Opinion of the Court.

stances, both parties were under a duty to use all reasonable means to avoid a collision that would lead to a deadly conflict, such as keeping out of the affray, or by not going into it, or "by stepping to one side"; and if the accused could have saved his life, or protected himself against great bodily harm, by inflicting a less dangerous wound than he did upon his assailant, or "if he could have paralyzed that arm," without doing more serious injury, the law commanded him to do so. In other words, according to the theory of the charge, although the deceased sprang at the accused, with knife in hand, for the purpose of cutting him to pieces, yet if the accused could have stepped aside or paralyzed the arm of his assailant, his killing the latter was not in the exercise of the right of self-defence. The accused was where he had the right to be, and the law did not require him to step aside when his assailant was rapidly advancing upon him with a deadly weapon. The danger in which the accused was, or believed himself to be, at the moment he fired is to some extent indicated by the fact, proved by the government, that immediately after he disabled his assailant (who had two knives upon his person) he said that he, the accused, was himself mortally wounded and wished a physician to be called. The accused was entitled, so far as his right to resist the attack was concerned, to remain where he was, and to do whatever was necessary or what he had reasonable grounds to believe at the time was necessary, to save his life or to protect himself from great bodily harm. And under the circumstances, it was error to make the case depend in whole or in part upon the inquiry whether the accused could, by stepping aside, have avoided the attack, or could have so carefully aimed his pistol as to paralyze the arm of his assailant without more seriously wounding him.

Without referring to other errors alleged to have been committed, the judgment below is reversed and the case is remanded for a new trial.

Reversed.

MR. JUSTICE BROWN and MR. JUSTICE PECKHAM dissented.

Syllabus.

THE ROGERS LOCOMOTIVE MACHINE WORKS v. AMERICAN EMIGRANT COMPANY.

ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.

No. 23. Argued March 24, 1896. - Decided December 7, 1896.

In a suit by the American Emigrant Company to obtain a decree quieting its title to certain lands in Calhoun County, Iowa, of which the defendants have possession, the plaintiff asserted title under the act of Congress known as the Swamp Land act of 1850, 9 Stat. 519, c. 84; the defendants under the act of Congress of May 15, 1856, 11 Stat. 9, c. 28, granting land to Iowa to aid in the construction of railroads in that State, including one from Dubuque to Sioux City. The principal contention of the plaintiff was that the lands passed to the State under the act of 1850, and were not embraced by the railroad act of 1856. By an act passed January 13, 1853, the State of Iowa granted to the counties respectively in which the same were situated the swamp and overflowed lands granted to the State by the Swamp Land act of 1850. Congress, by an act approved May 15, 1856, granted lands to Iowa to aid in the construction of certain railroads in that State, among others a railroad from Dubuque to Sioux City. That act excepted from its operation all lands previously reserved to the United States by any act of Congress, or in any other manner, for any purpose whatsoever. The lands, interests, rights, powers and privileges granted by the last-named act, so far as they related to the proposed road from Dubuque to Sioux City, were transferred by the State in 1856 to the Dubuque and Pacific Railroad Company. In the same year, the county court of Calhoun County, Iowa, appointed an agent to select and certify the swamp lands in that county, in accordance with the above act of 1853. The lands in controversy are within the limits of the railroad grant of May 15, 1856, and were earned by the building of the road from Dubuque to Sioux City, if they were subject at all to that grant. The several defendants hold by sufficient conveyance all the title and interest which passed under the railroad grant, if any title or interest thereby passed. Under date of December 25, 1858, these with other lands were certified to the State by the General Land Office of the United States as lands within the place limits defined by the railroad act of 1856 of the Dubuque and Pacific Railroad. A list of the tracts so certified to the State was approved by the Secretary of the Interior, subject to the conditions of the act of 1856 and to any valid interfering rights existing in any of the tracts embraced in the list. The selection of these lands as swamp lands by the agent of Calhoun County was reported to the county court of that county September 30, 1858. March 27, 1860, the surveyor general for the State certified these lands as swamp and overflowed lands, and this certificate was received in the General Land Office

Syllabus.

March 27, 1860, and at the local land office at Des Moines, Iowa, February 18, 1874. It did not appear that the Secretary of the Interior ever took any action in respect to the lists made by the agent of Calhoun County of lands selected by him as swamp lands, nor that the State or the county, or any one claiming under the county, ever directly sought any action by the General Land Office or by the Secretary of the Interior in respect to such selection. December 12, 1861, a written contract was made between the county of Calhoun, Iowa, and the American Emigrant Company in relation to the swamp and overflowed lands in that county. Subsequently, in 1863, the county, although no patent had ever been issued to the State, conveyed to that company the lands in controversy. Held,

(1) That the Secretary of the Interior had no authority to certify lands under the railroad act of 1856 which had been previously granted to the State by the Swamp Land act of 1850;

