67 P. 421 | Or. | 1902
after stating the facts, delivered the opinion of the court.
This same principle must necessarily apply to the listing of land to the state by the Secretary of the Interior under the swamp land act. He is required to “make out an accurate list and plats of the lands” described in the act, and cause a patent to be issued to the state therefor, and upon the issuance of such patent, and not before, the legal title vests in the state. The making and forwarding to the governor of the list and plats is but one step in the process of the administration of the law. It does not transfer the title from the United States to the state, nor does it devest the land department of control over the land. It is only prima facie evidence of the right of the state to a patent. Until the patent has been issued, the land department may determine for itself under what circumstances and upon what notice it will revoke and cancel the list. All who deal with the state, or base any rights upon the approved list, are chargeable with knowledge of its character, and of the fact that the proceedings to secure the legal title are incomplete, and that it is within the power of the land department at any time to revoke the list; thus destroying the prima facie evidence of the right to a patent. If the cancellation is made without notice to a grantee of the state, it is not conclusive as to him, and does not destroy his equitable title. He still has the right to show, if the facts are with him, by evidence other than the approved list, that the land was in fact within the terms of the swamp land grant, and should be listed and patented to the state. But, in our opinion, this showing must be made to the Secretary of the Interior, and before the legal title passes from the government. By the swamp land act, it is made the exclusive duty of that officer to determine what lands are within the grant. His office is made the tribunal whose decision upon that subject is controlling. It is for him alone to pass upon that question, and his
The decree of the court below must be reversed, and the complaint dismissed. Reversed.