TUBBS V. WILHOIT, 138 U. S. 134 (1891)

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U.S. Supreme Court

Tubbs v. Wilhoit, 138 U.S. 134 (1891)

Tubbs v. Wilhoit

No. 450

Submitted January 6, 1891

Decided January 26, 1891

138 U.S. 134


The swamp land grant of September 28, 1850, to the several states was in praesenti, and upon identification of the lands thereunder in lawful mode, title thereto related back to the date of the grant.

The identification originally prescribed by the action of the Secretary of the Interior was changed as to such lands in California by the Act of July 23, 1866, 14 Stat. 219, section four thereof prescribing new and additional modes of identification.

That act provided, among other things, that (1) all lands represented as swamp and overflowed on township plats, the surveys and plats of which townships had been made under the authority of the United States and approved, were to be certified to the state by the Commissioner of the General Land Office within prescribed periods, and (2) existing state segregation maps and surveys of such lands found by the United States Surveyor General to conform to the existing system of the United States were directed to be made the basis of township plats, to be thereafter constructed and approved by that officer, and forwarded to the Commissioner of the General Land Office for approval.

In 1864, United States subdivisional survey of the township embracing the land in controversy in this suit was made and approved by the United States Surveyor General, and a copy of the plat thereof, also approved by him, was filed in the proper local land office. On such approved plat certain parts were colored green, and marked "swamp and overflowed land," and excluded from the estimated aggregate area of public lands shown thereon, and were included in the estimated area of swamp and overflowed land in that township. In August and September, 1864, under authority of state law, one Kile applied to purchase the land in controversy from the state under the swamp land grant, secured the requisite survey and the approval thereof by the state Surveyor General, and in August, 1865, having made full payment to the state received the state's patent therefor. Held that the title of the state was confirmed by the act of 1866, by the return of the land as swamp and overflowed on the survey of the United States and the township plat, approved by the United States Surveyor General and filed in the local land office in 1864.

Prior to executive instructions of April 17, 1879, the Commissioner's approval of the public surveys and plats was not required before filing thereof in the local offices of sale by the United States Surveyor General, and on such filing the land became subject to sale, selection and disposal. Power to correct fraud or error therein existed in the Commissioner, but where the survey and plat were correct, they became final and effective when approved and filed in the local land office by the Surveyor General. chanrobles.com-red

Page 138 U. S. 135

Temporary withdrawal of the township plat prior to the passage of the act of 1866 did not defeat confirmation prescribed by that act in the present case, a certified copy of such plat having been substituted in its place and the survey thereof never having been disapproved nor changed otherwise than by the erasure of the words "swamp and overflowed" as to this and other tracts and the substitution on the plat of the words "public lands," under direction of the Commissioner of the General Land Office given after his control over the matter had ceased. Official acceptance of the survey by the Commissioner may be inferred from its adoption in making sales and issuing patents, if such approval be in fact necessary.

The homestead entry of plaintiff in error made subsequent to the making of the survey and filing of such township plat thereof in the local office, and subsequent to the state segregation survey, sale and patent of the land to Kile, and subsequent to the confirmatory act of 1866, was ineffectual against the right acquired by the state and its patentee.

Alleged inadvertence of the state court in entering judgment below for defendant for rents and profits cannot be reviewed here. Any inadvertence of the kind is only matter for consideration by the court below.

This was an action for the possession of land. The federal questions are stated in the opinion.