it would bring. As and when it was 8old, the proceel1s not appear to have paid more than two-thirds of the debt, whereas, if the trustee had been admitted into possession, he might have applied the rents and profits on the interest, and ultimately paid the whole debt by a favorable disposition of the property. However this may be, the person directly and primarily interested in the matter was the plaintiff, and the agreement ought to be construed so as to allow him to exercise his judgment whether to hold the property or sell it. The debtor could always protect himself against any abuse of this discretion, to his prejudice, by paying the debt and redeeming the property, or by the interference of a court of equity. As to the claim for damages on account of the plaintiff's being compelled, by reason of the defendant's refusal to surrender the possession, to bring and maintain a suit in equity to procure a sale of the property, it was not argued by counsel, and need not now be considered. It, at least, appears from the complaint that the plaintiff is entitled to recover damages for withholding possession of the property daring the period alle3ed, and therefore the complaint states a cause of action. The demurrer is overruled.
(OI.reuit oourt, D. Oregon.
January 17, 1881.)
PATENT-CON1RADICTION OF BY ORAL EVIDENcE.-On
1860, (12 St. S,) congress granted the swamp and overflowed lands in Oregon to the state, to be identified and patented by the secretary of the interior. On July 5, 1866, (14 St. 89,) congress granted to the state, to aid in the construction of a wagon road from Albany to the eastern line thereof, three sections per mile of the public lands, to be selected within six miles of said road, as the same might be located, and on June 18, 1874, (18 St. 80,) authorized patents to issue therefor as fast as the same should be selected and certified; and on June 19, 1876, a patent was issued under said wagon-road grant to the state or its assigns, for the controversy. Held, that the patent was conclusive evidence at law that the premises were included in the grant, and were therefore not swamp land, the latter conclusion being a necessary element of the former.
OARN V. BARNES.
2. ESTOl'PEI.,-In 1871 the premises in controversy were selected ancl approved by the land department as a part of the grant without objection on the part of the state, or any attempt to show that they were swamp, and in 1872 the state sold the same to the de. fendant as swamp, and the defendant is in possession withoilt having paid the purchase money. l1(lJ, that the defendant has no title, and cannot prove title in the state nn1er the swamp-land I!'rant, because the state is estopped to deny that the premises are within the wagon· . road gmnt.
Action to recover pC3session of re"l property.
E. C. Bl'onau;;h, JvhnW. Whal:cv, and M. W. Fechheim,cr,
for plaintiff. TV. Lair lIUl, for defendant. . DEADY, D. J. 'This action is broE[;l;t by '8, ci,tlzen of California against a citizen of Oregon, to recover the possession of section 3 of township 15 S., of range 16 E. of ,the met meridian. The plain.tiff claims to be the owner of the premises, and entitled to the possession thereof as the sor in interest of the state of Oregon. The defendant OJ;lly defends for the N. E. t of the section, and pleads title thereto in the state of Oregon under the swamp-Ianel act of March 12. 1860, (12 St. 3.) and that h,e is in possession tinder the state. in pursuance of an executory contract of purchase therefrom. under the act of October 20, 1870, (Sess. Laws 54.) providing for the selection and sale of said swamp lands. The plaintiff denies that the premises are swamp land in fact. and alleges that the secretary of the interior has decided otherwise; and also that the state, by accepting a patent from the United States of the land in controversy as wagon!oad land, is estopped now to assert that the land is swamp. which estoppel binds the defendant, the state's vendee. The case was tried by the court without the intervention of a. jury. On the trial a stipulation was read containing the evidence in the case, except as to the question of whether the premises are in fact swamp land or not, and, as to that, oral evidence was received subject to the objection of the plaintiff for incompetency. The facts of the case are as follows: On July 5; 1866, oongress, "to aid in the construction of a military wagon
road" from Albany, via Canyon City, through the Cascad. mountains to the eastern boundary of the state, granted t" the state the "alternate sections of the public lands desig nated by odd numbers, three sections per mile, to be selel.lte<i. within six miles of said road." 14 St. 89. The act making the grant contains a provision that n t exceeding 30 sections of the grant "shall be disposed of"sold-when and as fast as the governor of the state "shall certify to the secretary of the interior that any 10 continuous miles" of the road are completed. By an act of July 15, 1870, (16 St. 363,) congress changed the line of the road from Canyon City to Camp Harney; and by the act of June 18, (18 St. 80,) it was provided in effect that whenever it appeared from "the certificate of the governor," as in the act of July 5, 1866, provided, that said road was "constructed and completed," a formal patent should issue to the state, or any corporation being its assignee, "for said lands," "as fast as the same shall, under said grant, be selected and certified." By the act of October 24, 1866, (Sess. Laws, 58,) the state transferred the grant, "for the purposes and upon the conditioIls and limitations" contained in the act making the same, to the Wallamet Valley & Cascade Mountain Wagon Road Company-a corporation duly organized under the laws of Oregon in 1864. On August 19, 1871, said corporation conveyed the premises in controversy to H. K. W. Clarke, who, Oll September 1, 1871, duly conveyed the same to the plaintiff. That,· the premises are included in a list of lands numbered 1, and described as "lands granted to the state of Oregon by the act" of July 5, 1866, aforesaid, to aid in the construction of said military wagon road, and on May 2, 1871, the commi6sioner of the general land-office recommended said list for approval as being the lands to which the state was entitled under the grant of July 5, 1866, and therein certified "that it is shown by the certificates on file of the governor of Oregon, bearing date April 1, 1868, September 8,1870, and January 9, 1871, that said corporation had completed its road from Albany to the 36.8 section, distance 368 miles, in conformity with the
OARN t1. BARNES.
