"appropriated to the county of Houghton," upon which it imposed the duty of building and paying for the improvement, certain lands (not designated), in a class known as "State swamp lands," granted to it for such purposes by the Federal government.

2. The county assigned its right to the land including the right of selection after it accrued and the relator has acquired it.

3. The land commissioner refuses to recognize relator's right to such land, after its selection by him and declines to issue patents, and we are asked to compel him to issue such patents.

* *

Counsel for respondent concede in their brief that Act No. 239, Laws of 1863, was a grant. They say that it . 'constituted a floating grant" to the county of Houghton, and they say that "upon selection the rights of relator's grantor became fixed, his title perfect, and his right of possession complete." Selection "was an act required of Houghton county or its assignees, and, when performed, the grant attached itself to particular parcels of land selected, and in this way they became segregated from the great body of similar lands in the Upper Peninsula belonging to the State. The patent is not necessary to vest a title in Houghton county. It was [would be] evidence of title in Houghton county. * * This being true, and the title already being vested in Houghton county, on making selection after a completion, acceptance, and notification of such acceptance of the road, it follows that the right of said Houghton county or its assignees to bring an action to recover possession of these lands was complete, and, being complete, the statute of limitations commenced to run when such selections could have been made, viz., January 25, 1871," the date of approval, etc.

*

The land in controversy was granted to the State for purposes mentioned in the grant. Its appropriation was in furtherance of the purpose, and the county has attempted to apply it to such purpose, in accordance with the duty imposed upon the State by the United States in the statute making the State swamp land grant of 1850.

This proceeding does not involve a contract merely between the State and one of its municipal subdivisions. If it has not by a grant in præsenti conveyed an interest in these lands subject to a condition subsequent, viz., selection and performance of the duty imposed, it has at least appropriated to the purpose specified certain lands, directing a patent to issue upon performance of the conditions imposed. We are aware of no instance where a statute has been passed to cut off rights of municipalities growing out of transactions with the State, and it has not been the policy of this State to either surrender to or yield to municipalities claims between them, because of lapse of time or laches. No one has ever supposed that the accounts or claims between the State and counties were within the statutes of limitations, and they have sometimes been adjusted long after they accrued and became due. We are not aware that it has been the practice of the Federal government or the State to repudiate its obligations to land purchasers who have been satisfied with land certificates upon which alone the title to thousands of acres of wild land in Michigan and other States and Territories has rested for many years. Patents have always been issued on presentation of the certificates by the person entitled to them. Land warrants issued as a bounty to soldiers of our several wars were never repudiated, so far as we can ascertain, and the same is true of money bounties, which have been paid long after they were earned by the Federal government and by this State. See Smith v. Auditor General, 80 Mich. 205. The impropriety and injustice of such treatment of its citizens by a government is obvious, and it is stated in Smith v. Auditor General, supra.

Obviously, counsel do not deny that the statute was a grant in præsenti of a right which, when made applicable to particular lands by performance of conditions and selections, would have the effect to vest a complete and perfect title. Their claim seems to be that, until selection is made, title does not vest, and that, if after the right to select

accrued the selection was not made before the expiration of the period within which an action to recover the possession of lands may be barred under the statute, the right may be treated by the State as abandoned, and the land otherwise disposed of, and the following quotation from 26 Am. & Eng. Enc. Law (2d Ed.), p. 221, is apparently cited in support of such claim:

"The right to acquire land, once vested and attached to a particular tract, is as effective as a grant in segregating the land from the public domain. The tract cannot be disposed of by the government unless the equity is subsequently lost by abandonment, cancellation, or the like; and on the grant passing it relates back to the initiation of the right, cutting off all intervening claims."

We have examined the cases cited in support of the text-which at best is a negative statement of the proposition-and we find that most of them had application to disputed claims arising between private persons, and not one suggests that the land commissioner is justified in treating equitable rights under land warrants, entries, or legislative grants as abandoned because patents are not applied for or surveys or other locations made within the statutory period fixed for limitation of action for recovery of possession, while we may take judicial notice that a distinctly contrary practice has uniformly prevailed.

