Wright v. Roseberry

Sharpstein, J. The defendants are in possession of the demanded premises, and hold United States patents for the same. But it is claimed on behalf of the plaintiff that before defendants acquired any right or title to said land the title to it had passed out of the United States, and become vested in the State of California. The grounds of this claim as stated by one of appellant’s counsel are as follows: “That on July 1, 1862, he (plaintiff) acquired the title of the State to the land in controversy; that the State had, prior to July 23, 1866, selected this land as swamp land, and had disposed of the same to purchasers in good faith under her laws; that due notice had been given to the United States land department of this selection; that within the time required by the Act of Congress of March 12,1860, and before 1866, the State had segregated these lands as swamp; and that, under due and regular proceedings had under the fourth section of the Act of 1866, this segregation was approved by the United States land department, and the tracts here claimed designated swamp on the United States plat of the township.”

The clause, of the fourth section of the Act of 1866, to which reference is made reads as follows: —

“ That in all cases where township surveys have been made or shall hereafter be made under authority of the United States, and the plats thereof approved, it shall be the duty of the commissioner of the general land office to certify over to the State of California as swamp and overflowed all the lands represented as such, upon such approved plats, within one year from the passage of this act, or within one year from the return and approval of such township plats.

“ The commissio2ier shall direct the United States surveyor-general for the State of California to examine the segregation 2naps and surveys of the swamp and overflowed lands 2uade by said State; and where he shall find the2n to conform to the syste2n of surveys adopted by the United States, he shall' C021-struct and approve township plats accordingly, and forward to the general land office for approval.” _

[254]It is not claimed that “the commissioner of the general land office has ever certified over to the State of California as swamp and overflowed,” any of the land in controversy. If he had it would be equivalent to a patent, and an action of ejectment might be maintained upon it against any one in possession under a subsequently acquired title. As it is the defendants are in possession, claiming title under United States patents, which purport to convey the entire premises. And the question is, can the plaintiff maintain this action upon the title which he has acquired from the State without showing that the land has been certified over to the State as swamp and overflowed? Counsel for appellant insist that although said land has never been certified over to the State according to the requirement of said act of Congress, the title to said land, nevertheless, became vested in the State. If that be so, the clause which requires the commissioner to certify over to the State as swamp and overflowed all the lands represented as such upon such approved plats, within one year from the passage of said act, or.within one year from the return and approval of such township plats, is superfluous. The Act of September 28, 1850, contains a clause somewhat similar to this, and the construction which was given to it by the Supreme Court of the United States in French v. Fyan, 93 U. S. 169, seems to us to militate against the position which appellant’s counsel seek to maintain in this case. That act made it the duty of the secretary of the interior, as soon as practicable after its passage, to make out an accurate list and plats of the land described in said act, and to transmit the same to the governor of the State, and at his request to cause a patent to issue to it, and that thereupon the fee simple to said lands should vest in the State. In French v. Fyan, supra, the court held that the issuance of a patent to the State concluded the question of the character of the land, and that paroi evidence to prove that it was not swamp and overflowed ivas, in an action at law-, inadmissible. That the law devolved upon the secretary “the duty, and conferred on him the power of determining what lands were of the description granted by that act, and made his office 'the tribunal whose decision on that subject Avas controlling.”