 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 Railroad,” approved September 20th, 1852 ; also, an act of Congress entitled “ An act to vest in the several States and Territories the title in fee of the lands which have been or may be certified to them,” approved August 3d, 1854.
The defendant offered in evidence : First. .A copy of the resolution of the Board of Directors of the Hannibal & St. Joseph Railroad Co., adopted on the 7th day of March, 1853, accepting the grant of land made to the State of Missouri by the Congress of the United States, filed in the office of the Secretary of State on the 17th day of March, 1853. Second. An exemplified copy of the map of the definite location and route of the Hannibal & St. J oseph Railroad, from the city of Hannibal to the city of St. Joseph, Missouri, with a line on same denoting the line of said railroad, and with lines and figures on the same
Then follows a certificate 'of the Commissioner that the lands in the foregoing list had been selected on behalf of the State of Missouri, in pursuance of the provisions of said act of Congress of June 10th, 1852, in lieu of such even numbered sections and parts of sections, within six sections in width on each side .of said railroad, as had been sold by the United States, or to which the right of preemption had attached, in accordance with the act of Congress aforesaid, and a recommendation that the selection and appropriation of said lands to the State of Missouri be approved, subject to any valid interfering rights. Subjoined is the following:
Department oe the Interior, 1 Washington, February 9, 1854. j
Approved, subject to any valid interfering rights.*
R. McClelland, Secretary.
' Appended to the foregoing is a certificate from the
Testimony was admitted, against the objections of the plaintiff, showing that the land in controversy was high, dry, rolling prairie; that no part of it was swamp land, or subject to overflow, and that all of it was fit for cultivation without artificial drainage or embankment, and that such had been its character ever since the witnesses first knew it, in 1837. It was admitted that the defendant was in possession of the land sued for, under a valid deed from the Hannibal & St. Joseph Railroad Company. This was all the evidence offered. The cause was tried by the court, without the aid of a jury.
The plaintiff asked the following declarations of law: “ That the land in controversy having been selected by John T. Johnson, agent of Clinton county, as swamp or overflowed land, and he having reported the same to the Surveyor-General, who, under instructions from the Commissioner of the General Land Office, certified the same to said Commissioner of the General Land Office, on the 23d day of May, 1854, as swamp or overflowed land, and said lands having been certified to the Register of Lands for the-State of Missouri, and said lands having been donated to the county of Clinton, and by the county court thereof, through its officer, the sheriff of said county, sold to the plaintiff, the court therefore declares the law to be for the plaintiff, and finds that he is entitled to the possession thereof for the following reasons: First. Because the de
At the instance of the defendant, the court declared the law to be that “ plaintiff must recover in this case, if at ail, upon the strength of his own title, and not upon the weakness of defendant’s, and before plaintiff can recover, he must show an absolute legal title to the land in suit.”
