Argument for Defendant in Error. sage of the act. The title was not inchoate and was not merely equitable, but was absolute and complete. The requirement of the second section of the act that a patent be thereafter issued is not to be deemed as withholding the vesting of the title under the language of the first section of the grant. The patent when issued is merely evidential of what was granted, the title to which had theretofore vested. The holder of the swamp land title, even before patent has been issued, can maintain an action at law to recover swamp lands against a subsequent patent held by a preëmptioner under the preëmption laws of the United States. Wright v. Roseberry, 121 U. S. 488; Irwin v. San Francisco Savings Union, 136 U. S. 578; Railroad Co. v. Smith, 9 Wall. 95. Not only was the swamp grant a grant in præsenti, vesting the title of the land in the State immediately upon the passage thereof, but by its terms and the nature of the case it furnished a means of identifying the subject-matter of the grant, and any one who, subsequently to the date of the grant, attempts to enter upon such land, or to claim any rights thereto, does so with notice and knowledge of the fact that the land is of the character embraced within the terms of the grant, and that he can obtain no right, title or interest thereto. This is the settled rule of this court. Wright v. Roseberry, ubi supra. It is the province of the Secretary of the Interior, or of the Land Department acting for him, in the first instance, to determine the character of land claimed to be swamp, but if he fails, refuses or neglects to do his duty, or if he deprives himself of jurisdiction in the premises, then the question is for the courts to determine. It will not be disputed that parol evidence is admissible before the Secretary of the Interior, and when the courts are vested with jurisdiction to determine the question, the same evidence that is admissible before the Secretary of the Interior is necessarily admissible before the court. In this case the Secretary of the Interior has neglected and failed to pass upon the question of the character of the lands. in controversy; and by certifying them to the railroad company subsequently to the swamp grant, and prior to the pres Argument for Defendant in Error. entation to him of the swamp selection, has deprived himself of jurisdiction to act in the premises, thereby bringing the case within the exact rule of the case of Railroad Co. v. Smith, 9 Wall. 95. See also McCormick v. Hayes, 159 U. S. 332; and Railroad Co. v. Fremont County, 9 Wall. 89. When the Land Department of the United States certified the lands in suit under the railroad grant, it deprived itself of jurisdiction to investigate and determine the character of the lands, or to patent the same under the swamp grant. In this connection, it will be remembered, that the certifications under the railroad grant were made before the swamp land selections had reached the Department. The Executive Department had no power to recall the certifications after they were issued, however wrongful they may have been; nor could it cancel these certifications; nor had it any right or authority to issue patents under the swamp grant after the certifications had been issued. This is the well-established rule of the department in such cases, and it is based upon the decisions of this court. Buena Vista County v. Iowa Falls &c. Railroad, 112 U. S. 165; Wright v. Roseberry, ubi supra; Bicknell v. Comstock, 113 U. S. 149; Mullan v. United States, 118 U. S. 271. The lands in suit have been certified as railroad lands, but they should have been patented as swamp lands. The railroad claimant is a trustee of the rightful owner, who is entitled to any appropriate relief that a court of equity has power to grant. The swamp title may be established and quieted, and the railroad claimant enjoined from asserting any adverse claim, as has been done in this case; or the railroad claimant may be compelled to convey to the rightful owners. Stark v. Starrs, 6 Wall. 402, 413; Silver v. Ladd, 7 Wall. 219; Lytle v. Arkansas, 9 How. 314; Warren v. Van Brunt, 19 Wall. 646. The lands in controversy herein having been thus found to be swamp and overflowed lands within the meaning of the act of September 28, 1850, by the referee, by the trial court, and by the Supreme Court of the State, these findings will not be disturbed by this court in this proceeding in error. Dower v. Richards, 151 U. S. 65S. Opinion of the Court. MR. JUSTICE HARLAN, after stating the case as above reported, delivered the opinion of the court. In the light of the facts as stated above, and of the Federal and state legislation relating to the matters in controversy, we proceed to the consideration of the questions presented for our determination. As the railroad act of 1856 excepted from its operation all lands theretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for any purpose whatever, the certification to the State by the Department of the Interior of the lands in controversy as having inured, under the railroad act of May 15, 1856, to the State for the benefit of the Dubuque and Pacific Railroad Company, was unauthorized, if at the date of the Swamp. Land act of 1850 the lands were swamp and overflowed lands, whereby they were unfit for cultivation; for, lands of that character were expressly reserved from the operation of the railroad grant of 1856. If they were not granted to the State for the benefit of the railroad company, because previously granted to the State as swamp and overflowed lands, they could