tion of a milita.ry road" from Eugene to the eastern boundary of tbe-state, granted to the state the sections of the public lands, designated by odd numbers, for three sections in width on each side of said road," to be disposed of by the legislature for such purpose. 13 St. 355. The act contains a proviso reserving from its operation "all lands heretofore reserved to the United States by act of congress or other competent authority." Provision is also made in the act for the disposition of the land when and as often as the governor of the state "shall certify to the secretary of the interior that any ten continuous miles" of the road are completed. The road was to· be completed within five years, and, if not, the land then undisposed of was to revert to the United States. But by the act of March 3, 1869, (15 St. 338,) the time for its completion was extended to July 2, 1872. On October 24, 1864, (Sess. Laws, 37,) the state transferred, the grant to the Oregon Central Military Road Company, for the purpose and "upon the conditions and limitations" contained in the act of congress making the satne. On September 5, 1868, the township 36 south, range 14 east, was surveyed, and the survey approved on December 27th of the same year, of which the governor of the state had due notice before the meeting of the legislature in 1868. On February 16, 1869, the road company filed, with the governor of the state a map of the location and line of the road from Eugene to the eastern boundary of the state; and on January 12, 1870, the governor certified that the road, as delineated on said completed, as required by the act of congress and the state legislature, which map and certificate were filed with the secretary of the interior on or before February 28, 1870. On April 18, 1871., the commissioner of the general land-office recommended for approval a list of lands, numbered 2, and described as "lands' in place,' granted to the state of Oregon" by the acts of congress of 1864 and 1869 aforesai<:i, "to aid in the construction of a military road" from Eugene to the eastern boundary of the "!tate, which includes the aforesaid section 21, "subject to any valid interfering rights which may have existed at the date of selection;" and on April 21st of the same year the secretary of the interior approved the selection, subject to the same qualiflcation. On June 2, 1871, the Oregon Central Military Road Company t10nveyed the west half of said section 21 to B. J. Pengra, and the east half of the same to the California and Oregon Land Company. Afterwards, and before the commencement of this action, B. J. Pengra, and wife conveyed said west half to the plaintiff herein. It is also specially admitted that the plaintiff has succeeded to and now owns all. the estate and interest in said west half that said company ever owned or held therein prior to the commencement of this action. By the act of June 18, 1874, (18 St. 80,) it is, in effect, recited that congress had "granted," certain lands to the state of Oregon "to aid in the construction of certain military wagon roads" therein, and that there is no law for the issue of " formal patents" therefor; and in effect provides that whenever it appears "from the certificate of the governor" as provided in said aots,.tluK any pfsaid, roads has been "constructed and completed," a patent shall issue to the state fOr said lands, or to any corpora-
PENGRA 11. MUNZ.
tion to wb'om it may have transferred its interest therein," as fast as the same shall, under said grants, be selected and certified." The defendant claims under the act of congress of March 12, 1860, extending the ewamp-land act '6'f 1850 over Oregon; and the act of the state legislature of October 26,1870, (Sess. Laws, 54,) providing for the selection and sale of swampland "belonging" to the state. This act provides for the selection of such lands by the agents of the state, and the sale of the same in unlimited quantities, at not less than one dollar per acre, the purchaser to pay 20 per centum of the price within 90 days after the selection is completed, and the balance on proof that the land "has been drained, or otherwiseiIlade fit for cultivation:" and, if such payment and proof of reclamation are not made within 10 years from the time of the first payment, the land is-to revert to the state. It is declared in the act "that all, swamp land whioh has been successfully cultivated in. either, grass, the cereals, or vegetables for three years shall be considered as fully reclaimed." The premises are situated east of the Cascade mountains, on Sprague river, in Lake county: In1872 the defendant settled on the adjoining section 22, and on May 11, 1877, purchased the E. t and the S. W. lof section 21, of the state 'land commissioners, under' the swamp-land act,paying $96 thereon, or 20 per centum: of the price; and on December 12,1883, paid said commissioners $480, the balance of the purchase price, and obtained a,deed from them for said' portions of the section. Between the date of his purchase from the state and the commencement of this action the defendant built a fence and cut a ditch across the north side of the section, in connection with section 22, and used the land fOf pasture, and making hay from the'wild grass. The defendant testifies that a half mile of this fence is on the east halfaf section 21', and one-fourth of the ditch, and that they are worth $100 each. He also testifies th,at section 21 is moreor less overflowed and swampy. On September 14, 1882, the commissioner of the general land-office submitted to 'the secretary of the interior for approval a list of lands, numbered 5, "inUring to the state of Oregon" under the swamp-land acts of 1850, and 1860, which included said section 21; and on September 16th said secretary approved the same. On January 4,1883, said missioner wrote to the governor of the state, informing him that said seetion was "erroneously" in<iluded in said list 5, the same having been theretofore "certified to the state for the'Oregon Central Military RQad Company,under the act of July 2,1864, and:included in list numbered 2, approved April 12, 1871." On June 25, 1880, the plaintiff took a lease of the north half of the section for one year from the California & Oregon Land Company for $80. By the act of March 12, 1860, (12 St. 3,) the swamp-land act of 1850 was exten,ded over Oregon; with a proviso that the selections from the then lands shall be made within two years from the adjournment of. the legislature at its next session after March 12, 1860; and, as to all lands, thereafter surveyed, "within two years from such adjournment at the next session, after notice by the secretary of the interior to v.29F.no.16-53
