ADDITIONAL OPINION ON MOTION FOR REHEARING.
Hemingway, J.The defendant has presented a motion to modify the judgment rendered upon the hearing of this cause, and relies in support of it on matters not then argued by counsel or treated in the opinion delivered. We are asked to adjudge that defendant’s title to the land under the railroad grant of 1853 is superior to plaintiff’s title under the swamp land grant of 1850, and it is argued that such is the case for five reasons.
The first reason assigned is, that the State, by an act of the legislature approved January 11, 1851, authorized and empowered the United States government to dispose of lands within the swamp land grant, and that the government subsequently disposed of the land in suit by the act of 1853, making a grant to the State in aid of the railroad, and completed said disposal on the 17th of November, 1857, by approving to the railroad its selection of lands under the railroad act, including the tract in suit.
It is next insisted that the State conveyed the land, however acquired by it, to the railroad by act of the legislature approved January 19, 1855.
It is next argued that the lands passed to the State either by the swamp land grant or the railroad grant, and that all the title passed to the railroad by act of the legislature, approved December 14, 1875.
It is next insisted that the State and those claiming through it under the swamp land grant are estopped to contest title under the railroad grant, for the reason that the Governor transmitted to the government land office a list of the lands passing to the railroad under the railroad grant, which list included the land in controversy, and that in pursuance thereof the Secretary of the Interior, on the 17th day of November, 185.7, returned said list to the Governor with his approval.
The last ground of the motion is that the Secretary of the Interior, in the exercise of a jurisdiction conferred on him by the swamp land and railroad acts, adjudged that the land in controversy passed by the latter, and that this adjudication is final and conclusive.
We will treat the matters relied on in the order that we have stated them; and if we shall conclude that any one of them has the force claimed for it, it will entitle the defendant to the modification asked.
5. Authority of United States t° sen swamp 1st. Did the act of January 11, 1851, authorize the United States government to dispose of the State s swamp lands, and was a disposition of the lands in suit made to the railroad by the railroad grant act, or by the approval of the Secretary of the Interior.
The only provision of the State act of 1851, relied on by the defendant, is as follows: “ The board of swamp land commissioners are hereby empowered to demand of and receive from the proper accounting officer of the Uniled States indemnity at the rate of one dollar and twenty-five cents per acre for any swamp and overflowed lands within this State, which have been sold or disposed of by the United States since the 28th September, 1850, or which may hereafter be sold or disposed of by the United States.” Acts 1850-1, p. 137. This 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 the 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 land 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 disposition 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 land, 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 its lands thus disposed of, and consented to accept the same in lieu of the land, rather than disturb titles thus acquired.
In view of this manifest policy, it may well be doubted whether the State’s right to any lands thus disposed of would be barred until it had gotten from the government the price it received. But if it be conceded that the contention of the defendant furnished the correct interpretation of this act, it does not, as we think, sustain his claim; for if' the power of disposal was conferred on, it was never executed by, the government.
6. Railroad swamp iandfpts The railroad grant act (approved February 9, 1853,) contained no specific description of the lands granted, but left them to be ascertained from their situation with reference to-the railroad when its line was finally located, and expressly excepted from its provisions all lands in place, which the-government should have sold, or otherwise in any manner have reserved when the route of the road was finally located. The description of the lands included in the grant, as well as those excepted from it, is in the language found in a similar connection in the many railroad grants made by act of Congress since 1850. But it has been ruled by the Supreme Court of the United States that the swamp lands would not have passed under the description of the lands granted, because it could not be supposed that Congressntended to give to railroads lands previously segregated from the public domain and devoted to another purpose -r and that if the language of the grant was broad enough to^ include them, they would be excluded by the terms of the exception. Railroad Company v. Fremont County, 9 Wall., 89; Railroad Company v. Smith, ib., 95 ; Leavenworth, etc,, R. Co. v. U. S., 92 U. S., 733.
