of the accident was permitted to testify that, if the headlight of the St. Paul engine was lighted, and was at any point on the St. Paul road within 400 feet of the crossing, it would be visible at all points between the stop board on the Kansas City road and the crossing. This engineer had been upon the ground and knew that there was no obstruction to the vision between these points. We can conceive of no reason why the evidence was not competent and material. The judgment below must be affirmed, and it is so ordered.

MICHIGAN LAND & LUMBER CO., Limited, v. RUST.

(Circuit Court of Appeals, Sixth Circuit. May 7, 1895.)

No. 178.

1. PUBLIC LANDS-SWAMP-LAND ACT-VESTING OF TITLE.

The surveys of public lands in the state of Michigan, as originally made, were, in many localities, fraudulent and erroneous, both in respect to lines and corners and to the character of the land. Prior to the passage of the Swamp-Land Act Sept. 28, 1850, these frauds and errors had been discovered, and the general government, at the request of the state of Michigan, had undertaken a resurvey of the lands. After the passage of the swamp-land act, the legislature of Michigan resolved to adopt the notes of the surveys, on file in the office of the surveyor general, as the basis of the lists of lands passing to the state under the act. In 1853 a list of lands, including certain lands in controversy in this action, which were indicated on the list as being included in a fraudulent survey, was approved by the secretary of the interior, and transmitted to the governor of Michigan, who thereupon requested a patent for such lands. No patent, however, was issued until 1857, when, the resurvey having been completed, and the lands in question ascertained not to be swamp lands, a patent was issued for sundry parcels of land, not including the lands in question. In 1858 a supplemental list of lands, intended to supersede the former lists, and covering the township in which the lands in controversy were situated, but not including such lands, was transmitted by the surveyor general to the commissioner of the land office, and such list was approved by the secretary of the interior in 1866, and transmitted to the governor of Michigan, upon whose request a patent was issued to the state, not including the lands in controversy. In 1855, pursuant to information from the general land office of the progress of resurveys and corrections of the erroneous lists and to the request of the general government, the state of Michigan suspended action upon the lists, first furnished, based on the erroneous surveys. The state was also fully advised of the action of the general government in regard to such corrections, and of the substitution of new plats, based on the new surveys in the government land offices. The lands in controversy were sold at auction at the United States land office, without objection by the state, but the state afterwards issued patents therefor to the plaintiff's predecessor in title. Held that, although the swampland act operated to convey title to the lands affected by it to the state in praesenti, such title did not attach to the lands included in the first list approved by the secretary of the interior, immediately upon such approval and before the issue of a patent, so as to prevent the subsequent correction of such lists to cure frauds or errors, and remove from the operation of the grant lands not properly within it.

2. SAME-MISTAKE.

Held, further, that when a selection or designation of lands granted by congress has been made, under a mistake of fact induced by a false or fraudulent survey, and no rights of third parties have intervened, the secretary of the interior has power, at any time before issuing a patent, to recall and correct such designation.

8. SAME-ACT MARCH 3, 1857.

Held, further, that the act of March 3, 1857 (11 Stat. 251), providing that the selections of swamp lands theretofore made should be approved, and patented to the several states, was not intended to apply to and confirm old lists founded on the erroneous surveys which had been superseded by new lists, nor to override the general power of the secretary of the interior to correct frauds and mistakes.

4. EVIDENCE-JUDGMENT.

Upon the trial of an action of ejectment by a plaintiff, claiming under the patent from the state, against a defendant, claiming under the patent from the United States, the plaintiff offered in evidence the record of a suit brought by the United States on the bond of one of the surveyors who made the original fraudulent survey, in which suit there was a verdict for the defendant. Held, that such evidence was properly rejected.

In Error to the Circuit Court of the United States for the Eastern District of Michigan.

This was an action of ejectment by the Michigan Land & Lumber Company, Limited, against Charles A. Rust. Judgment was rendered in the circuit court for the defendant. Plaintiff brings error. Affirmed.