provisions of said act of congress of July 5,,1866, and the amendatory act of July 15, 1870;" which list was, on May 4, 1871, approved by the secretary of the interior, "subject to any valid interfering right which may have existed :Eit the date of selection of said lands;" that on June 19, 1876, the United States, by its proper officers, issued a patent totbe state "for the use and benefit of said corporation a.nd its assigns," purporting to grant the lands in controversy, and transmitted it to the governor of Oregon, who "received" the same, "and caused it to be recorded in the counties whe'rein the lands therein described are situated." , The act of October 26, 1870, 3upra, entitled "An act providing for the selection and sale of the swamp and overflowed lands belonging to the state of Oregon," by operation of the swamp-land act of Marc)! 12, 1860, (12 St. 8,) extending over Oregon the Arkansas swamp-land act of September 28, 1850, provided for the selection of such lands by persons employed by 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 cent. of the purchase price within 90 days after the selection is completed, and the balance upon proof that the land "has been drained or otherwise made fit for cultivation;" but if such final payment and proof of reclamation are not ma,de within 10 years from the time of the first payment, the land is to revert to the state; and it is declared in the act "that all swamp land which has been successfully cultivated in either grass, the cereals; or vegetables. for three years, shall be considered as fully reclaimed." The premises are situate to the east of the Cascade mountains, and on the north bank of the Ochoco creek. The defendant, went into that country from the Wallamet valley with stock, when it was unsettled, in the fall of 1867, and selected the place in controversy because it was good meadow land, and lived thereon seven or eight years, during which time he cultivated a garden of less than an acre in extent, and annually cut the wild grass from about 100 acres of it, without, it appea.rs, making any claim to the premises under any ac't of
congress until in 1872, as hereinafter stated. The United States surveys were not extended over the premises until October, 1869, but no notice thereof was given to the governor by the secretary of the interior until sometime in 1872, in which year the state seJected the premises as swamp and overflowed lands, and on September 18, 1872, the defendant purchased the same therefrom under the act of October 26, 1870, ,upra, and paid thereon 20 per cent. of the purchase price, but has nqt yet paid the balance on or done anything to reclaim the same, except to cut an inconsiderable ditch thereon since the commencement of this litigation; that the land if thoroughly drained would be the,reby injured and depreciated in value; and no lists or plats of swamp lands embracing the premises in controversy have been made or, filed or transmitted to the governor of this state by the secretary of the The first and material question to be decided in this case is whether the patent issued to the state under the grant of July 5, 1866, for the premises in controversy, is conclusive evidence in this action that they belong to the wagon-road grant and not to the swamp-land one. The swamp-land grant was a grant in pra:senti of all the swamp and overflowed lands in the state, thereby made "unfit for cultivation," but the determination ,of what lands come within this category, and what do not, rests with the secretary of the interior, and his decision is final, unless impeached for fraud or mistake. French v. Fyan, 93 U. S. 170. The provision in section 2 of the act of March 12, 1860, supra, which requires the lands "already surveyed" to be selected within two years from the adjournment of the next session of the legislature, and those to be surveyed within two years from the adjournment of the next, session, after notice by the secretary of the interior to the governor "that the surveys have been completed and confirmed," is not in the original swamp-land act. The effect of it appears to be that it is the duty of the state to make the selections in the first instance and submit them for approval to, the secretary, and that if. this is not done within the term
eARN fl. BARNES.
