41 Mo. 310 | Mo. | 1867
delivered the opinion of the court.
This was an action of ejectment to recover possession of lands situate in the county of Macon, and claimed by the plaintiff under the acts of Congress of the 10th of June, 1852, and the 3d of August, 1854 (10 U. S. Stat. § 8, p. 346), granting to the State of Missouri a portion of the publifi lands in aid of the construction of certain railroads, and providing for a descriptive list of the lands granted, to be certified to the State from the General Land Office; and under an act of the General Assembly of the State, accepting the grant, and applying a portion thereof to the Hannibal and St. Joseph railroad, approved Sept. 20, 1852—Laws of 1853, p. 15.
The only evidence offered by the plaintiff to identify the specific tracts of land in. controversy as a part of those which came within the operation of the act of Congress of 1852 as a grant of title for railroad purposes, was the descriptive list certified to the State by the Commissioner of the General Land Office, containing these lands, together with the map of the definite location of the railroad route. This list was made out and certified in conformity with the provisions of the act of Congress of the 3d of August, 1854, and was approved by the Secretary of the Interior, subject to any valid intervening right. The act provided as follows :
“ That in all cases where lands have been or shall hereafter be granted by any law of Congress to any one of the several States and Territories, and where said law does not convey the fee simple title of such lands, or require patents to be issued therefor, the lists of such lands which have been or may hereafter be certified by the Commissioner of the General Land Office, under the seal of said office, either of originals or copies of the originals, or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such act of Congress and intended to be granted thereby; but when lands embraced by such lists are not of the character embraced by such acts of Congress, and are not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, or claim, or interest, shall be conveyed thereby.”
Now, what is meant by the character of lands contemplated and intended to be granted by such act? The provision seems to refer to the given act of Congress itself for the explanation. This act of 1852 excepted from its operation all lands sold, or subject to the right of pre-emption, or in any manner-reserved ; and “ all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatever,” were thereby again expressly “ reserved from the operation of this act,” excepting only the right of way for such railroads. It was plainly not the intention of the act to grant any lands for railroad purposes which had been re
Less than two years previously, Congress had passed the act of 1850 (9 U. S. Stat. 519), whereby it was enacted that “ the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be and the same are hereby granted” to the States for the purpose of the reclamation of such lands in these States. The expression (the character of lands contemplated and intended to be granted), when applied to the act of 1852, may be taken to mean lands not sold, nor subject to pre-emption, nor reserved nor appropriated by law to aid in any object of internal improvement; and it' may safely be affirmed that the first section of the prior act of 1850 amounted at least to a reservation to the United States of the swamp and overflowed lands therein mentioned. It was in terms a present grant, and was a solemn appropriation by law of all those lands to a specific object of internal improvement within the several States; and as such these lands were reserved and excepted out of the operation of the act of 1852, granting vacant and unappropriated lands for railroad purposes. It would seem to be very plain that it was not the intention of Congress to grant to the State, for railroads, the same lands which had already been granted to her for another and different object. It must follow, that if the lands in controversy were in fact of the character of swamp and overflowed lands within the purview of the act of 1850, then the certified list offered in evidence here, so far as it embraces these lands, which were not contemplated nor intended to be granted by the act of 1852, must, by the very terms of the act of 1854 itself, be held to be perfectly null and void.
The case seems to have been tried below, and has been argued here, upon the assumed theory, that the first section of the act of 1850 was a present and absolute grant, and vested title in the State at once, leaving nothing to be done in order
It appears that the States have dealt with these lands in the same way as if the act had been an absolute grant vesting a present title in fee, and the courts have recognized the right of the State to dispose- of them, under its own laws, before a list was made out, or a patent issued—Mast v. Hamilton, 14 La. Ann. 775; Dunklin Co. v. District Ct., 24 Mo. 449, and cases above cited. Whatever legal ideas may have been intended in the expressions which have been used in these cases in relation to the grant and title, there would seem to be no room for question that the act amounted at least to an appropriation by law of all such lands within the several States to the specific purpose of fulfilling this grant, and made an effectual reservation of them, to be applied under the act to that purpose, and to no other, and to be listed and platted, and patented to the States for this special object of internal improvement. More express words of reservation than those employed in the act of 1852 were not needed for the purpose of making the reservation embrace these
Though the lands had been thus appropriated and granted, the political power over them was not wholly relinquished, but was to be exercised by the public officer to whom it was committed by the act itself, in good faith, and in such manner as to accomplish the object of the grant and the intent of Congress—Foley v. Harrison, 15 How. (U. S.) 433. Whenever the title in fee shall become vested in the State, it cannot be doubted that it will relate back to the date of the grant, and will vest by relation in the grantees under the State and counties; and such title would be prior and superior to any title that could be acquired under the acts of 1852 and 1854—French v. Spencer, 21 How. (U. S.) 228; Landes v. Brant, 10 How. (U. S.) 248; Ross v. Borland, 1 Pet. 664; Rutherford v. Greene, 2 Wheat. 197; Gibson v. Chouteau, 39 Mo. 588.