This is an action in ejectment brought in the court below by the plaintiff in error to recover 260 acres of land in township 18 N., of range 3 W., in the county of Clare, state of Michigan. The declaration originally included other lands, but they were stricken out by amendment, and by a further amendment the plaintiff's claim was limited to an undivided half interest, which it claims in fee. The plea was the general issue. The case was tried by the court with a jury upon evidence adduced by the parties, and the jury, by direction of the court, rendered a verdict for the defendant. Judgment having been entered thereon, the plaintiff brings the case here for review upon exceptions taken upon the trial to the rulings admitting or rejecting evidence, and to the giving and refusal of instructions to the jury. The plaintiff founds its right to recover upon a title derived through Edward W. Sparrow, to whom patents of the land were issued by the state of Michigan, bearing date April 14, 1887. It is claimed that the state had acquired title to the lands under the act of congress of September 28, 1850, known as the "Swamp-Land Grant." The defendant claims title through mesne conveyances under patents issued by the United States for parts of the lands in question to William A. Rust, May 10, 1870, and for the other part to Addison P. Brewer, January 10, 1867, upon purchases of the said lands by the respective patentees.

The questions involved render it necessary to take into view a brief history of the proceedings of the United States and of the state of Michigan taken for the survey and disposition of the public lands lying within the state,-proceedings some of which took place prior to the date of the grant, but which created conditions in which the grant was administered, and others of which are explanatory of the intent and purposes of those who participated in its adjustment. So much of this history as is deemed essential in the opinion of the court will now be referred to.

Prior to the enactment of the swamp-land grant (Act Sept. 28, 1850), the larger portion, but not all, of the public lands in Michigan had been surveyed. The work had been done by deputy surveyors under contracts with the United States. Unfortunately such contracts were in many instances defectively and fraudulently executed, and the surveys were so imperfect that great embarrassment and difficulty were experienced in making locations and settling the country, not only from the lack of the marks and indications upon the land required by the law of the survey, but also from the falsity of the character given to the quality of the land, which was likewise required to be stated in the survey. Such imperfections and difficulties arising from defective surveys existed in other states, but they seem to have been extraordinary in Michigan, and the mischief was widely extended through the state. Soon after the admission of the state into the Union the legislature adopted a joint resolution, which was transmitted by the governor to the president of the United States by a communication dated February 3, 1842, re

citing that large districts of land within the state had been returned by the deputy surveyors as surveyed where no surveys whatever had been made, or where the surveys had been so imperfectly done as to be utterly valueless; and that the lands so represented as surveyed had been offered for sale to the very great injury of the state and the citizens thereof, and requesting the president to cause a resurvey to be made in certain townships, 81 in number, represented to have been surveyed, but which had not been surveyed, or so imperfectly surveyed that the work was valueless. Upon the recommendation of the commissioner of the general land office, the governor's communication and the resolution of the legislature were referred to the surveyor general for a report of the facts, to the end that proper action might be taken. A report was made by that officer, stating that information of a similar char acter about the surveys in Michigan had come to him, showing how such frauds as were complained of might exist without appearing from anything in his office, and recommending the sending of an experienced surveyor into the field to test enough of the surveys to determine the truth in regard to them. Upon this report the commissioner of the general land office issued instructions to the surveyor general to pursue the course which the latter had recommended, and, if the surveys proved defective in field work, that new surveys in all such cases should be made. The governor of the state was notified of what was being done in response to the request of the legislature. On the 11th day of April, 1842, the surveyor general commissioned William A. Burt to make the proposed examination. This commission was executed by Mr. Burt, and upon his report the surveyor general communicated the results thereof to the commissioner of the general land office, stating that the report furnished abundant proof that the surveys examined by Mr. Burt were grossly defective and fraudulent, and added that there was great probability that the other surveys made under the same contracts were as defective as those which had been examined. The substance of this report was communicated to Senator Porter, of Michigan, by the commissioner of the general land office, with a statement that it was designed to issue instructions for the necessary resurveys. In a further communication from the surveyor general to the commissioner of the general land office in April, 1843, it was stated that by a report of Mr. Burt, whose examinations appear to have been continued, in the townships examined by him, a very small portion of any of the lines had been surveyed or marked, and that what was found to have been done was so erroneous and defective that little or none of it could be relied upon.