prescribed the grant reverts. But, however that may be, the power to determine what land passes under the grant as being "wet and unfit for cultivation" still rests with the secretary. The statutes of the United S',ates provide that the secre: tary of the iuterior is charged with the supervision -final direction-'-Of the public business relating to the public lands, and that the commissioner of the general land-office shall perform, under his direction, all the executive duties appertaining, among either things, to "the issuing of patents for all grants of land under the authority of the government," (sections 441, 453, Rev. St.;) and by section 2 of the swampland act it is made his especial duty to determine what lands are within its purview. The wagon-road grant was a grant in prl2senti also of the odd sections for six miles on either side of the road wherever it might be located between the termini named, which, so soon as the line of the road was designated, attached to such sections within the prescribed liuHts on either side of said line and took effect from the date thereof. Skulenberg v. Harriman, 21 Wall. 60. But the grant to the wagon road being subsequent in point of time to that of the swamp land, the former could not a.ttach to any leszal subdivision within: the operation of the latter unless they had reverted to the United States for want of selection in due time, which could not have occurred in this case, as the surveys were not extended over the premises until 1869. And this is so from the very nature> of the case, rather than from the effect of the clause in section 1 of the wagon-road grant, excepting from its operation "all lands heretofore reserved to the ,United States by act of congress or other competent authority,"-for the words "reserved to the United States" do not describe or include lands "sold or otherwise disposed of," as did the reservation in the railway grant cited by counsel from By. Co. v. Fremont County, 9 Wall. 94, but only Indian and military reservations and the like,-lands withdrawn from the public domain for some special use of the United States, and not lands already disposed of to states or others. It is as impossible that two grants should
have ,,effect. upoIithe same land, as that two bodies should OCCllPY the same space, and therefore the grant that is prior in point of time and has not reverted to the grantor excludes or repels the other. In French v. Fyan, sttpra, the court held that a patent issued under the swamp-land act of 1850 cannot be impeached in an action at law by showing that the land which it conveys was not in fact swamp and overflowed land. Upon the question of admitting oral evidence to contradict the patent in this respect, Mr. Justice Miller, in delivering the opinion of the court, after citing the case of Johnson v. Towsley, 13 Wall. 72, to the effect that the action of the·land-office in issuing a patent is conclusive upon the legal title, subject, hOF"ever, to the power of a court of equity, in certain cases, to correct or set it aside for fraud or mistake, says: "We see nothing in the case before us to, take it out of the operation of;that rule; and we are of the opinion that, in this action at)aw, it,would be a departu,re from sound principle, and contrary ,to well-considered judgments' in this court, and in of high authority, to permit the validity of the patent toJhe state to be subjected to the test of the verdict of a jury onr s'U,Gh oral testimony as might be brought before it. It woqld be substituting the jury, or the court sitting as a jury, for the tribunal which congress .had provided to determine the question, and would be making a patent of the United States a cheap and nnstable reHance asa title for lands which it pU;:t:ported to convey." And in Sharp v. Stephens, August 25, 1879, this court held that the defendant could not at law prove, in opposition to a patent under the donation act, that the person named therein as the wife of the settler wa.s not his wife, and therefore not entitled to her half of the donation. Nor was it in allowing and issuing this patent alone that the secretary passed upon the question to what grant the premises belonged. In approving the lists selected under the wagon-road grant, in 1871, he aid the same thing; for as yet a patent was not authorized"and the grant was complete upon the approval by
eARN t1. BARNES.
the secretary of the lists of land selected under it. The patent issued under the subsequent act of June 18, 1874, supra, dld not pass the title, but is only record evidence of the previously-existing grant by statute, and the identity of the lands included in it. Langdeau v. Hanes, 21 Wall. 529. In the face of French v. Fyan, and even upon general principles, counsel for the defendant does not deny but that if the patent had to the state for the premises under the swamp-land act, it would be conclusive in this action as to the character of the land; but it is, nevertheless, contended that the patent actually issued to the state under the wagonroad grant is not such evidence that the lands are not swamp, because, in the consideration and determination in the land department of the question whether the premises were within the wagon-road grant or not, the question whether they were swamp was not necessarily involved, and therefore cannot be said to have been considered ·or decided. But this reasoning is more ingenious than sound. The effect of the decision of the secretary does not depend on the existence of an actual or controversy before him, car·' ried on by'parties adversely interested therein, bu.t upon the that it was duly made in the regular course of tbeadministration or execution of the law relating to the aubject. Both the swamp-land and wagon-road grants were before the department for consideration and patent. Under the circumstances it was the duty of the secretary, in selecting and pat. enting hnds under the wagon-road grant, to ascertain that they were not inCluded in the prior grant of swamp land. And whether, as a matter of fact, this was consciously and purposely done with regard to the particular land in controversy or not, in contemplation of law it certainly was. For it was impossible for the secretary to decide, as he did, absolutely, that the land belonged to the wagon-road grant, with. out at the same time deciding that it did not belong to the swamp-land grant. This latter conclusion is a necessary element of the former, and therefore the law conside.l.'s that, before the patent to the premises was issued as and for
