Having stated the case as above,
SEVERENS, District Judge,
delivered the opinion of the court.
The propositions upon which the plaintiff maintains its right to recover in this case are these, in substance»: First, that the swampland act of 1850 operated to convey the title to the lands proposed to be granted to the state in praesenti; second, that: the ascertainment of the lands granted was delegated to the secretary of the interior to be performed by such method as he should deem expedient; third, that by his approval, and the certification thereof, of the list including these lands, and the transmission thereof to the governor of the state, J anuary 13, 1854, the title attached to the lands, and became irrevocably vested in the state; fourth, that the subsequent transactions between the general government, and the state did not operate to impair the title thus vested.
It is further claimed that the act of 1857 operated to fix the title in the state if the lands had not been so identified that the title had already vested. The latter claim will be discussed in another place.
The first of the above propositions must be conceded. Whatever doubt may have once been entertained, such has become the establisk-[162]*162ed doctrine as settled by a long line of decisions from Railway Co. v. Smith, 9 Wall. 95, to Iron Co. v. Cunningham, 155 U. S. 354, 15 Sup. Ct 103. The second proposition may also be conceded. In a wide sense, it would be subject probably to some limitations which, for the purposes of this case, need not be stated. There can be no doubt that, while acting within the limits of his authority, the choice of methods was left to the secretary. The third and fourth propositions involve questions of vital and far-reaching import. If in the circumstances in which the swamp-land grant found the land surveys in Michigan, and as we understand, in some other states also, and in which the grant was adjusted in that state, and notwithstanding the co-operating action of the general government and the state in that adjustment, it is competent now to assert a title in the state which it is competent to convey, founded upon the original surveys and certifications long since superseded, because found erroneous or mistaken and contrary to the purpose of the law, the consequences may be very serious indeed. If all the land, whether swamp or arable, which was once certified upon the original fraudulent surveys, can now be claimed and sold by the state, it is obvious that much disturbance of titles and of what has since been done must ensue. • The swamp lands in Michigan, owing to its peculiar topography, were widely scattered through the state. The land in the state of all descriptions has nearly all been sold, and it has been sold as finally surveyed after the. discovered frauds were corrected. The old surveys and the. new would not be uniform, but would overlap, or spread apart, leaving gores and fractions between. The lands in Michigan covered by this grant amounted to very .nearly six millions of acres, being almost one-sixth of the entire area of the state.
In effect, the plaintiff’s contention amounts to this: that no matter how gross the error or from what case proceeding, the secretary of the interior, when once he had certified a list of lands as falling due to the state under the grant, was without power to rectify it, though no patent had been issued and the. rights of no third party had become involved by purchase from the state; and, further, that the secretary had no power to do this with the consent of the state. We do not think this doctrine can be sound. The identification of the lands affected by the grant was left to the secretary. The mode of doing this which was suggested by him involved concurrent action by the state. The proceedings on both sides sho.uld be construed in the light of existing circumstances, and not arbitrarily without regard to them. And the intention with which each step was taken and its purpose should be gathered from all that was mutually done and expressed with reference to the subject. Surely these rules are not too wide to be applied to a great governmental transaction like this. It was said by Judge G-raves, in delivering the opinion of the supreme court of Michigan in Dale v. Turner, 34 Mich. 405, 416:
“There Is no occasion to assail the position that the swamp-land act was sufficient to work an immediate transfer of the class of lands to which it was applicable; because, if it was so, it was still within the power of the [163]*163state and the United States, the parties to the grant, to agree, in the absence of any conflicting right, that sales -made by the United States subsequent to the swamp-land act should be respected by the state, and be left to be completed by the United States by conveyance, and that the state should resort to the United States for equivalents.” '
This case, as does also that of State v. Flint & P. M. R. Co., 89 Mich. 481, 51 N. W. 103, asserts in an unequivocal manner the capacity of the state for active participation and negotiation in the settlement of the grant, and it would seem that its officials charged with the duty of acting in its behalf in that regard should foe deemed its representatives.
