843 marily to decide it, or before the court, whose duty it became, because the secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose.' There was no means, as this court has decided, to compel him to act; and, if the party claiming under the state in that case could not be permitted to prove that the land which the state had conveyed to him as swamp land was in fact such, a total failure of justice would occur, and the entire grant to the state might be defeated by this neglect or refusal of the secretary to perform his duty. Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 Wall. 298; Litchfield v. Register, Id. 575. There is in this no conflict with what we decide in the present case, but, on the contrary, the strongest implication that if, in that case, the secretary had made any decision, the evidence would have been excluded." 93 U. S. 173. The same general question arose, under somewhat different circumstances, in Ehrhardt v. Hogaboom, 115 U. S. 67, 69, 5 Sup. Ct. 1157, which was an action to recover possession of a tract of land in California; the plaintiff deraigning title through a conveyance by one to whom the United States had issued a patent in 1875; the defendant contending that the lands in controversy, although covered by the above patent, were in fact lands that passed to the state under the swamp land act of 1850. The question was whether the defendant, who did not connect himself in any way with the title, and was a mere intruder, without color of title, could be admitted to show by parol evidence that the lands were in fact swamp and overflowed. The court said: "In that case [French v. Fyan, 93 U. S. 169] parol evidence to show that the land covered by a patent to Missouri under the act was not swamp and overflowed land was held to be inadmissible. On the same principle, parol testimony to show that the land covered by a patent of the United States to a settler under the pre-emption laws was such swamp and overflowed land must be held to be inadmissible to defeat the patent. It is the duty of the land department, of which the secretary is the head, to determine whether land patented to a settler is of the class subject to settlement under the pre-emption laws, and his judgment as to this fact is not open to contestation in an action at law by a mere intruder without title. As was said in the case cited of the patent to the state, it may be said in this case, of the patent to the pre-emptioner, it would be a departure from sound principle and contrary to well-considered judgments of this court to permit in such action the validity of the patent to be subjected to the test of the verdict of a jury on oral testimony." It is supposed by counsel that these principles were modified in Wright v. Roseberry, 121 U. S. 488, 511, 512, 518, 7 Sup. Ct. 985; but such is not the fact. In that case the plaintiff sued to recover possession of a tract of land in California. He asserted title under that act, claiming by conveyance from parties who had purchased from the state; the defendants, under patents of the United States issued under the pre-emption laws to them, or to parties from whom they derived their interest. The particular point to which the court directed its attention was whether→ an action could be maintained upon the title to swamp and overflowed lands in California' until they had been certified as such pursuant to the fourth section of the act of congress of July 23, 1866, entitled "An act to quiet land titles in California." In determining that question, it became necessary to examine the course of legislation and of judicial decision under the swamp land act of 1850. Referring to the act of July 23, 1866 (14 Stat. 218, c. 219), the court said that "congress changed the provisions of law for the identification of swamp and overflowed lands in that state. It no longer left their identification to the secretary of the interior, but provided for such identification by the joint action of the state and federal authorities." That act, the court said, tended to remove the uncertainty and confusion which prevailed in relation to land titles in that state, "principally by recognizing the action of the state in disposing of the lands granted to her, in cases where such disposition was made to parties in good faith, and did not interfere with previously acquired interests, and by providing a mode for identifying the swamp and overflowed lands in the future without the action of the secretary of the interior." It appeared in proof that the lands there in controversy had been segregated as swamp and overflowed lands by the authorities of the state of California; that their designation as such lands on a plat of the township made by the surveyor general of the United States was approved by that officer, and forwarded to the general land office, pursuant to the act of 1886; and that such plat was approved by the commissioner, as shown by its official use of it. "The act of congress," the court said, "intended that the segregation maps prepared by authority of the state, and filed in the state surveyor general's office, if found upon examination by the United States survey or general to be made in accordance with the public surveys of the general government, should be taken as evidence that the lands designated thereon as swamp and overflowed were such in fact, except where this would interfere with previously acquired interests." So far from modifying the rule announced in French v. Fyan, the court recognized the authority of that case, and distinguished it from the one then, under consideration. *In Heath v. Wallace, 138 U. S. 573, 585, 11* Sup. Ct. 380, the court held that the decision of the land department on the question whether lands were swamp and