Page:Federal Reporter, 1st Series, Volume 5.djvu/345

 CaHN V. BÀBNE3. 3S3 �the secretary of the lists of land selected under ii. The pat- ent issued under the subsequent act of June 18, 1874, supra, did not pass the title, but is only record evidence of the pre- viously-existing grant by statute, and the identity of the lands included in it, Langdeau v. Hanes, 21 Wall. 529. �In the face of French v. Fyan, and even upon general prin- ciples, counsel for the defendant does not deny but that if the patent had isSued to the state for the premises under the swamp-land act, it would be conclusive in this action as to the character of the land; but it is, nevertheless, contended that the patent actually issued to the state under the wagon- road grant is not such evidence that the lands are not swamp, because, in the consideration and determination in the land department of the question -whether the premises vere within the wagon-road grant or not, the question whether they were swamp was not necessarily involved, and therefore cannot be said to bave been considered or decided. �But this reasoning is more ingenions than sound. The effect of the decision of the secretary does not depend on the existence of an actual or formai controversy before him, car-' ried on by parties adversely interested therein, but upon the fact that it was duly made in the reigular course of the ad- ministration or execution of the law relating to the subject. . Both the swamp-land and wagon-road grants were before the department for consideration and patent. Under the circum- stances it was the duty of the secretary, in selecting and pat- enting lands under the wagon-road grant, to ascertàin that they were not included in the prior grant of swamp land. And whether, as a matter of fact, this was consciously and purposely done with regard to the particular land in contro- versy or not, in contemplation of law it certainly was. For it was impossible for the secretary to decide, as he did, abso- lutely, that the land belonged to the wagon-road grant, with- out at the same time deciding that it did not belong to the swamp-land grant. This latter conclusion is a necessary element of the former, and therefore the law considers that, before the patent to the premises was issued as and for ����