In September, 1844, Mr. Woodbridge, who was then a senator from Michigan, addressed the commissioner of the general land office, and, referring to the measures taken by him to obtain appropriations for resurveys in that state, said that the great and increasing evils suffered by the state, in consequence of the false surveys made therein, remained without correction; that they were of incalculable extent, and had produced a deep feeling of wrong throughout the state. In reply to that letter, after referring to the apportionment of an appropriation to be expended in correcting fraudulent surveys in certain parts of the state, the commissioner further said: "All the other cases of erroneous or defective surveys in Michigan will be examined, and instructions issue as speedily as they can be prepared." In pursuance of this general purpose, extensive examinations were made and resurveys were directed in various parts of the state. Resurveys were accordingly made, and instructions were issued by the commissioner of the general land office to the officers of the local land offices in the state, directing them to cancel the plats of the old surveys immediately on receipt of the plats of the new surveys, making proper reference on the old plats to the new ones, so that the old plats should not be used under any circumstances. Reports continued to come in showing the results of the examinations of the old surveys indicating their erroneous and defective character, and under the instructions of the land department resurveys were carried on in the localities which were shown to have been defectively surveyed. On the 10th day of July, 1849, the surveyor general, in a letter to the commissioner of the general land office, stated that from the examinations that had been made by Mr. Burt within the last three months it appeared that most of the field notes originally returned to the surveyor general's office by deputies Nicholson, Brookfield, and

Brink, as containing true descriptions of surveys made by them, were fictitious and fraudulent. The surveyor general thereupon recommended an entirely new survey of the districts just referred to, being those between townships 17 and 24 north, and bounded on the east by the principal meridian. This included town 18 N. of range 3 W., wherein are located the lands involved in the present suit, the original survey of which was made by Nicholson. It appears from the report of the commissioner of the general land office for 1849 that Mr. Burt was employed to fully examine the district which included the lands in question. The plats of 280 townships were furnished to Burt and to Risdon, another surveyor, to the latter of whom was assigned the examination of the lands not assigned to Burt. It was further stated in the commissioner's report that the returns of surveys in seven districts, embracing 91 townships, some of which were made by Nicholson, were grossly fraudulent, "the greater portion of the field notes thereof being wholly fictitious or descriptive of lines and corners that were never established." That the survey in the district of lands in question was contracted by Nicholson, and that examinations of his work made in every township showed that it "was bad throughout." The report also contained an estimate that an additional appropriation of $20,000 would be required for correcting erroneous and fraudulent surveys in Michigan. At the next session of congress the subject of an appropriation for resurveying and correcting erroneous surveys came under consideration, and it appears from an extract from the commissioner's report contained in executive document No. 2, senate, that the general condition of the surveys in that state was fully understood, as well as the measures being taken in the land department for correcting them by resurveys. In this report which the senate had before it was a map of the state which showed the condition of the surveys therein and indicated the towns defectively surveyed. Among those defectively surveyed was township 18 N., of range 3 W. From all this, and from other facts shown by the record of this case, and of which the court might take judicial notice, the general facts sufficiently appear that prior to September 28, 1850, the general government, in response to the request of the state and with its knowledge, had undertaken, and was then carrying on, extensive resurveys of the public lands in the state for the purpose of correcting those which were false, and supplying such portions of the original surveys as had never been made in the field at all; that as fast as the resurveys were made they were returned to the surveyor general's office, and were furnished to the local land offices in the state; and that, by general directions to those officers from the land department, the old surveys were canceled, and the new surveys were adopted as the guide for the disposition of the lands, and that the lands were disposed of on the basis of the new surveys. It is true, as appears, that there was some disregard of this practice at some of the local offices; but it also appears that, as soon as this disregard of instructions was brought to the attention of the land department, it was disapproved and immediately corrected.