overflowed, within the meaning of the act of 1850, was the decision of a fact which, in the absence of fraud or imposition, was conclusive upon the courts. The latest case in this court upon the general question before us is Chandler v. Mining Co., 149 U. S. 79, 88, 89, 92, 13 Sup. Ct. 798. The action was ejectment, each party holding a conveyance from the state of Michigan; that to the plaintiff, Chandler, having been made many years subsequent to the one made to the defendant. The plaintiff claimed that the premises in controversy were a part of the swamp and overflowed lands granted to the state by the act of September 28, 1850, and were patented to him by the state on the 3d day of November, 1887, whereby he acquired a title to the same superior to that attempted to be passed to the defendant by the prior patent, based on an act of congress of August 26, 1852, granting public lands to Michigan to aid in the construction of a ship canal around the Falls of St. Mary. There was proof showing that the state and the interior department made a selection of lands under the swamp land act, and that the lands there in controversy were not embraced in such selection, nor in the patent to the state for them. The defendant contended that this action of the state and of the interior department was a determination that the particular land in dispute was not covered by the act of 1850, and, it having been selected and certified to the state under the act of 1852, was a determination that it was included in the canal grant, and that this determination could not be collaterally attacked in an action at law. Referring to Railroad Co. v. Smith, Mr. Justice Jackson, speaking for the court, after observing that the converse of the situation existing in that case was presented in the case then before it, said: "But, aside from this, the rule as to oral evidence recognized in that case was afterwards explained, and limited in its operation to cases in which there had been nonaction or refusal to act on the part of the secretary of the interior in selecting lands granted, as appears in the subsequent cases of French v. Fyan, 93*U. S. 169, 173, and Ehrhardt v. Hogaboom, 115 U. S. 67, 69, 5 Sup. Ct. 1157, where parol evidence was offered to show that patented lands were not of the character described." After examining French v. Fyan and Ehrhardt v. Hogaboom, above cited, and stating that nothing said or involved in Wright v. Roseberry was in conflict with the rulings in those cases, the court proceeded: "Under the principle announced in that case, and under the foregoing facts in the present case, it would seem that there had been such affirmative action on the part of the secretary of the interior in identifying the lands in this particular township, containing the lands in controversy, as would amount to an identification of the lands therein, which pass to the state by the swamp land grant; and that the selection by the state of the demanded premises | under the canal grant of 1852, with the ap proval of the secretary of the interior, and the certification of the department to the state that they were covered by the latter grant, may well be considered such an adjudication of the question as should exclude the introduction of parol evidence to contradict it. The exclusion of the land in dispute from the swamp lands selected and patented to the state, and its inclusion in the selection of the state as land coming within the grant of 1852, with the approval of such selection by the interior department and the certification thereof to the state, operated to pass the title thereto as completely as could have been done by formal patent (Frasher v. O'Connor, 115 U. S. 102, 5 Sup. Ct. 1141); and, being followed by the state's conveyance to the canal company, presented such official action and such documentary evidence of title as should not be open to question by parol testimony in an action at law. Under the facts of this case, we are of opinion that the plaintiff in error could not properly establish by oral evidence that the land in dispute was in fact swamp land, for the purpose of contradicting and invalidating the department's certification thereof to the state and the latter's patent to the canal company." To this review of the former decisions of this court but little need be added. The case before us is not like that of Railroad Co. v. Smith, in which, as subsequently explained” in French v. Fyan, it was shown that there was an absolute neglect of duty on the part of the interior department, in that it neither made nor would make any selection or lists whatever, and therefore there was no action by that department that could be relied on as a determination of the question whether the particular lands then in dispute were or were not embraced by the swamp land act. That case was exceptional in its circumstances, and seemed to justify the decision rendered, in order to prevent a total failure of justice, arising from the unexplained neglect of the land department to perform the duty imposed by the act of 1850. What was said in French v. Fyan shows that this court not only so regarded the previous case, but it was, in effect, said that the ruling in Railroad Co. v. Smith was not to be extended to any case in which the land department had taken action or made a decision or determination under the swamp land act. In the case now before us, the selection by Linn county, grantee of the state, prior to 1875, of swamp and overflowed lands in the very section of which the lands in dispute formed a part, without including the latter in such selection, together with the acquiescence in that selection by the interior department, and the selection by or under the direction of the secretary of the interior, and