BUENA VISTA COUNTY v. I.F. & S.C. RR. CO.

MR. JUSTICE MATTHEWS delivered the opinion of the court. He stated the facts in the foregoing language and continued:

The grounds on which the Supreme Court of Iowa proceeded are stated in its opinion, reported in 55 Iowa, 157, as follows:

"We think the evidence incompetent upon several grounds. Section 929 of the revision requires that the agent shall be appointed by the County Court at a regular term thereof. The proper evidence of the appointment is the production of the record of the county court. If no record was made, or it has been lost, the written appointment of the agent should be produced. If that is not available, and parol evidence of the fact is proper, the evidence should be the testimony of witnesses subject to cross-examination, and not the mere ex parte affidavit of the person making the appointment. This section does not provide that the lists so made shall be evidence of any fact. They are authorized to be made merely for the purpose of procuring the proper recognition of the same on the part of the United States, and are in the nature of a claim or demand. The lists are required to be transmitted by the County Court to the proper officers for approval. The regulations and instructions of the department show that this person is the Surveyor-General. There is no proof that the list in question was ever transmitted to the Surveyor-General, or that he ever had any opportunity of passing upon it. It is not shown that this list ever came into the possession of the Commissioner of the General Land Office, or of the Secretary of the Interior, or that its correctness or validity was at any time recognized by any department of the government. It is true the Surveyor-General, under instructions from the department of the government, submitted forms of proof; but his instructions required that the proofs made should be transmitted to his office for approval, and to aid him in making up the lists of lands embraced in the grant, which is not shown by the evidence to have been done. So far as the evidence shows, the list constitutes no more than the claim of Buena Vista County, which has never been recognized, approved, or allowed by any department of the government. That it is exceedingly inaccurate and unreliable is evidenced by the fact that, while it embraces 551 tracts, the defendant established affirmatively and satisfactorily that 398 of them were high and dry, and fit for cultivation."

In opposition to this conclusion, it is now claimed by the plaintiff in error that the list of lands in question was not only erroneously ruled out as incompetent evidence, but that it ought to have been accepted as sufficient and conclusive proof that the lands embraced in it were within the grant of swamp and overflowed lands, thus establishing the title of the plaintiff in error.

This proposition is supposed to be supported by facts connected with the history of this list, and the mode in which it has been dealt with by the State authorities, the General Land Office, and the representatives of the defendant in error, whereby it is alleged an estoppel has arisen against the last named to deny the legal effect claimed for it. These facts appear in official correspondence and documents which were admitted in evidence, showing the various efforts made on behalf of the county to obtain a recognition of its claim by the Interior Department and the decisions of that department which resulted in their failure.

It thus appears that a list of selections for Buena Vista County was delivered to the Surveyor-General, but not filed by him in the General Land Office, but was rejected because the lands were not both swamp and overflowed, the Commissioner of the Public Lands having issued instructions that no lands came within the grant except such as were both swamp and overflowed. This ruling of the Commissioner, however, was reversed by the Secretary, September 15, 1860. The Buena Vista list remained in the office of the Surveyor-General, without further action thereon, until that office, in 1866, was abolished, when, with all other lists remaining there, it was removed to the General Land Office. In 1869 an application was made by an agent of the State, to the Commissioner of the Land Office, to confirm the selections according to this list, which application was rejected on the ground, "that the established method of making swamp selections was through the Surveyor-General, and that the list in question was never reported by him, but came before this office by the removal of the archives of the Surveyor-General's office; that to receive them now would be in the nature of new selections, from which we are barred by the limitations of the act of March 12, 1860, 12 Stat. 3." That act required that all selections to be made thereafter from lands already surveyed under the act of September 28, 1850, should be made within two years from the adjournment of the legislature of the State at its next session after the date of the act. Upon appeal to the Secretary of the Interior, this decision of the Commissioner was affirmed, October 23, 1871. On March 5, 1872, an act of Congress took effect, 17 Stat. 37, which enacted, "That the Commissioner of the General Land Office is hereby authorized and required to receive and examine the selections of swamp lands in Lucas, O'Brien, Dickinson, and such other counties in the State of Iowa as formerly presented their selections to the Surveyor-General of the district including that State, and allow or disallow said selections and indemnity provided for according to the acts of Congress in force touching the same at the time such selections were made, without prejudice to legal entries and rights of bona fide settlers under the homestead or pre-emption laws of the United States at the date of this act."

