J, "
PENaRA 11. MUNZe
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I.
CJmTIFICATION BY THE 1i'B:Jll INTERIOR SWAHP AND WAGON-BQAJ) GltANTS. , ,"
OJ' ,L.urJ)e'1'O 'l'BlB STA'l'II , ' ,"
On M,atch 12, 1860'S12 St. 8,) <l9ngressgranted the lands that were "wet and unfit for cultivation, within the lin"its of Oregon, to the state;'to'be'selected by the iltate fi-omthe lands thereafter &urveyed,"wlthin two yeats from the adjournment of the legllsl,ature'>at.tbe "next session after notice by the secretary of, the interior to thegoVe1'Dof olthe state that the surveys beell completed and .. andtb8n c;:ertified by the secretary of the Interior, If found to come wIthin the opel'atfon of the act, and patented to the state, on which the fee shall vest In the state. "On July 2, 18M, congress gr&ntedto the state, to aid in the construction 'of a military wagon road from Eugene to the eastern boundary of the state, the "alternate sections of the public lands, designated by odd nUJ,llbe:r:s, for thrfje sections in width on each side of said road," as the same may be On October 24, 1864. the legislature of the state transferred this grant to the Oregon Central Military Road Company, who In due time construe'tlld ,t,he ;road. On December 27, 1868, the vey of se,ction 21, in township llll, of r!lnge 14 east of the WaUametmeridian, was'duly confirmed, of which fact:thegovernor of the state had due notice before the session of the legislature held in 1868. On April 18, 1871." the secretaryof the interior, on the recommendation of, the commissioner of the general land-office, approved the selection of sec"tion 21, under the wagon· road grant, and certified the same to said road company as the grantee of the state. On. September 16, 1882. said section" 21 was erroneously included in a list of lands then certified by the secretar1 to the state under the swamp-land act, and on January 4, 1883. the commiSSIoner, as to said section 21, recalled said certificate,. as having been erroneOusly made, and notified the governor of the state thereof. On May 11, 1877, the defendant purchased theE. t and the S. W. t of section 21 from the itate land commiSSIoners, under the act of October 26, 1870, for the sale of swamp lands, paying $96 down, and the bal· ance ($480) on December 12, 1888, when he received a deed therefor from said commissioners. HeW.:. (1) The. swaDlp-Iand act is a grant to the state on the condition precedent that ,the selection of lands thereunder is made within the time limited therein, and on failure to do so, the grant lap.ed and became of ,no effect. (2) The legal title to land selected under the swamp-land act does not vest in the state until a patent is issued therefor, which patent, when fssued, relates back to the date of the grant. (8) By section 2 of the act of 1860 the duty is devolved on theitate to select the lands it claims under the Iwamp·laild act, and present the lame for the considel'ation of the secretary of the illterior, whose duty it is to ascertain and determine whether the selections are "wet and unfit for cultiv:ation, OJ within the meaning of said act; and his determination of the question of fact cannot be impeaclwd or questioned elsewhere except ,in a court ofeqnity for fraud or mistake other than an error of judgment. (4) It was' also the duty of the secretary of the interior, by virtue of his general control over the subject of the disposition of the pub· lie lands, to ascertain and determine what lands inured to the state or ita grantee; the wagon-road company, under the wagon·road grant of 1864. and when he determined that said section 21 inured to the wagon-road company -under said act he thereby determined that it did not inure to the state under the swamp·land grant. (Q)'The certification of section 21 to the state as swamp land by the secretary was a mere clerical error that the department had a right to correct as it did; but the section having already been certified to the grantee of the state under the wagon-road grant, such second certifica· tion was simply void and of no effect. (6) The state having in effect procured section 21 to be certified to the plaintiff's grantor under the wagon-road grant, the defendant, as the grantee of the state, is estopped, as against the plaintiff, to assert or maintain that said section ever inured to the state WIder the swamp-land graD.$.
,PEXGRAV. MUNZ.
831
'1,' DAMAGES ponW'n,'llHOLDIN,G RE.\L PROPERTY.
A cause of action for damages for withholding the possessIon of real propert,. maybe joined with one for the possession of such property, but it must be separately stated, and the statement must contain all the facts necessary to support a separate action thereon. 01' leo
A tenant cannot. durinl$ his term. nor during the poss6ssionLaken quired under the lease, deny his landlord's title.1 (SgllalJ'u, by the Oourt.)
8., TE:N"4NT CANNOT DENY HIS LANDLORD'S TITLE.
-, Action to Recover Possession of Real Property. George H. 'Williams, Cyrus. Dolph, and Joseph Si:mnn, for plaintiff. William H. Effinger and Edward Watson, for defendant. D:EADY4 J., This action is' brought to recover the possession of the 'W. tof section 21, in township 86 S., of range 14 E. of the Wallamet meridian. It is alleged in the complaint that the plaintiff is, the owner in fee of the is entitled to the possession thereof, which the defendant wrongfully- withholds from him, to his damage 31,000. And, by way ofgiying the court jurisdiction ofan action between parties who do not appear to be citizens of different states, it is further alleged that the plaintiff title to the premises under the act of congress of .July 2, 1864, entitled" An IIct granting lands to the state of Oregon to aid in the construction ofa military road from Eugene to the eastern boundary of S{lid state;" that the defendant claims to hold said premises under the ,act of congress of March 12, 1860, entitled" An act to extend the pro'visions of an act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits, to Minnesota and Oregon, and for other purposes," whereby the question arises through which of these acts the title of the land passed from the United States; and that the same exceeds in value the sum of $500. I1nswerthe defendant denies the allegations of the complaint concerriing the ownership and right to the possession of the premises,and alleges' that he is the owner of and entitled to the possession of the same; ,Which allegations are contr?verted by the replication. , . ',l'becase was tried by' the court without the intervention oia jury· . 'The evidenc'a given on the ,trial consists of certain documents admitted, undetstipulation, for their legal effect, and.cerlain oral ttstimonyconcerningthevalue of the use and occupation of the premises, and of a cer£ainfence and ditch which the defendant claims to have constructed O:b. the premises, and also on the question of whether the land is in fact 8wtimpland or not, which oral evidence was subject to objections for incompetency. ,',' ' The'material facts on 'which the plaintiff founds his claim are these: On J'll1y 2, 1864, congress, for the purpoee of aiding "in the construc1 J,.t,nant cann9t, during his nor until after he has pOSSlRiOD, dl!!ll 1Iis landlord's title. Rector v. GIbbon, 4 Sup. Ct. Rep. 606; Killotell v. Jrlartlu.h, (!'t. ·D.) 1.At!. :Rep. .789, and DOte.
832
FEDERAL REPORTER.
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-
