39 F. 66 | U.S. Circuit Court for the District of Eastern Arkansas | 1889
This is an action of ejectment. It was originally brought against numerous defendants to recover 201.52 acres of laud, comprising a considerable portion of the city of Texarkana and its suburbs. The action has been dismissed as to all the lands except a part of the S. £ of the S. W. fractional £ of section 80, township 15 S., range 28 W., and as to all the defendants except John V. Lewis, William P. Anderson, Frank H. Baldwin, and Walter H. Field, who claim title to the parcel of the S. £ of the S. W. fractional £ described in the amended complaint. The case can best be understood by stating the defendants’ title first. The S. W. fractional £ of section 30, township 15 S., range 28 W., containing 81.52 acres, was entered by the Cairo & Fulton Railroad Company at the United States land-office at Washington, Ark., December 6, 1856, and was patented to the railroad company July 1, 1859. In the certificate of entry and first patent there was a mistake in the description of the land purchased, in this: it ivas described as the W. £ of the tí. W. fractional £, which only included a small fraction on the state line of less than two acres, whereas the United States sold and the railroad company purchased and paid for, as shown by the plats, the S. W. fractional £, containing 81.52 acres. This error ivas subsequently corrected, and a patent issued for the S. W. fractional £, May 1,1884, which, by operation of law, as well as by its terms, relates back to the original entry.
“Quitclaim Deed to Unapproved Swamp Lands.—Act March 18th, 1879.
“The State of Arkansas, to All to Whom These Presents shall Come, Greeting: Know ye, that Joseph F. and John C. Kirby have this day purchased from the state of Arkansas the north half of the south-east quarter, and the south-west quarter of the south-east quarter, and the south-west fractional quarter of section thirty, (30,) in township fifteen (15) south of the base line in range twenty-eight (28) west of the fifth principal meridian, containing two hundred and one and 52-100 acres, (201 52r100;) the same being a portion of the swamp and overflowed lands selected by the state of Arkansas as inuring to the said state under the provisions of an act of the congress of the United States of America, entitled ‘An act to enable the state of Arkansas and other states to reclaim the “swamp lands” within their limits,’ approved 28th of September, 1850, and which still remains unapproved and unpatented to the state of Arkansas by the general government. Kow, therefore, I, W. P. Campbell, commissioner of state lands in and for the state of Arkansas, in pursuance of the provisions of an act of the general assembly entitled * An act to authorize the sale of swamp lands in certain cases,’ approved 18th March, 1879, and for the consideration of two hundred and one dollars and fifty-two cents, ($201.52,) this day paid to the treasurer of the state of Arkansas, being the amount.in full for the purchase money for said land, the receipt for the same being now on file in my office, do hereby, for and in behalf of the state of Arkansas, grant, bargain, sell, and convey to the said Joseph F. and John C. Kirby, and to their heirs and assigns forever, all the right, title, interest, and claim the state of Arkansas has in and to the above-described land, together with all the appurtenances and hereditaments thereunto belonging, to have and to hold the same as now held by the said state, unto the said Joseph F. and John C. Kirby, and to their heirs and assigns forever: provided, however, that if the land above described and conveyed is of a character not comprehended in the act of congress granting the swamp and overflowed lands to the state of Arkansas, then and in that case the said Joseph F. and John C. Kirby shall have no claim or demand on the state of Arkansas for recoupment or otherwise.
“In testimony whereof, I, W. P. Campbell, commissioner of state lands for the state of Arkansas, have hereunto set my hand, and caused the seal of this office to be affixed at the city of Little Rock, on this 25th day of September, 1883. [Seal.] 1 W. P. Campbell, Commissioner of State Lands.”
It will be observed that the deed from the commissioner of state lands to the plaintiffs recites that the lands described therein are “a portion of the swamp and overflowed lands selected by the state” under the swampland grant “which still remains unapproved and unpatented to the state,” and that the deed is made “in pursuance of the provisions” of the act approved March 18, 1879. That act reads as follows:
*69 “Section 1. That all lands which have been and which may hereafter be selected by any authorized agent of the state to make selections of swamp and overflowed lands be, and the same shall horcafter be, subject to sale on the following conditions, whether the same has ever been approved and patented to the state by the general government or not:
“See. 2. That pve-emptors and settlers on the selected and unconfirmed swamp lands of the state, and their legal representatives or assigns, shall have a preference right to purchase such lands by making satisfactory proof to the commissioner of state lands of their rights as such pre-omptors and settlers.
“Sec. 3. That any person not a pre-emptor or settler, who shall apply to purchase any of such lands, shall make and file with the commissioner of state lands an affidavit stating that the land applied for has no improvement on it, and that no person is residing upon it, or claims it by virtue of any preemption certificate issued by authority of law, to the best of his or her knowledge and belief, which affidavit shall be attested by the county or circuit clerk, or by soma notary public of the state, or by the commissioner of state lands, and shall be filed in the state land-office.
