Kittel v. Trustees of Internal Improvement Fund

SWAYNE, District Judge (after stating the case). Considering the first proposition, relating to the act of Congress of September 28, 1850 (9 Stat. 519, c. 134), and reviewing the long line of authorities presented, there seems to be absolute harmony upon two questions involved in the first proposition. In French v. Fyan et al., 93 U. S. 169, 23 L. Ed. 812, the court say: “This court has decided more than once that the swamp land act was a grant in prsesenti by which the title to those lands passed at once to the state in which they lay, except as to states admitted to the Union after its passage. The patent therefor, which is the evidence that the lands contained in it had been identified as swamp lands under that act, relates back and gives certainty to the title of the date of the grant.” And in Rice v. Sioux City & St. Paul Railroad Company, 110 U. S. 695, 4 Sup. Ct. 177, 28 L. Ed. 289: “That the swamp land act of 1850 operated as a grant In prsesenti to the states then in existence of all the swamp lands in their respective jurisdictions is well settled.” And in Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985, 30 L. Ed. 1039: “The grant by the United States of land to aid in the construction of railroads, in relation to which we have had many cases before us, is in many particulars analogous to the grant by the swamp land act. They are usually of a specific number of sections of land on each side of the proposed route of the road, with a reservation of certain sales or of other disposition made before the road became definitely fixed. The usual words of grant in such cases are similar to those in the swamp land act: ‘There is hereby granted.' Though it is impossible to locate the land granted until the road is fixed, yet when that is fixed the grant takes effect as of the date of the act. * * * It is plain that the difficulty of identifying the swamp and overflowed lands could not be defeated through error of the granting clause on whomsoever such identification was required to be made. When identified, the title would perfect as of the date of the act. The patent would be evidence of such identification, and declaratory of title conveyed. * * * The result of these decisions is that the grant of 1850 is one in prsesenti, passing the title to the land as of its date, but requiring identification of the lands to render the title perfect. * * * For the error in holding that the certificate of the commissioner was necessary to pass the title of the demanded premises to the state, the case must go back for a new trial, when the parties will.be at liberty to show whether or not the lands in controversy were in fact swamp and overflowed at the date that the swamp land act of 1850 took effect. If they are proved to have been such lands at that date, they were not afterwards subject to pre-emption by settlers. They were not afterwards public lands at the disposal of the United States. Parties settling upon such lands must be deemed to have done so with notice of the title of the state, and after the segregation map was deposited with the Surveyor General of the state, with notice also that they were actually segregated and claimed by the state as such.” In Tubbs v. Wilhoit, 138 U. S. 134, 11 Sup. Ct 279, 34 L. Ed. 887: — 948 — “The swamp land granted on September 28, 1850, to the several states was in prsesenti, and upon identification of the lands therein in lawful mode title thereto related back to the date of the grant.” In the Rogers Locomotive Machine Works v. American Emigrant Company, 164 U. S. 559, 17 Sup. Ct. 188, 41 L. Ed. 552: “That where the lands in controversy were swamp and overflowed lands within the meaning of the act of 1850 was to be determined in the first instance by the Secretary of the Interior, and that when he identified lands as embraced by that act, and not before, the state was entitled to the patent, and on said patent the fee-simple title vested in the state, and what was before inchoate title then became perfect as of the date of the act.” Michigan Land & Lumber Company v. Rust, 168 U. S. 589, 18 Sup. Ct. 208, 42 L. Ed. 591: “The act of September 28, 1850, granting certain lands to the several states, was a grant in prmsenti, passing title to all lands which at that date were swamp lands, but leaving to the Secretary of the Interior to determine and identify what lands were and what lands were not swamp lands.” Brown v. Hitchcock, 173 U. S. 473, 19 Sup. Ct. 485, 43 L. Ed. 772: “Under the act of September 28, 1850, known as the ‘Swamp Land Act,’ the legal title to land passed only on the delivery of a patent, and as the record in this case discloses no patent there was no passing of the legal title from the United States, whatever equitable rights may have vested. Until the legal title to land passed from the government, inquiry as to equitable rights comes within the cognizance of the Land Department.” A careful inquiry into the status of these lands is necessary in view of the complainant’s demand for a decree