218 U.S.

233
31 S.Ct. 7
54 L.Ed. 1015

UNITED STATES, Appt.,

Mr. Barton Corneau for appellant.

By an act approved March 3d, 1887, chap. 376 (amended by act of February
12th, 1896, chap. 18, and by act of March 2d, 1896, chap. 39), Congress
provided for the adjustment of land grants theretofore made in aid of the
construction of railroads, and for the forfeiture of unearned lands, and for the
relinquishment or reconveyance to the United States of lands which had been
certified or patented to or for the use of any railroad company. 24 Stat. at L.
556; U. S. Comp. Stat. 1901, p. 1895; 29 Stat. at L. 6, 42, U. S. Comp. Stat.
1901, pp. 1596, 1603.

If, upon completing such adjustment, it appeared that, from any cause, lands
had been erroneously certified or patented by the United States, to or for the use
of a railroad company, by, through, or under grant from the United States, to
aid in the construction of a railroad, then it became the duty of the Secretary of
the Interior to demand the relinquishment or reconveyance of such lands to the
United States, whether within granted or indemnity limits; and if such demand
was not complied with by a named time, then the Attorney General was to
institute the necessary proceedings to cancel all patents, certificates, or other
evidence of title issued for such lands, and to restore the title to the United
States. Provision was made for the protection, by patents, of purchasers in good

faith from the grantee company, and the Secretary of the Interior was required
to demand, on behalf of the United States, 'payment from the company which
has so disposed of such lands of an amount equal to the government price for
similar lands;' and if payment was refused, within a time named, 'the Attorney
General was to institute suits against the company for such amount.' Ibid.
3

Under the authority of that act, the present suit was brought by the United
States in 1903. It relates to about 4,300 acres of lands in Kossuth, Palo Alto,
and Dickinson counties, Iowa, which, the United States alleges, were
erroneously patented (in 1880) to the defendant railway company. That
company sold the lands to purchasers in good faith, and refuses to account to
the United States for the proceeds of such sales.

The relief asked is a decree compelling the railway company to account for
such proceeds, and declaring such indebtedness to be a lien upon all funds in its
hands realized from the above sales. The company took issue with the
government by answer, but before the cause was heard, the material facts were
stipulated by the parties. The circuit court dismissed the bill, and its judgment
was affirmed by the circuit court of appeals.

In order that the grounds upon which the lower courts proceeded may fully
appear, the circumstances under which the defendant railroad company became
connected with the lands must be stated.

By an act passed May 12th, 1864, chap. 84, Congress, in aid of the construction
of certain railroads, granted to the state of Iowa, for the use and benefit of the
McGregor Western Railroad Company, 'every alternate section of land
designated by odd numbers for ten sections in width on each side of said roads;
but, in case it shall appear that the United States have, when the lines or routes
of said roads are definitely located, sold any section or any part thereof, granted
as aforesaid, or that the right of pre-emption or homestead settlement has
attached to the same, or that the same has been reserved by the United States
for any purpose whatever, then it shall be the duty of the Secretary of the
Interior to cause to be selected, for the purposes aforesaid, from the public
lands of the United States nearest to the tiers of sections above specified, so
much land in alternate sections, or parts of sections, designated by odd
numbers, as shall be equal to such lands as the United States have sold,
reserved, or otherwise appropriated, or to which the right of homestead
settlement or pre-emption has attached, as aforesaid, which lands thus indicated
by odd numbers and sections, by the direction of the Secretary of the Interior,
shall be held by the state of Iowa for the uses and purposes aforesaid: Provided,
That the lands so selected shall in no case be located more than twenty miles

from the lines of said roads: Provided, further, That any and all lands
heretofore reserved to the United States by any act of Congress, or in any other
manner by competent authority, for the purpose of aiding in any object of
internal improvement or other purpose whatever, be, and the same are hereby,
reserved and excepted from the operation of this act, except so far as it may be
found necessary to locate the route of said roads through such reserved lands, in
which case the right of way shall be granted, subject to the approval of the
President of the United States.' 13 Stat. at L. 72. The provisions of this act were
duly accepted by the state in 1866. Laws of Iowa, 1866, chap. 42, p. 189.
7

