Kelly v. Cotton Belt Lumber Co.

Hirr, C. J. In January, 1850, Kelly, the appellant, in the exercise, of “squatter sovereignty,” settled upon a tract of land belonging to the United States. He held possession until 1877, since which time it has not been in actual occupancy of any one. The extent of Kelly’s actual possession was about 20 acres, and the tract in which it was situated contained 80 acres. In 1873 Kelly purchased a tract in this same section adjoining this 80-' acre tract, and this suit is over the two tracts. The circuit court gave judgment in favor of Kelly to the extent of his actual occupancy, and from a judgment in favor of the lumber company for the remainder of that 80-acre tract and the tract purchased from the State in 1873 Kelly prosecutes this appeal. The history of the titles is as follows: Kelly procured his neighbor, Franklin Little, to purchase of the United States the 80-acre tract containing his (Kelly’s) improvements, which Little did on the 30th day of July, 1856, securing a cash entry certificate and later a patent, and subsequently he conveyed the tract to Kelly. The other tract Kelly .purchased as swamp land from the State on the 17th of July, 1873, and received deed therefor. The lumber company’s title to both tracts is based on the Swamp Land Grant of September 28, 1850, granting the swamp lands to the State, and an act of the General Assembly, approved January 16, 1861, entitled “An act to invest the swamp and overflowed lands in the Champagnolle Swamp Land District as stock in the Mississippi, Ouachita & Red River Railroad Company. Pursuant to the terms of this act the State on the 10th of October, 1873, deeded the land in controversy to said railroad company, and the lumber company has succeeded to its title. The lands in controversy were selected as swamp lands, and list containing them filed in 1853 in the general land office, and then approved, and the list confirmed on August 22, 1871, and all except the Franklin Little tract patented to the State, Sept umber 11, 1874. The Little tract was omitted from the patent to the State on account of its sale to Little in 1856. 1. The question is whether the Swamp Land Grant of September 28, 1850, conveyed this Franklin Little tract to the State of Arkansas, and rendered its subsequent sale by the United States Government invalid. The Swamp Land Grant was a present grant of all the lands coming within the description therein contained; and when they were properly designated under the terms of the act, the conveyance related back to the date of the grant. Hendry v. Willis, 33 Ark. 833; Chism v. Price, 54 Ark. 251. Shortly after the passage of the Swamp Land Grant the State passed an act, January 11, 1851, authorizing the board of swamp land commissioners to demand and receive from the United States Government indemnity at the rate of $1.25 per acre for swamp land which had been sold since the passage of the grant by the United States, “or which may hereafter be sold or disposed of by the United States.” On March 3, 1857, Congress passed an act confirming to the State all lands heretofore selected under the Swamp Land Grant, “so far as the same shall remain vacant and unappropriated and not interfered with by an actual settlement under any existing law of the United States,” and the same should be approved and patented to the State. Thus it is seen that the act of Congress, passed after Little puichased the land, excepted from the confirmation to the State the land sold Little because it was not “vacant and unappropriated;” and when the patent was subsequently issued for the other lands selected as swamp lands with it, it was properly omitted from the conveyance to the State. But it is insisted that, the grant being in praesenti, when the land was selected as' falling within it, the Federal Government could not, by subsequent sale of it, divest the State’s title. To meet just such complications, the General Assembly passed said act of January 11, 1851, and of its purpose this court said: “This [act] was passed soon after the Swamp Land Act, and before any proof had been made to identify the lands coming within its provisions. Although the lands granted were identified by it as all swamp and overflowed lands in the State, they were not identified'by their numbers, and could not be stricken from the plats or lists of public lands subject to ordinary entry, until the State should make its selections and furnish proof that such selections were of the character 'described in the grant. It was, therefore, inevitable that, in the course of rapid settlement in a new State, the Government ■ should, without knowing it, make dispositions of tracts of swamp land, unless it suspended all entries of its lands; and this course it did not see fit to take. It was to provide for such anticipated contingencies that the act was passed. We do not think that it contemplated that the Government would knowingly dispose of the State’s lands, or intended to invest the Government with any such general powers; but in view of the certainty that the Government would, in the ordinary course of disposing of the public domain, unwittingly dispose of tracts of swamp land, the act empowered the board of commissioners to demand from the Government the purchase price of the lands thus disposed of, and consented to accept the same in lieu of the land, rather than'disturb titles thus acquired.” Chism v. Price, 54 Ark. 251, 265. It is clear that the case here is one within the letter and spirit of said act, and that both the State and the United States have provided for the protection of such titles. It is part of the history of the State that the various conflicts in rights growing out of the Swamp Land Grant constituted a controversy of long standing between the State and General Government, which was finally adjusted by the acts of Congress and of the General Assembly in 1897. Such conflicts as the one in question, however, were, in advance, provided against affecting the title of the settler, and left any conflict to be settled between the two sovereignties. The court erred in not sustaining the validity of the Franklin Little title. 2. The other land went to the State as swamp land, and was purchased of the State by Kelly July 17, 1873, and subsequently on October 10, 1873, the State deeded the same land to the railroad company under which the appellee claims. The contention of the appellee is that the act of January 16, 1861, was a present grant of the swamp lands in the Champagnolle District to the railroad company, that this land had been selected as swamp land before the passage of this act, and that the State had no title to grant to Kelly, in July, 1873, and the deed to the railroad company in October, 1873, did not determine the question of priority. If this act of January 16, 1861, was a present grant, like the Swamp Land Grant for instance, or the grants instanced in the majority opinion in Wineman v. Gastrell, 53 Fed. Rep. 697, the appellee’s position would undoubtedly be correct; but it is a very different act in terms and in object. Its title was to “invest” the swamp land in the Champagnolle district in stock of the railroad company. Its first section reads, after describing the lands affected: “be, and the same are hereby granted to and invested as stock in * * * railroad company at the minimum price now established by law, and the Governor is authorized and required to subscribe for such amount of stock in said company as is-equal to the value, at said prices, of all said lands which are now confirmed to the State, and to make similar subscriptions from time to time, as future confirmations of such lands shall be made to the State.” This is clearly providing for a purchase of stock with the said lands at a fixed price, and is not an executed purchase, but an authorized one, and directs the Governor to make it. The next section provides that when the company shall tender the Governor a certificate of stock for the amount subscribed, he shall cause to. be made to' the company a deed for such lands as shall then be confirmed to the State, and to which there shall be no valid conflicting claim. And it further provided that no deed issue until the said lands should be patented to the State. The next section provides for the dividends accruing from the stock to be paid into the treasury. This act authorized the purchase of stock in this railraod to be paid for when certificate of stock for the amount subscribed (equal to the value of the lands) was tendered. The purchase was to be consummated by the Governor conveying land available therefor to the railroad; and to be available the land had to be patented to the State, and there should be not valid conflicting claim to it. The swamp lands in this district were not withdrawn from sale, and to guard the title of those purchasing of the State in the interval which would elapse between the act and the sale to the railroad company the Governor was directed not to deed any land where there was a valid conflicting claim. This provision covered such cases as this one. Opinion delivered April 8, 1905. A consideration of the whole act makes it clear that no title passed under it until the purchase of the stock was consummated by the deed of the Governor, and that was subsequent to Kelly’s purchase and deed, and conveyed nothing to the railroad company. Reversed, with directions to enter judgment in favor of Kelly.