their certification to the state,-first in 1858, and again in 1881,-of the lands in dispute, as lands inuring under the act of congress of May 15, 1856, to the Cedar Rapids & Missouri River Railroad Company, and therefore not lands embraced by the act of 1850, constituted a determination, based on "observation and examination," that the lands here in dispute were not swamp and overflowed, and therefore had not been reserved or appropriated, prior to the date of the railroad land grant act, but passed, as the secretary of the interior certified to the state, for the purposes named in the railroad act. Twice the land department certified these lands to the state as inuring to it under the railroad land grant act, and it does not appear that the state has ever questioned the correctness of that certification, or applied to the secretary of the interior for a re-examination as to the character of the lands. Nor did the county of Linn, so far as the record shows, ever contend that these lands belonged to it, under the act of 1850, as the grantee of the state, until its board of supervisors, for the consideration of $50 (their deed, however, reciting one dollar as the consideration), sold them to the plaintiff, taking his promissory note for the price. This was in 1888, a few days before this suit was brought, and more than 30 years after the secretary of the interior first certified them to the state as railroad grant lands. We are of opinion that this case comes within the ruling of previous cases, particularly Chandler v. Mining Co. and French v. Fyan. Upon the authority of former adjudications, as well as upon principle, it must be held that parol evidence is inadmissible to show, in opposition to the concurrent action of federal and state officers having authority in the premises, that these lands were in fact, at the date of the act of 1850, swamp and overflowed grounds, which should have been embraced by Linn county in its selection of land of that character, and withheld from the state as lands granted expressly in aid of railroad construction within its limits. The plaintiff was not entitled to the relief asked, and, as the case was tried by the court, judgment should have been rendered for the defendant. As the court below did not proceed upon the grounds we have stated to be proper, and as its judgment deprived the defendant of rights secured by the laws and exercised under the authority of the United States, that judgment must be reversed, and the cause remanded for further proceedings consistent with this opinion. Reversed. (159 U. S. 380) SWEET et al. v. RECHEL. (October 21, 1895.) No. 18. EMINENT DOMAIN-PAYMENT OF COMPENSATIONMASSACHUSETTS CONSTITUTION. 1. A statute authorizing the taking of private property for public use, which makes such provision for reasonable compensation as will be adequate and certain in its results, though such compensation is not required to be paid before the taking of the property, fully satisfies the requirements of the constitution of Massachusetts that "no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent or that of the representative body of the people," and that, "whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor." 2. The legislature of Massachusetts passed an act providing that the city of B. might purchase or otherwise take the lands and buildings thereon, within a district the grade of which was below that of the surrounding lands, and which could not be drained. The declared purpose of the act was to enable the city to abate a nuisance and preserve the public health. It was provided that the city should file in the registry of deeds, within 60 days after taking any land, a descrip tion of the land taken, that the title to such land should vest in the city, and, if any party whose land was taken should agree with the city upon the damage done, the same should be paid him forthwith, and it was made the duty of the city at once to raise the grade of the land taken, abate the nuisance, and preserve the public health. It was also provided that any person having an interest in the land taken might, within a year, file a bill, in his own behalf and that of all others interested, setting forth his claims for damage; and provision was made for giving notice, bringing in all parties interested, who must come within a time fixed or be barred, appointing commissioners to hear the parties and assess the damages, and for entering a separate decree in favor of each party whose damages were ascertained, which might be enforced by execution. Held, that it must be presumed that the act had for its real object the protection of the public health, and that it was competent for the legislature, in the exercise of the police powers of the commonwealth, and its power to appropriate private property for public uses, to authorize the city to take the fee in the lands described for the purposes mentioned. 3. Held, further, that it was competent for the legislature to authorize the city to take the lands prior to making compensation, and that the provision for compensating the owner was certain and adequate. In Error to the Circuit Court of the United States for the District of Massachusetts. This was a writ of entry by William A. Sweet and Maria H. Sweet, his wife, and Frank G. Tallman and Peleg H. Tallman against Christian Rechel to recover certain lands in the city of Boston, Mass. Judgment was rendered in the circuit court for the defendant. 