the governor oBhe state that theslirveys hav.e been and firmed." The swamp-land act has been said to be a grant inprmsenti. But it' does not pass the legal title. Before that vests in the state, the secretary must ascertain and determine what lands come within its operation" Hwet and.unfit for cause a issue to the state therefor. This patent,wl;1en: issueq, ,may, and doubtless does, relate back to the passage of the act;,lJ,nd in this' sense only is it a grant in prmsenti. Until the patent issues, ,the legal title is in the United States; and 'the determination of the question, what are and are not swamp lands within the purview of the act"rests with the secretary of the interior, and his decision, unless impeached for frj1uq or mistake other than an' error of judgment,is finaL Ji'rench v. Pyan, 93 U. S. 170. The case of RauwayGJ. v. Smith, 9. Wall,. 95, only ,holds that in case the ·secretary faUsto determine the. question of whetqer .lit subdivision was swamp or not, that the state or its grantee might" when sued for the possession of the same, prove the character of the land, when material to the defense. And in that case.the grant to. tpe plaintiff expressly excluded therefrom the lands previously granted to the state by the land act ,of 1850, so that the fact of the lands being swamp was itself sufficient todefel1t the plaintiff'selaim, and might therefore be proven by parol, .as a defense to its action to recover possession; in the absence of any determination of the question by the secretary ,of the interior. But the ,reservation in this wagon-road grant is only of lands theretofore Hreserved to the United States." which does notinelude lands otherwise disposed of. by the United States. However, the grant for the wagon road. being subsequent in point of time to that of the swamp land, the former cannot attach to any land within the operation of the latter, less the same has reverted to the United States for want of selectioi within the time limited., The provision (section 2, Act 1860) limiting the time within which the selections must be made, after notice to the governor Hthat the sUrveys have been completed and confirmed," is notin the original land act. It was first made a paxt thereof, so to speak, when the latter was'extended to Oregon. In my judgment, the'purport and effect oftha section is 'to devolve on thestatethequtyof makiIigtbe selections in the first instance; whereupon the duty of the secretary to ascertainand determine whether,such .sel£lctions are Hwet and unfit for cultivation," within the meaning and terms of the act. But if the selection is not made within the tirpe prEll?cribed, the grant reverts to the United States. The,selection within the ti/De is a condition precedent. The wagon-road grant was a grant in prmscnti of all odd-numbered sections on. either side of the road, and, as soon as the line of the same was designated,itattaohed to such and took effect from the daw ofthea.ct, supject to the condition..that the road Wl;lS completed within the time limited.Shulenberg v.Harriman, 21 Wall..60. This condition having been long since duly pex:formed, the grant became absolute in favor of the road company, the grantee of the state. The approval
of the selection 21, :Urider the act of 1864, by the secretary of the interior in April, 1871, gave the road company a perfect title thereto. The subsequent passage of the act df'1874, authorizing patents to issue in such cases, did not affect 1the title already vested.. The effect of a :under that act, is not to pass the title, but to give patent, when the patentee record' evidence of an already existing one. Lrtngdeau v; Hanes; 21 Wall. 529. Wherefore it is of no moment that it does not appear that a patent has issued to the state or itsgrrntee for the premises. The title of the latter was on the approval by the secretary in 1874 of the selection of seCtion 2.1 under the act of 1864. As has been shown by the terms of the swamp-land act, the fee of any tract of land does not pass to the state until the secretary has ascertained that it comes within its operati(>U, and causes a patent to issue therefor; The official certificate that the land is swamp only-gives the state an eqUity or right to a patent. Such an interest cannot be set up as a defense in this actionagainst the prima Jacie legal title of the plaintiff.. But admitting that the listing of the land as swamp vests the fee in the state, and that the patent thereon is a mere formal matter, which follows of course,the listing of section 21 as swamp land in 1882, more than three years after the same was certified to the state under the wagon-road grant, did not or affect the rights of the parties. Such listing, even if it had been deliberate and intentional, in the face of the fact that the land had already been duly listed to the state under the wagon-road grant, was simply void. Smithv. Ewing, 23 Fed. Rep. 741. But the truth is, it was a mere mistake,-probably a clerical misprision,-which the department cim:ected as soon as attention was called to it by the register and receiverMthe proper land-office. The power to correct such a mistake is necessarily implied from the power to approve the selection, and ia supported by authority. Carroll v. SaffOTd, 3 How. 460; LeRoy v. (J/Q,yton, 2 Sawy. 493; Bell v. Hearne, 19 How. 252. And lis the aot which oonstituted the mistake was void, and the right to the land had alrae.dy been duly ascertained and set forth, the result would be the same if it never had been corrected. The authority to determine to which of the two grants to the state this section 21 properly belonged was vested...in the secretary of the interior, generally, by section 441· of the Revised Statutes, which gave him supervision-final control-of the public business relating to the public lands, and specililly and particularly as to the grant of swamp land, by the act making the same. In awarding this section to the wagon-road grant, or rather approving of its selection thereunder, the secretary must, in legal contemplation, have decided that it was not swamp. The decision, so far as it appears', was duly made, in the regular COurse of business, in the administration of the law relating to the subject, and with the evidence contained in the public surveys as to the character of the land before him or within his official reach. The decision that the land belonged to the wagon;.road grant was, in legal effect, also a. decision that it did not belong to the swamp-land, grant. The latter conclusion, under the circumstanees,isa. necessary element of the former. Nor can this con-