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State at what time or times during the year, if any, the land is subject to overflow, and from what cause.
Are you, either directly or indirectly, interested in the determination of this controversy ?
This form of examination, which has been adopted after mature consideration, and which, it is believed, covers all necessary points, must not be departed from except in special cases; as, for instance, where witnesses are produced on both sides, whose statements are directly at variance, and equally entitled to credit. In all instances it will be required that the questions shall be distinctly read to the witnesses, their answers reduced to writing in their presence, and the deposition subscribed to on the day appointed for the hearing and in the presence of the parties in attendance. The credibility of each witness testifying must be certified, in writing, by persons known to you.
To the testimony taken in each case you will append a report, setting forth the date of notice, the parties in attendance, and all material facts relative to the case; and this record, with your joint opinion on the merits of the evidence, you will transmit to the Surveyor-General, for those States where that office still exists, for examination and decision. In States where the office of Surveyor-General has been abolished, each case, prepared as above required, will be transmitted directly to this Office.
The absence of either party at the time appointed, will not obviate the necessity of hearing the testimony offered by the party in attendance; and in all such cases your report must embrace evidence of the proper service of notice on the party failing to appear.
No case can be regarded as concluded until the rendition of a final decision by this office; neither can any entry or location be permitted until you are specially instructed to permit the same. The rules which govern this branch of the subject deserve brief notice.
Where lands have been selected for, but not approved to the State, under the Swamp Land Law, or even where approved, when that approval has not been certified to the State authorities and your office, the successful contestant will acquire a preference right of entry. But where the lands have been approved, and certified copies of the approved list issued from this office, no such preference right of entry can be acquired ; lands so situated must be restored to market, and thirty days' public notice given, before they can become again subject to private entry.
It may be proper to remark, that the public notice and these instructions, have no reference whatever to the States of Michigan and Wisconsin, where the “swamp lands” have been selected by the United States Surveyors-General from the field notes in their respective offices.
With these rules, instructions, and remarks, the subject is entrusted to your care; and it is sincerely hoped that you will lend to this Office your cordial co-operation in the endeavor to bring to a close this tedious and difficult business. A careful observance of these instructions will enable you to dispose of the cases in a brief period, and, it is hoped, in a manner satisfactory, not only to the authorities of the several States, but to parties seeking to acquire titles from the Government. Very respectfully, your obedient servant,
Thos. A. HENDRICKS, Commissioner. Register and Receiver at
[No. 576.] Public notice is hereby given, that Congress having by the Act approved March 3, 1857, entitled “Ăn act to confirm to the several States, the swamp and overflowed lands, selected under the Act of September 28, 1850, and the Act of 2d March, 1849," confirmed to the several States the swamp selections heretofore made and reported to this Office, and required that the same, so far as they remain vacant and unappropriated, and not interfered with by an actual settlement under any existing law of the United States, shall be approved and patented as soon as practicable, we are thereby precluded from entertaining objections against the approval or patenting of any lands heretofore reported as swamp and overflowed, on the ground that the same are not lands of that character; and that all proceedings under the Public Notice of December 21, 1855, and the Circular of February 11, 1856, or any other circular or instructions of this Office, authorizing the taking of testimony relative to the character of land so reported, are thereby brought to a close.
Notice is also extended to parties claiming to hold lands selected as swamp, in virtue of settlements under any existing law of the United States, to present forthwith to the proper local officers, notice of their claims, designating the particular tracts embraced thereby, and the law under which the right is claimed; as, in default of such notice, their claims may be prejudiced, and, if not filed before the issue of patents to the State or States, may be barred from relief, so far as the Executive Department is concerned.
Given under my hand at the General Land Office, in the city of Washington, on the 18th day of March, 1857.
Thos. A. HENDRICKS, Commissioner.
