delivered the opinion of the court.
This was an action of ejectment to recover possession of lands situate in the county of Macon, and claimed by the plaintiff under the acts of Congress of the 10th of June, 1852, and the 3d of August, 1854 (10 U. S. Stat. § 8, p. 346), granting to the State of Missouri a portion of the publifi lands in aid of the construction of certain railroads, and providing for a descriptive list of the lands granted, to be certified to the State from the General Land Office; and under an act of the General Assembly of the State, accepting the grant, and applying a portion thereof to the Hannibal and St. Joseph railroad, approved Sept. 20, 1852—Laws of 1853, p. 15.
*328The defendant stood upon his possession as a purchaser from the County of Macon, under a grant from the State, and relied upon an act of Congress entitled “ An act to enable the State of Arkansas and other States to reclaim the swamp lands within their limits,” approved September 28, 1850 (9 U. S. Stat. 519), and upon the acts of the General Assembly'of the State of Missouri donating “certain swamp and overflowed lands to the counties in which they lie,” approved March 3, 1851, and December 13, 1855—Laws 1851, p. 238; R. C. 1855, p.1005.
The only evidence offered by the plaintiff to identify the specific tracts of land in. controversy as a part of those which came within the operation of the act of Congress of 1852 as a grant of title for railroad purposes, was the descriptive list certified to the State by the Commissioner of the General Land Office, containing these lands, together with the map of the definite location of the railroad route. This list was made out and certified in conformity with the provisions of the act of Congress of the 3d of August, 1854, and was approved by the Secretary of the Interior, subject to any valid intervening right. The act provided as follows :
“ That in all cases where lands have been or shall hereafter be granted by any law of Congress to any one of the several States and Territories, and where said law does not convey the fee simple title of such lands, or require patents to be issued therefor, the lists of such lands which have been or may hereafter be certified by the Commissioner of the General Land Office, under the seal of said office, either of originals or copies of the originals, or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such act of Congress and intended to be granted thereby; but when lands embraced by such lists are not of the character embraced by such acts of Congress, and are not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void, and no right, title, or claim, or interest, shall be conveyed thereby.”
*329That the act of Congress of 1862 was one of the' acts here referred to, there is little room for doubt. It did not directly convey the fee simple to any specific and certain tracts of land ; nor did it require patents to be issued. The particular sections, or parts of sections, which were to be the subjects of the grant remained to be ascertained in future. The act itself made no provision for any kind of documentary evidence, to be issued from the Land Office, by which the location, boundaries and identity of the particular tracts of land granted within the six-mile limit were to be designated and proved. The public sectional surveys, showing the even numbered sections, within the six-mile limit, on either side of the located road, though admissible evidence, have been held to be insufficient for this purpose—Baker v. Gee, 1 Wall. (U. S.) 333; Pacific R.R. v. Lindell’s Heirs, 39 Mo. 329. We suppose the proper effect of this provision of the act of 1854 to be, that such lists shall be regarded as evidence of this location and identity sufficient to bring the tract of land therein contained and described within the granting words of the act of 1852, and so to convey the title in fee simple; but if the lands embraced in such lists are not of the character contemplated by the act of Congress, and are not such as were intended to be granted thereby, then the lists are to have no effect as evidence.
Now, what is meant by the character of lands contemplated and intended to be granted by such act? The provision seems to refer to the given act of Congress itself for the explanation. This act of 1852 excepted from its operation all lands sold, or subject to the right of pre-emption, or in any manner-reserved ; and “ all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatever,” were thereby again expressly “ reserved from the operation of this act,” excepting only the right of way for such railroads. It was plainly not the intention of the act to grant any lands for railroad purposes which had been re*330served to the United States, or in any manner granted and appropriated by law to any other object of internal improvement.
Less than two years previously, Congress had passed the act of 1850 (9 U. S. Stat. 519), whereby it was enacted that “ the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be and the same are hereby granted” to the States for the purpose of the reclamation of such lands in these States. The expression (the character of lands contemplated and intended to be granted), when applied to the act of 1852, may be taken to mean lands not sold, nor subject to pre-emption, nor reserved nor appropriated by law to aid in any object of internal improvement; and it' may safely be affirmed that the first section of the prior act of 1850 amounted at least to a reservation to the United States of the swamp and overflowed lands therein mentioned. It was in terms a present grant, and was a solemn appropriation by law of all those lands to a specific object of internal improvement within the several States; and as such these lands were reserved and excepted out of the operation of the act of 1852, granting vacant and unappropriated lands for railroad purposes. It would seem to be very plain that it was not the intention of Congress to grant to the State, for railroads, the same lands which had already been granted to her for another and different object. It must follow, that if the lands in controversy were in fact of the character of swamp and overflowed lands within the purview of the act of 1850, then the certified list offered in evidence here, so far as it embraces these lands, which were not contemplated nor intended to be granted by the act of 1852, must, by the very terms of the act of 1854 itself, be held to be perfectly null and void.
