Page:Federal Reporter, 1st Series, Volume 5.djvu/339

 CAHN V. BARNES. 327 �2. EsTorPEL. — In 1871 the premises in controversy ■were sclected an^ approved by the land department as a part of the wagon-road grant without objection on the part of the state, or any atterapt to show that they were awamp, and in 1872 the state sold the saine to the dCr fendant as swamp, and the defendant is in possession without having paid the puichase money. Htld, that the defendant bas no title, and cannot prove title in the state iinder the swamp-land pvant, because the state is estopped to deny that the premises are within the wagoa-. road grant. �Action to recover possession of real property. �E, C. Bronaugh, Jo'.in W. Wkallcij, and M. W. Fechhehncr, for plaintifi. �IF. Lair Ilill, for defendant. �Deady, D. J. This action is brouglit by à ci'Jzen of Cali- fornia against a citizen of Oregon, to recover the possession of section 3 of township 16 S., of range 16 E. of the Walla- met meridian. The plaintiff claims to be the owner of the premises, and entitled to the possession thereof as the succes- sor in interest of the state of Oregon. The defendant only defends for the N. E. J of the section, and pleads title thereto in the state of Oregon under the swamp-land act of March 12, 1860, (12 St. 3,) and that he is in possession under the state, in pursuance of an executory contract of purchase therefrom, under the act of October 26, 1870, (Sess. Laws 54,) providing for the selection and sale of said swamp lands. The plaintiff denies that the premises are swamp land iniact, and alleges that the secretary of the interior has decided otherwise ; and also that the state, by accepting a patent from the United States of the land in controversy as wagon- road land, ia estopped now to assert that the land is swamp, which estoppel binds the defendant, the state's vendee. The case was tried by the court without the intervention of a jury. On the trial a stipulation was read cpntaining the evi- dence in the case, except as to the question of whether the premises are in fact swamp land or not, and, as to that, oral evidence was received subject to the objection of the plaintiff for incompetency. �The facts of the case are as follows: On July 5, 1866, eongresB, "to aid in the construction of a military wagon ����