(concurring.) Having sat with my brother judges during the argument of this case, I am requested by them to express my views upon the questions involved. The limited time at my disposal, and the urgency of business in my own district, forbid my entering into a lengthy discussion of the various points,' or doing much more than to announce my general conclusion. Having had recent occasion in the case of Shepard v. Insurance Co., 40 Fed. Rep. 341, to examine the original railroad land grant act of June 3, 1856, I was of the opinion:
1. That the act was a present grant of lands, included in its terms, to the state, and that no further conveyance by the government was contemplated. Schulenberq v. Harriman, 21 Wall. 44; Johnson v. Ballou, 28 Mich. 379.
2. That, while the act passed the title to these lands to the state, such divestiture of title did not operate as to any particular lands until they had been selected and certified' to the state.
3. -That-the state-took the title to such lands as trustee for the railroads named in the first section of the act, and for no other purpose whatsoever.
4. That the provision in the act that all lands remaining Unsold for 10 years should revert to the United States, if the roads were not then completed, was a condition subsequent, and that upon breach of such condition such lands would not revert to the United States without judicial proceedings authorized by law, or a forfeiture asserted by legislative act.
5. If the question, how many railroads were contemplated by this act? depended for its solution solely upon the language of the act itself, there would be strong reason for holding that they were limited to three, viz., one in the Upper Peninsula, one from Amboy and Grand Rapids to Traverse bay, and one from Grand Haven and Pere Marquette to Port Huron, by the way of Flint. But in view of the act of acceptance by the legislature of February, 1857, whereby the lands in the Upper Peninsula were conferred upon four separate roads, and in view of the subsequent action of the federal government in connection therewith, I think *835■ the act should be construed as authorizing the formation of corporations for the construction of separate roads from Marquette and Ontonagon to the state line. It is true, the two roads from Marquette and Ontonagon, upon which a portion of the lands was conferred by the legislature, were consolidated with the Chicago, St. Paul & Fond du Lac Railroad, and thus became- one corporation, and that this road filed two maps with the commissioner of the general land-office, one of which was from Fond du Lac through Wisconsin to the Michigan line, and the other of which was from Marquette and Ontonagon to the state line, and in his acceptance of those maps the commissioner of the land-office speaks of these as one road with separate branches from Ontonagon to Marquette; yet the subsequent dealings, for several years thereafter, were wholly with the Marquette line, which was treated as a separate and distinct road. After the acceptance of these maps nothing further appears to have boon done until the foreclosure of the mortgage given by the Chicago, St. Paul & Fond du Lac Railroad, including its right to those lands, and the purchase of its rights and franchises by the Chicago & North-Western. From, this time forward the lino from Marquette to the state line appears to have been, treated as a separate road. The Michigan legislature, by the act of 18(51, after reciting the insolvency of the Fond du Lac Railroad, enacted that the lands appropriated to the construction of such road be placed in charge of the hoard of control, with power to couier them upon some other competent company for the construction of such road. The -commissioner of the general land-office, in December of that year, certified to the state 112,145 acres “to aid in the construction of a railroad from Marquette to the Wisconsin state line, and known as the ‘Chicago, St. Paul & Fond du Lac .Railroad,’” and at the same time certified to the stale 142,4-30 acres “to aid in the construction of a railroad from On-tonagon to the Wisconsin state line, and known as the ‘Chicago, St. Paul & Fond du Lac Railroad.’” In April of the following year the hoard of control, acting under the