16 Or. 540 | Or. | 1887
Lead Opinion
This is a suit to have the defendant decreed to convey to the plaintiff the legal title to certain land described in
As the first and main objection raised and relied upon is, in our judgment, decisive of this case, it is unnecessary to make further reference to the facts in the pleadings. That objection is that the facts stated do not present a case requiring equitable relief, or that the remedy of the plaintiff, if any, is complete at law. This will require some reference to the swamp land act of Congress, which we shall assume to be known without incorporating its provisions here. The swamp land act is a grant in preesenti, by which the title to such lands passed at once to the State, upon the adoption of the Act of Congress of March 12, 1S60, extending the provisions of that act to Oregon. It has been so held by the Supreme Court of the United States (Railroad v. Smith, 9 Wall. 95; French v. Fyan, 93 U. S. 169; Martin v. Marks, 97 U. S. 345), and of this State (Gaston v. Stott, 5 Or. 488), and of the several States of the Union. (Owens v. Jackson, 9 Cal. 322; Kernan v. Griffith, 27 Cal. 87; Whiteside Co. v. Burchell, 31 Ill. 68; Keller v. Brickey, 78 Ill. 133; Fore v. Williams, 35 Miss. 533; Fletcher v. Pool, 20 Ark. 100; Hendry v. Willis, 33 Ark. 833; Allison v. Halfacie, 11 Iowa, 450; State v. Bank, 106 Ind. 436.) This view of the character of the grant has recently been sustained in Wright v. Roseberry, 121 U. S. 488; 7 Sup. Ct. Rep. 985, by Mr. Justice Field, giving the opinion of the court, in which he shows, after an able and exhaustive examination, that the construction of the swamp land act as a grant in preesenti has been maintained by the law officers of the government, by the land department, and by the repeated adjudications of the Supreme Court.
It must be taken, then, as settled law, that the Swamp Land Act of Congress of March 12, 1860, is a grant in preesenti to the State of Oregon of the lands situated within its limits, of the land described, and that the legal title to such lands is in the State, or its grantees, to whom it has lawfully conveyed them. Nor is this point contested by counsel for the plaintiff. They admit that the swamp land act was a present grant, which passed
Now, the theory on which the suit is brought is that the legal title to the land in dispute, and alleged to be swamp, is in the defendant Tobin; it asks that he be declared a trustee of the legal title for the plaintiff, and that he be decreed to convey the same to him. This is inconsistent Avith the vieAv that the swamp land act Avas a present grant of such lands to the State. Nothing can be plainer, if the land be swamp, as alleged and claimed, than that the title to it, under the act of Congress, is in the State, or the plaintiff as its grantee, and out of the United States, and that the patent to the defendant Tobin is a nullity, and conveyed nothing. Unless the United States has title to the thing granted, its patents can convey no title. Mr. Justice Field said: “ It is common knowledge that patents of the United States for lands which they had previously granted, reserved for sale or appropriated,- are Amid.” (Wright v. Roseberry, supra.) It Avill not do to say, to avoid the effect of the contradiction involved, that the title of the State is incapable of proof until the quality of the land to Avhich it attaches is identified and patented by the secretary; for then a court of equity would be as poAverless to furnish relief as a court of laAV. Besides, that would imply that the secretary could defeat the grant by his failure or negligence to identify and patent the lands granted; and that the State was powerless, either through its legislature or courts, to prevent its rights from being defeated. Nor'will it doto say that the secretary may issue a patent for land as a pre-emption claim which had years before been granted to the State as swamp; that such patent is not'
In this connection, it may perhaps be important to bear in mind the different functions which a patent may perform. Under the swamp land act, the patent is only confirmatory of the title already granted to the State, and, when issued, becomes record evidence of the title, although adding nothing to the title itself. In many other cases, it is a conveyance of title of whatever interest the government has to convey. This distinction is thus stated in Langdeau v. Hanes, 21 Wall. 521, in which the court say: “In the legislation of Congress a patent has a double operation. It is a conveyance by the government, when the government has any interest to convey; but where it is issued upon the confirmation of a claim of a previously existing title, it is documentary, having the dignity of a record of the existence of that title, or of such equities respecting the claim as to justify its recognition and confirmation.” But in either case, whether the patent be a conveyance of title of public land sub
With this explanation we are now prepared to examine the authorities cited by counsel to sustain the view that the remedy is in equity and not at law.