not properly have been certified or transferred to the State to be applied in aid of the construction of the railroad. McCormick v. Hayes, 159 U. S. 332, 338. But it is equally true that the act of 1850 made it the duty of the Secretary of the Interior, as soon as practicable after the passage of that act, to make out an accurate list and plats. of the swamp and overflowed lands granted to any State and transmit them to the executive of such State, "and, at the request of said governor, cause a patent to be issued to the State therefor; and on that patent the fee simple to said lands shall vest in said State," subject to the disposal of its legislature. While, therefore, as held in many cases, the act of 1850 was in præsenti, and gave an inchoate title, the lands needed to be identified as lands that passed under the act; which being done, and not before, the title became perfect as of the date of the granting act. Wright v. Roseberry, 121 U. S. 488, 494 et seq.; Tubbs v. Wilhoit, 138 U. S. 134, 137; Chandler v. Calu Opinion of the Court. met & Hecla Mining Co., 149 U. S. 79, 91. So, in Ehrhardt v. Hogaboom, 115 U. S. 67, 68: "In French v. Fyan, 93 U. S. 169, this court decided that, by the second section of the Swamp Land act, the power and duty devolved upon the Secretary of the Interior, as the head of the Department which administered the affairs of the public lands, of determining what lands were of the description granted by that act, and made his office the tribunal whose decision on that subject was to be controlling." The identification of lands as lands embraced by the Swamp Land act was therefore necessary before the State could claim a patent or exercise absolute control of them. In McCormick v. Hayes, above cited, it appeared that the Secretary of the Interior, proceeding under the railroad act of May 15, 1856, had certified certain lands as inuring to Iowa under that act. It was insisted in that case that the lands were covered by the act of 1850, and, therefore, that they were improperly certified under the railroad act of 1856; a fact which, it was contended, could be established by parol evidence, so as to fix the title in certain parties, independently of any action that may have been taken by the Interior Department upon the subject. The precise nature of that case is shown by this extract from the opinion of the court: "The controlling question, therefore, in this case, so far as the plaintiff is concerned and he must recover upon the strength of his own title, even if that of the defendant be defective-is whether, under the circumstances disclosed by the record, the particular lands in controversy, in the absence of any selection and certification of them by the United States to the State, under the Swamp Land act, can be shown by parol testimony to have been, in fact, at the date of that act, swamp and overflowed lands. Congress having made it the duty of the Secretary of the Interior to make out accurate lists and plats of the lands embraced by the Swamp Land act, and transmit the same to the governor of the State, and, at the request of the latter, to cause a patent to be issued to the State therefor, and having provided that 'on that patent the fee simple to said lands shall vest in said State subject to Opinion of the Court. the disposal of the legislature thereof,' did the title vest in the State, by virtue alone, and immediately upon the passage, of the act, without any selection by or under the direction of the Department of the Interior, so that the State's grantees could maintain an action to recover the possession of them?" In determining that question this court, after an extended review of former decisions, thus stated (pp. 346-347) its conclusions: "The case before us is not like that of Railroad Co. v. Smith, in which, as subsequently explained in French v. Fyan, it was shown that there was an absolute neglect of duty on the part of the Interior Department, in that it neither made. nor would make any selection of lists whatever, and, therefore, there was no action by that Department that could be relied on as a determination of the question whether the particular lands then in dispute were or were not embraced by the Swamp Land act. That case was exceptional in its circumstances, and seemed to justify the decision rendered, in order to prevent a total failure of justice, arising from the unexplained neglect of the Land Department to perform the duty imposed by the act of 1850. What was said in French v. Fyan shows that this court not only so regarded the previous case, but it was in effect said that the ruling in Railroad Company v. Smith was not to be extended to any case in which the Land Department had taken action, or made a decision or determination under the Swamp Land act." Again, and in reference to the certification of lands under the railroad act of 1856: "Twice the Land Department certified these lands to the State as inuring to it under the railroad land grant act, and it does not appear that the State has ever questioned the correctness of that certification or applied to the Secretary of the Interior for a reexamination as to the character of the lands. Upon the authority of former adjudications, as well as upon principle, it must be held that parol evidence. is inadmissible to show, in opposition to the concurrent action. of Federal and state officers, having authority in the premises, that these lands were, in fact, at the date of the act of 1850, swamp and overflowed grounds, which should have been embraced by Linn County in its selection of land of that char . |