The Swamp Land Grants of 1849 and 1850, conferred a right to the · land upon the States, and the approval and patenting have relation back
to the date of the grant. Certain questions as to the execution of the laws, settled. *
DEPARTMENT OF THE INTERIOR,
December 23, 1851. I have carefully reviewed my affirmance of your decision in regard to the proper construction of the Acts of 2d March, 1849, (No. 166,) and 28th September, 1850, (No. 182,) granting to the several States of the Union the swamp and overflowed public lands within their respective limits, and am satisfied that the decision heretofore made was incorrect. The first question involved in the case is, as to the period when the grants take effect; whether it be the date of the law or the date of the approval of the selections by the Secretary; and the general law of 1850 enacts that the fee shall vest in the State, upon the issuing of a patent. In each case, the granting clause is in the first section, and the words employed, viz. “ are hereby granted," seem to me to import a grant in præsenti. They confer the right to the land, though other proceedings were necessary to perfect the title. When the selections are made and approved, or the patent issued, the title therefore becomes perfect, and has relation back to the date of the grant. The second question is, whether it is proper or competent to approve or patent portions of the land selected, as they may, from time to time be reported, or whether the whole of the lands to which a State may be entitled must first be designated. I do not conceive, that, because the language of the law respecting the lists of the lands, and the patents to the States, is in the singular, it is inconsistent with the law to approve or patent lists of the lands, as they may from time to time be submitted for that purpose; and looking to the convenience and important interests of the States, which might be seriously injured by any other course, I think this ought to be done.
* The Act of 1849, in regard to the State of Louisiana, declares that the fee simple in said lands should vest in the State, upon the approval of the selections by the Secretary; and the general law of 1850 enacts that the fee shall vest in the State, upon the issuing of a patent.
To these points my attention has recently been called by the Governor of Louisiana, but they present questions involving the interests of all the States affected by the grants. The Governor of Alabama has also addressed the Department on another point, which has reference to the mode of executing the law of September, 28, 1850, and which presents the question, whether the provisions of the Acts of 2d March, 1849, and 28th September, 1850, are to be construed in pari materia, thereby requiring that the selections shall be made by the States, as was the case with the Louisiana grant, and not by the General Government. This question I decide in the negative.
The Act of March, 1849, has reference to Louisiana alone, and requires that the selections should be made under the direction of the SurveyorGeneral, at the expense of the State of Louisiana entirely, and after the Governor of that State should have informed the Secretary of the Treasury that the necessary preparations to defray those expenses had been made by the State.
The provision in the Act of September, 1850, is entirely different; for it makes it the duty, of the Secretary of the Interior to make out lists and plats of the lands thereby granted, and to transmit the same to the Governors of the States; and when so requested by them, to cause patents to be issued to the States for said lands. It follows, therefore, that while the selections in Louisiana are to be made under the direccions of the Surveyor-General, at the expense of the State, those in Arkansas and the other States, are to be made by the Secretary of the Interior, at the expense of the United States. As the grants are regarded as taking effect from the date of the laws making them, respectively, and as vesting the inchoate title in the States, it follows, that any subsequent sale or location of swamp or overflowed lands must be held to be illegal, and the purchase-money refunded, or a change of location ordered. Subsequent entries, however, which have been made by pre-emption, in virtue of settlements made prior to the grants, will be valid, because in those cases the right of pre-emption attached from the date of settlement, and became a vested right, which can be divested only by abandonment, or a failure in the performance of its conditions.
I have to request that you will communicate copies of this decision to the Governors of Louisiana and Alabama, (whose letters are herewith referred to you,) as soon as possible, and that you will modify your instructions, and conform your action to the views herein expressed.*
I am, &c.,
A. H. H. STUART, Secretary. Commissioner of the General Land Office.
* The Act 2d March, 1855, (No. 275,) produced a change of policy with reference to entries made subsequent to the date of the grant of September 28, 1850.
No. 579. Specific instruction to the Surveyor General of Arkansas relative to the selection of Swamp Lands.
GENERAL LAND OFFICE,
December 21, 1853. Sir:-It has been suggested that the instructions heretofore issued under the Act of 28th September, 1850, “to enable the State of Arkansas and other States, to reclaim the 'swamp lands,' within their limits,” have been misunderstood in several particulars, and it is therefore deemed expedient to embody the views of this Office on that subject in a brief communication.