While it is not now questioned that the act of 1850 transferred the title to the granted lands in praesenti, yet the identification, of the lands so that the grant should attach to particular parcels was another matter, and whether a selection of lands was intended to he provisional or final was a question of intention to be gathered in the light of all the circumstances. And while we cannot refer to the understanding with which the law was executed to construe the act of congress, we think it is competent, if such understanding of the ■law can foe ascertained, to take it into consideration in determining the consequences intended by the parties from their acts. It was not until the year 1869, when the case of Railway Co. v. Smith, 9 Wall. 95, was decided, (hat the doctrine now accepted in regard to the time when the title should he deemed to have vested under this grant was settled. Differing views had been entertained, and in many quarters it was thought that the title did not vest until the issuance of the patent, as required by the second section of the act. How, we think no one can read the record of what was dono in the administration of the grant in the state of Michigan without having a very strong impression that what was done was upon the understanding that the title would not pass until patents were issued, — or, to say the least, that it was thought that the safest way was to act upon that presumption, — and that the state as well as tin' secretary governed themselves accordingly. '
The supreme court of Michigan, in Dale v. Turner, 34 Mich. 405, construed the act of the legislature of the slate of June 28, 1851, adopting the field notes as the basis on which the grant would foe received, as importing an understanding that the title would not: be obtained until patents were received, and the whole tenor of the subsequent transactions indicates that this view continued to be held. What was done was regarded as part of a proceeding which was in fieri until the patent should be issued, and this was expected to come when the surveys were finally completed, and reliable data for making a just segregation of the swamp lands should be obtained. We also think it clear that the field notes mentioned in the act last referred to were intended to be the lawfully established field notes, and not those which had been rejected, or having been impeached, would probably he wiped out. It would have been a comparatively .short piece of work to have simply made out (Iiq lists from the notes of the original survey. It wrns for the interest of the state itself as well as of its citizens that the resurveys should be completed, and the [164]*164frauds of which it had complained should he corrected. It would then know what it was getting, marked and defined by an actual survey made by the recognized authority, and in harmony with the system upon which contiguous lands would be sold and owned, and, for its honor, that what was awarded to .it was according to its rights, and not the fruit of fraud.
In passing, we may advert to a complication arising in the present case. The declaration describes the lands which it seeks to recover by the descriptions of the government survey, and this, without more, must be deemed to refer to the recognized and authorized survey. A judgment in its favor thereon would establish its title accordingly, and entitle it to be put in possession of the lands thus described, and the marshal would have no other guide than the description in the declaration and judgment. Whether that would correspond with the old survey, the court has no means of knowing. The presumption is that it would not, for the old was erroneous, and the new is presumptively correct.
For these and such reasons the state suspended from sale lands contained in selections already made, upon request of the commissioner of the general land office, and when new lists expressly intended, and known to be intended, to supersede the former selections, were received from, the general land office, they were adopted by the state, and patents requested thereon by the state officials charged with that duty. The state also in its legislative capacity knew how the adjustment was going forward. The reports of the commissioner of the state land office showed it, and the legislature of 1857 enacted a statute to forbid sales of lands before patents were received. That statutory provision has ever since been in force. Section 2, Act No. 130, Laws Mich. 1883, upon which Sparrow obtained his patents for the lands here claimed by the plaintiff, seems to indicate that the lands appropriated by the state, and authorized to be patented, were lands which were subject to sale, and as these were not, because no patent had been received for them, we have difficulty in finding the authority by which the patent issued to Sparrow. This is a question not submitted by counsel, and therefore we do not pursue it. There are sporadic instances shown by the record where state officials have started suggestions of doubts Avhether the state was getting all it was entitled to, and of claims for more, but they were either never insisted upon by the state, or were settled by adjustment. We are therefore of-opinion that it was not intended by the secretary of the interior, nor expected by the state, that the selection of swamp lands certified and transmitted to the governor on the 13th day of January, 1854, and which included the lands claimed by the plaintiff, should be necessarily final, but that it was intended to be subject to correction to the extent that the facts shown by the resurveys should require, and that, upon its being proven by the resurvey that these lands were not swamp, it was competent to supersede the selection by a correct one. > ,
But, if this were not so, we should still be prepared to hold that where, as in this case, a selection had been made and approved [165]*165under a mistake of facts induced by a false and fraudulent .survey, whereby lands had been c.ertided which were not swamp, and to which the state had no right whatever, and the rights of no third party had intervened, it was competent for the secretary, on discovering the error at any time before issuing the patent, to correct Ike wrong by recalling his certifications; not upon “mere error of judgment, but that character of mistake which affords a ground of relief in a court of equity.” State of Oregon, 5 Land Dec. Dep. Int. p. 31. The secretary under this grant would exercise his pówexs consistently with his general authority over the public lands. He had plenary and exclusive power to direct the surveys, to cancel such as he found erroneous, and to order resurveys as the necessities of every occasion should require. He had the power aud was charged with the duty of supervising the method by which granted lands should be passed to the beneficiary. If mistakes were committed by his subordinates, the results of which, if suffered to stand, would be to accomplish a wrong, he had power to correct i hern. If they were made by himself, his duty was as plain and his power no less ample. “The obligations of his oath of office oblige him to see that the law is carried out, and that none of the public; domain is wasted or is disposed of to a party not entitled to it. Me represents the government, which is a party in interest in every case involving the surveying and disposal of the public lands.” Knight v. Association, 142 U. S. 161, 181, 12 Sup. Ct. 258.
