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Resurveys in this and other districts in the state went on. The commissioner of the general land office, in directing the making of such surveys by the surveyor general, instructed him that “the lines will have to be run, and the corners established as if originally, and all the irregular lines and corners must be most carefully and thoroughly obtained." As fast as they were completed, they were transmitted with the proper plats to the general land office, and to the local land offices, in the several districts in the state, where, by the instructions of the department, they superseded "the old and fraudulent surveys" which were to be treated as "abrogated"; and since that time the business at the general and local offices has been conducted upon the basis of the new surveys. The resurveys in Michigan were continued until as late as 1857, and congress made special appropriations therefor nearly every year from 1845 to 1856, inclusive.

On the 18th day of May, 1858, the surveyor general transmitted to the general land office a supplemental list of swamp lands which included town 18, range 3 W., and stated in the heading thereof that it was intended to supersede lists theretofore made of swamp lands within the townships contained in it. This list did not include the lands in question, and many other lands included in the original list were dropped, and many not included in the first were included in the later list. A list of lands designated in the record as list No. 10, Ionia, containing the lands in this township which were contained in the surveyor general's list last mentioned, was approved by the secretary of the interior, May 15, 1866, which was forwarded to the governor of Michigan on May 26th by letter from the commissioner saying: "You will please to acknowledge the receipt of said list, and transmit your request for the patent to issue, on the receipt of which, or as soon thereafter as practicable, patent will be issued conveying the fee simple in said lands to the state." The governor acknowledged the receipt of this list on May 31, 1866, by letter in which he says: “I have the honor to request that the patents for said lands may issue to the state of Michigan as soon as practicable conveying the feesimple title thereof to the state.” On June 21st following, patent was issued accordingly conveying among other lands those in town 18 N., of range 3 W., but not the lands in controversy here.

On February 24, 1855, the commissioner of the general land office, having received from the surveyor general a list of all resurveyed swamp lands, addressed a letter to the governor of Michigan stating that he had received such a list which he said "abrogates and supersedes all lists of swamp lands heretofore made of the townships contained within it.” After giving a list of townships, he adds: “The original selections in the foregoing townships, made from the defective plats, were approved in lists numbers 1, 2, and 3, Ionia district, Mich., certified copies whereof were transmitted to your predecessor January 13, 16, and 18, 1854. In consequence of the alteration necessary, by reason of the list recently received, I have the honor to request a suspension of all action upon the lists heretofore furnished you, so far as these several townships are concerned, until the differences can be ascertained and adjusted.” List No. 1 of January 13, 1854, above mentioned, is the one upon which the plaintiff founds its title. The governor took action in accordance with the request. In the report of the commissioner of the state land office for 1855, the above letter to the governor was mentioned, and the commissioner, saying that his office had been notified of the resurvey by the general government of considerable tracts embraced in the lists of swamp lands principally in the Ionia district, added: “And the same have been, as directed, marked as suspended on our books." Township No. 18, range 3, was not included in the above list, but, as already stated, was included in the original survey and certificate. The transaction is given as a sample of the methods by which the land grant was adjusted, and because of its particular relation to the lands involved in the present controversy. In the report of the commissioner of the state land office for the following year (1856), speaking of the swamp lands, he said: "Patents are now received for all these lands in the state except those situated in the Ionia land district, comprising about 1,200,000 acres, and for these we are assured the patents will soon be forwarded, the making of which have been delayed in consequence of extensive resurveys by the general government, which in some instances change the amount and character of the land," "Public sale or offering has not been deerned advisable until after the title of the state to the grant should be wholly confirmed by the issue of the patents, and the numerous corrections and restatements of the lists necessary to be previously made by the department at Washington."

Further correspondence between the officials of the state and the general government, and the several reports of the commissioner of the state land office during the years while the settlement of the grant was pending, show that the course above indicated was pursued throughout. The evidence on this subject is quite voluminous, and it is impracticable to do more than to state its general results. It is pertinent to add in this connection that the legislature of Michigan in 1857, in a law providing for the sale of the swamp lands coming to it by the grant, forbade the making of such sales until the patent therefor had been received from the United States. The proceedings for the adjustment of the grant went on until in 1869 the commissioner of the state land office reported that the entire amount of swamp lands conveyed to the state by the act of congress had been patented with the exception of about 35,000 acres in Cheboygan county, which consisted of an Indian reservation, the title thereto not having been extinguished. Some fugitive pieces have since that time been discovered and patented to the state, but the business was substantially closed as early as 1868. The lands in question and others in the same plight were sold at auction, after public advertisement, at the land office at Ionia, in November, 1869. No objection on behalf of the state appears to have been made to the sale. Upon the trial the plaintiff offered in evidence the records and files of a suit tried in 1849 in the circuit court of the United States for the district of Michigan, brought by the United States upon the bond of Nicholson, who surveyed the lands in suit, which resulted in a verdict for the defendant, and that, upon the question arising as to whether a new trial should be applied for, the surveyor general instructed the district attorney not to proceed further, upon the advice of the district attorney that the verdict would eventually be for the defendants; which offer was rejected by the court, and the plaintiff excepted.

J. W. Champlin and Frank E. Robson, for plaintiff in error.

Hanchett, Stark & Hanchett and W. L. Webber, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

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, January 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 establish.

7.68F.no.1-11

ed 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 superşeded, 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 topog. raphy, 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 should 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 Graves, 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 state 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 be 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 be 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 be 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, that the doctrine now accepted in regard to the time when the title should be 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. Now, we think no one can read the record of what was done 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 the secretary governed themselves accordingly.

The supreme court of Michigan, in Dale v. Turner, 34 Mich. 405, construed the act of the legislature of the state of June 28, 1851, adopting the field notes as the basis on which the grant would be 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 be wiped out. It would have been a comparatively short piece of work to have simply made out the lists from the notes of the original survey.

It was for the interest of the state itself as well as of its citizens that the resurveys should be completed, and the

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frauds of which it had complained should be 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

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. 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, seenis 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 whether 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

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