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under a mistake of facts induced by a false and fraudulent survey, whereby lands had been certified 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 discov. ering the error at any time before issuing the patent, to correct the 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 powers 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 and 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 them. 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. He 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. Nor could he assume any obligation by agreement with the state which would bind him in the discharge of his duty to the general government. The business in which he was engaged 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.
By the act in question the proceedings in his department extended from the first step to be 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 state by the second section, in 9 Op. Atty. 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 newlyascertained fact the patent, if issued, would have to be annulled, and that it would be his duty to ask the attorney general to in
stitute 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 was never 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 upon 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 of the practice is clear and plain, for private individuals, having 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 in 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 were no countervailing equities. Some of the more 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 was 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 the 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 the 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 of 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 the 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 case states the law, we must here take 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.
The rulings of the interior department, at least in recent years, have uniformly maintained the right of the secretary to revoke a certification or other equivalent 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 rulinys of that court have been in conforinity 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, 1837 (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 de fendant 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
several 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. As 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 therewith. 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 be held to be precluded by the acceptance of the new selection which was expressly confirmed as in lieu 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 by 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 applicable, and it was applied to an attempt made on behalf of the state to assert title to lands of which it had received an equivalent.
We think there was no error in the rejection by the court of the plaintiff's 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 district 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 case. The other exceptions relate in the main to the admission in evidence of public documents of which we should take judicial notice, and to the correspondence of public officials pertinent to the matters in controversy. None of the rulings excepted to were injurious to the plaintiff, whether any of them were technically 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.