The approval by the Secretary of the Interior of the selection by the railroad of the land in suit does not aid the contention that the government disposed of this land to the railroad. We need not consider what the effect would be of the secretary’s approving to the railroad land not within the railroad grant (see Leavenworth, etc., R. Co. v. U. S., 92 U. S., supra); but it is sufficient to say that the approval relied on was made subject to any interfering rights, and did not prejudice the State’s interfering claims under the swamp land grant. That the railroad grant, and the Secretary's approval of its selection under it, did not prejudice the State’s claim, was held by the Attorney General of the United States, the Commissioner of the Land Office, and the same Secretary who made the approval, soon after the conflict arose ; and it was then settled, so far as the opinion of the officers in the 'land department of the government could settle the matter, that where the claims of the State and railroad conflicted, the State was entitled to such lands as were swamp and overflowed, and the railroad to such as were dry. Opinions of Black, Hendricks and Thompson, 1 Lester’s Land Laws, pp. 564-5-6-7. And it was held by the Secretary of the Interior, in the case of conflict arising under the same acts in Missouri, that although land had been certified as a part of the railroad grant, it would be approved to the State as swamp land, upon proof that it came within the description of land granted by that act. Opinion of Thompson, 1 Lester’s Land Laws, p. 569. We are therefore of opinion that the government did not dispose of the land to the railroad.
7. construe tÍ0H aCt January 19,isss. 2d. Did the State convey it, though swamp land, to the 1 IT railroad by act of the legislature approved January 19, 1855 ? This is entitled, “An Act fixing the line of the Little Rock and Fort Smith branch of the Cairo and Fulton Railroad, and granting the lands donated by Congress to the State in aid thereof.” As far as the title of an act can indicate its scope, this title limits the grant of this act to the land donated by Congress in aid of the road. That such is its scope, is made manifest by the language of the grant it contains, which is, the lands granted by Congress to aid .in the construction of a railroad, with no implication that the grant should extend to other lands. Acts 1854-5, p. 169, sec. 1. It is plain, we think, that the State intended to give the railroad the privilege to earn the lands It acquired under the railroad grant, and nothing more. And as the State acquired no swamp land under that act, it granted none by the act under consideration.
8. Act of December 14,1875. 3d. Did the State confirm the title of the railroad by act approved December 14, 1875 ? In so far as it is pertinent in the consideration of this motion, that act is as follows:
“Whereas, Under the provisions of the act of Congress, approved September 28th, 1850, entitled, ‘An Act to enable the State of Arkansas, and other States, to reclaim the Swamp Lands within their limits,’ a large amount of lands were selected which were afterwards disposed of by the United States; and,
“Whereas, Upon proper proof that any lands so selected came within the provisions of the grant aforesaid, the United States government will refund to the State, in case of cash entry, the amount of purchase money, and an equivalent in lands for the tracts located with military bounty warrants or scrip; therefore,
“ Be it enacted by the General Assembly of the State of Arkansas:
“ Section i. That the Commissioner of State Lands, by and with the approval of the Governor, be, and is hereby, authorized to appoint an agent, whose duty it shall be to procure the necessary proof in every case of the kind above recited, and to make a final settlement with the United States government on behalf of the State.
“ Sec. 7. That all titles to lands embraced in this act are hereby ratified and confirmed, and made as valid as if deeded or patented by the State of Arkansas.”
It is obvious that the effect of this act is to confirm the title to all persons holding any lands, within its provisions, under the United States, and it is therefore necessary to determine whether it applied to swamp lands which came within the designation of lands embraced in the railroad .grant. This is perhaps determined by the consideration of the first ground of the motion. For we have seen that the government did not grant swamp lands to the railroad ; and as this act applies only to lands disposed of by the government, it does not apply to the class of swamp lands above indicated. But the same result would follow, for another reason. The preamble to this act recites that it was to apply to those lands only for which the government would make indemnity to the State, and that this comprised only lands sold for cash, warrants or scrip, which would not include lands donated in aid of railroads. It is manifest that this act was passed in response to Federal legislation, providing for a settlement by the government with the State on account of swamp lands disposed of by the former, and that its scope was intended to be co-extensive with the Federal law. If there were any doubts as to the kind of-disposals to which it applied, it might be removed by reference to the Federal law. Looking to it, we find that the settlement it provides for is only on account of the disposal of swamp lands for cash, scrip or warrants. Acts March 2, 185S> apd March 3, 1857 ; 1 Lester’s Land Laws, pp. 248, 285.
