
    (68 South. 859)
    No. 20102.
    LOUISVILLE & N. R. CO. v. PENN et al.
    (October 19, 1914.
    On Rehearing, June 12, 1915.)
    
      (Syllabus by the Court.)
    
    1. Public Lands <&wkey;>59 — Confirmed Land Grant — Effect of State Selection and Approval.
    . A land grant confirmed by Congress in 1820 (Act May 11, 1820, c. 87, 3 Stat. 573) cannot be affected by a state selection of the same land in 1850, under the swamp land grant of March 2, 1849 (Act March 2, 1849, c. 87, 9 Stat. 352), and the approval of the selection by the Commissioners of General Land Ofiice.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 184, 185; Dec. Dig. &wkey;>59.]
    2. Confirmed Land Grant —'Subsequent Excessive Location.
    Where such confirmation was restricted to 2,000 acres, a subsequent location and patent covering much more than that quantity are void as to the excess, as against a confirmed state selection of the whole tract.
    
      
      (Additional Syllables by Editorial Staff.)
    
    On Rehearing.
    3. Public Lands <&wkey;>59 — Approval op List— Lands Claimed and Held by Individuals.
    Under Act Cong. March 2, 1849, c. 87, 9 Stat. 352, in accordance with which the approval by the Secretary of the Treasury of a list containing lands “not claimed or held bv individuals” vests the fee simple to the lands in the state, the approval of such a list did not vest title in the state to lands both claimed and held by individuals.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 184, 185; Dec. Dig. <@=359.].
    4. Public Lands'@=^59 — Claim under Grant —Suppiciency op Evidence — Selection by State and Approval.
    Evidence in a jactitation suit which by defendant’s answer was converted into a petitory action wherein plaintiff claimed under a state selection made in 1850 under the swamp land grant (Act Cong. March 2, 1849, c. 87, 9 Stat. 352), and the approval of the selection by the Commissioner of the General Land Office, and defendants claimed under a land grant confirmed by Congress in 1820 (Act May 11, 1820, c. 87, 3 Stat. 573), held to show that the land in controversy, though unsurveyed, had been claimed continuously by the heirs of the original grantee, and that hence the title thereto never passed to the state or to the state’s assigns.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 184, 185; Dec. Dig. &wkey;59.]
    5. Public Lands &wkey;>106 — Confirmation op Claim — Effeoo>-Patent.
    That commissioners acting under Act Cong. March 3, 1807, c. 36, § 2, 2 Stat. 440, providing that persons who on December 20, 1803, had for ten years been in possession of land not claimed by others, and not exceeding 2,000 acres, shall be confirmed in their title, mistakenly believed that they had power to confirm a claim only to the amount of 2,000 acres, and limited their confirmation of the title to an unsurveyed island to such acreage thereof, did not operate as a rejection of the claim for the remainder or invalidate the government patent subsequently issued to the claimant’s heirs for the entire island.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 104, 301, 302; Dec. Dig. &wkey;106.]
    6. Public Lands <&wkey;106 — Issuance op Patent — Existence op Facts — Determination op Land Department — Conclusiveness.
    Where Congress has provided for the disposition of public lands of a particular character and authorized the Land Department to issue a patent for same on ascertainment of certain facts, such department has jurisdiction to inquire into and determine the existence of such facts, and,' in the absence of fraud, imposition, or- mistake, its determination is conclusive against collateral attack.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 104, 301, 302; Dec. Dig. &wkey;106.j
    Appeal from Civil District Court, Parish, of Orleans; George H. Théard, Judge.
    Action by the Louisville & Nashville Railroad Company against Sarah L. Penn and others. From a judgment for defendants, plaintiff appeals.
    Affirmed on rehearing.
    Denegre, Leovy & Chaffe, of New Orleans, for appellant. IT. L. Favrot and Lewis R. Graham, both of New Orleans (Dart, Kernan & Dart, of New Orleans, of counsel), for appellees. Rixford J. Lincoln, of New Orleans, curator ad hoc.
   LAND, J.

This is a jactitation, suit, which was converted into a petitory action by the answer of the defendants. The question raised by the pleadings is whether the plaintiff or the defendants hold the legal title to a tract of land in the parish of Orleans, known as Brazilier’s Island, containing about 2,500 acres.

Plaintiff claims through mesne conveyances from the state of Louisiana, and the state claimed from the United States by virtue of her selection and approval thereof under the swamp land grant of 1849. Defendants claim the property as the direct heirs and lineal descendants of Juan Baptista Brazilier, the original settler under the Frenen ana Spanish governments, and of the “heirs of Brazilier,” whose claim was confirmed by act of Congress in the year 1820.

There was judgment in favor of the defendants, and the plaintiff appealed.