The case seems to have been tried below, and has been argued here, upon the assumed theory, that the first section of the act of 1850 was a present and absolute grant, and vested title in the State at once, leaving nothing to be done in order *331to show a vested title to any given tract, but to prove by evidence, even by the testimony of witnesses, that the land in question was, at the date of the act, of the character and description of swamp and overflowed land within its purview. This view of the matter cannot be sustained. The whole act must be taken together. This well settled rule o£ construction was applied to a somewhat similar act of Congress in the case of Rice v. Railroad Co., 1 Black, (U. S.) 358. If the first section were the whole act, there might be some room for the position assumed, however difficult it might be to ascertain by proof the particular lands which were to be the subjects of the grant. This difficulty is provided for in the act itself. The second section makes it the duty of the Secretary of the Interior to ascertain the specific tracts of land in conformity with the sectional subdivisions of the public surveys, and to make out “ an accurate list and plats” thereof, and transmit the same to the Governor, and on his request “ to cause a patent to be issued to the State therefor, and on that patent the fee simple to said lands shall vest in the State”; and by the third section he is to determine whether the greater part of any legal subdivision is “ of that character,” and if so to include it in the list; otherwise not. No other way of ascertaining the particular tracts, for the purpose of passing the title in fee, was contemplated by the act; and it was obviously the intent of Congress, and is the proper legal effect of the act, that there was granted, and should be conveyed by patent, the lands which should be contained in that list; and none other are to be conveyed, though it was also clearly intended that all lands of that character should be included in the list and plats. Until the particular subjects of the grant shall be thus ascertained no title can vest; the lands granted are thereby rendered certain ; and it may then be said that the legislative grant becomes complete to vest the title in fee even without a patent, the issuing of which may be considered as the act of a ministerial officer. It has been so held by the Supreme Court of Mississippi—Fore v. Williams, 35 Miss. 533. The act sup*332poses that the Governor will accept the grant of the lands so listed and platted before a patent issues. In Fore v. Williams, a list made out by the Register under the direction of the Governor, and approved by the Secretary of the Interior, was held to be a substantial compliance with this provision. The Supreme Court of Wisconsin refused a mandamus to compel the School Commissioners to issue a certificate of purchase to a pre-emptor, under the laws of the State disposing of lands granted by the same act of Congress, for the reason that no patent had been issued, and no title vested in the State; and it was said to be “ quite obvious that the fee simple to the land does not vest in'the State until a patent issues”—Parsons v. Comm’rs, 9 Wis. 236. We think, with the decision in Fore v. Williams, that it may vest when the list and plats are made out, and approved by the Secretary of the Interior, and accepted by the Governor. In some other cases, where the question arose incidentally under State statutes disposing of these lands, the language of the courts might seem to give some countenance to a different opinion—Allison v. Half-ace, 11 Iowa, 450; Whiteside Co. v. Att’y, 31 Ills. 68; Fletcher v. Pool, 20 Ark. 100. But on a close examination it is evident that the possibility of the grant operating to vest a title in fee to any particular tract, before its definite location and boundaries were thus ascertained, was not contemplated. The case of Hempstead v. Underhill, 20 Ark. 337, is more nearly in accordance with the decision in Rutherford v. Greene, 2 Wheat. 197, which was the case of a grant of 25,000 acres of land within the lands to be allotted to the officers and soldiers of the army, and the words '■’■shall be allotted for and are given” were held to be a grant by force of the act, not needing any further granting act; and that when swrveyed it became a gift of the particular lands contained in the survey; that the survey gave precision to the title, “ and attached it to the land surveyed”; and that the subsequent grant by another act related back to the inception of the title. This case was further explained in Lessieur v. Price, 12 How. (U. S.) 76. We have no doubt that *333it presents the correct view of the law, and we take it to be clearly to the effect, that, until the particular lands on which the act is to operate as a grant of title shall be ascertained and designated in the manner pointed out by the act itself, the grant cannot attach to any specific tracts. Until then, there is no title which can give the party a standing in court either at law or in equity. Whatever equity there may be must be considered as addressed to the political power; though there be such an inchoate equitable right as may be the subject of alienation, and constitute a basis for the operation of the doctrine of relation, whenever the title in fee shall pass out of the United States. The power to determine on what specific tracts of land the act shall operate as a grant of title, is given to the Secretary of the Interior. This is a political function, and is beyond the control of the courts—West v. Cochrane, 17 How. (U. S.) 403; Magwire v. Tyler, 1 Black, 195; Stanford v. Taylor, 18 How. (U. S.) 409; Menard v. Massey, 8 How. (U. S.) 293; Lafayette v. Kenton, 18 How. (U. S.) 59.
