ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.
MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court.
In the light of the facts as stated above, and of the Federal and state legislation relating to the matters in controversy, we proceed to the consideration of the questions presented for our determination.
As the railroad act of 1856 excepted from its operation all lands theretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for any purpose whatever, the certification to the State by the Department of the Interior of the lands in controversy as having inured, under the railroad act of May 15, 1856, to the State for the benefit of the Dubuque and Pacific Railroad Company, was unauthorized, if at the date of the Swamp Land act of 1850 the lands were swamp and overflowed lands, whereby they were unfit for cultivation; for, lands of that character were expressly reserved from the operation of the railroad grant of 1856. If they were not granted to the State for the benefit of the railroad company, because previously granted to the State as swamp and overflowed lands, they could not properly have been certified or transferred to the State to be applied in aid of the construction of the railroad. McCormick v. Hayes, 159 U.S. 332, 338.
But it is equally true that the act of 1850 made it the duty of the Secretary of the Interior, as soon as practicable after the passage of that act, to make out an accurate list and plats of the swamp and overflowed lands granted to any State and transmit them to the executive of such State, "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 said State," subject to the disposal of its legislature. While, therefore, as held in many cases, the act of 1850 was in praesenti, and gave an inchoate title, the lands needed to be identified as lands that passed under the act; which being done, and not before, the title became perfect as of the date of the granting act. Wright v. Roseberry, 121 U.S. 488, 494 et seq.; Tubbs v. Wilhoit, 138 U.S. 134, 137; Chandler v. Calumet
& Hecla Mining Co., 149 U.S. 79, 91. So, in Ehrhardt v. Hogaboom, 115 U.S. 67, 68: "In French v. Fyan, 93 U.S. 169, this court decided that, by the second section of the Swamp Land act, the power and duty devolved upon the Secretary of the Interior, as the head of the Department which administered the affairs of the public lands, 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." The identification of lands as lands embraced by the Swamp Land act was therefore necessary before the State could claim a patent or exercise absolute control of them.
In McCormick v. Hayes, above cited, it appeared that the Secretary of the Interior, proceeding under the railroad act of May 15, 1856, had certified certain lands as inuring to Iowa under that act. It was insisted in that case that the lands were covered by the act of 1850, and, therefore, that they were improperly certified under the railroad act of 1856; a fact which, it was contended, could be established by parol evidence, so as to fix the title in certain parties, independently of any action that may have been taken by the Interior Department upon the subject. The precise nature of that case is shown by this extract from the opinion of the court: "The controlling question, therefore, in this case, so far as the plaintiff is concerned -- and he must recover upon the strength of his own title, even if that of the defendant be defective -- is whether, under the circumstances disclosed by the record, the particular lands in controversy, in the absence of any selection and certification of them by the United States to the State, under the Swamp Land act, can be shown by parol testimony to have been, in fact, at the date of that act, swamp and overflowed lands. Congress having made it the duty of the Secretary of the Interior to make out accurate lists and plats of the lands embraced by the Swamp Land act, and transmit the same to the governor of the State, and, at the request of the latter, to cause a patent to be issued to the State therefor, and having provided that 'on that patent the fee simple to said lands shall vest in said State subject to
the disposal of the legislature thereof,' did the title vest in the State, by virtue alone, and immediately upon the passage, of the act, without any selection by or under the direction of the Department of the Interior, so that the State's grantees could maintain an action to recover the possession of them?"
In determining that question this court, after an extended review of former decisions, thus stated (pp. 346-347) its conclusions: "The case before us is not like that of Railroad Co. v. Smith, in which, as subsequently explained in French v. Fyan, it was shown that there was an absolute neglect of duty on the part of the Interior Department, in that it neither made nor would make any selection of lists whatever, and, therefore, there was no action by that Department that could be relied on as a determination of the question whether the particular lands then in dispute were or were not embraced by the Swamp Land act. That case was exceptional in its circumstances, and seemed to justify the decision rendered, in order to prevent a total failure of justice, arising from the unexplained neglect of the Land Department to perform the duty imposed by the act of 1850. What was said in French v. Fyan shows that this court not only so regarded the previous case, but it was in effect said that the ruling in Railroad Company v. Smith was not to be extended to any case in which the Land Department had taken action, or made a decision or determination under the Swamp Land act." Again, and in reference to the certification of lands under the railroad act of 1856: "Twice the Land Department certified these lands to the State as inuring to it under the railroad land grant act, and it does not appear that the State has ever questioned the correctness of that certification or applied to the Secretary of the Interior for a reexamination as to the character of the lands. . . . Upon the authority of former adjudications, as well as upon principle, it must be held that parol evidence is inadmissible to show, in opposition to the concurrent action of Federal and state officers, having authority in the premises, that these lands were, in fact, at the date of the act of 1850, swamp and overflowed grounds, which should have been embraced by Linn County in its selection of land of that character,
and withheld from the State as lands granted expressly in aid of railroad ...