The case of Johnson v. Towsley, 13 Wall. 72, so far as it has any bearing on the matter here involved, only decides that the action of the land office in issuing a patent for any of the public land subject, to sale by pre-emption is conclusive of the legal title when its action is within the scope of its authority; that is, when the land office has jurisdiction under the law to convey the land, and the power of equity to interfere when fraud or mistake intervene.
In Railroad Co. v. Smith, 9 Wall. 95, the secretary of the interior had not furnished the State of Missouri with any list of its swamp lands, nor had the State received any patent for the same. The question presented was whether the grant by the Act of .Congress of June 10,1852, to Missouri, of lands to aid in the construction of certain railroads, covered the swamp and overflowed lands granted to the State by the Act of September 28, 1850. The defendant Smith, the State’s grantee, had been permitted, on the trial below, to introduce evidence, against objection, tending to prove that the lands in suit were wet, and unfit for cultivation, at the date of the Swamp Land Act of 1850. After some reference to the nature of the grant, the duty of the secretary of the interior to identify and ascertain the character of the land, and furnish the State with the evidence of it, the court said: “Must the State lose the land, though clearly swamp land, because the officer had neglected to do this? The right of the State did not depend on his action, but on the act of Congress; and, though the State might be embarrassed in the assertion of this right by the delay or failure of the secretary to ascertain and make out lists of these lands, the right of the State could not be defeated by that delay.” And the court further
In French v. Fyan, 93 U. S. 169, the circumstances under which the parol evidence was admissible to show that the lands claimed were swamp and overflowed was considered by the court, and stated with great precision. That was an action of ejectment for swamp and overflowed lands, and the only question raised related to the refusal of the court below to receive oral testimony to impeach the validity of a patent issued by the United States to the State of Missouri for the land in question, under the Act of 1850, the purpose of the testimony being to
Here the defendant has not only the older and better title on the face of the papers, but he deraigned his title from a patent issued under the swamp land act to the State. No one can deny but what the land department, in issuing that patent to the State, was acting within the scope of its authority; and that the secretary, as the head of it, in ascertaining and identifying the land described in the patent as swamp, was discharging a duty which the law devolved upon him. Parol evidence, therefore, was inadmissible to impeach the patent, but was conclusive of the legal title within the principle decided in Johnson v. Towsley, 13 Wall. 72, that “when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others.”
But this gives no support to the theory that the remedy of the plaintiff is in equity, upon the facts presented. Taking these to be true, the point of his contention is that the land in controversy had passed from the United States before the defendant’s patent was issued. The object of parol evidence in his case is to show that the lands were swamp within the Act of 1860; and when that fact is established, it would follow that such land could not be subject to pre-emption, or be public lands at the disposal of the United States. In such case, the judgment of the land department as to matters properly before it is not attacked, but its authority to act at all is denied, and shown never to have existed. And in French v. Fyan, the court further remarked, in commenting upon Railroad v. Smith, supra, upon which reliance was placed for the admission of parol testimony: “ The admission was placed expressly upon the grounds that the
The result of these two last cases cited, French v. Fyan and Railroad Co. v. Smith, is thus stated by Mr. Justice Field: “ That whenever the secretary of the interior has acted and certified the lists required by the Act of 1850, and issued the patent, his determination is so far conclusive as to the character of the land that it cannot be collaterally attacked. But where he has failed to make such list, and issue the patent, it is competent for the State, or parties claiming from her, to prove, by parol testimony, that the land is of the character mentioned in the Act of 1850 which passed to her.” (Savings Union v. Irwin, 28 Fed. Rep. 711.) The facts stated by the plaintiff present a case where the secretary has failed to make such a list, and issue the patent; and under the authority and reasoning of the cases cited, it is competent for the State, or the plaintiff as her grantee, to prove by parol testimony that the land, is of the character mentioned in the Swamp Land Act of 1860, which passed to the State. When this fact is established, any subsequent patent of the United States for the same laud must be void, and is examinable at law as well as in equity. In Wright v. Roseberry, supra, which is a more elaborate and authoritative exposition of the law on this subject, the result of these decisions is thus summed up by Mr. Justice Field: “That the grant of 1850 is one in prcesenti, passing the title to the lands as of its date, but requiring the identification of the lands to render the title perfect; that the action of the secretary in identifying them is conclusive against collateral attack, as the judgment of a special tribunal, to which the determination of the matter is intrusted.