An application was made under this act, on April 21, 1875, to the Commissioner of the General Land Office to adjust the claims of the county for swamp lands on the basis of its lists theretofore filed. Upon this application the Commissioner, on July 7, 1875, notified the railroad companies, to which in the mean time the lands in question had been certified as embraced in the grant to them, that his office had no right to refuse to make the investigation asked for "in regard to the swampy character of these lands, and if any of them are found, on examination, to be of the description of lands granted to the State as swamp and overflowed lands, it will be the duty of the Department to cause the same to be certified, and, on the request of the governor, patented to the State as such." An appeal was taken from this decision of the Commissioner to the Secretary of the Interior, on the ground that the subject-matter of the proceeding, so far as it related to lands already certified to the railroad companies, had passed from the jurisdiction of the Department. On August 24, 1676, the Acting Secretary of the Interior sustained the appeal and reversed the decision of the Commissioner, being of opinion that no examination or certification of the lands in question should be made.

Upon this recital of the proceeding in the General Land Office it is claimed for the plaintiff in error:

1. That by the terms of the act of March 5, 1872, the decision of the Commissioner was intended to be final, from which no appeal would lie to the Secretary.

But there is nothing in the act which alters the relation between the two officers as otherwise established, or puts the decisions of the Commissioner, under that act, upon a footing different from his other decisions. And if there were it would make no difference, for the only decision made was that the State of Iowa was entitled to the examination of the question as to the lands claimed for Buena Vista County, whether they were not swamp and overflowed lands. But he did not, in fact, enter upon the examination, and made no decision as to the character of the lands. The statement casually made in the letter of the Commissioner, that the State had long since claimed the lands as swamp lands, and furnished prima facie evidence that they were of that character, certainly has no value, either as evidence or adjudication, especially as he immediately adds, that "this claim has not yet been examined by this office, and until it is so examined and either rejected or approved, the duty of this Department is not performed."

2. It is further claimed by the plaintiff in error, that the defendant having notice of its application to the Land Department of its claim, based upon the list in question, and having objected to its consideration solely on the ground that the Department had no jurisdiction to entertain it, which objection prevailed, is now estopped from making in any other form, any other objection to the list itself, or to the character of the lands described in it.

But this claim is equally without foundation. The defendant in error, if it could be considered as a party to the proceeding in the Land Office, contested its jurisdiction, as it had the right to do; and, having prevailed on that point, cannot be charged with waiving other objections it was not called on to make. If the Department had decided to entertain the claim, the inquiry would have been open, upon evidence from both parties, as to the actual character of the lands in question at the date of the swamp-land grant of September 28, 1850; and the Department would, in that event, have decided the question of fact according to the weight of the evidence adduced by both parties bearing upon it.

The very theory of the case of the plaintiff in error is, that, because the officers of the Land Department have neglected or refused to perform their duty in determining the question of fact on which the validity of its claim depends, it has an equity to require the investigation to be made in a court of justice, which ought to have been made by them, so that if, in point of fact, the lands claimed passed under the terms of the grant, the legal title wrongfully granted to the defendant may be decreed to it. According to the principle stated in the case of the Railroad Co. v. Smith, 9 Wall. 95, the same evidence which might have been required in the Land Office would be necessary to establish the plaintiff's claim in a court of equity, which would not decree the defendant to convey to the plaintiff the legal title, unless clearly satisfied, by full proof of the disputed fact, that the lands in controversy were swamp and overflowed lands at the date of the act of Congress of September 28, 1850.

The plaintiff in error did not choose to go into a trial of that issue, and rested its case simply upon the list purporting to be the selection on behalf of the county, of its swamp and overflowed lands. That instrument had no value as evidence, as to the only matter in issue, for the reasons given by the Supreme Court of Iowa.

Other errors are assigned upon the record, relating, however, to matters of pleading and practice under the laws of the State, which, as they involve no federal question, are not proper for our consideration.

The judgment of the Supreme Court of Iowa is accordingly

Affirmed.