that the defendants, the trustees, execute a deed conveying the title to the lands described, and also for unpatented lands when they shall be patented by the United States. The complainant admits that at the time of the alleged grant by the Legislature of the state, of Florida and at the tim.e of the alleged certificate the state and the trustees had no title to said lands other than that contained in the act of September 28, 1850; that the United States, through its constituted authorities, had not then identified and patented the said lands. If the state had no title, either legal or equitable, it could not make such grant by legislative act, and would not be bound at a subsequent date, having acquired the legal title in the interim, to make good a prior grant of something it had not. From an analysis of the above decisions these propositions are apparently well defined, viz.: (1) The act of September 28, 1850, known as the “Swamp Land Grant Act,” is a grant in prsesenti of the equitable title to all the swamp and overflowed lands within-the boundary of any state then in existence. (2) That to perfect the legal title thereto it was necessary that the Secretary of the Interior, at the request of the Governor, should cause a patent to be issued to the state therefor, and on that patent the fee simple to said lands was vested in the said state. (3) That upon the vesting of the legal title it should relate back and have effect as of September 28, 1850. These three conclusions seem to effectually dispose of the first and second contentions of the defendants, as it is alleged and stated that the state now has the actual legal title to a large portion of the lands claimed in the bill. For all intents and purposes that title has existed since — 949 — September 28, 1850, and the state, in dealing with its equitable title, clearly conveyed under the act of September 28, 1850, could not be heard to say that it had no title to grant to the complainant’s predecessors in title under the act to aid the construction of the Thomas-ville, Tallahassee & Gulf Railroad Company, or at the time of the passage of the act creating the board of internal improvement fund commission. The legal and political status of the board of trustees of the internal improvement fund of the state of Florida is necessary to further consideration of the questions involved on demurrer. Under the act of January 6, 1855 (Laws 1854-55, p. 9, c. 610), above referred to, it is contended by the trustees that the General Assembly had no power to withdraw any portion of the fund after enacting the above act; that the state is as capable of making a contract as an individual, and, when made, is bound by it; that the legislative department can constitutionally pass no law impairing the obligations of its contracts, and when it attempts to do so it is the solemn duty of the judicial department to declare such law null and void. And it is also further contended: That when the General Assembly of 1855 conveyed the internal improvement fund to trustees for the benefit of purchasers and holders of bonds to be issued under it, and for other purposes therein named, they made a law in the nature of a contract. The act of 1861 is an attempt to repeal the act of 1855, and in so far as it seeks to divest the internal improvement fund from the purposes therein indicated could not be done. That when the right to property is vested by grant for particular purposes by legislative authority, or otherwise, the Legislature could not vest it for another purpose. The Legislature having declared the purposes to which the subject-matter of the grant applied, the legislative power over it was exhausted, and it cannot by legislative grant be appropriated for other and different purposes. That the lands granted to the state of Florida by the act of September 28, 1850, came to the state as a sacred trust, to be applied exclusively as far as necessary, for the reclamation and drainage of those lands, and that the state had no power to sell or donate these lands other than discharging the sacred trust imposed by the grant from the federal government, nor had the state the power to divert them to its use in payment of ordinary expenses or otherwise. That the act of the Legislature creating the internal improvement fund then became an executed contract, and extinguished the right of the state. The act of 1883, so far as it attempts to grant the swamp land to the Florida, Tallahassee & Gulf Railroad Company, was an attempt to impair the estate of the grantees in the act of 1855. These several questions may be well answered by an examination of the case of the Trustees of the Internal Improvement Fund v. the St. Johns Railway Company, 16 Fla 531, which contains an exhaustive and able interpretation of this act by the Supreme Court of the state construing an act of the Legislature of Florida, which in that respect is binding upon this court, as many of the questions — 950 — therein involved are along parallel lines with those above enumerated; and in view of the fact