The court then made the following finding of facts and declaration of law: First. That the Hannibal & St. Joseph Railroad was definitely located on the 10th day of June, 1853. Second. That a copy of such location was forwarded to the local land office and to the general land office at Washington, and recorded in said general land office, on the 10th-day of June, 1853. Third. That lists and plats, including the land in controversy, were issued and delivered to the Hannibal & St. Joseph Railroad Company by the Commissioner of the Glen eral Laud Office, approved by the Secretary of the Interior, on the 9th day of February, 1854. Fourth. That the Hannibal & St. Joseph Raihoad was fully completed on the 24th day of February, 1859. Fifth. That the land in controversy is within fifteen miles of the Hannibal & St. Joseph Railroad, and that the same was not swamp or overflowed on the 28th day of September, 1850. Sixth. That the defendant is in possession of the land in controversy, under a valid deed
Is it true that the officer whose duty it was to act in the premises, ever certified to this State the land in controversy, as swamp land ? It is claimed that the Commissioner of the General Land Office made such certificate to the Eegister of Lands of Missouri. We do not conceive
On the 30th day of December, 1873, nearly two months after the institution of the present suit, the Commissioner of the General Land Office granted a certificate that certain lists of swamp lands, which included the land in controversy, were true and literal copies of the original swamp land selections on file in his office. But there is nothing accompanying this certificate, nor on the face of it, conducing to show, even in the faintest degree, that the Commissioner of the General Land Office had approved, or intended to approve, the selections contained in said list. Before this list ever reached the commissioner’s office, the land now in controversy had been certified by him to the State under the act of 1852. Indeed, there is nothing to show that the list and certificate were ever intended for the Register of Lands of Missouri, or that they were ever designed to constitute anything more than an ordinary exemplification of the records on file in the commissioner’s office. Iiow they reached the register’s office does not ap
If the lands in question were not, in fact, swamp lands, and the Secretary of the Interior had not included them in any lists and plats of swamp lands certified by him to the State, then, notwithstanding they were selected and reported to the Register of Lands by the county commissioner, and to the Commissioner of the General Land Office by the Surveyor-General, the title to them could not vest in the State as a part of the grant made by the act of 1850, prior to the confirmatory act of March 3d, 1857, the effect of which act was to vest in the State the title to all lands which had at that date be'en selected and reported to the Commissioner of the General Laud Office as swamp and overflowed lands, whether they were in fact swamp
A portion of those lands were granted by the State to the Hannibal & St. Joseph Railroad Company, by the act of September 20th, 1852, subject to the conditions, reversion, and provisions contained in the act of Congress; and by saidi -act of the General Asi embly the company was ■further.required to place upon record in the several .counties through which said road was located, and within one year after-its location, maps-of the lands lying in said several counties, taken and obtained for the use of the- road. By the 5th section of that act, the privilege of pre-empting said land was conferred upon certain settlers; and in the case of Baker v. Gee, 1 Wall. 335, the validity of the State statutes, imposing burdens and conferring privileges upon the grantees of the State was admitted, and it w*as held th.M a grantee of the railroad company .could not recover against a defendant claiming by pre-emption under the State, without showi ng that a map of the lands selected
On the authority of this case, and that of Pacific Railroad v. Lindell’s Heirs, 39 Mo. 329, it ’is contended by the plaintiff that as the defendant failed to show that the railroad had complied with the statute requiring maps of its lands to be recorded, the title never vested in the company, and the plaintiff is entitled to recover. In the first case, both parties claimed under the act of September 20th, 1852, and the only question was which had acquired the better right under that act. It was conceded that the title was in the State by virtue of the "railroad grant of June 10th, 1852, and the contest was as to whether the plaintiff’ or defendant had acquired that title. The case of Pacific Railroad v. Lindell’s Heirs, 39 Mo. 329, is totally unlike the case at bar, and is no authority for the position assumed by the plaintiff. There, the railroad company was plaintiff, and was bound to. show title in itself — and it was not only held that no title had vested in the railroad, by reason of its failure to record maps of its lands, but it was also held that no title ever vested in the State. The lands in controversy in that case had not been certified to the State, under the act of 1854; besides, they were reserved from the grant of the 10th of June, 1852, as they were covered by a valid location made in 1833, under the act of Congress of February 17th, 1815, for the relief of the sufferers by earthquake in New Madrid.
So far as the plaintiff’s right to recover m the present action is concerned, it is wholly immaterial whether the railroad company has or has not complied with the requirement of the statute in relation to recording maps of its lands. It is quite clear that if the legal title has never vested in the railroad company in consequence of its noncompliance with the statute, the title' is in the State, by virtue of the grant of 1852, and the action of the Commissioner of the General Land Office, under the act of 1854. The completion of the road in 1859 prevented a reversion
Our opinion is, that at the passage of the act of March 3d, 1857, the land in question had been legally appropriated to aid in the construction of railroads in this State, and did not pass to the State as a part of the swamp land grant. The confirmation of 1857 could not take effect by relation, so as to extinguish a valid right acquired before the passage of the confirmatory act. The judgment of the circuit court will be affirmed.
Affirmed