Mr. Justice Shepard
delivered the opinion of the Court:
1. The decision of the main question involved in this appeal depends upon the construction to be given the provisions of the acts of Congress referred to above and the proceedings that have been had thereunder in respect of the lands in the Land Department of the Government.
The original act approved September 28, 1850 (9 Stat. U. S. 519), grants to the State of Arkansas:
“ Sec. 1. . . . The whole of those swamp and overflowed lands made unfit thereby for cultivation which shall remain unsold at the passage of this act,” and declares that they “ shall be and are hereby granted to said State.”
Section 2, down to a proviso that is unimportant in this case, reads thus:
“ Sec. 2. And be it further enacted, That 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 an accurate list and plats of the lands described as aforesaid, and transmit tbe same to the governor of the State of Arkansas, and, at the request of said governor, cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State of Arkansas, subject to the disposal of the legislature thereof.”
[202]*202The act of March 12, 1860 (12 Stat. U. S. 3), extends the provisions of the foregoing act to the States of Minnesota and Oregon (Section 1) with the following proviso:
“Provided, That the grant hereby made shall not include any lands which the Government of the United States may have reserved, sold or disposed of (in pursuance of any law heretofore enacted) prior to the confirmation of title to be made under the authority of the said act.
“Sec. 2. And be it further enacted, That the selection to be made from lands already surveyed in each of the States, including Minnesota and Oregon, under the authority of the act aforesaid and of the act to aid the State of Louisiana in draining the swamp lands therein, approved March second, one thousand eight hundred and forty-nine, shall be made within two years from the adjournment of the legislature of each State at its next session after the date of this act; and, as to all lands hereafter to be surveyed, within two years from such adjournment, at the next session, after notice by the Secretary of the Interior to the governor of the State, that the surveys have been completed and confirmed.”
2. We shall pass by some interesting questions that have been presented on the able argument for the appellant, because they are not necessary to be decided, under our view of the case, and will, no doubt, hereafter arise in other courts, in which adverse claimants of the land may litigate the title.
Conceding that the statute is itself a grant of all “ swamp and overflowed” lands, within her limits, to the State of Oregon, and that the actual issue of a patent is not necessary to the vesting of her right, does not settle the question presented here. Before the title could pass out of the United States to any particular tract of land and become vested in the State of Oregon, or its grantee, to the full extent and with all the rights asserted on behalf of the appellee in this proceeding, two facts must be ascertained: First, is the land selected and claimed “swamp and overflowed” within the meaning of the act of 1850; second, is it such as, within the [203]*203proviso of the Act of I860, “the Government of the United States may have reserved, sold, or disposed of (in pursuance of any law heretofore enacted) prior to the confirmation of title to be made under the authority of this act?” Heath v. Wallace, 138 U. S. 573; McCormick v. Hayes, 159 U. S. 332, 339, 343; Barden v. N. P. RR. Co., 154 U. S. 288, 329.
3. The ascertainment of these facts has been entrusted primarily, at least, to the Land Department, of which the Secretary of the Interior is the head. Whilst engaged therein, the courts have no power to interfere with the exercise of his discretion in the premises by either injunction or mandamus. Gaines v. Thompson, 7 Wall. 347, 352; New Orleans v. Paine, 147 U. S. 261.
Whether the decision of the secretary, when made, will he conclusive as to the rights of all claimants to the title, is a question that will arise in litigation that must necessarily be carried on in other courts.
4. The appellant contends, however, that Secretary Noble made the necessary decision when he approved the lists and notified the Governor of Oregon ; and that he had no power to recall the approval and reopen the controversy.
The question is a difficult one, and it is not without some doubt that we have arrived at the conclusion that the secretary did have that power. This follows, we think, from the doctrine of the following cases and others referred to in them: Knight v. Land Association, 142 U. S. 161, 178; New Orleans v. Paine, 147 U. S. 261.
The final act of confirmation of title, referred to in the statute of 1860, must be the patent required to be issued ; “ and on that patent the fee simple to said lands shall vest in the said State.” Act of 1850, Sec. 2.
Secretary Noble, in approving the lists and passing them for patent, acted upon the information certified to him, that the lands had been found to be “swamp and overflowed” by the report of the agent, and that the claim of the State was found free from conflict by sale or otherwise. He seems to [204]*204have accepted the certificate, and, in so far as it concerned the status of the land as “ swamp and overflowed,” to have made his approval without condition; but not so in respect of adverse claims. As to the latter his approval was expressly “subject to any valid adverse rights that may exist to any of the tracts therein described.”