that this is the third time these propositions have been argued to this court liberal excerpts from that opinion would seem to be justified here. “There are two questions involved in this case: “First. Whether the thirteenth section of the St. Johns Railway charter (Laws 1858-59, p. 95, c. 936) granting swamp and overflowed lands to this company is unconstitutional, as impairing the obligation of contracts arising under the internal improvement act of January 6, 1855 (Laws 1854-55, p. 9, c. 610). “Second. Whether the St. Johns Railway was constituted in accordance with the provisions and specifications of the internal improvement act; and if not, whether the doing of this was a condition precedent upon which the grant to it should take effect. “From this case we see that it was the opinion of the Supreme Court of the United States that any disposition of the lands for objects and purposes other than those of the grant, and in such manner as to defeat these, would be a violation of this contract. This leads to the inquiry whether the act, of the Legislature consolidating them with the lands granted to the state for internal improvement purposes, and vesting them in trust under the second section, was enacted with a view and intention of carrying into effect the contract entered into under the act of Congress. It cannot be supposed that the Legislature by this act intended to violate this contract, but it must be assumed that the contrary was their intention. “By referring to the act of Congress, we find that the object of the grant was to enable the states to reclaim these lands for settlement and cultivation and the means of doing this, as pointed out in the act, was by the use of the proceeds of these lands or the appropriation of the lands in kind. The only condition annexed to the grant was that they should be applied exclusively, so far as necessary, to the purpose of reclaiming said lands by levees and drains. Wherever these means were not necessary, a full discretion was left to the states in the choice of other means, not inconsistent with the grant, which they might deem most appropriate to carry into effect its object. Some of them might be best reclaimed by means of drains, some by levees, and some by both combined. But the states in which they were situated were necessarily to be the judges and to have the power of determining the necessity of either or both modes, or whether the object could be better accomplished to any extent by other methods. “It is true that the leading object of the Legislature in passing this act seems to have been to provide for and encourage a liberal system of internal improvements in this state, and for this purpose they set apart all of the internal improvement and swamp and overflowed lands acquired by the grant, and declared them to be a separate and distinct fund, to be strictly applied according to the provisions of the act. (Section 1.) For the purpose of assuring a proper application of this fund for the purposes therein declared, they vested these lands in five trustees by the second section, to be held by them in trust for the uses and purposes thereinafter provided. The leading and primary use and purpose thereinafter provided to which the fund was made applicable was to aid in the construction of those lines of road and canal mentioned in the fourth section (page 11), and which have been held by this court in all of its adjudications of this act to be a state system. The terms, conditions, and manner in which this aid should be extended to roads which might accept its provisions were prescribed in the act. Another use and purpose for which this fund was set apart and to which it was made applicable was that provided in the sixteenth section (page 15). Finally, these lands were to be applied in such manner as might be directed by the Legislature upon the contingencies mentioned in the twenty-seventh section (page 18). But all of these uses were intended to be subject to the power reserved to the General Assembly in the twenty-ninth section (page 19) of the act to grant alternate sections of the swamp and overflowed lands, for six miles on each side, to such railroads to be thereafter chartered, as they might deem proper. — 951 — “We have now the grant by Congress, its objects, and the legislative action and power over the subject, and we are of opinion that in passing this act the Legislature intended as one of its main objects to carry into effect the purposes of this grant. If this intention can be collected from the act, it must control its construction. That such was the intention is evident from the sixteenth section, which provides that ‘the trustees shall make such arrangements for drainage of swamp and overflowed lands as in their judgment may be most advantageous to the internal improvement fund and the settlement and cultivation of the land.’ This is one of the modes of 'reclaiming these lands pointed out in the act of Congress. This intention is further evident from the twenty-ninth section, in which the power to grant alternate sections is reserved to the General Assembly, which is limited to this class of lands granted by Congress, and must be construed in reference to this grant, and as one of the means of reclaiming it. “It is clear from these provisions that the Legislature intended that the trust created by the second section of this act should be subject to, and to some extent controlled by, its subsequent provisions. * * * “If correct in the position that the Legislature intended by this act to execute to some extent the contracts arising under the act of Congress, and that they intended that the trust created by the second section of the internal improvement act should be subject to, and to some extent controlled by, its subsequent provisions, then the importance of the reservation of the power over this subject in the twenty-ninth section becomes more striking and apparent as a necessary means of more carefully carrying into effect the purposes of the grant by Congress. “It must be borne in mind that a very small portion of the lands vested in the trustees were donated for general improvement purposes, not exceeding five hundred thousand acres. Much the larger portion — probably nineteen-twentieths of them — was donated under the grant of the swamp and overflowed lands. When this vast domain is considered, much, if not most, of it lying out of the reach and beyond the influence for development of the great and leading works indicated in the fourth section, it would have been singular if some such power had not been reserved. No more efficient mode of reclaiming them could have been devised than that of constructing lines of railroad and canals through them, thus rendering them accessible to settlers, furnishing transportation for their productions, enhancing the value of the adjacent lands, and making these available for the fund and leading purposes of the trust, which would otherwise be valueless to it; and as such works producing such results are ordinarily beyond the capacity of individual capital and enterprise, it was a wise provision of the act to reserve the power and authorize the use of these lands for such purposes by granting portions of them to corporations, which, by combination of capital, could more successfully accomplish those objects. Railroads, more than any other modern institution, are considered the great developers of new countries by hastening their settlement and rapid improvement, and in a state situated as a large portion of ours, with its greatly diversified climate and varied productions, but much of it inaccessible for want of transportation, no one can estimate the value which such works would add to these lands and the resulting advantages to the fund, to say- nothing of their influence in sustaining the roads which were the primary object of the trust. This view of the law is sustained by sound reasoning, and no doubt influenced and controlled the body which devised and adopted the internal improvement act. “The present is the first case in which the reserved power of the Legislature over this fund under the twenty-ninth section of the act has been brought in question. “It is contended that the Legislature had no power to make the grant to the St. Johns Railway Company under the thirteenth section of its charter, because a previous Legislature had vested the lands so granted in the trustees of the internal improvement fund, and that they have become bound to the creditors of this fund by the terms of this contract, and that the thirteenth section is a diversion of a part of this fund from the purposes of the trust, and is therefore inoperative and void, because it impairs the obligation of said contract. * * * — 952 — “All of the lands vested in the trustees were pledged to the purposes of the trust, except such as the Legislature authorized to be otherwise applied; and these exceptions apply exclusively to the swamp and overflowed lands. These are the lands granted to the St. Johns Railway Company under the thirteenth section of its charter, and the grant is strictly within the limits and only of the lands named in the twenty-ninth section, which reserved the power to the Legislature to make the grant. If they vested in the trustees, they did so subject to this reserved power of the Legislature to dispose of them in the manner and for the purposes mentioned in the thirteenth section, of this charter. “This section is a contract between the state and the company, based upon a valuable consideration which the company has performed on its part, and the trust fund has derived its benefits in the enhanced value of the even sections which remain to the fund within the limits of the grant, which was a part of the consideration stipulated in the act. * * * “So we think that the grant to the St. Johns Railway Company was but carrying out the true spirit and policy of the law on this subject, which we have seen was twofold — to reclaim these lands by granting the alternate sections as authorized by the twenty-ninth section, and by the use of this as one means to improve the trust estate