We have examined the respective titles of the litigants, and find the following state of facts:

On November 20, 1816, the claim of the heirs of Brazilier to a tract of land situated near Chef Menteur, in the Lake Pontchartrain, was reported for confirmation for a quantity not exceeding 2,000 acres, and was duly confirmed by act of Congress of May 11, 1820. In 1851-1853 the tract was regularly surveyed, and the claim, of the heirs of Brazilier was located so as to embrace tbe whole oí Brazilier’s Island. In December, 1907, a formal United States patent issued to the heirs of Brazilier to the tract as thus surveyed and located. Defendants are the descendants of the heirs of Brazilier.

The plaintiff claims under a selection of unsurveyed swamp and overflowed lands in the township made by the state in the yep.r 1850 under act of Congress approved March 2, 1849 (9 Stat. 352, c. 87), “excepting- such as are rightfully claimed or owned by individuals.”

The selection thus made was in 1852 approved by the Acting Commissioner of the General Land Office. In 1869 the state patented the tract to the New Orleans, Mobile & Chattanooga Railway Company, and by several mesne conveyances the title derived from the state was finally vested in the plaintiff.

Section 2 of act of Congress of March 2," 1849, authorized the Secretary of the Treasury to approve state selections of swamp lands “so far as they are not claimed or held by individuals.” It follows, we think, that as the claim of the heirs of Brazilier to the. island had been confirmed by Congress many years before its selection by the state, such selection was made and approved subject-to the superior claim of the heirs of Brazilier. Plaintiff contends that the United States patent conveyed more land than was confirmed by the act of Congress.

The claim of the heirs of Brazilier was to the whole island, and while it was reported for confirmation “for. a quantity not exceeding 2,000 acres,” it was surveyed and located as containing 2,426.50 acres, and the United States patent issued for that quantity.

Plaintiff’s counsel argue that defendants’ title is bad, because the 2,Q00 acres confirmed was never surveyed and located. The answer ls that the defendant’s claim has been surveyed, located, and patented for too much land, and the plaintiff is in the same situation. Under the circumstances, we think both parties should be nonsuited, as no final judgment can be rendered until said 2,000 acres are surveyed and located.

’ It is therefore ordered that the judgment below be reversed, and the .demands - of both parties be dismissed as in case of nonsuit; costs of appeal 'to be paid by appellee, and the costs of the district court by the original plaintiff.'

On Reheating.

PROVOSTY, J.

The language of the act of-1849 is that, on the approval by the Secretary of the Treasury of a list of lands, “the fee simple to said lands shall vest in the state of Louisiana.” But the lands of which .a list may be thus approved are only those which “are not claimed or held by individuals,” and the evidence in this case shows that this' Brazilier’s Island (which is, in fact, an island) was" both claimed and held by the persons under whom defendants claim, at the time of the approval to the state. Whether that claim was well fo.unded or not is a matter which the authorities of the land Department of the government have decided in favor of defendants, to whom they have issued a patent. The only question, in reality, which this court is called upon to investigate in this case is whether ,this land at the time of the approval to the state was “claimed or held by individuals.” If it was, then the Secretary of the Treasury was not authorized to approve it to the state, and his approval would have been coram non judice and of no effect.

That this island has been continuously claimed by the heirs of Brazilier and their assigns the record leaves no room for question. In 1816 the commissioners for ascertaining and adjusting claims to lands in the Eastern district of Louisiana reported on this claim of the Brazilier heirs to this island as follows:

“No. 509. The heirs of Brazilier claim a tract of land situated near Chef Menteur, in the Lake Pontchartrain, known by the name of Brazilier’s Island. The claimants having proved settlement and cultivation of this island more than ten consecutive years prior to the 20th of December, 1803, we are of the opinion they ought to be confirmed in their claim to a quantity not exceeding two thousand acres. * * * ”

This island had not yet been surveyed at that time, and no one knew, its exact area. Things remained in that condition until 1849, when all swamp lands in the state of Louisiana were granted, by Congress to the state for levee and drainage purposes. The heirs •of Brazilier then became active, and, through their attorney, Henry Train, Esq., took up with the General Land Office the matter of this claim. In August, 1850, through the same attorney, they were active in procuring the surveyor general to cause a survey to be made; and after correspondence, and delays incident to lack of funds, a survey of the township was finally made in' 1853. On October 17, 1853, the surveyor general of Louisiana wrote to Mr. Train as follows:

“In compliance with the request contained in your letter of the 10th inst. you will herewith receive a certified extract from the field notes of T. 11 S. 14 E. in the S. E. district, La., and to make it intelligible, it is accompanied by a copy of the map. The fees for ’Which are noted thereon in pencil.
“Under the act of 2d March, 1849, the whole of this township was selected as swamp lands, inuring to the state of Louisiana, with the exception of such portions as might be rightfully claimed by individuals.
“The claim of the heirs of Brazilier, B. & B. 509, covers this land lying between the Bayou de Lesiare and the Chef Menteur and Lake Pontchartrain, while upon the east side of the former bayou, is to be located the claim of Guy de Eossat, B. & B. No. 405, having a depth of 1% arpens and extending from the Bigolets to Lake Borgne, which, with the claim of Brazilier was confirmed by act of 11th May, 1820.”

