Railroad Company v. Smith/Dissent Clifford
Mr. Justice CLIFFORD, dissenting.

Unable to concur in the judgment of the court in this case, I think it proper to state the reasons of my dissent.

Congress made provision, by the first section of the act of the twenty-eighth of September, 1850, that swamp and overflowed lands, 'made unfit thereby for cultivation,' and which remained unsold at the passage of the act, should be granted to the States in which the same were situated, to enable the States to construct the necessary levees and drains to reclaim the lands so granted, and render them fit for cultivation. 

Such lands were a part of the public domain, and of course it was necessary, before the title could vest in the States, that the land should be surveyed and designated, as lands not made unfit thereby for cultivation were no more included in the first section of the act than lands sold prior to its passage.

Taken literally, the first section, it is conceded, purports to grant the whole of those swamp and overflowed lands, made unfit thereby for cultivation; but the second section makes it the duty of the Secretary of the Interior to make out an accurate list and plats of the lands described as aforesaid; and the third section provides that, in making out said list and plats, whenever the greater part of a subdivision is wet and unfit for cultivation, the whole of it shall be included in the list and plats, which is a matter to be ascertained and determined by the Seretary of the Interior, and which, under the act of Congress, cannot be ascertained and determined by any other tribunal. Lands fit for cultivation, under those circumstances, are to be included in the list and plats; but the corresponding provision in the same section is, that if the greater part of a subdivision is not of that character, that is, not swamp and overflowed lands, made unfit thereby for cultivation, then the whole of the subdivision shall be excluded from the list and plats.

Special power is conferred upon the Secretary of the Interior to make out an accurate list and plats of the lands, and it is quite clear that a jury is no more competent to ascertain and determine whether a particular subdivision should be included, or excluded, from the list and plats required to be made under that section, than they would be to make the list and plats during the trial of a case involving the question of title.

Courts and juries are not empowered to make the required list and plats, nor can they determine what particular lands shall be included in the list and plats before they are prepared by the officer designated by law to perform that duty.

Support to that conclusion is derived from the subsequent language of the same section, which makes it the duty of the secretary, when the list and plats are prepared, to transmit the same to the governor of the State, and to cause a patent to be issued to the State for the lands. Unless the requirements were such as is supposed, it is difficult to see how the affairs of the land department can be administered, as the records and files of the office would not furnish any means of determining whether a given parcel of land belongs to the State in which it is situated or to the United States.

Evidently the title to the lands remains in the United States until these proceedings are completed, as the same section which makes it the duty of the secretary, when the list and plats are prepared, to transmit them to the governor and to cause a patent to be issued therefor, also provides that when the patent is issued 'the fee simple to said lands shall vest in the said State, . . . subject to the disposal of the legislature thereof.'

Prior to the issuing of the patent therefor the fee simple to the lands does not vest in the State, and the lands, prior to the date of the patent, are not subject to the disposal of the legislature.

Strong confirmation that the construction of that act herein adopted is correct is also derived from the subsequent legislation of Congress upon the same subject. Selections of swamp and overflowed lands were made by the States, in certain cases under that act, before the required list and plats were made by the secretary, and Congress, on the third of March, 1857, passed an amendatory act to remedy the difficulty, in which it is provided to the effect that such selections, if reported to the general land office, should be confirmed, provided the lands selected were vacant and unappropriated, and the selections did not interfere with actual settlements under any existing laws of the United States. 

Such a law was certainly unnecessary if the construction of the original act adopted in the opinion just read is correct, as in that view the original act vested a fee simple title in the States without the necessity of waiting for any action on the part of the land department; and if so, then it follows that the States may select for themselves, and if their title is questioned by the United States or by individuals, they may claim of right that the matter shall be determined by jury.

Anticipating that the decision will occasion embarrassment to the land department, I have deemed it proper to state thus briefly the reasons of my dissent.

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