in aid of the internal improvement system inaugurated by the act. * * * But the act incorporating this company did not bring it within the system provided by the internal improvement act. It was not required to accept its provisions, and, had it accepted them, it would not have made it a part of the system without some clause in its charter or special act authorizing it. It is outside of and independent of the system, and the internal improvement act is no part of its organic law, nor is it bound by any of its provisions. Its rights and powers are derived solely from its charter. “The power of the Legislature reserved in the twenty-ninth section being an original power, not parted with, is not and could not-be limited by the sixth section so as to prevent any future Legislature from exercising its coequal power over the same subject, unless rights had become vested arising under contract which brought into operation some constitutional limitation upon the exercise of such power by a future Legislature. This is a principle well established by all the authorities on the subject. See Cooley’s Con. 125-127, note 1, 126. “In the case of Gonzalez v. Sullivan [16 Fla. 819] this court used this language: ‘The court here simply say that the Legislature had the right to designate some objects of improvement to be constructed first, and to postpone others. While this may be true of this Legislature, it is also true of a subsequent Legislature that its powers were not limited by the power of the first, unless the act of. the first was of such character as called into operation a constitutional limitation, and something more than a simple antecedent exercise of the powers of the subsequent one. • The internal improvement act is not organic law, and the power of one Legislature is no greater than another. Where the power of the subsequent one is limited, it results from the fact that the act of the first is of such character that the organic law renders it inviolable through constitutional, limitations covering the subject.’ * * * “So far, then, as these creditors are concerned, their rights are not affected, .nor is the obligation of the contract between the state or trustees and them impaired, by the grant in the thirteenth section of the charter of this company; and, this being so, it was competent for the Legislature to make the grant therein without requiring on their part a compliance with the sixth section of the internal improvement act.” It was held by this court, in a cause recently decided (no written opinion filed) involving some of the same questions, that the Legislature of the state of Florida had retained the right to control this fund by subsequent grants in aid of railroads, not only under section 29 of the act creating the fund, but in analogous ways, subject, of course, to any vested rights acquired in the trust fund. This view may be de- — 953 — rived in some measure from the above decision of the Supreme Court of Florida and from Rogers Locomotive Works v. Emigrant Co., supra, in which Mr. Justice Harlan in the opinion of the court says (164 U. S. 576, 577, 17 Sup. Ct. 193, 41 L. Ed. 552): “Are those in this action who claim under the state and under the act of 1850 in any better condition than the state? Can they be heard to question the action of the Land Department in 1858, if the state is estopped from so-doing? We have seen that the county of Calhoun made a written agreement in 1861 with the American Emigrant Company relating to swamp and overflowed lands. But, if no such agreement had been made, would the county be heard to say that the Land Department erred, as a matter of fact, when, in 1858, it decided that these lands passed to the state under the railroad act? Would the creature of the state be permitted to say what its creator was estopped from saying? The county of Calhoun is a mere political subdivision of the state, created for the state’s convenience, and to aid in carrying out, within a limited territory, the policy of the state. Its local government can have no will contrary to the will of the state, and it is subject to-the paramount authority of the state in respect as well of its acts as of its-property and revenue held for public purposes. The state made it, and could, in its discretion, unmake it, and administer such property and revenue through other instrumentalities. Jefferson County v. Ford, 4 G. Greene (Iowa) 367, 370; Soper v. Henry County, 26 Iowa, 264, 267; Maryland v. Baltimore & Ohio Railroad, 3 How. 534, 550, 11 L. Ed. 714; United States v. Railroad, 17 Wall. 322, 329, 21 L. Ed. 597; Hamilton County Commissioners v. Mighels, 7 Ohio St. 109, 113; Askew v. Hale County, 54 Ala. 639, 640, 25 Am. Rep. 730; 1 Dillon’s Mun. Corp. §§ 22, 23, 54-71, inclusive, and authorities there cited; Angelí Ames on Corp. § 31. It would seem to be clear that the relation® of the county and the state are such that the action of the latter in accepting the lands in controversy under the railroad act was binding upon the county of Calhoun as one of the governmental agencies