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him of 20th July, 1853, informing him of it, no specific mention was made by this Office of rights or privileges which he might still have after cancellation. The appeal with this explanation is respectfully submitted.

Very respectfully, &c.,

Thos. A. HENDRICKS, Commissioner. Hon. Jacob Thompson, Secretary of the Interior.

Affirmed by. Secretary Thompson, January 6, 1858.

No. 589.


January 8, 1858. I return herewith the papers which accompanied your report of the 27th November last, in the case of J. D. Ludlow's application of January 2, 1856, to enter certain tracts of land in the Danville district, Illinois. After careful consideration of these papers, together with the reports from your office of the 27th May and the 9th September, and the arguments of John Wilson, Esq., of Chicago, in behalf of Mr. Ludlow, I am of the opinion, that the Act of Congress of 3d March, 1857, (No. 319,) entitled an Act to confirm to the several States the swamp and overflowed lands selected under the Act of September 28, 1850, (No. 182,) is, as respects the disposition of cases on the files of your office at the date of its passage, mandatory in its terms. It confirms the claim of the States to selections of swamp and overflowed lands " heretofore made and reported to the Commissioner of the General Land Office, so far as the same remain vacant and unappropriated, and not interfered with by any actual settlement under any existing laws of the United States," and directs that they be approved and patented to the several States. The questions proper to be considered, in case of conflict arising upon lists remaining on the files of the Land Office on the 3d March, 1857, are these; 1st. Has the tract been selected in the usual manner by an authorized agent, and had the list containing it been reported in due course before the 3d March, 1857, to the Commissioner of the General Land Office, the selection not having been cancelled before that date? If the reply to this inquiry be affirmative, the next question that arises is, Was that tract vacant and unappropriated, and not interfered with by an actual settlement under existing laws of the United States at the date of the passage of said Act of 3d March, 1857 ? and if the tract be found vacant and unappropriated, and not interfered with by a legal settlement, it is to be approved and patented to the State according to the direction given in the Act of Congress, to the Executive branch of the Government. It is not for me to call in question the constitutionality of the Act of Congress under discussion, or to refuse obedience to a plain requirement of said Act, on account of the effect or consequences of such obedience. If it be admitted that Mr. Ludlow's application and tender were legally made, and that the lands were subject to the said application at the time, (on which points you are not satisfied,) still it is certain that said application and tender were refused by the District Officers, and the purchase was not admitted by them. The extent of right that can be acquired by a legal application and tender which has been refused, is only to a specific performance by the United States of the contract of purchase, the benefits of which the individual might be regarded

as having thereby preserved to himself. But in this case, while a contest for the legal title is pending before the Executive branch of the Government, the Legislative branch interposes, confirms the claim of one of the contestants, and orders the legal title to be given to him. This requirement of the legislative power we obey, without inquiring which contestant had the superior equity at the date of confirmation. And I cannot regard the equity which may have been acquired by an individual who has, even improperly, been refused the entry of specific tracts, though preserved to him by the prosecution of his rights on appeal, as such an appropriation of the tracts as would save them from the confirming effect of the Act of 3d March, 1857.

If Congress, in the enactment of said law, has exceeded its constitutional authority, and directed patents to be issued to the States for lands to which individuals had previously acquired a good title, the courts are open for redress of their grievances. In the specific case under consideration, it does not appear, therefore, that this Department can now permit Mr. Ludlow to enter any of the lands embraced in his memorandum of January 2, 1856, or can respect his claim for patents, or entertain any appeal from a decision of the Surveyor-General in favor of the claim of the State of Illinois to selections of swamp lands that may have been contested by him, under the regulations of the General Land Office, issued in December, 1855, and February, 1856. Your decision, adverse to further proceedings in Mr. Ludlow's case, is therefore hereby affirmed, and you will proceed in patenting the confirmed swamp selections to the several States, in accordance with the views above expressed.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 590. Explanatory of the Instructions under the Swamp Land Grant of Sep

tember 28, 1850.


January 22, 1858. Sir I have the honor to acknowledge the receipt of your letter of the 12th instant, in which you desire me to report whether, in my opinion, in bringing to a close the grant of September 28, 1850, (No. 182,) in cases of selections reported to this Office since the 3d March, 1857, (No. 319,) and in cases where the selections yet remain to be made, the general instructions of November, 1850, are sufficient, and should be adhered to, or should new or additional regulations be adopted.

