Qlusion be impeached or contradicted in this action by oral evidence as to the character of the land, Sul;>ject to the power of a court of equity in certain cases to correct or set asid!3 the final action of the department for fraud or mistake, not am.ere error of judgment, in disposing of the public lands, its decisions on questions of fact cannot be rev:iewed or cl;tlled in question elsewhere. TowsleJY, 13 Wall. 72; Sharp v. Stephens, 6 Sawy. 48. Therefore oral evidence offered by the defendant, concerning the sfampy character of this land, is incompetent, and cannot be considered. . . . The state was the granteEdn both these grants. Itaccepted the land as part of the wagon-road grant, or 8,llowed: its grantee or agent to do so. At least there is no evidence that it ever selected this section under the grant, and presented it for certification as part thereof. And while this. may have been dqne, it is morally certain that it was not done until after the prElmisElS were cElrtified to the grantee of the state unde.the wagon-road grant, nor until the grant had lapsed, for want of selection, .within the time prescrjbed. The non-action of the state in this matter probably arose from the fact that it was. thought best that the land should go to the construction of the wagon road, which was then. regardEld as a meritorious enterprise. For long after this swampland grant was made no interest was taken in it, nor was it generally understood that there was any considerable quantity ofland in the state .to which it was at all applicable. For 10 years the state took no steps to secure any land under it, preferring, as it appears, to make its selections under the grants for. the benefit of roads and schools. The fact that some portions of these selections were damp enough to be called swamp was no objection to them, but often a recommendation; and in my.judgment, it would have been well if that policy had been continued. But. be.that as it may, in the meantime this land was formally selected and certified to the state as wl1gon-road land, with its acquiescence, if not active concurrence, and it is now estopped, as against the plaintiff, to deny that the premises are iJ;pluded in such grant, or to assert. that it acquired them under the swamp-land grant. And if the state is so estopped, so is its grantee, .thedefendant. . The defendant defends for whole of the W. ! of section 21, but it does not appear, from his own showing, that he has any claim to the N. ! thereof. His purchase from the state only includes the E. ! and the S. W. i of the section. But the claim of the defendant to be the owner of any part of the premises on the facts proven must fail on either of the following groun,ds: (1) At and before the defendant's purchase from the state under the swamp-land grant, the right of the state thereunder had lapsed and become of no effect. (2) The land was already certified to the grantee of the state,under the wagon-road grant by the secretary of the interior, which certification is a decision of the question as to the character of the land, and the grant under which it properly belonged, by a tribunal having exclusive jurisdiction of the same. (3) The defendant, as the grantee of the state, against the plaintiff, is estopped to assert or maintain that the preplises inured to the stj],te under the
CALIFORNIA & OREGON· LAND 00. 11. MUNZ.
grant, because the latter, in effect, procured the same to be certified to the plaintiff's grantor unllerthe wagon-road grant. In con'clusion, I find that the plaintiff is the owner of the land in fee, and entitled to the possession thereof. But no damages can be received for the,occupation of the premises under the allegation in the complaint that . the defendant wrongfully withholds the possession of the same from the, plaintiff, to his damage 81,000. An action to recover damages for the wrongful occupation of real property is the equivalent of the common-law of action of trespass for mesne profits. A cause of action for damages for withholding the possession of real property may be joined with one to recover such possession. But it must be separately stated, and the statement must contain facts sufficient to support a separate action thereon. Ordinarily, only nominal damages can be recovered on the ad damnum clause for an ouster, in an action to recover possession of real property. W,1Jthev. Myera, 3 Sawy. 598; Larned v. Hudson, 57 N. Y. 151. The evidencfil as to the value of the rents and profits of the land was admitted on the trial, subject to the objection that the complaint contained no statement of aeause of action therefor. The rulieg on this point makes it unnecessary to consider the character or value of the improvements put on the land by the defendant. The pll\intiff can recover nothing for rents and profits, and therefore there is nothing to set off the value of the improvements against. Probably this result is .not materially unjust to either party. In support of my conclusions in this case, I refer generally to Oahn v. Barnes, 7 Sawy. 48,5 Fed. Rep. 326. The important questions involved herein were considered in that. I have gone carefully over the p;round again, in the light of the. able and exhaustive argument of counsel for the defendant, but find no cause to ohange my opinion,on the subject. There must be a finding for the plaintiff that he is the owner of the premises, and entitled to the possession thereof.
OREGON LAND CO. 'V. MUNZ.
(Oircuit Oourt, D. Oregon. February 14, 1887.)
DEADY, J. This action is by the plaintiff, a corporation duly formed under the laws of California, against the defendant, a citizen of Oregon, to reo cover the possession of the E. +of section 21, in township 86 S., of range 14 llJ. of the Willametmeridian. It was heard and submitted with the foregoing case of Pengra v. Mum, ante, 880. The facts and. circumstances of .the two cases are similar, except that in this case. the defendant, on June 25, 1880, took a lease for one year from the plaintiff for the north half of the section at a rent of $80, and covenanted therein to surrender the premises to the lessor at the end of the term.. The lease was evidently intended to cover the east half instead of the north half of the section, as that was the portion belonging to the lessor. But it took effect at least as a lease of the north·east quarter, and by reason of it the defendant is estopped to deny the