These particular sections and parts of sections have been embraced in the lists made out under the acts of 1852 and 1854 as a part of the grant for railroads; and if Congress had submitted the final determination of this matter to the decision of the Secretary, or Commissioner, there could be no doubt that the title shown by the plaintiff here should prevail in the action of ejectment, no vested legal title being shown by the defendant; for, though the lands were reserved, Congress still had power to dispose of them. But such is
The question remains by what kind of evidence it is to be judicially determined, whether the lands in controversy came within the purview of the act of 1850, or were not of the character of lands intended to be granted by the act of 1852. No doubt, if the Secretary of the Interior had included these lands in his list and plats of swamp and overflowed lands, his action would have been final and conclusive of that matter in the courts; but his including them in this list of railroad lands is not conclusive. It was left open by Congress to be determined on judicial investigation. The power to determine it finally was not given to any public officer. The political power over the subject was not retained by the government, but it was made a question of evidence and judicial construction, and we think it was intended to be, and was, referred to the courts.
The act of 1852 does not appear to have required any selection or listing of the lands embraced within the even numbered sections within the six-mile limit, but only of those which should be selected in lieu of them outside of that limit and within fifteen miles of the line of the railroad; but the statutes of the State did require a selection of both kinds to be made by the agents of the State, and a map of the lands selected to be recorded in each county where the land was situated; and the practice of the Land Office seems to have been to include both in the lists. No means of proving a title to the specific lands granted was provided by the act itself. The act of 1854 seems to have been intended to supply this defect. In Baker v. Gee, 1 Wall. 333, these descriptive lists were recognized as being the proper evidence to show “ the lands to which the road was entitled”; the validity of the State statutes imposing burdens and conferring privileges upon the grantees of the State was admitted; and it was held
The reason why the same kind of evidence should not be admitted to show a title vested and complete under the first section of the act of 1850 is, that the other sections have provided a different mode of establishing title under that act, and require another kind of evidence, which is thereby made the best and the only admissible evidence for that purpose. The case has been argued, apparently, upon the theory that this testimony wasoffered for the purpose of proving a title vested in the defendant. For that purpose it was certainly not admissible ; but for the purpose of rebutting and invalidating this list, producedAn evidence by the plaintiff, we think it was admissible and competent.
Under the instructions which were given, the cause was submitted to the jury, and the verdict must have been rendered, substantially, upon this issue of fact. If this fact were found for the defendant, then the plaintiff had shown no title to the lands in controversy. He must recover on his own title or not at all; and it was immaterial whether the defendant had shown any title or not: he had a right to stand on his possession until a better title were proved.
The first instruction refused for the plaintiff contained a correct proposition of law, and might have been given if there had been any evidence before the jury on which the issue supposed in it could properly arise. It concerned the defendant’s title only, and that was immaterial. There was, therefore, no error in refusing it of which the plaintiff can complain.
The other instructions refused for the plaintiff are sufficiently disposed of by what has been said above: they were either erroneous or immaterial. As to the difference between the expressions “ in the majority of years,” and “ in each year,” in reference to the fitness of the lands for cultivation,
The instructions which were given for -the defendant, though somewhat vague, and apparently based upon legal ideas which are not very clear to us, were nevertheless substantially correct, or, at least, not so clearly erroneous, in any respect, that the plaintiff could have been seriously prejudiced. The first one made the plaintiff’s right to recover depend upon the question of fact, whether these lands were of the character of swamp and overflowed lands unfit for cultivation, and, taken together with those given for the plaintiff on the same subject, placed the issue fairly enough before the jury. Whether the phrase “a present absolute grant thereof ” meant a fee simple, or an appropriation by law, in either case the plaintiff’s right to recover depended on the issue of fact which the instructions submitted to the jury. The second and third instructions would seem to have been correct enough so far • as any principles of law were involved in them, and we do not see that they were materially erroneous. Their bearing upon the issue was very remote. We cannot say that the plaintiff has suffered any prejudice by their having been given.
The jury were to judge of the weight of the evidence, and, the issue having been found for the defendant, the verdict will not be disturbed.
Judgment affirmed.