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BROWN v. HITCHCOCK. *FN1

decided: April 3, 1899.

BROWN
v.
HITCHCOCK.*FN1



APPEAL FROM THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

Author: Brewer

[ 173 U.S. Page 476]

 MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

Under the Swamp Land Act the legal title passes only on delivery of the patent. So the statute in terms declares. The second section provides that the Secretary of the Interior, "at the request of said Governor [the Governor of the State,] cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State." Rogers Locomotive Works v. American Emigrant Company, 164 U.S. 559, 574; Michigan Land & Lumber Co. v. Rust, 168 U.S. 589, 592.

In this case the record discloses no patent, and therefore no passing of the legal title. Whatever equitable rights or title may have vested in the State, the legal title remained in the United States.

Until the legal title to public land passes from the Government, inquiry as to all equitable rights comes within the cognizance of the land department. In United States v. Schurz, 102 U.S. 378, 396, which was an application for a mandamus to compel the delivery of a patent, it was said:

"Congress has also enacted a system of laws by which rights to these lands may be acquired, and the title of the Government conveyed to the citizen. This court has, with a strong hand, upheld the doctrine that so long as the legal title to these lands remained in the United States, and the proceedings for acquiring it were as yet in fieri, the courts would not interfere to control the exercise of the power thus vested in that tribunal. To that doctrine we still adhere."

While a delivery of the patent was ordered, yet that was so

[ 173 U.S. Page 477]

     ordered because it appeared that the patent had been duly executed, countersigned and recorded in the proper land records of the land department and transmitted to the local land office for delivery, and it was held that the mere manual delivery was not necessary to pass the title, but that the execution and record of the patent were sufficient. And yet from that conclusion Chief Justice Waite and Mr. Justice Swayne dissented. The dissent announced by the Chief Justice only emphasizes the proposition laid down in the opinion, as heretofore quoted, that so long as the legal title remains in the Government all questions of right should be solved by appeal to the land department and not to the courts. See in support of this general proposition Michigan Land & Lumber Co. v. Rust, supra, (which, like the present case, arose under the Swamp Land Act,) and cases cited in the opinion. Indeed, it may be observed that the argument in behalf of appellant was avowedly made to secure a modification of that opinion. We might well have disposed of this case by a simple reference to that decision; but in view of the earnest challenge by counsel for appellant of the views therein expressed, we have reexamined the question in the light of that argument and the authorities cited. And after such reexamination we see no reason to change, but on the contrary we reaffirm the decision in Michigan Land & Lumber Co. v. Rust. As a general rule no mere matter of administration in the various Executive Departments of the Government can, pending such administration, be taken away from such Departments and carried into the courts; those Departments must be permitted to proceed to the final accomplishment of all matters pending before them, and only after that disposition may the courts be invoked to inquire whether the outcome is in accord with the laws of the United States. When the legal title to these lands shall have been vested in the State of Oregon, or in some individual claiming a right superior to that of the State, then is inquiry permissible in the courts, and that inquiry will appropriately be had in the courts of Oregon, state or Federal.

We do not mean to say that cases may not arise in which a party is justified in coming into the courts of the District to

[ 173 U.S. Page 478]

     assert his rights as against a proceeding in the land department or when the department refuses to act at all. United States v. Schurz, supra, and Noble v. Union River Logging Railroad Co., 147 U.S. 165, are illustrative of these exceptional cases.

Neither do we affirm that the administrative right of the departments in reference to proceedings before them justifies action without notice to parties interested, any more than the power of a court to determine legal and equitable ...


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