authority of the legislative act of the preceding year, (1861,) and with the consent of the Chicago <ft NorthWestern Railroad, which had succeeded to the rights of the Fond du Lae road, recommended and requested that congress authorize ihe relocation of the lands granted for the purpose of the road from Marquette to the slate line, so as to conform to the new line adopted by the Peninsula Railroad Company, and ordered that all the land's, etc., granted by congress to aid in the construction of the railroad from Marquette to the 'Wisconsin state line should be conferred upon the said Peninsula Railroad Company. In compliance with such request, congress, by joint resolution of .Inly 5, 1862, authorized the relocation of the line of railroad from Marquette to the state line, with the provision that the governor should certify that the state had surrendered all its claim to the lands originally certified. In such case the state was entitled to receive a “like quantity of land selected in like manner upon the new line.” If any doubt had previously existed as to the proper construction to he given to the act of 185(5, I regard it as settled by this joint resolution, which, in my view, contemplated a distinct line of road from Marquette *836to the.state line. . Thereupon the Peninsula Railroad released to the ¡United States the original land granted to the Marquette & State Line Railroad, and became consolidated with the Chicago & North-Western. A joint resolution of the legislature also authorized the governor to execute a certificate of non-incumbrance and surrender of the lands on the original line of the Marquette & State Line Railroad, but made no mention of the Ontonagon line. This surrender was executed by Gov. Crapo in 1866. During all this time the grant to the Ontonagon line had remained in abeyance, nothing having been done since 1857, when the maps were filed and the land certified to the state. On' July 13, 1868, the commissioner of the general land-office, in a letter to the solicitor of the Chicago & North-Western Railroad, called his attention to the lands “fot the branch line to Ontonagon,” and requested the State Line Railroad Company to execute a release of such lands. And thereupon the governor, on August 14, 1870, acting upon the opinion of the attorney general, executed a similar surrender and release of the lands certified to the state-for the benefit of the Ontonagon line.
6. I think this release, not having been authorized by any act of congress or the state legislature, was a nullity, and the trust created by the original act-of 1856 remained unimpaired until the right of the state to these lands was forfeited by judicial or legislative act. I do not understand that the governor of the state has any general power, by virtue of his office, to convey lands held by the state, either in fee-simple or in trust for another. His only authority to release lands vested in the state by the original act of 1856 was limited to the lands originally selected for the construction of the line from Marquette to the Wisconsin state line. The letter of July 13, 1868, from the commissioner of the land-office, would seem to indicate that he considered the Ontonagan line as a mere branch of the line to Marquette, when in fact these lands had been allotted to a distinct corporation. Three years thereafter Gov. Bagley, who had succeeded Gov. Baldwin, in a communication to the secretary of the interior, called his attention to the action of his predecessor, and claimed that the surrender of these lands was without authority of congress or the legislature, and requested that they be withheld from sale. Upon receipt of such letter, the restoration of these lands to sale was suspended, an investigation was had, and the secretary of the interior came to the conclusion that his predecessor had erred in demanding a release of the lands granted for the Ontonagon line, and was of the opinion that the title was still in the state of Michigan. Thereupon, and in 1880, the Ontonagon & Brulé River Railroad Company was organized for the purpose of constructing a road from Ontonagon to the state, line’, and the board of control declared the lands forfeited to the state, and vested the same in the newly organized company.