The township map transmitted with this letter shows the claim of Brazilier to cover the entire island.

When, therefore, the list of lands was approved to the state in 1852, the heirs of Brazilier were actively urging their claim to this entire island. And it is to be noted that the surveyor general of Louisiana, in submitting the list, qualified it by the clause “excepting such as are rightfully claimed or owned by individuals,” and that the approval of the list by the Secretary of the Treasury was subject to the same qualification, expressed by the clause “in accordance with the second section of the act of 1849.” The approval mentioned the fact that the lands thus approved had never been surveyed.

The commissioners who reported on the heirs of Brazilier’s claim in 1816, and recommended that it be confirmed to the extent of 2,000 acres, were the register and receiver of the United States land office in New Orleans. They were acting under the act of Congress of March 3, 1807 (2 Stats. 440, e. 36), section 2 of which reads:

“That any person or persons * * * who, on December 20, 1803, had for ten consecutive years prior to that date, been in possession of a tract of land not claimed by any other person, and. not exceeding two thousand acres, etc., shall be confirmed in their titles to such tract of land: Provided, * * * that no more land shall be granted by virtue of this section, than is actually claimed by the party, nor more than is contained within the acknowledged and ascertained boundaries of the tract claimed.”

The commissioners did not decide that the claim of the heirs of Brazilier was not good to the whole of the island; but they had, as they thought, no authority to confirm beyond 2,000 acres, and they confirmed as far as their authority extended. As a matter of fact, they did not know, nor did any one else know, what the area of this island was. That knowledge was not obtained until the survey of the township was made in 1853. The fact that the claim was confirmed up to 2,000 did not therefore amount to or operate a rejection of the claim for the remainder; and nothing prevented the government from subsequently recognizing the validity of the claim for the entire island, as was ddne by the patent which subsequently issued to the heirs of Brazilier. The same act of Congress of 1807 which the commissioners interpreted as authorizing them to confirm claims only up to 2,000 acres contained a clause authorizing the confirmation up to one square league; and, doubtless, the Land Department, in issuing' the patent, did so on the theory that the commissioners had found the claim to he entitled to confirmation, and that their having limited their confirmation to 2,000 acres only was due to a misinterpretation of their authority, because they did not consider that under any circumstances they had authority to confirm for more than 2,000, whereas, in fact, they did have authority to confirm for one league square.

It goes without saying that, if the plaintiff or its authors in title had obtained an absolute patent to this land from the United States government, this patent could not he affected by any subsequent act of the Land Department, whether by the issuance of a second patent to some one else, or otherwise.- But the approval of this list of lands in globo and without even any survey having ever been made to the state was conditional, and the condition was written on the face of the documents evidencing the selection- and the approval, and the state accepted the title subject to this condition, and transmitted no better title to her assigns.

The record leaves no doubt that this island has been constantly claimed by the heirs of Brazilier, and that therefore it came squarely under the condition expressed in the selection and approval to the state, and that therefore this- island never passed to the state or to her assigns.

On this rehearing plaintiff concedes that this island was not included in the approval to the state up to the 2,000 as to. which the claim was confirmed, but contend that the claim was never confirmed as to the remainder of the acreage, and that therefore the defendant has no title as to this remainder ; that, inasmuch as this is a jactitation suit, and the defendants by setting up title have assumed the position of plaintiffs in a petitory action, who must succeed upon the.strength of their own title, and not upon the weakness of that of their adversary, the defendants must fail, since they do not show that their claim was ever confirmed by the government.

The answer to that contention is found in the numerous decisions of the Supreme Court of the United States which have established the doctrine expressed by that court in the case of Barden v. Northern Pacific Railroad, 154 U. S. 288, at page 827, 14 Sup. Ct. 1030, at page 1038, 38 L. Ed. 992, at page 1001, as follows:

“It is the established doctrine, expressed in numerous decisions of this court, that wherever Congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the officers of the Land Department to issue a patent for such land upon ascertainment of certain facts, that department has jurisdiction to inquire into and determine as to the existence of such facts, and, in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attack.”

The Land Department has found that the claim of the Brazilier heirs to this island had been confirmed by the government, and that finding is binding upon this court.

The judgment appealed from is therefore affirmed; the plaintiff to pay the costs in both courts.

MONROE, C. J., takes no part.  