9 Authority¿Lístate.0'to 4th. Does an estoppel arise from the act of the Governor in transmitting to the general land office of the government the list of lands claimed by the railroad under the railroad grant, which included the land in suit? It is insisted by the defendant that the State, through the Governor, claimed the land for the railroad, and caused it to be approved to the railroad, and should not be allowed to dispute the railroad’s title. We are advised of no law which cast upon the Gov-' ernor the duty, or conferred on him the authority, to act for the State in selecting or claiming lands under the railroad act. It was not his duty, nor was he authorized, on behalf of the State, to adjust the conflict between the State and the road, or to classify the lands affected by the conflict as swamp or dry lands, or to determine what passed to the State as swamp lands or to the railroad as dry lands. All his powers were conferred and defined by law, and of their character and extent the railroad was apprised. As he had no authority to act for the State in selecting or claiming the railroad lands, his acts could not bind the State; Leavenworth, etc., R. Co. v. U. S., 92 U. S., 733; Lake Superior, etc., Co. v. Cunningham, 44 Fed. Rep., 832-3 ; but he did not select or classify the lands for the road, nor profess to act for the State in claiming them; and of this the road was fully advised. The agents of the road selected and located its lands and prepared the lists to be submitted to the land department. As the grant was made to the State as trustee, the department declined to treat concerning them, except with the State officers ; and therefore the road transmitted its lists of selected lands through the Governor. He did not examine the lands or scrutinize or compare the lists, as the road Well knew. He was a mere conduit to transmit the road’s selections, charged with the exercise of no discretion on behalf of the State and assuming none. The road acted upon its own examination and selection, and was in nothing influenced by any act done by the Governor. It should have known the character as well as the location of the lands selected, matters not by law coming within his cognizance. Moreover, the State’s claim for the swamp lands was pending when the railroad’s claim was made; and of this the road was advised, for it protested against the approval of them to the State, as not being of the class of lands granted by the act of 1850. 1 Lester’s Land Laws, p. 566. Before, at the time, and after, the railroad’s claim was presented, the State was urging the approval to it of all the swamp lands to which the conflict between the grants extended; and it continued to press its claim until it was settled by the department that, of the lands affected by the conflict, such as were swamp and overflowed should be approved to the State, and such as were dry should be approved to the railroad. 1 Lester’s Land Laws, pp. 596-600. If the determination of the land department above referred to did not satisfy the road, there is nothing in the published documents of the department to disclose it. Is this a case for the application of the doctrine of estoppel? The State is not ■ordinarily bound by an estoppel, and we deem it unnecessary to consider the circumstances under which it may be invoked. Johnson v. U. S., 5 Mason, 425 ; Carr v. U. S., 98 U. S., 433; Lake Superior, etc., Co. v. Cunningham, 44 Fed. Rep., supra. It can never arise from the act of an agent in excess of his known authority. To make it apply to title to land, it must appear that the party invoking it is induced to act in relation to the land by the party against whom it was invoked, that he was ignorant of the true state of the title, and that it would prejudice him to permit such party to assert his title. Those conditions are not present in this case. The State’s right to swamp lands was a part of the law of the land, and as such actually known to the road. The road was induced to no act by the conduct of the State; and in the matter with reference to which the Governor acted, the road was fully advised and relied upon its own information. It could not have relied upon the act of the Governor, for he had no authority to prejudice ' the State’s claim, and the road knew what his powers were. If his acts had been misleading, no act was done by the railroad on account thereof; for its work of construction was begun years afterward, and after the State was actively asserting its swamp land title which would have removed any possible misapprehension arising from the Governor’s acts.
approvafofraiici°nsds selec~ 5th. Is the State’s right concluded by an adjudication of the land department? If the department ever determined the State’s claim to the land in controversy, it does not appear in the record. The approval of the road’s list of selected lands was only a determination that the lands em braced were of the legal designation of lands that would! pass by the railroad act, waiving the effect of interfering claims. Whether they passed as against the prior grant was not determined by the approval, and, so far as we are advised or the record discloses, has never been determined. It is certain that, after the approval, the land officers treated' it as a question for further inquiry. That leaves the matter open for judicial determination. Railroad Co. v. Smith, 9 Wall., 95 ; Railroad Co. v. Fremont Co., ib., 89; French v. Fyan, 93 U. S., 172; Iron Silver Mining Co. v. Campbell, 135 U. S., 294; Ehrhatdt v. Hogaboom, 115 U. S., 67 ; Wright v. Roseberry, 121 U. S., 505. And as the proof in this case shows that the land was swamp and overflowed, we adhere to our former decision that it did not pass to the railroad.
We have availed ourselves of all the aid offered by the zeal, industry and ability of counsel, and feel that they can have overlooked or omitted but little bearing upon the question under consideration; we have carefully considered the points pressed, realizing the great interest, public and private, affected by this decision. Our conclusion is, that the judgment formerly entered was right under the law, and that the motion to modify it should be denied.