The grant is, of the swamp and overflowed lands, made unfit thereby for cultivation; and it is required by the act, “ That in making out a list and plats of the land aforesaid, all 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 shall be excluded therefrom.
Forty acre lots are the smallest legal subdivisions; and hence satisfactory proof should be presented to you that the greater part of each forty acre lot claimed by the State is “wet and unfit for cultivation,” before certifying it as such under the law. Where this fact is shown by the plats and field notes, it will be regarded as conclusive, that the land is of the character enuring to the State under the law.
As a great part of the land in Arkansas was surveyed at dry seasons, much of it belonging to the State under this act, may not be represented on the field notes or plats “as wet and unfit for cultivation.” In all cases therefore, where lands are claimed by the State under this act, which are not so represented on the plats and field notes, you will require the production of satisfactory evidence that the greater part of cach forty acre subdivision of the lands so claimed, is of the character specified in the act.
You should ascertain certainly, that the witnesses produced to prove this fact, are respectable and credible; that they understand the mode and manner of surveying and marking the public lands; that they have examined the surface of the land, and the marks or designations on the corner posts or trees, and require them to testify that from such examination they have ascertained and know that the greater part of each forty acre lot of the body of land in relation to which they testify is “wet and unfit for cultivation;" you will also call the attention of any such witnesses to the provisions of the Act of 3d March, 1823, and assure them that any departure from the facts in the case, on detection, will be prosecuted under that law.
If any of the lands properly enuring to the State under this law, as explained above, have heretofore been claimed by the State, and that claim rejected from any cause, such rejection cannot, and does not, impair the right of the State to such lands, and therefore, if the claim is again presented, you will examine and determine it under the foregoing instructions. Reference is here had more particularly to the lists marked “C” returned by your predecessor as lands, the claim to which by the State has been rejected, and among which it is alleged are many tracts properly belonging to the State under the act. Should you be called upon by the proper
State authorities, you will examine those lists with the record evidences of survey on file in your office, and such other evidences as may be presented to you by said authorities, and, if you find it to be the case that all or any of said lands properly enure to the State under the Swamp Act, you will, of course, so report them, as there is no limit of time in this grant, nor of anything else, except as to the character of the lands.
The lists marked "supplemental C,” transmitted to this Office with your letter of 7th June, 1853, should also receive your early attention, as directed in my letter of August 15th, and of September 26, 1853. There is no question as to the character of the lands embraced in said lists; all that is required by this Office being your official certificate that the same have been examined with the plats, field notes and other evidences on file in your office; that from said examination you are fully satisfied that the greater part of every forty acre tract, or other equivalent legal subdivision of the lands embraced in said lists, is “swampy or subject to overflow," and rightfully enures to the State under said act. When that certificate is provided, those lists will be taken up
and acted upon by this Office, with a view to their approval to the States. There is no necessity for duplicating said lists, but you will be particular in making said certificate, clearly to designate the list to which it is intended to apply.
John Wilson, Commissioner. George Milbourne, Esq., Surveyor General, Little Rock, Arkansas.
No. 580. “Due proof,” as meant in the Swamp Act of 2d March, 1855, is such as may have been taken after that upon which the selection was based.
DEPARTMENT OF THE INTERIOR,
July 7, 1855. The subject-matter of the communication from your office, of the 20th ult., in reference to swamp land, has been duly considered, and I am of the opinion, that, under the second section of the Act of 2d March last, (No. 275,) the “ due proof” therein referred to must be regarded as relating to such as shall have been taken subsequent to that upon which the selection as swamp land was based. Experience in reference to the selections, has sufficiently demonstrated that they are not entirely reliable, as to the character of the land; and where the latter is prima facie impeached by the purchase of the land, I think “ due proof,” referred to in the law, becomes as necessary as if a direct allegation had been made against the swampy character of the tract.
This principle is not to be regarded as extending to land shown by the field notes to be swampy, your office having, it is understood, regarded such indications as conclusive.
R. M'CLELLAND, Secretary. Commissioner of the General Land Office.