“ Sec. 4. That on proper appli cation being filed with the com missioner of state lands for the purchase of any of the selected and unconfirmed swamp lands of the state, and full payment therefor being made to him, lie shall execute to the purchaser or purchasers thereof a quitclaim deed therefor conveying all the right, title, and interest of the state in and to the land so sold. ”
It will be observed that the power of the commissioner of state lands to sell tinder this act is limited to “lands which have been and which may hereafter be selected by any authorized agent of the state to make selections of swamp and overflowed lands;” and it is recited in tbo deed that the land in controversy bad been so selected. On the 14th of December, 1875, the general assembly of the state passed an act, the preamble of which reads as follows:
“Whereas, under the provisions of the act of congress approved September 28, 1850, entitled ‘ An act' to enable the state of Arkansas and other states to reclaim the swamp lands within their limits,’ a largo amount of lands were selected which were alter wards disposed of by the United States; and whereas, upon proper proof that any lands so selected came within the provisions of the grant aforesaid, the United States government will refund to the state, in case of cash entry, the amount of purchase money, and an equivalent in lands for the tracts located with military, county warrants, or script; therefore, ” etc.
This act provides for the appointment of “an agent whose duty it shall be to procure the necessary proof in each and every ease of the kind above recited, and make a final settlement with the United States government on behalf of the state.” The seventh section of this act confirms the titles of the purchasers to all swamp lands purchased from the United States after the passage of the swamp-land grant, in these words:
“Sec. 7. That all titles to lands embraced in this act are hereby ratified and confirmed, and made as valid as if deeded or patented by the state of Arkansas.”
If the land in controversy was swamp land, the title to which vested in the state under the swamp-land grant, the state, by this act, relinquished and transferred her title thereto to the railroad company, who purchased it from the United States. The plaintiffs, perceiving this to
“That the board of swamp-land commissioners are hereby empowered to demand of and receive from the proper accounting officers of the United States indemnity at the rate of one dollar and twenty-five cents per acre for any swamp and overflowed lands within this state which have been disposed of or sold by the United States since the 28th of September, 1850, or which hereafter may be sold or disposed of by the United States. ”
It will be seen this act is not limited in its operation to “selected” swamp lands. In construing this act the supreme court of the state, in Branch v. Mitchel, 24 Ark. 446, say:
“The provisions of the fifth section of the act of the 11th of January, 1851, must be construed to be a consent on the part of the state to receive from the United States the purchase money paid to the latter for all such of the swamp lands as the state could rightfully relinquish, and not for any which any person might obtain a right to, as against the state, before the purchase of the same by another from the United States.”
At the time the railroad company purchased the land from the United States the plaintiffs had made no settlement or improvement upon it, and had acquired no pre-emption right to it under the laws of the state, and, under the acts of the legislature cited, could not do so after its sale by the United States; and it does not appear that they ever made any effort to do so. One of the plaintiffs testifies that in 1873 he purchased
The plaintiffs’ deed is invalid for other reasons. It is quite immaterial what act of the legislature the commissioner of state lands had in view when he made the deed. On the undisputed facts in the case, he
“The land-agent permitted Harrell to enter the land in controversy by preemption, without the declaration and affidavits required by law, that he had an Improvement thereon, etc. The sale so made was unauthorized by law. The statute provides: ‘ That the land-agents shall have full power and authority to sell any of the swamp and overflowed lands; but in making such sales shall be governed by the rules, provisions, and regulations now in force, and hereafter providod, or which may exist by law at the time of such sale.’ Act January 12, 1853, § 7; Act December 30, 1856, § 2. The making and filing of the proper declaration and affidavits in the office of the land-agent, within the time limited, were legal prerequisites to a valid sale of the land by preemption. Without them the land-agent had no legal power to make such sale. As remarked by this court in Cheatham v. Phillips, 23 Ark. 87, the swamp lands belonged to the state. The title to them is not in the land-agent. They derive their power to sell them from the statutes, and have to follow their requirements in order to make valid sales.”
On the uncontradicted facts in the case the commissioner had no power to execute the deed, and it would seem this may be shown in an action at law. Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228, and cases cited. Notwithstanding the recital in the deed to the contrary, the land was never selected, designated, or certified as swamp land by any officer or agent of the United States or the state. This is conceded by the plaintiffs, who ask that the recital in the deed to the contrary may be rejected. When this is done, the plaintiffs’ title rests on a quitclaim deed from the commissioner for whatever right or tille, if any, the state acquired to the land under the swamp-land grant. Whether the state acquired any right to the land under that grant is left for future determination. As between such a deed and a patent previously issued by the United States, the patent must prevail. There is no presumption that all the public lands that belonged to the United States on the 28th of September, 1850, were swamp and overflowed lands. In the absence of proof, the contrary presumption must obtain. The grant to the state was of the swamp and overflowed lands. They had to be identified. To perfect the tille of the state, or one claiming under her, to land as swamp land, it must be show’ll to have been such at the date of the grant, in some of the modes prescribed by law and the regulations of the land department, or, in cases where it is admissible, by parol, evidence on the trial. Railroad Co. v. Smith, 9 Wall. 95; Buena Vista Co. v. Railroad Co., 112 U. S. 165, 5 Sup. Ct. Rep. 84; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985; Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228.