Like other States in which • such swamp lands were situated, the State of Oregon has enacted laws to identify and dispose of "them, and for that purpose provided for their survey and sale, and the issue of patents or deeds to the purchasers. Subsequent to the Act of 1850, there has been legislation of Congress designed to remedy or counteract the evils arising from the delay of the secretary, which has recognized the nature of the grant as one in prcesenti, and the paramount character of the title of the State. The plaintiff is the grantee of the State by deed, and no question is raised as to his deed not having been issued in conformity to the requirements of the act of the legislature for the sale of swamp lands. “ The patent of the State,” said Mr. Justice Field, “is the conveyance of whatever interest she had at the time in the land; and if it were within the description of swamp and overflowed land, her interest was paramount to that of the United States, unless their title antedates the Act of 1850.” (Savings Union v. Irwin, supra.) As the State of Oregon derives its title to the swamp lands within its territories from the Act of 1860, if the lands in controversy are within the description of swamp and overflowed land, as alleged, the conveyance of the State passed her title to them to the plaintiff, which is paramount to that of the grantee of the United States, unless the title of such grantee antedates 1860. This is not pretended; the admitted facts are otherwise. In such a case, “where a party, whether plaintiff or defendant, asserts title to premises in controversy from a paramount source, or by a prior conveyance from a common source,” the doctrine of the conclusive effect to be given to the action of the land department in the issuance of a patent has no application. “ The doctrine that all presumptions, are to be indulged in support of proceedings upon which a patent is issued, and which is not open to collateral attack in an action of ejectment, has no application where it is shown that the land in controversy had, before the
If anything more could be wanting, the case of Wright v. Roseberry, supra, is decisive of the point that the remedy of the plaintiff is complete at law. In that case the action was in ejectment to recover a certain tract of land. It was alleged to be swamp and overflowed laud, and the title to it, therefore, passed to the State by the Act of Congress of September 28, 1850. The complaint was in the usual form in such actions. All the defendants denied the allegations in the complaint, and set up other defenses, etc. The plaintiffs asserted title to the premises as swamp and overflowed lands by conveyances from parties who had purchased them from the State. The defendants claimed the premises through patents from the United States, issued under the pre-emption laws, or parties from whom
The plaintiff, by deed, which is prima facie evidence that the land embraced by it is of the character represented, derives title from the State under the Swamp Land Act of 1860. The secretary of the interior has not certified the lists required by the act, and issued the patent to the State; but the State, in pursuance of legislation, has filed notice of its claim, and the segregation thereof as swamp, including the land in dispute. The defendant claims title by patent from the United States, under the preemption laws, upon proceedings subsequent to the Act of 1860. The case of Wright v. Roseberry, supra, distinctly decides that the issue of patents for lands, under the pre-emption laws, upon claims initiated subsequent to the swamp land grant to the State, is not conclusive at law, as against parties claiming under
The requirements of the law, therefore, make it our duty to affirm the decree dismissing the complaint, and it is so ordered.
Concurrence Opinion
concurring. —If the act of Congress extending the swamp land grant to Minnesota and Oregon be a grant in proesenti, without qualification or reservation, the title to all such lands passed to the State; then, if the plaintiff has that title, his remedy is undoubtedly at law. Any subsequent grant or sale by the government of the same lands would be a nullity; but if the proviso in the act is a limitation upon the granting clause, or in the nature of a reservation, then I am inclined to think that the government was authorized to make sales of swamp lands in Oregon at any time prior to the confirmation of title to
A brief reference to the acts of Congress will make clearer the reasons for the doubts entertained. The first section of the Act of September 28, 1850, is as follows: “ To enable the State of Arkansas to construct the necessary levees and drains, to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands therein, made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby granted to said State.” The second section is in these words: “ It shall be the duty of the secretary of the interior, as soon as may be practicable after the passage of this act, to make out accurate lists and plats of the lands described as aforesaid, and transmit the same to the governor of the State of Arkansas, and cause a patent to be issued to the State therefor; and on that patent the fee-simple to said lands shall vest in said State of Arkansas, subject to the disposal of the legislature thereof. . . . .” The first section of the act of Congress extending the provisions of said last-recited act to Minnesota and Oregon is as follows: “ That the provisions of an 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 28,1850, be, and the same are hereby extended to Minnesota and Oregon, provided, that the grant hereby made shall not include any lands which the government of the United States may have reserved or sold (in pursuance of any law heretofore enacted), prior to the confirmation of title to be made under the authority of this act.