37 Fed. 323. Plaintiffs bring, Affirmed. error. *The real estate, the title to which is involved in the present writ of entry, formerly belonged to Peleg Tallman, Sr., of Maine, who died on the 12th day of March, 1840, having made a will which was duly admitted to record in that state, and a copy whereof was admitted to probate, May 10, 1841, in Suffolk county, Mass., where the premises in controversy are situated. The parcel of land in dispute, with other real estate, was devised to Henry Tallman, to hold for life, and at his decease to descend to his son Peleg Tallman, Jr. The devisee in remainder was born April 18, 1836, and died April 15, 1863, leaving two children, Frank G. Tallman and Peleg H. Tallman; also a widow, who subsequently intermarried with William A. Sweet, one of the plaintiffs in error. 382 The plaintiffs in error, who were the plain- | rials, with reference to a complete drainage tiffs below, and are citizens of New York, claim title under the will of Peleg Tallman, Sr. The defendant, a citizen of Massachusetts, claims title under proceedings instituted by the guardian of the devisee in remainder in the probate court of Suffolk county, Mass., by the order of which court, and in full compliance therewith, as is contended, the interest of Peleg Tallman, Jr., in certain real estate, including the lot in dispute, was sold in 1844, Henry Tallman, the owner of the life estate, becoming the purchaser. In the same year the latter conveyed, with warranty, to Robert Knott, who purchased in good faith, at the price of $2,900. In 1869 Knott conveyed by warranty deed to the defendant, Rechel, for the sum of $4,800, in cash or its equivalent. Rechel bought in good faith, for full value, without actual notice of any alleged defect in the title, and erected buildings and made improvements on the premises in dispute at a cost of $8,575. The defendant also claims that the title to the lot in controversy was taken by the city of Boston in 1867, the title being, at that time, apparently, in Knott, under a statute of Massachusetts, approved June 1, 1867, entitled "An act to enable the city of Boston to abate a nuisance existing therein, and for the preservation of the public health in said city." St. Mass. 1867, c. 308. By reason of its grade being lower, and because it was incapable of being properly drained, the condition of the territory of which the lot in controversy was a part was such, during the period between the years 1860 and 1870, as to endanger the public health. Various plans having been suggested for the raising of the grade and for the proper drainage of that territory, the legislature passed the act of June 1, 1867. By that act it was provided that the city of Boston "may purchase or otherwise take the lands or any of them in said city, with the buildings and other fixtures thereon," situated within a certain defined district, which included the lands here in dispute; that the "city shall within sixty days from the time they shall take any of said lands, file in the office of the registry of deeds for the county of Suffolk, a description of the land so taken as certain as is required in a common conveyance of lands," with "a statement that the same are taken pursuant to the provisions of this act, which said description and statement shall be signed by the mayor of said city"; that "the title to all land so taken shall vest in the city of Boston, and if any party whose land is taken shall agree with the said city upon the damage done to him by the said taking, the same shall be paid to him by the said city forthwith." It was made "the duty of the city of Boston forthwith to raise the grade of said territory so taken or purchased, laying out and filling up the same with good mate thereof, so as to abate the present nuisance and to preserve the health of the city." Section 1. Any person having an interest in the land taken was at liberty, within one year after the same was taken, as well in his own behalf as in behalf of all other persons having estates therein, to file a bill in equity in the supreme judicial court, in the county of Suffolk, setting forth the taking of the complainant's land, the condition of the same in respect to its capacity for drainage, and whether the complainant claimed any, and what, damages against the city or the Boston Water Power Company, or other corporation or person, "by reason of any and what wrongful act or omission by their causing a diminution in the value of his land at the time of said taking, and praying an assessment of damages against such parties"; notice of such bill being given to the parties named therein as defendants, according to the course of courts of equity, and also public notice thereof to all persons in whose behalf such bill was filed to appear and become parties thereto, if they thought fit to do SO. It was made the duty of the court to prescribe how such public notice should be given, and what length of time should be allowed for appearing and becoming a party to the suit. Any one interested who failed to appear and become a party within the time prescribed by the court was forever barred from recovering any damages on account of such taking. Each person appearing and becoming a party, having filed a written description of the land in which he claimed an estate, together with a plan thereof, so as clearly to distinguish the same from all other lands, was required to declare what estate he claimed therein. If he claimed that the value of said lands at the time of the taking was lessened by any unlawful act or omission of the city of Boston, or of the Boston Water Power Company, or of any other corporation or person, "so that the value of the land in its condition when taken would not be a just compensation for all the estate and rights of the party in and in reference to the same," he was also to state "what such injury is, and how and by whom the same had been, or is, caused, and what right or title of the party is violated, and what amount of damages in gross is claimed by him, as compensation