(2) That whether the lands in controversy were swamp and overflowed lands within the meaning of the act of 1850 was to be determined, in the first instance, by the Secretary of the Interior; and that when he identified lands as embraced by that act, and not before, the State was entitled to a patent, and on such patent the fee simple title vested in the State, and what was before an inchoate title then became perfect as of the date of the act;

(3) That when the Secretary of the Interior certified in 1858 that the lands in controversy inured to the State under the railroad act of 1856, he, in effect, decided that they were not embraced by the Swamp Land act of 1850; that it was open to the State, before accepting the lands under the railroad act, to insist that they passed under the act of 1850 as swamp and overflowed lands; that if the State considered the lands to be covered by the Swamp Land act, its duty was to surrender the certificate issued to it under the railroad act; and that it could not take them under one act, and, while holding them under that act, pass to one of its counties the right to assert an interest in them under another and different act;

(4) That the county of Calhoun, being a mere political division of the State, could have no will contrary to the will of the State; that its relation to the State is such that the action of the latter in 1858 in accepting the lands under the railroad act was binding upon it as one of the governmental agencies of the State; that the county could not, after such acceptance, claim these lands as swamp and overflowed lands, or, by assuming to dispose of them as lands of that character, pass to the purchaser the right to raise a question which it was itself estopped from raising; that the Emigrant Company could not, by any agreement made with the county in 1861 or afterwards, acquire any greater rights or better position in respect to these lands than the county itself had after the certification of them to the State in 1858 as lands inuring under the railroad

Statement of the Case.

act of 1856; and that the plaintiff claiming under the county and State was concluded by the act of the State in accepting and retaining the lands under that statute.

THE present suit was brought by the American Emigrant Company for the purpose of obtaining a decree quieting its title to certain lands in Calhoun County, Iowa. The plaintiff asserts title under the act of Congress known as the Swamp Land act of September 28, 1850, c. 84, 9 Stat. 519; the defendants, under the act of Congress of May 15, 1856, 11 Stat. 9, c. 28, granting land to Iowa in aid of the construction of various railroads in that State, among others a railroad from Dubuque to Sioux City with a branch from the mouth of Tête des Morts to the nearest point on that road.

The principal contention of the plaintiff is that the lands. passed to the State under the act of 1850, and were not embraced by the railroad act of 1856.

A decree was passed adjudging the plaintiff to be the owner of some of the tracts described in its petition. As to other tracts the suit was dismissed. Upon appeal by the defendants to the Supreme Court of Iowa the decree was affirmed. 83 Iowa, 612. The present writ of error brings that decree before us for examination.

By the above act of September 28, 1850, all swamp and overflowed lands made unfit thereby for cultivation were granted to the respective States in which they were situated that they might be reclaimed by the construction of the necessary levees and drains. By the second section of that act it was made the duty of the Secretary of the Interior, as soon as practicable after the passage of the act, to make out an accurate list and plats of such lands, and transmit the same to the Governor of the State, and at the request of the latter, "cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State" the proceeds of the lands, whether from sale or by direct appropriation in kind, to be applied, exclusively, as far as necessary, to the purpose of reclaiming the lands by means. of the levees and drains. By the third section it was provided that "in making out a list and plats of the land aforesaid, all

VOL. CLXIV-36

Statement of the Case.

legal subdivisions, the greater part of which is 'wet and unfit for cultivation,' shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it should be excluded therefrom." 9 Stat. 519.

The legislature of Iowa, by an act passed February 5, 1851, authorized the commissioner of the state land office to take steps necessary to secure to the State the lands granted by the above act. To that end, the commissioner, having reason to believe there were any tracts of swamp land within the State not reported as such by the United States surveyor, sufficient to justify a more particular examination, was to direct the county surveyor of any county in which the lands were located "to make the examination and provide the proofs necessary to secure such lands to the State, a list of which shall be returned to the land commissioner or the authority acting in that capacity, verified by affidavit," etc. Laws of Iowa, 1850, 1851, p. 169, c. 69.

By a subsequent statute of Iowa, passed January 13, 1853, the swamp and overflowed lands granted to the State by the act of 1850 were granted "to the counties respectively in which the same may lie, or be situated, for the purpose of constructing the necessary levees and drains, to reclaim the same—and the balance of said lands, if any there be after the same are reclaimed as aforesaid, shall be applied to the building of roads and bridges, when necessary, through or across said lands, and if not needed for this purpose, to be expended in building roads and bridges within the county." The same act provided that "whenever it shall appear that any of the lands granted to the State by the aforesaid act of Congress, shall have been sold by the United States since the passage of that act, it shall be lawful for the said counties to convey said lands to the purchasers thereof." It also provided that in all the counties where the county surveyor had made no examination and report of the swamp lands within his county, in compliance with the instructions from the gov ernor, the county court should appoint some competent person, who should proceed "to examine said lands, and make due report, and plats, upon which the topography of the