Before the expiration of the month in which the second list had been approved, a petition was filed in the department by certain adverse claimants, under other legislation of Congress respecting the public lands, in which the secretary was advised that there were not only adverse claims, but also that the lands were not in fact “swamp and overflowed.” Having reason to believe that he may have been led into error, the secretary cancelled entirely the approval of the lists, and ordered a full report to be made and submitted to him, with all the papers relating to the matter, for examination and determination of the questions involved.
Before the matter could be finally acted upon, Secretary Noble retired from office and was succeeded by Secretary Smith. The latter has not revoked an order or reviewed a decision of his predecessor. He has merely taken up the matter, in the course of his duty, as unfinished business of the department.
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Mr. Justice Shepard
delivered the opinion of the Court:
1. The decision of the main question involved in this appeal depends upon the construction to be given the provisions of the acts of Congress referred to above and the proceedings that have been had thereunder in respect of the lands in the Land Department of the Government.
The original act approved September 28, 1850 (9 Stat. U. S. 519), grants to the State of Arkansas:
“ Sec. 1. . . . The whole of those swamp and overflowed lands made unfit thereby for cultivation which shall remain unsold at the passage of this act,” and declares that they “ shall be and are hereby granted to said State.”
Section 2, down to a proviso that is unimportant in this case, reads thus:
“ Sec. 2. And be it further enacted, That 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 an accurate list and plats of the lands described as aforesaid, and transmit tbe same to the governor of the State of Arkansas, and, at the request of said governor, cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State of Arkansas, subject to the disposal of the legislature thereof.”
[202]*202The act of March 12, 1860 (12 Stat. U. S. 3), extends the provisions of the foregoing act to the States of Minnesota and Oregon (Section 1) with the following proviso:
“Provided, That the grant hereby made shall not include any lands which the Government of the United States may have reserved, sold or disposed of (in pursuance of any law heretofore enacted) prior to the confirmation of title to be made under the authority of the said act.
“Sec. 2. And be it further enacted, That the selection to be made from lands already surveyed in each of the States, including Minnesota and Oregon, under the authority of the act aforesaid and of the act to aid the State of Louisiana in draining the swamp lands therein, approved March second, one thousand eight hundred and forty-nine, shall be made within two years from the adjournment of the legislature of each State at its next session after the date of this act; and, as to all lands hereafter to be surveyed, within two years from such adjournment, at the next session, after notice by the Secretary of the Interior to the governor of the State, that the surveys have been completed and confirmed.”
2. We shall pass by some interesting questions that have been presented on the able argument for the appellant, because they are not necessary to be decided, under our view of the case, and will, no doubt, hereafter arise in other courts, in which adverse claimants of the land may litigate the title.
Conceding that the statute is itself a grant of all “ swamp and overflowed” lands, within her limits, to the State of Oregon, and that the actual issue of a patent is not necessary to the vesting of her right, does not settle the question presented here. Before the title could pass out of the United States to any particular tract of land and become vested in the State of Oregon, or its grantee, to the full extent and with all the rights asserted on behalf of the appellee in this proceeding, two facts must be ascertained: First, is the land selected and claimed “swamp and overflowed” within the meaning of the act of 1850; second, is it such as, within the [203]*203proviso of the Act of I860, “the Government of the United States may have reserved, sold, or disposed of (in pursuance of any law heretofore enacted) prior to the confirmation of title to be made under the authority of this act?” Heath v. Wallace, 138 U. S. 573; McCormick v. Hayes, 159 U. S. 332, 339, 343; Barden v. N. P. RR. Co., 154 U. S. 288, 329.
3. The ascertainment of these facts has been entrusted primarily, at least, to the Land Department, of which the Secretary of the Interior is the head. Whilst engaged therein, the courts have no power to interfere with the exercise of his discretion in the premises by either injunction or mandamus. Gaines v. Thompson, 7 Wall. 347, 352; New Orleans v. Paine, 147 U. S. 261.
Whether the decision of the secretary, when made, will he conclusive as to the rights of all claimants to the title, is a question that will arise in litigation that must necessarily be carried on in other courts.
4. The appellant contends, however, that Secretary Noble made the necessary decision when he approved the lists and notified the Governor of Oregon ; and that he had no power to recall the approval and reopen the controversy.