The McGregor & Western Railroad Company failed to comply with the
conditions of the above act. Thereupon, all lands and rights to land granted to it
by the act of 1864 (the lands now in dispute being part of those so granted)
were 'absolutely and entirely resumed by the state of Iowa,' by an act of
February 27th, 1868, which declared that 'the same be and are as fully and
absolutely vested in the state as if the same had never been granted to said
railroad company.' Laws of Iowa, 1868, p. 20. The state then, by an act of
March 31st, 1868, gave the benefit of the grant for the road in question to the
McGregor & Sioux City Railway Company, which accepted the terms
prescribed by that act. Laws of Iowa, 1868, chap. 58, p. 70. But that company
also failed to comply with the terms of the grant, and the lands and rights of
lands granted were again resumed by the state, and afterwards were passed
upon certain terms and conditions to the Chicago, Milwaukee, & St. Paul
Railway Company, by an act passed February 27th, 1878. The latter company
accepted the provisions of that grant, and, in recognition of its rights, the
United States, in 1880, patented to the state for the benefit of that company the
following lands, covered by the act of 1864: 320 acres in Dickinson county, by
patent of April, 1880; 3754.81 in Kossuth and Palo Alto counties. These lands
embraced all sued for except two tracts aggregating 200 acres in Kossuth
county, to which the present defendant asserted no title. Laws of Iowa, 1878,
chap. 21, p. 18. Upon compliance with the terms and conditions prescribed in
that act, the governor of Iowa was authorized to patent and transfer to the
present defendant, the Chicago, Milwaukee, & St. Paul Railway Company, the
lands mentioned in the act of Congress of 1864.

In 1864 and 1869 maps of definite location, designating the line of said road in
Iowa, as indicated in the act of 1864, were filed in the office of the
Commissioner of the General Land Office.

It is alleged in the bill of complaint that, at the date of such definite location, all
the lands the proceeds of the sale of which the government now claims, by
which were within the 10-mile or place limits of the railroad, were covered by

existing claims of record in the office of the Commissioner of the General Land
Office, consisting of homestead entries, pre-emption declaratory statements,
warrant locations, etc., and were pending before the Department of the Interior
for adjudication. If that were true, then, by the very terms of the act of
Congress, the lands in question would have been excepted from the grant of
1864. But the defendant denied in its answer that such fact existed, and it does
not appear from the evidence that any homestead entry, pre-emption,
declaratory statement, or warrant location had been made prior to the definite
location of the line of the railroad. On the contrary, it was stipulated in the case
that prior to and on August 30th, 1864,which was after the passage by
Congress of the original granting act, and was the date of the filing of the plat
of definite location of the road,none of the lands described in the bill of
complaint had been covered by any homestead entry, pre-emption, declaratory
statement, or warrant location or other existing claims of record in the office of
the Commissioner of the General Land Office. In that view, and if this were the
whole case, then, beyond all question, the law would be in favor of the railway
company; for the grant of 1864 was one in praesenti for the purposes therein
mentioned, and according to the settled doctrines of this court, the beneficiary
of the grant was entitled to the lands granted in place limits which had not been
appropriated or reserved by the United States for any purpose, or to which a
homestead or pre-emption right had not attached prior to the definite location of
the road proposed to be aided. The grant plainly included odd-numbered
sections, within 10 miles on each side of the road, which were part of the public
domain, not previously appropriated or set apart for some specific purpose at
the time of the definite location.
10

But the government insists that before the passage of the act of 1864 these
lands had been reserved by what was done under or in execution of what is
known as the swamp land act of September 28th, 1850 [9 Stat. at L. 519, chap.
84, U. S. Comp. Stat. 1901, p. 1586], and cannot, therefore, be regarded as
granted by, but were excepted from, the operation of the act of 1864. 13 Stat. at
L. 72, 1, chap. 84. Consequently, it is contended by the United States, patents
could not have been legally issued to the railway company under the act of
1864. The contention of the railway company, on the other hand, is that the
lands in question were not, in fact, swamp or overflowed lands granted by the
act of 1850, to which any right could legally attach in behalf of the state under
that act; therefore, it is contended that nothing done under that act availed or
could have availed the state except a decision or ruling by competent authority,
in due form, that these lands were in fact within the class of swamp or
overflowed lands mentioned in the act of 1850.

11

In view of what has been said, it becomes necessary to inquire into the scope

and effect of the swamp land act of 1850.