of the state; and that the-county could not, after such acceptance, claim these lands as swamp and overflowed lands, or by assuming to dispose of them as lands of that character pass to the purchaser the right to raise a question which, in view of its subordination to the state, it was estopped from raising. We are of opinion that the plaintiff could not, by any agreement made with the county in 1861 or afterwards, acquire any greater rights or better position in respect of these lands than the county itself had after the certification of them in 1858 as lands inuring to the state under the railroad act of 1856 (Act May 15, 1856, c. 28, 11 Stat. 9).” But, irrespective of the right of the Legislature to make subsequent grants, the complainant has set up in the bill the action of the trustees in granting a certificate setting apart and agreeing to deed certain lands, the object of this litigation, to complainant’s predecessor in title, when patent thereto had been received from the United States. This agreement was a practical recognition by the-trustees of the power of the Legislature over the fund, and an acceptance of this further limitation upon the trust. This recognition was made a matter of record in a suit instituted some years since, as set forth in the bill, in which the predecessor in title of complainant instituted proceedings in this court to get decree of foreclosure-on this property on mortgage made by the railroad company to him. The trustees were joined as defendants, and in their answer they say; “That the lands described in the bill of complaint were selected as swamp- and overflowed land under the act of Congress approved September 28, 1850; but these defendants are not personally aware of their real character, such a question being determined by the Secretary of the Interior at Washington, — 954 — D. O., In whom is vested by law the authority to decide as to the character of swamp and overflowed lands. * * * The State Engineer having reported favorably upon the construction of ten miles of road by the said Augusta, Tallahassee & Gulf Railroad Company, the trustees aforesaid, on the 16th day of March, A. D. 1889, issued to the said railroad company a certificate numbered 13,909, a copy of which was attached, * * * setting forth that the lands had been earned by the said railroad company, and that conveyance by deed to the said lands would be made to the said company as soon as they were patented to the state of Florida by the United States government; that subsequently to that date, to wit, on the 5th day of July, 1890, and on the 2d day of December, 1890, deeds were made by the said trustees to the said Augusta, Tallahassee & Gulf Railroad Company for a portion of the lands described in said certificate, as shown by the exhibits hereto attached, marked ‘B’ and ‘C,’ which exhibits, it is prayed, may be taken as a part hereof, the land so conveyed having been patented to the state of Florida by the United States Government subsequently to the issue of the certificate above referred to.” Said trustees, further answering, said; “They will convey by deed to the said Augusta, Tallahassee & Gulf Railroad Company the remaining lands embraced in said certificates above mentioned as soon as patents for the same are issued by the United States government to the state of Florida, save and excepting the rights of actual settlers and the rights of Sidney I. Wailes and John A. Henderson for selecting lands and procuring patents for swamp and overflowed lands.” On this answer the cause was set down for hearing without replication, and thereafter the cause was brought on for hearing before the United States Circuit Court on such answer and the testimony of the defendants other than the board of trustees, and a decree was made in favor of complainant, which was in the usual form of a decree as to the other defendants, but provided, among other things, as follows: “Ordered, adjudged, and decreed that the defendants, and all persons claiming by, through, or under them since the commencement of this suit, be forever barred and foreclosed from all equity of redemption of, in, c ud to the said mortgaged premises, or any part thereof. ‘And it is further ordered, adjudged, and decreed that upon the execution and delivery of the conveyance or conveyances as aforesaid the purchaser or purchasers, his, her or their representatives or assigns, be let into possession of the portion of said mortgaged premises conveyed to him, her, or them, and that any of the parties to this suit who may be in possession of said premises or any portion thereof, and any person or persons who since the commencement of this suit has come into possession under them or any of them, on the production of the special master’s deed of conveyance shall surrender possession thereof to such purchaser or purchasers, his, her, or their representatives or assigns, and on refusal so to do will be considered in contempt of this court.’ ” The Augusta, Tallahassee & Gulf Railroad Company appealed from this judgment, and the assignment of error that the title to the lands was in the United States was considered by the court. While the Circuit Court of Appeals did not pass directly upon this question, it held that the company had a full equitable title to the lands in controversy, and sufficient to mortgage said lands by virtue of such title; but the point was expressly made on this appeal on behalf of complainant, and clearly acquiesced in by the Circuit Court of Appeals,- that by the act of the Legislature of Florida, January 6, 1855, this legal title passed to the board of trustees, defendants, who have not appealed from the decree; and the trustees say in — 955 — their answer they will convey to appellant the remainder of the lands as soon as the}' receive the patent. They could not convey before. The equitable title passed by the grant to every acre of land that is swamp and overflowed land in point of fact. The appellant admits by its mortgage it is all swamp and overflowed land. The trustees admit by their answer and exhibit thereto that it is swamped and overflowed lands, and stopped from and do not seek to controvert it. With the appellant were joined as defendants in the court below the trustees of the internal improvement fund of the state of Florida and William Clark. As these last-named defendants were not substantially affected by the decree of the court below, they did not join in the appeal. The appeal to the Circuit Court of Appeals was not successful, and the decree below was affirmed, and carried out by the sale of the mortgaged premises by the special master appointed for that purpose. On such sale the property was acquired by Joseph J. Kittel, from whom complainant, as above stated, has derived right. The trustees are a continuing body, although the individual membership is ever fluctuating, and they are as much bound in this action as though the present members had joined in this answer. These facts, in my opinion, under the authorities establish an estoppel of record as against the trustees, the defendants in this action. The trustees in that suit were under the obligation to bring forward their whole case, and this court will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matters which might have been brought forward as a part of the subject in controversy, but which they did not, through inadvertence, negligence, or because the policy of the trustees or of the state as respects the administration of the fund had changed. The trustees in this prior litigation not only had the right to set up any existing defenses that would defeat the foreclosure, but they went further, and by express admissions of record conceded its validity, and saw fit to take no part upon the question directly raised and considered by the court of whether the title in the lands in controversy was in the United States or in the trustees, except to concede it. The questions here raised as to the authority of the State Legislature to deal with the fund, and of the trustees to divert the same, by recognition of this grant, were not presented for determination. The trustees acquiesced in the action of the Legislature, and gave it validity in so far as they could by making a certificate in which they agree to transfer those lands in accordance with the legislative grant, and when a foreclosure of the equities of the railroad company is sought they solemnly make known to the court their intention to conform to the declarations made by them in this certificate, which fulfills every requirement of the law of estoppel of record. Cromwell v. Sac Co., 94 U. S. 351, 24 L. Ed. 195; Outram v. Morewood, 3 East, 346; Mitchell v. First National Bank, 180 U. S. 471, 21 Sup. Ct. 418, 45 L. Ed. 627; Bryan v. Kennett, 113 U. S. 179, 5 Sup. Ct. 407, 28 L. Ed. 908; Stout v. Lye, 103 U. S. 66, 26 L. Ed. 428; Davis v. Brown, 94 U. S. 428, 24 L. Ed. — 956 — 204; So. Pac. Ry. Co. v. U. S., 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355; Hopkins v. Lee, 19 U. S. 109, 5 L. Ed. 218; Smith v. Kernochan, 48 U. S. 198,12 L. Ed. 666. It would be a labor of supererogation to cite further author! ties-upon the question invoked. In Augusta, Tallahassee & Gulf Railroad Company v. Kittel, 52 Fed. 63, 2 C. C. A. 615, it was essential for complainant to show that the mortgagor had a title, legal or equitable, and which could be mortgaged, to support his claim. Whether such interest was based upon the theory of a vested title-in prsesenti under the act of September 28, 1850, or an equitable interest, is not material now; for it was necessarily decided in the-prior action that the interest of the railroad was one capable of being mortgaged, and the court did hold that the certificate was sufficient to convey an interest “mortgable” by the Augusta, Tallahassee & Gulf Railroad Company. Indeed, this question of the title was determined as a matter of law on the demurrers of certain defendants, and was conceded by the answer of the trustees. Suppose, for the sake of argument, that the board of trustees of the internal improvement fund had in such action sought