This was the state of things when the swamp-land act was passed September 28, 1850. In order to ascertain what lands passed to the state under the provisions of this act, the commissioner of the general land office sent instructions to the surveyor general to make out lists of the land, and in these instructions the commissioner said to the surveyor general: "The only reliable data in your possession from which these lists can be made out are the field notes of the surveys on file in your office, and, if the authorities of the state are willing to adopt these as the basis of these lists, you will so regard them. If not, and these authorities furnish you satisfactory evidence that any lands are of the character embraced by the grant, you will so report them." A copy of these instructions was sent to the governor of the state. The legislature of Michigan, by Act No. 187, Laws 1851, p. 322, resolved to "adopt the notes of the surveys on file in the surveyor general's office as the basis upon which they will receive the swamp lands granted to the state by an act of congress, September 28, 1850." Lists of the swamp lands were made out by the surveyor general from the field notes of the surveys then on file in his office, which lists were furnished to the commissioner of the general land office. When these lists had been purged of the descriptions of lands sold by the United States prior to the date of the grant, they were presented to the secretary of the interior for approval. Among others, such a list, including the

descriptions in question, was approved by the secretary of the interior on the 27th day of October, 1853, and was transmitted by the commissioner of the general land office to the governor of Michigan, by letter dated January 13, 1854, saying that he transmitted "a certified copy of list number 1 of swamp and overflowed lands selected and inuring to the state in the district of land subject to sale at Ionia taken from the original files in this office, which on the 27th day of October, 1853, was approved by the secretary of the interior." This list included the lands in suit and a large quantity of other lands. In the margin of the descriptions contained in town 18 N., of range 3 W., was written the letter "F," which was explained in the accompanying certificate to mean that the survey of that township had been reported as fraudulent. Upon the reception of this list by the governor, and on January 31, 1854, he forwarded to the commissioner of the general land office a request for a patent of the lands contained therein, "conveying the fee-simple title in said lands to the said state of Michigan." This request was not complied with at the time nor until March 17, 1857, when, the surveys having been completed, the character of the land ascertained, and the lands which were fraudulently reported originally as swamp, but afterwards shown not to be so, expunged from the lists, a patent was issued which recited that it was in pursuance of the request of the governor of January 31, 1854. The resurvey of the township in question had in the meantime been made, and the patent did not contain any of the lands in that township. Up to and at the time when the above-mentioned approved list was transmitted by the land department to the governor of Michigan, the examinations of the old surveys and resurveys were going forward in the land district in which the lands in suit are located, and reports had been made to the land department by the surveyor general relative to the lands in the district, stating that "this entire section of country has until recently been considered low, level, and swampy, with pine, cedar, balsam, and hemlock ridges, cold, sterile, and unfit for cultivation. The furthest possible from this are the facts in reference to this region," and that, "in some instances in the original survey, lakes covering many hundred acres have been laid upon the maps where none existed, thus covering with water a large area of beautiful country which, but for these frauds, might long since have been opened for sale and settlement."

In the report of the commissioner of the general land office for 1853, which must have been made up at about the time when the certification of the list in question was pending in the office, it appeared on the authority of the surveyor general that, in the townships recently surveyed, "portions of the lines were run and found to be established; other lines were run, but seemed never to have been corrected; while other portions of the survey were found to be entirely fraudulent, no lines ever having been run." It was further stated in that report that "the examinations in the four districts embraced in my present estimate represent that in many of the townships no lines have ever been run. They also serve to show, as all examinations of defective surveys have ever done, that the field notes of the original surveys are no index to the true and real character and value of the country of which they purport to give a faithful description." "Instances are numerous where valuable agricultural and pine lands are found to exist in place of what has been reported as dense, and in some cases impassable, swamp or nearly worthless lands." The report estimated that an appropriation of $20,160 would be required to complete the work, and it appears that congress made the appropriation as requested. 10 Stat. 565.

On the 29th day of October, 1853, two days later than the date of the secretary's approval of the list of lands in the Ionia district, and while that list was still in the office, the surveyor general transmitted a supplemental list of swamp lands in that district to the general land office, stating that, in obedience to instructions from the commissioner, he had "indicated in the heading of this list that it is intended to abrogate and supersede all lists of swamp lands heretofore made of townships contained within it." To this the commissioner replied on November 7, 1853, saying: "Your letter of the 29th ultimo, transmitting supplemental list of swamp and overflowed lands in the Ionia district, Mich., intended to abrogate and supersede all lists of swamp lands heretofore made of townships contained within it, has been received. The original list will be altered so as to conform to said supplemental list."