The secretary could not abdicate his functions. Mor could he assume any obligation by agreement with the stale which would bind him in the discharge of his duty to the general government. The business in which he was eugaged was not that of contract, but the exercise of a delegated authority. That duty rested upon him in the transmission of the lands intended by the grant. Ey the act in question the proceedings in his department extended from the first step to he taken for the identification of the lands to the issuance of the patent to the state, whereupon they became “subject to the disposal of the legislature thereof.” The attorney general, in speaking of the patent required to be issued to the slate by the second section, in 9 Op. A tty. Gen. 255, said: “The object of that clause was undoubtedly to prevent the legislature of the state from a premature interference with lands before they were so designated as to preclude mistake and confusion.”
The secretary may prescribe methods, as he prescribed a method here, for the conduct of business, and “when proceedings affecting title to lands are before the department the power of supervision may be exercised by the secretary, whether these proceedings are called to his attention by formal notice or appeal, and it is sufficient that they are brought to his notice. The rules prescribed are designed to facilitate the department in the dispatch -of business, not to defeat the supervision of the secretary. For example; if, when a patent is about to issue, the secretary should discover a, fatal defect in the proceedings, or that by reason of some newly-ascertained fact the palent, if issued, would have to he annulled, and that it would be his duty to ask the attorney general to in[166]*166stitute proceedings for its annulment, it would hardly be seriously contended that the secretary might not interfere and prevent the execution of the patent. He could not be obliged to sit quietly and allow a proceeding to be consummated, which it would be immediately his duty to ask the attorney general to take measures to annul. It would not be a sufficient answer against the exercise of his power that no appeal had been taken to him, and therefore he was without authority in the matter.” Pueblo Case, 5 Land Dec. Dep. Int. 494.
So here, if the title of the state was irrevocably vested in this land by the certification of the secretary, and there was no duty left but the mere issuance of the patent notwithstanding the discovery of the mistake, he could have been compelled by the court to issue it. When issued, the court would not, under the settled rule, vacate it on account of the original mistake, for that had been discovered by the secretary before the patent was issued. Thus the mistake would be irretrievable. The language of the secretary in 5 Land Dec. Dep. Int. 494, last cited, was quoted and approved in Knight v. Association, 142 U. S. 178, 12 Sup. Ct. 258, and the doctrine fortified by reference to former decisions of the court, citing Maguire v. Tyler, 1 Black, 195, 8 Wall. 650, 661; Snyder v. Sickles, 98 U. S. 203, 211; Buena Vista Co. v. Iowa Falls & S. C. R Co., 112 U. S. 165, 175, 5 Sup. Ct. 84. And it was further held in that case that the secretary could take action for the correction of such mistakes on his own motion, and that he need not await a contest. It cannot be denied that the power to do this is lodged somewhere. After the patent has issued, or when, under the granting act, no patent is required, all things contemplated by the act have been done, the court is the proper forum in which to deal with the case. But when the patent is required by the act it would seem that congress intended the secretary’s supervision to continue until all things contemplated by the act have been accomplished by its issuance. This distinction in the jurisdiction has been adverted to in previous discussions, and appears to be a recognized and established one. It has certainly been acted upon for many years in the land department of the United States, and, although there is no express decision of the supreme court turning on the precise point, yet it has been clearly recognized in several cases as denoting the line between the boundaries of the jurisdiction of the department and of the courts.