By the act of Congress of September 28th, 1850, chap. 84, Congress granted to
Arkansas all the swamp and overflowed lands unfit for cultivation, within its
limits, and which remained unsold at the time, to enable the state to construct
the necessary levees and drains to reclaim such lands. That act provided that it
should 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 the 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: Provided, however, that the proceeds of said lands, whether from sale
or by direct appropriation in kind, shall be applied, exclusively, as far as
necessary, to the purpose of reclaiming said lands by means of the levees and
drains aforesaid' ( 2); that 'in making out a list and plats of the land aforesaid,
all legal subdivisions, the greater part of which is 'wet and unfit for cultivation,'
shall be included in said list and plats; but when the greater part of a
subdivision is not of that character, the whole of it shall be excluded therefrom'
( 3); and that 'the provisions of this act be extended to, and their benefits be
conferred upon, each of the other states of the Union in which such swamp and
overflowed lands, known and designated as aforesaid, may be situated' ( 4). 9
Stat. at L. 519, chap. 84, U. S. Comp. Stat. 1901, p. 1587.

13

We have seen that by the act of 1864 the railroad company, by the grant in
proesenti in that act contained, was to get the oddnumbered sections within 10
miles on each side of its line, and not sold by the United States before definite
location, or to which no right of pre-emption or homestead settlement had
attached at the time of such location, or which had not been previously reserved
by the United States for some purpose. It is stipulated that when the line of the
railroad was definitely located, none of the lands in question 'were covered by
any homestead entry, pre-emption, declaratory statements, or warrant locations,
or other existing claims of record in the office of the Commissioner of the
General Land Office of the Department of the Interior.' But the United States
contends that what was done, prior to the definite location of the road, for the
purpose of bringing these lands under the operation of the act of 1850 as swamp
and overflowed lands, created a claim that covered or attached these lands. But
this contention of the government must be considered in the light of the
fundamental inquiry whether the latter claim can avail anything whatever if the
lands were not in fact swamp or overflowed lands; for only lands of that
character were granted by the act of 1850, and no mere claim that they were
swamp or overflowed lands could make them such, unless it was sustained by

some decision or ruling by competent authority to that effect. There never was
any such decision or ruling. It is true that Dickinson, Palo Alto, and Kossuth
countiesacting, we may assume, for the purposes of this case, under the
sanction of the statemade selections of those lands as swamp lands; but it is
stipulated and agreed in this case that those selections were never adopted,
ratified, or confirmed in any manner by the Interior or Land Department, but
remained pending and undetermined therein down to the year 1876; that 'during
that time the state of Iowa claimed said lands as being swamp and overflowed
lands granted to it under and by virtue of said act of Congress of September 28,
1850, and as having been selected as such by said several counties under
authority of an act of its legislature, approved January 13, 1853; and said
McGregor Western Railroad Company and said McGregor & Sioux City
Railway Company (afterwards McGregor & Missouri River Railway
Company) successively made claims to the same lands as being neither swamp
nor overflowed in character, but as inuring to them respectively, under the act
of Congress of May 12, 1864, as place lands, within the 10-mile limits of said
grant, under the plat of definite location filed August 30, 1864; that on May 31,
1876, and on October 21, 1876, the Commissioner of the General Land Office,
upon public hearings of the matter of such respective claims, and after due
notice to all parties interested, duly held and adjusted in writing that the lands in
said Dickinson, Kossuth, and Palo Alto counties, Iowa, mentioned and
described in complainant's exhibit 'A' and in paragraphs 11 and 12 of
defendant's answer in this cause, were not in fact swamp or overflowed lands,
and were not of a character embraced in said act of Congress of September 28,
1850, and known as the swamp land act; and that the state of Iowa and said
several counties were never entitled to said lands, or any part thereof, under
said act. Said hearings were had pursuant to the requirements of the act of
Congress of March 5, 1872 [17 Stat. at L. 37, chap. 39], and said findings and
decisions of the Commissioner were never appealed from, reversed, or
modified in any manner, as shown by the records of said General Land Office.'
Nearly thirty years have passed since this decision of the Land Department, and
the United States, without ever appealing from the decision of the Land
Department, now comes forward and asks a court of equity to cancel the patent
issued in 1880 and 1881, under which the railway claims. Touching this aspect
of the case, the circuit court of appeals said: 'Since then most, if not all, of the
lands have been sold and conveyed to numerous purchasers of small tracts, who
bought them in good faith and for value. Twenty-five years or more of quiet
enjoyment of the land in question have now elapsed. No fraud or unfair
practices in any stage of the proceedings leading up to the final patents are
charged against the railway company or any persons acting for it. In such
circumstances, it would, in our opinion, be inequitable and conducive of no
good results to grant the relief sought by this bill.' [87 C. C. A. 600, 160 Fed.
826.]