wagon-road land, it was decided that they were not swamp. Or. Civ. Code, § 726. It also appears to me that the state is estopped to say, as against its grantee, this plaintiff, that this is not wagon-road land. The state granted this land to plaintiff's vendor &s wagon-road land, and allowed it to be selected and approved as such by the secretary, without objection, long before it Bold it to the defendant as swamp land. · The defendant has no title to this property. He is only a purchaser in possession without the purchase money being paid, and stands, therefore, in the relation of tenant to the state, whose alleged title under the swamp-land act he sets up in bar of the action. It follows that if the state would be estopped to set up this title, or, what is equivalent thereto, to deny that the premises are wagon-road land, the defendant is also. The state was the grantee in both these grants. It accepted the premises as part of the wagon-road grant, or allowed its grantees to do so, without objection on its part. If, however, the land is swamp in fact, the state must have neglected to furnish the department with the proper evidence thereof. It may have acted thus because it that the land should pass under the wagon-road grant, and thereby be applied in aid of a useful public enterprise. For years after it was made, this swamp-land grant was not regarded with favor in this state; nor was it thought that there was any quantity of land to which it was properly applicable. It is a matter of history that up to 1870 the state refused to take any steps to secure land under it, because, for one reason, it preferred to make its selections under the school-land acts, even if damp enough to be called swamp, as in most cases the dampness was a recommendation rather than otherwise. In the meantime this land was selected and approved as wagon-road land, with the acquiescence, if not the concurrence, of the state, for the benefit of its grantee, and therefore it is now estopped to deny directly that it is included in such grant, or indirectly by alleging that it is swamp land.
OARN 'D. BARNES.
A paper was also offered in evidence by the plaintiff, exe· cuted by the governor of the state, under the great seal thereof, on October 9, 1871, reciting the Itrant to the state and the assignment thereof to the wagon-road company, and certify- . ing that the road had been duly constructed and accepted, and that "the lands along the line of said road, to the extent of 860,000 acres, have under said donation andgrant passed to and become the absolute property of said company, as a patent or grant from the state, but was not received as such because it did not purport to be a grant or patent, hut oulya certificate; that in the opinion of the executive certain lands, including the premises in controversy, had become vested in the wagon-road company by virtue of the cougres'sional and legislative grants, and the subsequent construction of the road, and because it does not appear that the governor was authorized to issue a patent for the premises under anycircumstances. My conclusion is: (1) That the patent is conclnsive evidence in this action that the premises are not swamp, and therefore the oral evidence to that effect cannot be considered; and (9) that the state is estopped to deny that the premises are included in the wagon-road grant, and therefore its tenant, the defendant, is also. Prima facie, the plaintiff has the legal title and is entitled to the possession, and the defendant being precluded frotu showing that the premises are swamp, it follows, as a matter of course, that the former must recover. There must be a finding and judgment for the plaintiff accordingly.
COi1'cuit Oourt, E. D.
EMl?LOYER AND EMPLOYE.-
IMMORAL, CONSIDERATION -
Expenses incurred by an employe in evading the process of a court, at the request and for the benefit of his employer, cannot be recovered upon a promise of re-imbursement.-[ED.
Mr. McKenney, for plaintiff. Mr. Jenkins and Mr. Perles, for defendants: Motion for aNew Trial. DYER, D. J. The question to be determined in this case arises on a motion for a new trial. The action is one brou,ght by the plaintiff to recover for services rendered and disbursements alleged to have been made by him between the first day of April, 1875, and the first day of December, 1876, for the defendants, who were the managers of a rectifying and redistilling establishment at Milwaukee. At the trial, it was disclosed by the evidence introduced on the part of the plaintiff that about the first day of April, 1875, he was employed as a book-keeper at the defendants' place of business; that he l'endered legitimate services as such book.keeper from that day until the tenth day of May, 1875, when the defendants' establishment, together with a large number of distilleries and rectifying houses in Milwaukee, were seized by the government for frauds upon the revenue. It appeared from the testimony given by the plaintiff himself that in the evening of the day of the seizure he made an arrangement with the defendants, or some of them, by which he was to go out of the jurisdiction of this court, so that he could not be reached by its process, and his attendance compelled as a witness in behalf of the government and against the defendants, in forfeiture and criminal proceedings, which it was expected would follow the seizures, and that he should remain away until such proceedings should be terminated. It appeared, further, that the defendants promised him that in consideration of such service the salary agreed to be paid him in his original employment should continue, and that all expenses