It appears that the States have dealt with these lands in the same way as if the act had been an absolute grant vesting a present title in fee, and the courts have recognized the right of the State to dispose- of them, under its own laws, before a list was made out, or a patent issued—Mast v. Hamilton, 14 La. Ann. 775; Dunklin Co. v. District Ct., 24 Mo. 449, and cases above cited. Whatever legal ideas may have been intended in the expressions which have been used in these cases in relation to the grant and title, there would seem to be no room for question that the act amounted at least to an appropriation by law of all such lands within the several States to the specific purpose of fulfilling this grant, and made an effectual reservation of them, to be applied under the act to that purpose, and to no other, and to be listed and platted, and patented to the States for this special object of internal improvement. More express words of reservation than those employed in the act of 1852 were not needed for the purpose of making the reservation embrace these *334lands which had been thus specifically appropriated by the act of 1850 to fill this grant to the States. The language of Baldwin, J., in Wilcox v. Jackson, 13 Pet. 498, may find a proper application here: — “Whensoever a tract of land shall have been once legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of the public lands, and no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it, although no reservation were made of it.” A sale of lands so appropriated or reserved, and even a patent, without further legislation to authorize it, has been held to be void—State v. Ham, 19 Mo. 602; Brown v. Clements, 3 How. (U. S.) 667.
Though the lands had been thus appropriated and granted, the political power over them was not wholly relinquished, but was to be exercised by the public officer to whom it was committed by the act itself, in good faith, and in such manner as to accomplish the object of the grant and the intent of Congress—Foley v. Harrison, 15 How. (U. S.) 433. Whenever the title in fee shall become vested in the State, it cannot be doubted that it will relate back to the date of the grant, and will vest by relation in the grantees under the State and counties; and such title would be prior and superior to any title that could be acquired under the acts of 1852 and 1854—French v. Spencer, 21 How. (U. S.) 228; Landes v. Brant, 10 How. (U. S.) 248; Ross v. Borland, 1 Pet. 664; Rutherford v. Greene, 2 Wheat. 197; Gibson v. Chouteau, 39 Mo. 588.
These particular sections and parts of sections have been embraced in the lists made out under the acts of 1852 and 1854 as a part of the grant for railroads; and if Congress had submitted the final determination of this matter to the decision of the Secretary, or Commissioner, there could be no doubt that the title shown by the plaintiff here should prevail in the action of ejectment, no vested legal title being shown by the defendant; for, though the lands were reserved, Congress still had power to dispose of them. But such is *335not the case. So far as this list embraced lands which were not of the character contemplated by the act of 1852, nor intended to be granted thereby, it is by the very terms of the act of 1854 itself null and void, and can be no evidence of title.
The question remains by what kind of evidence it is to be judicially determined, whether the lands in controversy came within the purview of the act of 1850, or were not of the character of lands intended to be granted by the act of 1852. No doubt, if the Secretary of the Interior had included these lands in his list and plats of swamp and overflowed lands, his action would have been final and conclusive of that matter in the courts; but his including them in this list of railroad lands is not conclusive. It was left open by Congress to be determined on judicial investigation. The power to determine it finally was not given to any public officer. The political power over the subject was not retained by the government, but it was made a question of evidence and judicial construction, and we think it was intended to be, and was, referred to the courts.