This cause has been twice argued, once at the March term, 1886, and again at the succeeding October term; but, owing to the importance of the questions involved, we have thought it best to give them a careful and deliberate examination before announcing our conclusions. A number of very important questions were suggested at the argument, but I do not find it
The rule of statutory construction is a familiar one, that all acts relating to the same subject are in pari materia, and are to be construed as though their several provisions were incorporated together, and constituted one entire act. Equally well settled is another rule of construction, and that is that every word in a statute must be given its proper meaning and effect, if possible. And our Code (§ 684) declares another rule quite as important and salutary, as follows: “In the construction of a statute or instrument, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and, where there are several provisions or particulars, such construction is, if possible, to be adopted, as will give effect to all.” The effect of this proviso was incidentally considered by this court in Gaston v. Stott, 5 Or. 48. It is there said: “ The exception of any lands which the government of the United States may have reserved, sold, or disposed of (in pursuance of the law heretofore enacted) prior to the confirmation of title to be made under authority of said act, is repugnant to the purview of the act, and cannot stand. We cannot bring ourselves to believe that Congress intended to take away any part of the particular lands granted by the body of the act, by the subsequent general words quoted.” I cannot assent to this construction. The intention of Congress in making this grant is to be gathered from the language used, from the circumstances attending the enactment, and from contemporaneous history. The operation of no part of the act can be overthrown by conjecture. It is plainly susceptible of such construction, as that the entire act may have effect, and I am wholly unable to perceive that irreconcilable repugnancy which is claimed to exist, and I am therefore unable to yield to the criticism of this court above quoted. The construction claimed for this part of the act expunges it from the act itself, just as effectually as if no such language had ever been used therein. As at present advised, I
This act contains but two sections. The first, in effect, provides that, as soon as practicable, the president should cause patents to be issued to the purchasers or locators who had entered public lands, claimed to be swamp lands, either with cash or with land warrants or scrip, prior to the issue of patents to the States, as provided by the second section of the swamp land act, any decision of the secretary of the interior or other officer of the governnment to the contrary, notwithstanding; except that, in cases of sale by the States before entry under the laws of the United States, no patent should be issued until the State should release; but, if the State omitted for the space of
I therefore conclude that when Congress extended the swamp land grant to Minnesota and Oregon, the proviso was inserted by way of reservation of the power to dispose of such lands pending the adjustment of the grant, so that there should be no question whatever touching the title. A good reason for the insertion of this proviso is apparent. Experience has show. that occasional settlements would be made on lands allege- - > be swamp or overflowed; generally in those cases where ti ; swampy character of the land was doubtful. Congress designed the reservation, then, not to deprive the State of the benefits to be derived from the grant, but to relieve the title of a settler from all doubt; leaving the State to pursue such remedy for her lands, if any, as Congress had or might provide. The Act of September 28, 1850, must be read with the proviso under consideration, appended or inserted at the end of the first section, so that the granting clause in said act is expressly limited and controlled by the words of the proviso. The effect of this construction is that the grant does not include any lands which the government of the United States may have reserved, sold, or disposed of in pursuance of any law theretofore enacted, “prior to the confirmation of title to be made under the authority of said act.” The granting of a patent to a pre-emption claimant of said lands is a “disposition” thereof; it is in pursuance of a law before that time enacted; it was prior to the confirmation of title to be made under said act. If these views are correct, the defendant’s title is protected by the proviso, and cannot be disturbed in this suit.
Under this view of the swamp land grant, when a settler takes a pre-emption claim under the laws of the United States,
Entertaining these doubts as to the true construction of the proviso of the act, I place my concurrence in the affirmance of the decree, upon the ground that the plaintiff had a complete and adequate remedy at law.