Counsel for the plaintiff are mistaken in the suggestion which they make that the doctrine that the secretary has power to correct his own errors in certifying lands before patent originated with Secretary Lamar in 1886. It may be that there Avas neArer so definite and formal a promulgation of the doctrine before that time, but the record in the present case shows that it was asserted and acted upón many years before. It passed unchallenged at the time. It was then, and has continued to be, a rule by which the practice of the department has been governed. After the lapse of this long-period we do not think it competent, at least unless the unlawfulness óf the practice is clear and plain, for private individuals, [167]*167having no interest to protect, to buy into the ground of controversy and challenge the validity of a proceeding of this character, upon the foundation of which other interests have been established and now repose.
It is not claimed that these lands were in fact swamp, but the plaintiff founds its right upon the secretary’s certification of the list in which they were included, as upon a judgment irrevocably concluding that question. The rule has often been stated and applied that when, under a grant transferring the title in praesenti, the lands have been identified in the manner prescribed by the act, the title to the particular lands so identified becomes vested iu the grantee. But these are cases where all had been done which the statute contemplated as necessary to complete the title, or, if in any case it fell short of that, there rvere no countervailing equities. Some of the moi-é recent cases on this subject are U. S. v. Schurz, 102 U. S. 401; Wright v. Roseberry, 121 U. S. 502, 7 Sup. Ct. 985; Cragin v. Powell. 128 U. S. 691, 9 Sup. Ct. 203; Tubbs v. Wilhoit, 138 U. S. 146, 11 Sup. Ct. 279; Williams v. U. S., 138 U. S. 514, 11 Sup. Ct. 457; Knight v. Association, 142 U. S. 161, 12 Sup. Ct. 258; Noble v. Railroad Co., 147 U. S. 165, 13 Sup. Ct. 271; and the case of Barden v. Railroad Co., 154 U. S. 288, 14 Sup. Ct. 1030, where in the opinions delivered there is a general discussion of the subject.
In the case of Noble v. Railroad Co., 147 U. S. 165, 13 Sup. Ct. 271, the secretary, on the approval of the location of the railroad, was functus officio. That was the only duty devolved upon him; and, further, it wa-s not bound up in another subject over which he had general authority. Besides, from the nature of the subject, congress must have understood when making the grant there in question that the approval of the secretary would be presently acted upon by the railroad company, and a situation created where great; hardship would ensue if tlie approval should be revoked. That being so, it was reasonable to regard the act as intending the secretary’s approval to be final when once made. And in the case of Wright v. Roseberry, 121 U. S. 502, 7 Sup. Ct. 985, a case much relied on by tbe plaintiff, certain propositions are stated, which counsel take from the opinion and lay down upon this as rules and measures by which we should be governed in our decision. We do not question the correctness cf the doctrines announced in that case, nor, if we did, should we feel at liberty to disregard its authority. But that case is to be construed, as all decisions are, by reference to the facts involved and (he questions presented for decision, and not as an. announcement of propositions which would be unaffected by other facts, and the application of other principles which the presence of such facts would involve. And, however correctly that cast; states the law, we must here fake notice of “certain equitable considerations which the department is authorized to recognize”; and in regard to which, “when recognized, no court will ever disturb its action,” as was said in Williams v. U. S., 138 U. S. 514, 523, 11 Sup. Ct. 457, in dealing with certain propositions relating to this general subject, the correctness of which was not doubted. What has been said is of general application to the cases cited.
[168]*168The rulings of the interior department, at least in recent years, have uniformly maintained the right of the secretary to revoke a certification or other equi valent act before patent, on the ground that it had been inadvertently made and was erroneous in fact. Lachance v. State, 4 Land Dec. Dep. Int. 479; State of Oregon, 5 Land Dec. Dep. Int. 31, 300, 374; State of Minnesota, 6 Land Dec. Dep. Int. 37; State of Michigan, 7 Land Dec. Dep. Int. 514; State of Oregon, Id. 572; State v. Wolf, 8 Land Dec. Dep. Int. 555. There are other, decisions of the same import. And there is no decision of the supreme court impugning that right, when exercised under an" act of congress, contemplating a supervision of the proceedings until completed by the issuance of a patent. On the other hand, the rulings of that court have been in conformity with the practice and decisions of the department. On their own account these decisions of the department are very persuasive as to what the law is, and, as multitudes of titles have been founded upon them, they ought not to be disturbed except for very cogent reasons. Railroad Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112; Knight v. Association, supra.
