Chandler v. Calumet & H. Min. Co.

36 F. 665, 1888 U.S. App. LEXIS 2665

• Court: U.S. Circuit Court for the District of Western Michigan
• Decided: November 14, 1888
• Status: Published

Opinion

Severens, J.,

(after stating the facts as above.) In giving effect to the grant of 1850, it has been held by the supreme court of the United States that, in order that the grant should accomplish its purpose, rather than fail, where the secretary of the interior had taken'no action in executing a duty devolved upon him of designating the lands which should be included in the grant, and where, after the lapse of a reasonable time for the segregating of the lands in that way, nothing had been done in that direction, parol proof might be received for the purpose of showing that the lands were of the character described in the general language of the act. There is some analogy in this to the case of an appointed arbitrator or umpire, who refuses or fails to act. Other means are then allowable to determine the matter, because justice should not be withheld, even though the instrumentalities to it, more especially in contemplation, fail. That ivas the consideration which led to the decision of the court in Railroad Co. v. Smith, 9 Wall. 95. Tills, however, does not at ail impugn the general proposition that the secretary of the interior was intended by congress to act as the agent of the government in determining the lands, in respect of their character, upon which the grant should operate; nor the further proposition that, where the secretary has discharged his duty, and made the determination throughout a state, or a comprehensive locality, and no objection has been made by the state to the mode and result of the exercise of that duty, and no proceedings, judicial or otherwise, have been resorted to for the purpose of modifying the secretary’s action, or extending or renewing the exorcise of his powers over other lands, the state cannot assume that other lands, not claimed theretofore under the act, and never listed or approved under it, passed to it by the general language of the act, and rest its right to them upon evidence in pais in respect to their quality. Such a course would render nugatory the substantial purpose of appointing the secretary at all, which manifestly was to identify the lands, and thus fix the grant. It was a matter of great public convenience and importance that this extensive grant of parcels out of the government lands should be identified; and that identification is nothing, if, after it has taken place, the whole matter remains at largo. These are the conclusions which I think result from the course of adjudication in the supreme court from the ease of Railroad Co. v. Smith, 9 Wall. 95, to Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985.

But upon another ground I am of the opinion that the plaintiff cannot prevail. That the. swamp-land grant of 1850 conferred upon the states complete dominion over the granted lands, and absolute proprietorship therein, so far as third persons are concerned, has been repeatedly' held. The question has been somewhat widely discussed as to whether there was anything in the nature of a trust between the general government and the state, in respect of these lands, but the result of the discussion upon it is that it is settled in the negative. The authorities which may be cited in support of this general proposition are the cases known as the “Iowa Railroad Gases,” — Emigrant Co. v. County of Adams, 100 U. S. 61; Mills Co. v. Railroad Cos., 107 U. S. 557, 2 Sup. Ct. Rep. 654; and the cases in Louisiana, Hagar v. Reclamation Dist., 111 U. S. 701, 4 Sup. Ct. Rop. 663, and U. S. v. Louisiana, 127 U. S. 182, 8 Sup. Ct. Rep. 1047. It was an absolute gift to tbe states, without any limitation in the nature of a property trust, or anything to prevent the application by the state of the swamp-land fund to general purposes. The obligation of the state should be commensurate with the proprietary rights accorded to it, and its dealings with such rights, tested by the principles applicable to a proprietor. The’ most that can be claimed on the facts, interpreted most favorably to the plaintiff, is that the state — the state of Michigan, in this case — had a right to have this land listed and approved by-the secretary of the interior as swamp land, and thus designated as part of the grant. But it was a right which was not asserted by the state. If it had been, it might have been disputed by the secretary; and, if he had denied it, it would never have ripened into title. At least, this would be so unless some further proceedings should be taken to vindicate and enforce that right. Instead of insisting upon this right, if it had it, the state selected and received this description under another grant, and conveyed it for a valuable consideration to a third person, who took it bona fide. The state could not, after this had been done, be heard to say that it would repudiate its own course, and, dishonoring its patent, claim title under the act of 1850, and resell it to another. Certainly this could not be done without a judicial proceeding instituted for that purpose. How that might have resulted, it is not for me to say, but it is the .inclination of my opinion that the result here indicated must be the result even in such a proceeding as that, or anywhere where these facts came in controversy. The result of these views is that the offers of oral evidence will be declined. The oral evidence offered to show that these lands were swamp lands mentioned in the grant, is, upon what appear to be undisputed facts, rejected; and the court will therefore instruct the jury that, upon the facts as they are made to appear in this case, the defendant is entitled to the verdict.

The jury were instructed accordingly.