Masterson v. Marshall

65 Mo. 94 | Mo. | 1877

Hough, J.

This was was an action of ejectment for certain lands in Carroll county. The plaintiff claimed title by virtue of a location and settlement made thereon in August, 1856, under the pre-emption laws of the United States, followed by an entry at the United States Land Office in June, 1857, and a patent from the United States based thereon, dated August 5, 1873. The defendant claimed title under a purchase from the .county of Carroll in July, 1868, and a deed from the State made in pursuance thereof, dated February 12, 1869. It appears from the record that the lands in question were selected as swamp lands under the act of Congress of September 28, 1850, and that in December, 1853, said selection was approved by the Secretary of the Interior, and in January, 1854, a list of said lands was certified b3r the Commissioner of the General Land Office to the Governor of Missouri, who, in pursuance of the provisions of the act of Congress aforesaid, requested that a patent might issue for the same, and on the 9th day of March, 1858, a patent was issued by the United States to the State of Missouri therefor. By the act of Assembly of March 8, 1851, the lands granted to the State by the act of Congress before mentioned, were donated to the counties in which they were situate. The Circuit Court decided 'that the plaintiff had the better title, and judgment was entered accordingly; to reverse which the defendant has appealed to this court.

, title to passes without patent, when.

I. The first section of the act of September 28, 1850, granted the whole of the swamp and overflowed lands remaining- unsold at the passage of the act to the states in which the same are situate. By J the second section it was provided that lists and plats of such lands should be made by the Secretary of the Interior and transmitted to the Governor, and, upon his request, patents should issue to ' the State therefor. On the 2d of March, 1855, Congress passed an act for the relief of purchasers and locators of swamp and overflowed lands, which directed the President of the United States to cause patents to be issued to all purchasers or locators who may have made entries of the public lands claimed as swamp lands prior to the issue of patent to the State as provided in the second section of the act of September 28, 1850. This act further provided for payment to the State of the purchase money received by the United States therefor, upon due proof before the Commissioner of the General Land Office, that any of the lands purchased were swamp lands within the true intent and meaning of the act of 1850. On the 3d of March, 1857, Congress passed another act, continuing in force the foregoing act and extending its provisions to all entries and locations of lands claimed as swamp lands made since its passage, and as selections of swamp and overflowed lands had in many instances been made by the states before the required lists and plats were made by the Secretary of the Interior, the act also declared that all such selections theretofore made and reported to the Commissioner of the General Land Office, so far as the lands selected remained vacant and unappropriated, and not interfered with by actual settlement under some law of the United States, were by said act Confirmed. We are not aware of any decision of the Supreme Court of the United States which determines the precise scope and effect of the foregoing acts, and it is unnecessary for us in the present case to undertake to define the limits of their operation. It is conceded by'the plaintiff’s counsel to be the settled doctrine of the court,—and they do not controvert its correctness or seek to have it reviewed,—that under the swamp land grant of 1850 a patent is not necessary in-order to confer title upon the State, that where in any given case the particular tracts constituting a portion of the subject matter of the grant contemplated by the act of 1850 have been authoritatively ascertained, the grant at once takes effect as to the portion so designated, and the title thereto vests in the State without a patent, the issuing of which, as was remarked by Judge Holmes in the case of Han. & St. Joe R. R. Co. v. Smith, 41 Mo. 310, “ may be considered as the act of a ministerial officer.” Lists of such lands selected by State authority when approved by the Secretary of the Interior, and reported to and accepted by the Governor, are clearly sufficient to complete the grant and vest the title. Such lists were made in the present case, and the title to the lands in controversy was therefore vested in the State at the time of the location and settlement made by the plaintiff in 1856, although no patent had then issued to the State, and said lands were no longer subject to sale by the United States authorities; and it was beyond the power of Congress to divest such title by legislative enactment .without the consent of the State. The record shows that a relinquishment of the State’s title to these lands was twice requested of the Executive of this State by the Secretary of the Interior, but no such relinquishment was ever made.

2- relinquishment of the State’s provided by'iiof’oi 2d,nfs55SS oi Maroh

The other Judges concur, except Judges Norton and Henry, who were not members of the court when this case was argued.

II. Plaintiff’s counsel, however, contend that, if the acts of 1855 and 1857 were of themselves insufficient to ¿ivest the title of the State to the lands in question, sections 24 and 25 of the act of Assembly of 1868, in relation to swamp lands, constitute a legislative acceptance of the provisions of 'said act, and the indemnity thereby provided, and create an estoppel to any claim on the part of the State to the proprietorship of these lands. Section 24 of the act named, authorizes the Governor to relinquish the title of the State to such swamp and overflowed lands as may have been sold by the General Government since the passage of the act donating said lands to the State, whenever the counties interested in said lands may, by an order of the county court,-authorize him so to do. Section 25 constitutes the Register of Lands the agent of the State to settle and adjust all claims the State of Missouri may have against the United States, growing out of the swamp land grant, and also to receive all money, or scrip, from the General Government, due the various counties as indemnity on account of swamp lands sold by the government of the United States since the donation of said lands to the State. We confess ourselves wholly unable to perceive how the foregoing provisions can be fairly construed as constituting a positive relinquishment by the State of its title to the lands in question, or an unconditional acceptance of the indemnity provided by the acts of Congress. On the contrary, the only relinquishment provided for, is one to be made by the Governor at the request of the county courts, and the indemnity which the Register of Lands is authorized to collect from the United States, is such only as would accrue in consequence of relinquishments so made, or such as would accrue in cases where no relinquishment was necessary, that is, in cases where the title had not vested in the State at the date of the acts of Congress aforesaid. It is no answer to this view to say that it was unnecessary, as a matter of law, to have the consent of the counties in order to make a valid relinquishment to the United States; that although the lands had been donated to the counties, they were still subject to the control and disposal of the law-making power. This may be so, but as the law-making power has limited the power of relinquishment to the cases named, such limitations being reasonable and valid, must be observed. We are of opinion, therefore, that the patent under which the plaintiff claimed title, was issued without authority of law, and was void, and the judgment will therefore be reversed and the cause remanded.

Reversed.