14

In determining this case, it must not be overlooked that the act of Congress
confers upon the Secretary of the Interior, and upon him alone, the power to
identify particular lands as swamp and overflow lands embraced by the act of
1850. Referring to the 2d section of that act, Mr. Justice Miller, speaking for
the court in French v. Fyan, 93 U. S. 169, 171, 23 L. ed. 812, 813, said: 'It was
under the power conferred by this section that the patent was issued under
which defendant holds the land. We are of opinion that this section devolved
upon the Secretary, as the head of the Department which administered the
affairs of the public lands, 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 was to be controlling.' To
the same effect, on this point, are Ehrhardt v. Hogaboom, 115 U. S. 67, 68, 29
L. ed. 346, 5 Sup. Ct. Rep. 1157, and Rogers Locomotive Mach. Works v.
American Emigrant Co. 164 U. S. 559, 571, 41 L. ed. 552, 557, 17 Sup. Ct.
Rep. 188. In the latter case the court said: 'The identification of lands embraced
by the swamp land act was therefore necessary before the state could claim a
patent or exercise absolute control of them.'

15

We repeat that it must be taken that these lands were not swamp or overflowed
lands that had been reserved by the United States under the act of 1850. That
fact must be regarded as conclusively established, as between the present
parties. We say conclusively established; for, after full notice to all parties who
were concerned in the matter, and who had asserted titles to these lands, the
Commissioner of the General Land Office decided, in 1876, after full hearing,
that these lands were not, in fact, swamp or overflowed lands, and that neither
the state nor any of its counties were entitled to them or any of them under the
act of 1850. That hearing by the Commissioner was had pursuant to said act of
Congress of March 5th, 1872, chap. 39, which provided, among other things,
that the decision should be 'without prejudice to legal entries or the rights of
bona fide settlers under the homestead and pre-emption laws of the United
States prior to the date of this act.' 17 Stat. at L. 37. In any view, that decision
was, in contemplation of law, one by the Secretary of the Interior, who, by the
original act of 1850, was directed to make out accurate lists or plats of the lands
described by that act as swamp and overflowed lands. Wilcox v. Jackson, 13
Pet. 498, 10 L. ed. 264; Wolsey v. Chapman, 101 U. S. 755, 768, 25 L. ed. 915,
919. The decision was never appealed from, and has never been reversed or
modified. The United States now comes, many years after such decision, and in
disregard of the unreversed decision of the Land Department, asks a decree
which cannot be rendered except upon the theory that these lands were, in fact,
swamp or overflowed lands. We cannot adopt this theory nor make any such
decree as that asked. By the act of 1850, Congress granted in proesenti to the
state only swamp and overflowed lands within its limits; and the state legally,

we may concede, for the purposes of this case, passed its interest in such lands
to the counties in which they were situated. A dispute arose between the parties
interested in the question before the Land Department, among whom were the
counties claiming, by sanction of the state, to have legally selected the lands
under the act of 1850, as to whether the lands were, in fact, swamp or
overflowed lands. That dispute, upon notice and hearing, as we have seen, was
decided adversely to the contentions of the state and of the counties in question,
by the Department which alone had authority to determine what were and what
were not swamp or overflowed lands. We perceive no sound reason why what
decision, unreversed and unmodified in any respect, should not be accepted as
conclusive of the essential facts upon which it was based. In that view, the
United States has no standing in a court of equity to obtain a decree that will be
in disregard of the fact thus conclusively found by the Land Department.
Therefore, their certification to the state for the benefit of the railway company,
under the act of 1864, cannot be held to have been an error. It is, in substance,
admittedat any rate, the record showsthat if the lands were not swamp or
overflowed, the company was entitled to them under the act of 1864, as lands
not previously reserved, but granted for the benefit of the railway company. If,
notwithstanding the decision of the Land Department, the court should
determine the rights of the parties according to the facts presented to that
Department, it would be confronted with the fact, established by the record, that
the lands in question were not swamp or overflowed. We omit any reference to
other questions, which, if determined, would lead to the same result as above
stated. The decree dismissing the bill was right and the judgment of the Circuit
Court of Appeals is sustained.