71 In March, 1889, no steps having been taken to build the road, congress passed an act forfeiting to the United States and resuming title to all lands granted'by the act of 1856 “opposite to and coterminous with the uncompleted portion of any railroad to aid in the construction of which said lands were granted,” and all such lands were declared to *837bo a part of tbe public domain. Then, for tbe first time, these lands became subject to private entry. Long prior to this act, and in 1871, tbe canal company, through P. J. Avery, its agent, acting under authority of a certain act of congress passed in I860, making grant of “lands of the United Slates” for the construction of the Portage lake ship canal, selected 10,000 acres of these lands originally Reserved for the building of the Ontonagon & State Line road. This, like the act of 1856, was a grant in prwxenti, and in the uniform construction given such grants by the supreme court did not operate to convey lands which had been previously appropriated for other purposes, or the title to which was not at the time of the selection then in the United States. I see no escape from the conclusion that the selection of these 15,000 acres, the title to which was then in the state, was void, and the canal company took no title to the lands. I see no evidence of fraud on the part of the company or its agent in making the selection, as they seem to have relied upon the legality of the release executed in 1870; and, if the governor had had authority to make the surrender and release of the lands appropriated to the Ontonagon line, I see no reason why the canal company would not have' taken a perfect title to them. Nor do I see any reason for imputing fraud to the state. The act of the governor, on releasing these lands, was undoubtedly bam fide, and was done alter consultation with his official advisor, the attorney general. I have given my reasons for believing that he was mistaken; but his act was simply in excess of his authority, and is not imputable to the state. " The state itself, acting through its authorized voice, the legislature, was simply silent, doing nothing to affirm or disaffirm his conduct. When the land grant was made in aid of the ship canal company, the lauds were conferred by the legislature upon the Portage Lake & Lake Superior Ship (.‘anal Company, subject to all the conditions of the original grant. But (here, was no attempt by the legislature to interfere with lands already granted in aid of the railroad, or to dispossess it of the title it might acquire by building the road. Mr. Avery, in selecting such lands, was apprised of the state of the title, and took the risk of the legality of the governor’s action. Had the state, in 1871, held the title to these lands in fee-simple, there could be no doubt of its power to confer them upon the canal company; but holding them a trustee for a special purpose, it had no right to divert them from that purpose, and grant them to another for a different purpose. Tlie governor, the board of control, and the commissioners of the general land-office, are simply the agents for certain purposes of their respective sovereignties, and possess no powers not conferred by general statutes or special enactments; and 1 know of no legal principle by which the state or general government can be es-topped by the acts of their officers in excess of their authority.
8. I do not think that the act of forfeiture of 1889 inured to the benefit of the canal company; that the act was a complete forfeiture of the right of the state to hold the lands for any purpose. It cut off all right which the state then had to these lands, but it conferred no title upon 'the canal company, and left this company standing in the position of a *838naked trespasser. The act of 1866 did not confer these lands upon the state, because the grant was limited to lands then belonging to the United States, and the state never received a subsequent title to these lands which would inure, by way of estoppel, in favor of the canal company. In the case of Railroad Co. v. U. S., 92 U. S. 733, it is said of a land grant act similar in its terms to the act of 1866 that the state takes an immediate interest in the' lands whereto the complete title is in the United States at the date of the act; but if they are at that time reserved for any purpose whatever, they are excluded from the operation of the act, and it is immaterial whether they .subsequently become a part of the public lands of the country. A subsequent sale and grant of the same lands to' another person is absolutely null and void so long as the first appropriation continues in force. Simmons v. Wagner, 101 U. S. 260.
9. Can the defendant, who shows no title to these lands in himself, and who, for aught that appears, is a mere trespasser, set up this title in the state, when the state itself has conferred title upon the plaintiff? This is'the most difficult question in the case, and one which caused considerable embarrassment in the Shepard Case, although I finally held, in that case, that, as both parties claimed title under the act of 1856, the doctrine of common source applied, and neither could set up against the other a title antedating that act. The general rule in actions of ejectment is that the defendant may show an outstanding title in a third person; Does this rule apply in this case? The decisions of the supreme court upon this point are, to a certain extent, misleading, and while there may be no direct conflict between them, there are certain expressions in some of the opinions which indicate that the point had not received attentive consideration from the'justice who delivered the opinion. In discussing this question we are bound to assume that the grant to the canal company was void, for the reason that the state had no title to the thing granted, as stated in Polk’s Lessee v. Wendal, 9 Cranch, 87. It was said of this case, in Patterson v. Winn, 11 Wheat. 384, that it had settled the doctrine of this court “that if a patent is absolutely void upon its face, or the issuing thereof was without authority, or was prohibited by statute, or the state had no title, it may be impeached collaterally in a court of law in an action of ejectment.” It would be mere waste of time-,-however, to examine and distinguish all the cases upon this point, since all of them were subjected to a searching criticism in Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228, and the conclusion reached that-if officers of the government act without authority —
“If the land which they purported to convey had never been within their control, or had been withdrawn from that control at the time they undertook to .exercise such authority, then their act was void for want of power in them to act upon the subject-matter of the patent, not merely voidable.”