The act of 1852 does not appear to have required any selection or listing of the lands embraced within the even numbered sections within the six-mile limit, but only of those which should be selected in lieu of them outside of that limit and within fifteen miles of the line of the railroad; but the statutes of the State did require a selection of both kinds to be made by the agents of the State, and a map of the lands selected to be recorded in each county where the land was situated; and the practice of the Land Office seems to have been to include both in the lists. No means of proving a title to the specific lands granted was provided by the act itself. The act of 1854 seems to have been intended to supply this defect. In Baker v. Gee, 1 Wall. 333, these descriptive lists were recognized as being the proper evidence to show “ the lands to which the road was entitled”; the validity of the State statutes imposing burdens and conferring privileges upon the grantees of the State was admitted; and it was held *336that this corporation could not recover against a defendant claiming by pre-emption under the State, without showing that a map of the lands selected and located for the railroad ■had been duly recorded, as required by the statute—Pacific R.R. v. Lindell’s Heirs, 39 Mo. 329; Hann. & St. Jo. R.R. Co. v. Moore, 37 Mo. 338. No such map was offered in evidence in this case, and the question was not raised on the trial below. The plaintiff relied exclusively upon the list of the Commissioner, approved by the Secretary. Neither of these officers had any more power over the subject than was given to him by the act o'f Congress itself; and it is plain that these lists were not intended to be final and conclusive. It is equally plain that Congress did not intend by this act of 1854 to make any new grant of lands which had not already been granted by the act of 1852; and it must have been the intention of Congress that the question of the character of lands, contemplated and intended to be granted by that act, should be determined upon judicial inquiry, whenever this list should be offered in evidence in court: therefore the list must admit of rebuttal and disproof. Why may not this be done by any competent and admissible evidence? We are not aware of any law that would require it to be done by documentary evidence only. It might be done by documentary evidence showing a prior or better title in the defendant ; .but he is not put to such a defence. The inquiry is, whether these lands were of the character of swamp and overflowed lands unfit for cultivation, at the date of the act of 1850, either in the whole or in the greater part of any given sectional subdivision, and the testimony of witnesses is offered for the purpose of showing that as such they fell within the purview of that act, and were taken out of the operation of the act of 1852. This is wholly a matter of fact in pais. Such evidence is admissible to bring a given tract of land within the operation of a legislative grant; and it may be admitted to take it out, where no positive statute nor any rule of evidence intervenes. The determination of this matter of fact may as well be left to a jury in the one *337case as in the other. If such were in fact the character of these lands, then the Commissioner had no authority, by law to include them in this list, and, though included, the list can have no effect as to them.
The reason why the same kind of evidence should not be admitted to show a title vested and complete under the first section of the act of 1850 is, that the other sections have provided a different mode of establishing title under that act, and require another kind of evidence, which is thereby made the best and the only admissible evidence for that purpose. The case has been argued, apparently, upon the theory that this testimony wasoffered for the purpose of proving a title vested in the defendant. For that purpose it was certainly not admissible ; but for the purpose of rebutting and invalidating this list, producedAn evidence by the plaintiff, we think it was admissible and competent.
Under the instructions which were given, the cause was submitted to the jury, and the verdict must have been rendered, substantially, upon this issue of fact. If this fact were found for the defendant, then the plaintiff had shown no title to the lands in controversy. He must recover on his own title or not at all; and it was immaterial whether the defendant had shown any title or not: he had a right to stand on his possession until a better title were proved.
The first instruction refused for the plaintiff contained a correct proposition of law, and might have been given if there had been any evidence before the jury on which the issue supposed in it could properly arise. It concerned the defendant’s title only, and that was immaterial. There was, therefore, no error in refusing it of which the plaintiff can complain.
The other instructions refused for the plaintiff are sufficiently disposed of by what has been said above: they were either erroneous or immaterial. As to the difference between the expressions “ in the majority of years,” and “ in each year,” in reference to the fitness of the lands for cultivation, *338we are inclined to think the former was the more nearly correct.
The instructions which were given for -the defendant, though somewhat vague, and apparently based upon legal ideas which are not very clear to us, were nevertheless substantially correct, or, at least, not so clearly erroneous, in any respect, that the plaintiff could have been seriously prejudiced. The first one made the plaintiff’s right to recover depend upon the question of fact, whether these lands were of the character of swamp and overflowed lands unfit for cultivation, and, taken together with those given for the plaintiff on the same subject, placed the issue fairly enough before the jury. Whether the phrase “a present absolute grant thereof ” meant a fee simple, or an appropriation by law, in either case the plaintiff’s right to recover depended on the issue of fact which the instructions submitted to the jury. The second and third instructions would seem to have been correct enough so far • as any principles of law were involved in them, and we do not see that they were materially erroneous. Their bearing upon the issue was very remote. We cannot say that the plaintiff has suffered any prejudice by their having been given.
The jury were to judge of the weight of the evidence, and, the issue having been found for the defendant, the verdict will not be disturbed.
Judgment affirmed.
The other judges concur.