therefor, from each of the parties defendant." Mass. 1867, c. 308. St. Other sections of the act provided for the appointment of commissioners to hear the parties, after due notice, to assess the value of the land taken, and to make report to the court of their doings. Any party aggrieved➡ by the report might except thereto, and have his exception heard as in a suit in equity,* or might apply for the framing of proper issues to be tried by a jury. The seventh section provides: "When it shall be finally determined what amount of damages any party is entitled to recover against the city of Boston, or the Boston Water Power Company, or any other party defendant, a separate decree shall be entered accordingly and execution therefor shall be issued, without regard to the pendency of the claims of any other party or parties, or of other claims of such complainant." The city council approved and spread upon its records an instrument reciting the act of 1867, and stating that, pursuant to its provisions, the city "has taken, and by these presents does take," a certain parcel of land "belonging to Robert Knott,"-in whose name, as we have seen, the title then stood of record,-"to have and to hold the same to the said city of Boston, its successors and assigns, to its and their sole use and behoof, forever, agreeably to the provisions of the said act." This instrument was approved by the mayor, who certified that "the lands described in said instrument were and are taken pursuant to the provisions of the said act." Within 60 days of the taking of the land, to wit, on May 22, 1868, that instrument was filed in the Suffolk registry of deeds, and was fully recorded. It was admitted at the trial that the city followed the provisions of the statute, and that the premises were held by the defendant under Knott and the city; also that the city forthwith performed the duty imposed on it by the statute at an immense outlay; that "the grade of the land was raised, and the buildings thereon, the territory was laid out and filled, a complete and effective system of drainage was provided, the nuisance abated, and the value of the land was greatly enhanced. The lot in suit was filled in to a depth of several feet, the buildings were raised and underpinned, and the value increased." Subsequently, a settlement was had with the assignee of Knott, in relation to the taking of the land, and, Knott having executed a release, the city conveyed, by deed of March 14, 1870, to the defendant, Rechel, the deed reciting that the property had been previously taken by the city under the above act of 1867. It was also admitted that no compensation was ever paid to the plaintiffs by reason or on account of any proceedings by the city under the act of June, 1867. And it was agreed that "in 1869 a bill in equity was brought under the statute, reported in 109 Mass. 438, the case being Cobb v. Boston, on behalf of Cobb and all others entitled to have damages assessed for this taking; that this case was pending in the supreme court until the April term, 1882; that it was ordered by the court in this case that the time from December 23, 1869, to first Tuesday of April, 1870, be allowed to parties to bill; that notice was published in papers on said order; and that such persons as came in had their damages assessed under said bill." T. A. Jenckes and Jas. E. Leach, for plaintiffs in error. Charles T. Gallagher and Samuel J. Elder, for defendant in error. Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court. The grounds upon which the plaintiffs impeach the validity of the sale of 1844 are: That the notice required to be given of the proceedings in the Suffolk probate court was not shown to have been published as often as required, and, therefore, such jurisdiction of the ward was not acquired as authorized an order for the sale of his property; that the notice of the sale did not specify both the time and place of sale; that the guardian could only sell for money in hand, and was without authority to sell and convey, and immediately take, as was done, a mortgage back for the purchase money; that no return of the proceeds of sale was ever made by the guardian; and that an affidavit setting forth the time and place of the sale was not filed by the guardian within the time prescribed by the statute. But, obviously, the question to be first considered is whether an absolute title passed to the city of Boston. If the title passed in virtue of what was done under the act of 1867, it will become unnecessary to determine whether the sale made by the guardian of Peleg Tallman, Jr., in 1844, was invalid upon any of the grounds assigned by the plaintiffs. For, if that sale was, in itself, ineffectual to divest the title of the devisee in remainder, and if, at the time the city proceeded under the statute of 1867, the title was not, in law, in Knott or in the defendant, Rechel, but in the children and widow of the devisee in remainder upon his death in 1863, the title nevertheless passed to the city, if the provisions of that statute were followed, and unless, as plaintiffs contend, the statute was unconstitutional and void. The constitution of Massachusetts recognizes the right of each individual to be protected in his life, liberty, and property, according to standing laws, declares his obligation to contribute his share to the expense of such protection, and provides that "no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people," and "whenever the public exigencies require, that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor." Const. Mass. pt. 1, art. 10. The legislative department of the commonwealth has, however, full power "from time to time to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to this *391 |