We now come to the consideration of the act of March 3, 1857 (11 Stat. 251). That act provided that the selection of swamp and overflowed lands granted by the act of 1850 “heretofore made and reported to the commissioner of the general land office so far as the same shall remain vacant and unappropriated, and not interfered with by actual settlement under any existing law of the United States, be and the same- are hereby confirmed and shall be approved and patented to the several states in conformity with the' provisions of the act aforesaid as soon as may be practicable after the passage of this law.”
Delays had occurred in the proceedings in the interior department for the ascertainment of the lands intended to be transmitted under the grant. This act was passed to expedite them. There is nothing in it which indicates any purpose to enlarge the grant, Nearly all the states had chosen to select the lands for .themselves, and to furnish proof that the lands were of the character mentioned in the granting act. By the terms of the option extended to the states for the taking of lands under the grant, in case they were not taken by the field notes, the state authorities were required to furnish to the surveyor general satisfactory proof of the character of the lands included in their selections. It is contended by counsel for the defendant that the act of 1857 was intended to apply to those cases only, and there is some plausibility in the argument made in support of that theory. But, as it was customary to speak of the lists made up by the surveyor general in the states which elected to select their lands on the basis of the United States survey as “selections,” it seems doubtful whether such selections were not included. We shall not, however, decide that question, being of opinion that the act was not intended to include a list‘which was in the situation of the one under which the plaintiff claims. The list had some time before been acted upon by the land department, and was expected to stand, except in so far as it should be impeached for fraud or error by the resurveys. Congress knew that those resurveys were going on. For [169]*169several years it had been making appropriations therefor. It was a matter of public record that the surveys on which it was based were fraudulent, and that, where the resurveys had developed the fraud and corrected the errors, all traces of the old survey were obliterated. The old survey had been rejected by competent authority. Ns was said in Knight v. Association, supra, a rejected survey is no survey, and inoperative for any purpose. New lists had been made and filed in the commissioner's office based upon the new survey, and the plats made in conformity theretviih. It was held by the secretaries of the interior, and we think with sufficient reason, that the act was not intended to confirm old lists founded upon the first survey which had been thus superseded. It was so held by Secretary Vilas in State of Michigan, 7 Land Dec. Dep. Int. 525; by Secretary Noble in State of Arkansas, 8 Land Dec. Dep. Int. 387; and this is confirmed by the ruling of Secretary Thompson in 1 Lester’s Land Laws, 560. And, further, we are of opinion that it was not intended by this act to override the general power of the secretary to correct, frauds and mistakes in the preparation of the lists thereby confirmed, and that upon a just construction of the act such frauds and mistakes remained subject to correction.
Whether, upon the application of the doctrine of estoppel, the state should he held to be precluded by the acceptance of the new selection which was expressly confirmed as in lien of the old one, and upon which new selection it accepted patents for other lands than Those included in the first, we have not found it necessary to determine. It was held bv the supreme court of that state upon similar facts in State v. Flint & P. M. R. Co., 89 Mich. 481, 51 N. W. 103, that the doctrine was ápplieable, and it was applied to an attempt made on behalf of the state to assert title to lands of which it had received an equivalen!.
We think there was no error in the rejection by the court of the plaintiffs offers in evidence of the record of the suit of the United States against Nicholson and his bondsmen, in the circuit court of the United States for the distxict of Michigan. That case was not between the parties in the present suit, and could bind neither of them in respect to the subject-matter of this. Besides, there was nothing to show upon what facts the case turned, whether upon any circumstances relevant here or not. If the record of that suit had been admitted, it "would have had no material effect, in view of the prime facts of the present efiso. The other exceptions relate in the main to The admission in evidence of public documents of which we should lake judicial notice, and to the correspondence of public officials pertinent to the matters in controversy. None of the rulings ex copied to were injurious to the plaintiff, whether any of them were «“clinically erroneous or not. The case was rightly argued upon its main features, and we decide the case by reference to them. For the reasons stated, we think the judgment should be affirmed.