to raise the question of the validity of the title held by itself, and to deny the validity of the certificate, because the title to the lands was still vested in the United States, not in the state of Florida, or in the board of trustees. It would have been perfectly competent for such board to have raised the question as a matter of pleading, and to-have had it determined in the prior action. Indeed, petitioner’s right in this proceeding, except so far as based on estoppel alone,depends upon the original validity of the title and right to agree to convey the same in the board of trustees at the time of the execution of the certificate, as the validity of the mortgage did in the prior action. Then came the board of trustees, and specifically interrogated whether or not the lands described in the bill in the prior action were swamp and overflowed lands within the sense and meaning of the act of Congress of September 28, 1850, whether it entered into a contract with the Augusta, Tallahassee & Gulf Railroad Company to convey said lands, and whether or not the board of trustees claimed or asserted any interest in the lands adverse to the interest and ownership of said company; and to which said board answered that such lands were selected as swamp and overflowed lands, that the railroad grant had been earned, that the certificate had been executed and delivered, and that the board stood ready and willing to convey by deed the remaining lands embraced in such certificate when patented by the United States government to the state of Florida; and on this pleading and the testimony adduced on behalf of the other defendants a decree was made in favor of the complainant adjudging the foreclosure and the sale of this property, and foreclosing all the defendants-, or any person claiming by, through, or under them, forever from all equity of redemption in the mortgaged premises, or any part thereof, and requiring the board of trustees, among others, to surrender possession to the purchaser or purchasers under penalty of contempt of court. It would seem, therefore, that not only was the question of title strictly so — 957 — ■speaking before the court in the prior action, but every essential fact and legal conclusion upon which complainant therein could prevail was thrown open to controversy by the board of trustees, might have been presented, and now stands res judicata as to such board, and would estop it in any proceedings from holding otherwise than as therein determined. If these'-admissions and acts of the trustees had been clearly without the scope of their trusts, it would follow that they were not binding on its present membership ; but as I have concluded that at the time of these transactions the trustees held the equitable title to all the swamp and overflowed land in the state not patented by the United States or otherwise ■disposed of, and that it was competent for them to recognize the act •of the Legislature, whose creature they were, in giving effect to the grant of land to the Thomasville, Tallahassee & Gulf Railroad Company, it follows that the above facts work an estoppel of record. I have therefore concluded: That the act of Congress of September 28, 1850, is a grant in prsesenti of the equitable title to all the swamp and overflowed lands within the boundaries of a state then in existence, and that it was only necessary that the Secretary of 'the Interior cause a patent to be issued to the state therefor, when the fee simple became vested in the state as of the date of the passage of the act of September 28,1850. That the state was competent to deal with its inchoate or equitable right to said lands before obtaining patent, and to make grants thereof, subject to the right of the United States in locating and identifying same. That the act •of the Legislature of Florida- of January 6, 1855, creating the internal improvement fund, does not have a direct tendency to divert the lands from their original purpose, nor has the subsequent railroad land grants, made in accordance with or in analogy to section '29 of said act, such direct tendency. That the trustees of the internal improvement fund, being the creatures of the Legislature of the •state of Florida, and having their duties and powers defined by the ■act of January 6, 1855, which created them, cannot set up the defense that the Legislature had no power to deal with the swamp and •overflowed lands because such dealing contravenes the act of Congress. It is not for them to say that the state is violating the obligations imposed upon it by the act of Congress. That is a question between the United States and the state, and not a question between the state and a creature of its Legislature, the trustees of the internal improvement fund. That the issuance of the certificate by the trustees, its mortgage, and the foreclosure proceedings, constitute an estoppel of record as against the present trustees, and that the trustees were competent to undertake and give effect to these acts; and for these reasons the demurrer will be overruled.