The question is a difficult one, and it is not without some doubt that we have arrived at the conclusion that the secretary did have that power. This follows, we think, from the doctrine of the following cases and others referred to in them: Knight v. Land Association, 142 U. S. 161, 178; New Orleans v. Paine, 147 U. S. 261.
The final act of confirmation of title, referred to in the statute of 1860, must be the patent required to be issued ; “ and on that patent the fee simple to said lands shall vest in the said State.” Act of 1850, Sec. 2.
Secretary Noble, in approving the lists and passing them for patent, acted upon the information certified to him, that the lands had been found to be “swamp and overflowed” by the report of the agent, and that the claim of the State was found free from conflict by sale or otherwise. He seems to [204]*204have accepted the certificate, and, in so far as it concerned the status of the land as “ swamp and overflowed,” to have made his approval without condition; but not so in respect of adverse claims. As to the latter his approval was expressly “subject to any valid adverse rights that may exist to any of the tracts therein described.”
Before the expiration of the month in which the second list had been approved, a petition was filed in the department by certain adverse claimants, under other legislation of Congress respecting the public lands, in which the secretary was advised that there were not only adverse claims, but also that the lands were not in fact “swamp and overflowed.” Having reason to believe that he may have been led into error, the secretary cancelled entirely the approval of the lists, and ordered a full report to be made and submitted to him, with all the papers relating to the matter, for examination and determination of the questions involved.
Before the matter could be finally acted upon, Secretary Noble retired from office and was succeeded by Secretary Smith. The latter has not revoked an order or reviewed a decision of his predecessor. He has merely taken up the matter, in the course of his duty, as unfinished business of the department. After careful examination, he came to the conclusion, as we have seen, that the said lands were not “ swamp and overflowed,” within the meaning of the act of Congress; and that they were the subject of claim, by many persons, under pre-emption, homestead, and other laws of the United States. Whether he erred in the foregoing conclusions, is not a question for our determination. If it were, there are no facts presented by the record by which we could determine it.
In recognizing and affirming the act of his predecessor, he seems to have followed the established practice of the department in treating the matter as undecided and subject to new inquiry until the issue of patent.
[205]*205That practice and the power of the secretary have been stated by a former secretary in language that was expressly approved in Knight v. Land Association, 142 U. S. 178, as follows : “ The statutes, in placing the whole business of the department under the supervision of the secretary, invest him with the authority to review, revei’se, amend, annul, or affirm all proceedings in the department having for their ultimate object to secure the alienation of any portion of the public lands, or the adjustment of private claims to lands, with a just regard to the rights of the public and of private parties. Such supervision may be exercised by direct orders or by review on appeals. The mode in which the supervision shall be exercised, in the absence of statutory direction, may be prescribed by such rules and regulations as the secretary may adopt. When proceedings affecting titles 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 by appeal. 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 patent, if issued, would have to be annulled, and that it would be his duty to ask the attorney general to institute 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 proceedings 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.” 5 Land Dec. 494.
We agree with the learned justice who heard the cause [206]*206that the case here differs from Noble v. The Union River Logging RR. Co., 147 U. S. 165, upon which the appellant strongly relies. “ That case,” he correctly said, “ arose under a law granting to railroad companies the right of way •over public lands. It contained a provision that a railroad company seeking to have the benefit of the act shall file with the register of the land office for the district where the ■land is located a profile of its route, and upon the approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said said office, and thereafter all lands over which said right of way shall pass shall be disposed of subject to said right of way. The final act here was noting the profile which had been approved by the Secretary of the Interior upon the plats in the land office, and from that moment the right of way was established.” No patent was required by the statute in that case to convey the easement. The right thereto vested upon approval of the profile and the delineation of the right of way upon the plats; and was, therefore, held beyond recall by a succeeding secretary.
In this case, the noting of the lists of “ swamp and overflowed ” lands upon the tract books of the department wras not required or provided for by the acts of Congress; but the issue of the patent was expressly provided for as the .last act in the series essential to the complete vesting of the title.
We find no error in the decree appealed from, and will, therefore, affirm it with costs to the appellees.
Affirmed with costs.
An appeal was taken to the Supreme Court of the United States ; and that court on January 11,1897, reversed the decree of the Court of Appeals, and remanded the cause to this court with directions to reverse the decree of the court below and to remand the cause to that court with directions to dismiss the bill for want of necessary parties. 165 U. S. 28.