In Reynolds v. Mining Co., 116 U. S. 687, 6 Sup. Ct. Rep. 601, the rule is stated somewhat differently, — that in all actions, to recover possession of-real estate, the plaintiff can only recover on the strength of his own title, and not on the(weakness of the defendant’s title. On the other hand, if the patent has been obtained by fraud, it can only be *839set aside by a bill in equity at the suit of the United States; and private-persons, particularly in a suit at law, are in no position to attack its legality. So, if an executive officer of the government is vested with quasi judicial function to determine what lands shall pass in respect to their character, his determination is the only criterion of ascertainment, and cannot be impeached. Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ct. Rep. 389; Doll v. Meador, 16 Cal. 295. In Doolan v. Carr the land ivas patented to a railroad company, February 28, 1874, and the railroad company convoyed to Carr, the plaintiff, June 10, 1874. No attempt was made by the United States to annul the patent. On the 10th of November, 1882, the defendant Doolan and one McCue each entered on 160 acres, under a claim of pre-emption settlement. Each of them then made and subscribed a declaratory statement of his intention to claim and pre-empt the land on which he had settled, under the laws of the United States, and presented it to the register of the proper "land-office; but he refused to receive it, on the ground of the existence of a patent to the railroad company. The position assumed by the chief justice,-in his dissenting opinion, is practically the same as that occupied by the plaintiff in the case under consideration. The principal cases upon which ho seemed to rely were Hoofnagle v. Anderson, 7 Wheat. 212, in which an attempt was made by a private individual to attack the patent upon the ground of fraud and mistake, and it was hold, following out the distinction above noted, that, as the patent appropriated the land, any defects in the preliminary stops required by law were cured by the patent. Says the chief justice:
“If a patent has been issued irregularly, the government may provide means for repealing it; but no individual has a right to annul it, to consider the land as still vacant, and to appropriate it to himself.”
In other words, the patent in that case was not void, but voidable, and it could only be avoided by a suit brought by the government for that purpose. In Cooper v. Roberts, 18 How. 173, the plaintiff claimed that his land had been allotted to the state of Michigan for the use of schools, while the defendant relied upon a license given by a mineral agent, and objected that the officers of the state violated the statutes of Michigan in selling these lands after they were known, or might have been known, to contain minerals. It was held that the defendant was not in condition to raise this issue, and the patent was held - conclusive of the fact of a valid and regular sale. This is not the case of a patent located upon lands previously reserved for another purpose. In Field v. Seabury, 19 How. 323, it was held that a third party cannot raise in ejectment the question of fraud as between the grantor and grantee, and thus look beyond the patent or grant. A similar ruling was made in Spencer v. Lapsley, 20 How. 264. In line with these cases is that of Ehrhardt v. Hogaboom, 115 U. S. 67, 5 Sup. Ct. Rep. 1157, in which it was held that oral evidence was inadmissible on the part of defendant to show that certain lands were not open to settlement under pre-emption laws, but were swamp and overflowed lands, which passed to the state under another act; the court holding it to be the duty of the land de*840partment to determine whether land patented to a settler is of the class subject to settlement under pre-emption laws, and that its judgment upon, this fact was not open to contestation, in an action at law, by a mere intruder without title. In Frisbie v. Whitney, 9 Wall. 187, a certain Mexican grant having been declared to he invalid, a rush was made to pre-empt the lands covered by the grant, and it was held that such pre-emption, accompanied by force, was not valid to oust the title of one already in possession of the land. The case evidently turned upon the fact of the actual occupation of the land by the one party, and his forcible dispossession by another party. The defendant, in the case under consideration, stands practically in the same position as the defendant in Doolan v. Carr. He took possession under a claim of right to the benefit of the pre-emption or homestead laws of the United States, and his claim was rejected upon the ground that the lands had been previously patented, to the canal company. It seems to me this case cannot be distinguished from Doolan v. Carr, and that the principles announced by the majority of the court in that case apply with equal force here.