Page:Federal Reporter, 1st Series, Volume 5.djvu/347

 OABH V. 6ABNE8. 335 �A paper was also offered in evidence by the plaintiff, exe- cuted by the governor of the state, under the great seal thereof , on October 2, 1871, reciting the grant to the state and the assignment thereof to the wagon-road company, and certify- ing that the road had been duly construeted and accepted, and that "the lands along the line of said road, to the estent of 860,000 acres, have tinder said donation and grant pasBed to and become the absolute property of said company, as a patent or grant from the state, but was not received as such because it did not purport to be a grant or patent, but only a certificate ; that in the opinion of the executive certain lands, including the premises in controversy, had become vested in the wagon-road company by virtue of the congressiônal and legislative grants, and the subsequent construction of the road, and because it does not appear that the governor was authorized to issue a patent for the promises under any eir- cumstances. �My conclusion is: (1) That the patent ie conclusive evi- dence in this action that the premises are not swamp, and therefore the oral evidence to that effeot cannot beconsidered; and (2) that the state is estopped to deny that the premises are included in the wagon-road grant, and therefore its ten- ant, the defendant, is also. �Prima fade, the plaintiff bas the legal title and is entitled to the possession, and the defendant being precluded frora showing that the premises are swamp, it follows, as a matter of course, that the former must recover. �There must be a finding and judgment for the plaintiff accordingly. ����