“Those who could testify from actual knowledge are perhaps all dead. The population of that time has all passed away, and the memories of any who may be living must be very imperfect.”
The rule adopted by the courts as to the character of the evidence necessary to maintain the affirmative of this issue is the same as that adopted and acted upon by the commissioner of the general land-office from the date of the grant. In his instructions to the surveyor general of Arkansas, dated December 21, 1853, and April 8, 1854, the com
“Testimony now, after the lapse of nine years, to be available, must be explicit, resting upon personal and exact knowledge of the locations claimed, and must relate to each quarter quarter section, or other equivalent legal subdivision. ”
The following is a part of the preamble to an act of the legislature approved March 17, 1885:
“Whereas, more than thirty-four years have now elapsed since such date, (28th September, 1850,) and.but few persons are now alive who can testify to the character of such land as it appeared on the 28th day of September, 1850.”
This is a legislative recognition of the difficulty of finding living witnesses to testify intelligently on this subject. The testimony must relate to the condition of the land at the date of the grant. “From divers natural and artificial causes the surface of the earth is continually changing, and lands which were wet, overflowed, and unfit for cultivation in 1850 may now be high and arable; and so vice versa.” Hendry v. Willis, 33 Ark. 837. The most satisfactory evidence in relation to the quality of the land remains to be noticed. The statutes of the United Slates provide that “every surveyor shall note in his field-book * * * all water-courses over which the line he runs may pass; and also the quality of the land.” Rev. St. U. S. § 2395, spbd. 7. The field-notes of the survey of this land are in evidence. The survey was made in April, 1841,—-a season of the year when, if the land was wet and swampy, that fact would be apparent,—-but the field-notes do not show it to be other than dry land at that time. The clear implication from the field-notes is that it was arable land. The value of the field-notes as evidence was settled by the supreme court of the United States in the case of U. S. v. Low, 16 Pet. 166, where the court say:
“The official return of the surveyor general has accorded to it the force of a deposition. So we held in the case of U. S. v. Breward, 16 Pet. 147, and U. S. v. Hanson, Id. 196, to which we refer. ”
They rank as the deposition of a surveyor, charged under oath with the duty of noting on the spot, and at the time he makes the survey, the quality of the land. Soon after the passage of the act making the grant the commissioner of the general land-office advised the surveyor general of the state that, “in all cases where the plats and field-notes represent the lands as swampy, or subject to such overflow as to render them unfit for cultivation, they belong to the state under the law, and will be so certified.” And by several acts of the general assembly of this state (Acts 1885, p. 71; Acts 1887, p. 102; Acts 1889, p. 67) the state agrees in the adjustment of her swamp-land claims against the United States “to
“Under the fifth section of the swamp-land act, approved December, 1856, one selecting agent for each county in the state was appointed by your excellency to select all the unreported swamp lands inuring to the state under the act of congress, * * * and there are now regularly appointed agents for the purpose above indicated in every county * * *” in which there are swamp lands.
In the same report the secretary says: .
“The work of selecting the remainder of the swamp and overflowed lands is still progressing in some of the counties, and the agents have been instructed to prosecute it as speedily as possible, until every acre in their respective counties shall have been selected and reported. ”
The same officer, in his report to the governor, dated October 1, 1860, states that the selections had been made, and “the lists returned,” by the selecting agents for. certain counties, and among them Lafayette, the county in which the land in controversy then lay. It is not shown that the state has selected or made any claim to any other lands in that county under the swamp-land grant since that time. The agent who made the selections resided in the county, and was charged with the duty of selecting all the swamp lands in it. His official duty, as well as the fees he received .for his services, would impel him to include in his selections all lands coming within the purview of the grant, and it is highly probable that he did so. It is a maxim of the law that a public officer
In the preparation of this opinion the court has consulted some public documents, embracing official reports and correspondence of public officers of the state and the United States, relating to the swamp lands of the state, and published by authority, that were not formally introduced in evidence. This practice has the sanction of the supreme court of the United States. U. S. v. Teschmaker, 22 How. 405; Romero v. U. S., 1 Wall. 742; Watkins Holman, 16 Pet. 56; Bryan v. Forsyth, 19 How. 338; Gregg v. Forsyth, 24 How. 179. The conclusions reached on other points in the case make it unnecessary to consider the effect on the plaintiff’s deed of the act of congress of March 12, 1860, (12 St. 3,) which required that all selections of swamp lands to be made thereafter from lands already surveyed should be made within two years from the adjournment of the legislature of the state at its next session after the date of the act. In reference to this act see: Letter of the commissioner of the general land-office to the register and receiver at Little Rock, June 5, 1860; report of swamp-land secretary of Arkansas, October 1, 1860; report of commissioner of slate lands, October 15, 1878; Buena Vista Co. v. Railroad Co., 112 U. S. 174, 5 Sup. Ct. Rep. 84; Wright v. Roseberry, 121 U. S. 511, 7 Sup. Ct. Rep. 985.