In Ross v. Doe, 1 Pet. (U. S.) 655, a right under a donation certificate was recognized long after its date. It has been common to recognize appropriations of land, regardless of lapse of time, even as against subsequent appropriation of the same land. See U. S. v. Fitzgerald, 15 Pet. (U. S.) 407.

In Stark v. Starrs, 6 Wall. (U. S.) 402, it was held:

"The right to a patent once vested is equivalent, as respects the government dealing with the public lands, to a patent issued. When issued, the patent Îates back to the inception of the right of the patentee."

* * *

re

Simmons v. Wagner, 101 U. S. 260; Cornelius v. Kessel, 128 U. S. 457; Benson Mining & Smelting Co.

v. Alta Mining & Smelting Co., 145 U. S. 428. See 26 Am. & Eng. Enc. Law (2d Ed.), pp. 272bb, 295, 296f, 297h, 317g.

To the suggestion that abandonment, cancellation, forfeiture, or the like would justify such action, we may say that here is neither cancellation nor forfeiture. In the case of Lessee of Holtzapple v. Phillibaum, 4 Wash. C. C. (U. S.) 363, it was said:

"We understand an abandonment to be a voluntary relinquishment of a man's equitable right to land, thereby leaving it vacant and open to future appropriation by others, who should be inclined to take it up.'

There has been no voluntary relinquishment. On the contrary, it is conceded that a former mandamus was asked for and granted as early as 1872, and that patents were issued upon this claim in 1865, 1894, and 1900. In Hoffman v. Bell, 61 Pa. 444, 454, it was held that a warrant and survey, returned and accepted, on which the purchase money has been paid, confers a perfect title against all the world, but the commonwealth, which has itself the legal title only as security for the patenting fees. See, also, Witherspoon v. Duncan, 4 Wall. (U. S.) 210; Hastings, etc., R. Co. v. Whitney, 132 U. S. 357. There is a close analogy between the right of the State to swamp lands previous to selection and the right of Houghton county after the completion and acceptance of this road and before selection of all lands. The Federal government has always recognized its obligation to admit the State's inchoate right, and, as already shown, the State has hitherto recognized its obligation to admit the relator's right to patents upon selection. There is no more apparent reason for the assertion of the statute of limitations, after payment for a floating grant, before selection, than there would be after selection, and no more justification for repudiating a government obligation in either case than in denying selection upon an outstanding bounty warrant, or a patent upon a land entry. The difference between the two cases is at best a technical one. What

148 MICH.-2.

ever may be thought of the effect of the statute of limitation upon money claims against the State, it has no application to such cases as this. We are of the opinion that the legislature has recognized a continuous right of selection without reference to time. Act No. 97, Laws of 1869, § 3 (1 Comp. Laws, § 1499), provides:

"All swamp land scrip known as 'general scrip,' shall be received in payment of all lands sold under the provisions of this act."

The State of the credit on account of the grant to Houghton county has been tabulated, and an examination of the reports will show the net amount outstanding from year to year, after deducting the acreage, selected from time to time. This must have been known to the legislature, yet it has taken no action indicating a design to cut off the right of selection, or to terminate the ministerial duty of the commissioner to issue patents as required by law, or to confer upon him a discretion to disregard his statutory duty, when his notions of the interest of the State requires it. In Olds v. Commissioner of State Land Office, 134 Mich. 442, decided in 1903, the validity of "special or local scrip" carried in 1867, delocalized in 1887, was recognized, and its acceptance enforced by mandamus. A similar practice has prevailed at Washington. In the "Public Domain " issued under the authority of congress, a table appears showing location of warrants in 1884, under acts granting land as early as 1847, and the commissioner of the general land office in the year 1904, gives a similar table, showing the condition at that time of the different grants. The lands in controversy were granted to the State in trust, and, while the Federal government will not inquire concerning the disposition made of the lands, the State is charged with the trust and presumably holds and disposes of the lands in furtherance of the object for which they were granted. Until it, through the legislature, signifies its policy to be that it shall refuse to perform its equitable obligations as to this land incurred in the discharge of its trust, we