After the adoption of the Circular of November, 1850, many questions were presented relative to the extent of the requirements in said circular, and the duty of the Surveyors-General acting in virtue thereof. And to avoid, as far as possible, any misapprehension, the Surveyor-General of Arkansas, who, it seemed, had not fully comprehended the instructions above referred to, and those thereafter issued, explaining their true intention, was addressed in a communication from this Office, dated April 8, 1854, embodying the instructions on this subject, and which were to be regarded as overruling those explanatory of the Circular of November, 1850. These instructions are applicable to all those States where the selections are made by agents appointed under State legislation, except in the States where the office of Surveyor-General does not exist. In such case, their selections are subject to the revision of this Office; and, in order that


you may fully understand the evidence required in the adjustment of the grant, I will here give you so much of said communication as relates to the subject.

“In all cases where the plats and field notes represent the lands as swampy, or subject to such overflow as to render them unfit for cultivation, they belong to the State, under the law, and will be so certified.

“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 each forty-acre subdivision of the lands is of the character specified in the act.

“ This point has always been maintained by this Office, and if any instructions heretofore issued have been otherwise construed, it has been an

The field notes and plats are only 'incontrovertible when they clearly indicate the swampy character of lands, and the reason for this distinction was explained in the Circular Letter of November 21, 1850, a copy of which, accompanied by the printed instructions of that date, was transmitted to his Excellency, the Governor of Arkansas, and in which the following language was used :You will perceive, that by these instructions, the Surveyor-General is anthorized to receive such reliable evidence, as to the character of any of these lands, as may be presented by the authorities of the State; and, as many of the lands were, probably, surveyed at dry seasons, and hence are not represented by the descriptive notes and plats as being of that character, I have supposed,' &c.

"The misapprehension now existing, doubtless arises from the fact that this Office still continues to require an examination of the lists of the State locating agents, with the field notes, &c. You will observe, however, that such examination is not regarded as final or conclusive. If said records clearly indicate the swampy character of lands, then they are incontrovertible, and your certificate of approval is based thereon; but in the event of their being silent, or even indicative of a contrary character, you have recourse, under instructions, to the evidences furnished by the State authorities, and if that be deemed by you sufficient and satisfactory, you are instructed to certify the lands to this Office. If such testimony be insufficient, you are authorized to require from the State authorities the production of such further evidence as will enable you to give the required certificate, and if not furnished, you will reject the selections.

“The evidence, as already stated, must be satisfactory to you, that the lands claimed by the State are of the character granted by the law. Where that evidence is not contained in the field notes, you should require the testimony of competent and disinterested witnesses, who should be required to testify that they understand the mode and manner of surveying and marking the public lands; that they have examined the lines and corners of the lands in relation to which they testify, and so much of the surface as to enable them to state, of their own personal knowledge, that the greater part of each forty-acre lot claimed by the State, is swampy, or subject to such overflow as to render it unfit for cultivation. On such testimony, whether presented heretofore or hereafter, if satisfactory to you, you will certify the lands to the State.

“In reference to the necessity of an examination of the surface of the land in each subdivision claimed, I would remark, that in all instances a partial, and in many, a complete examination must be necessary, to enable agents to certify, under oath, 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. The only exception, of course, being in cases where a region of country is notoriously swampy, or subject to overflow.''

It should be observed, that in the States of Michigan and Wisconsin, the field notes of the surveys were adopted by the authorities, as the basis upon which they would accept the grant; and the action of the SurveyorsGeneral of those districts is confined to the indications expressed in the field notes.

In view, therefore, of the very clear and definite character of the explanatory instructions above, and further, that the authorities of the States affected by the grant, have made no objections to the instructions, I cannot perceive that any additional instructions and regulations are required. Nor does the Act of 3d March, 1857, present to me any particulars requiring a departure, or any necessity for additional instructions to be issued to those already established, relating to the selections made and reported to this Office since the passage of that act, or to those remaining to be made.

With great respect,
Your obedient servant,

Thos. A. HENDRICKS, Commissioner. Hon. Jacob Thompson, Secretary of the Interior.

No. 591. Land claimed as Swamp, within the six and fifteen mile limits of a Railroad grant, must be shown to be such.


August 12, 1858. I have carefully considered your report of the 10th ultimo, and the papers therewith submitted at the instance of A. W. Bell, Esq., agent for the State of Louisiana.

The principal objection taken and urged is to that paragraph of your letter to Mr. Bell of the 1st ult., wherein you say, that the language of the Act of 3d March, 1857,(No. 319,) renders it necessary that those lands claimed as swamp, and designated by odd numbered sections, within the six and fifteen mile limits of the grant to aid in the construction of certain railroads, should be suspended until the character of the lands shall be determined under investigation ordered by this Office, and we are thus enabled to ascertain under which grant the lands shall be certified.” Understanding that

you have reference in the paragraph quoted, to cases wherein the location of the road has been definitely fixed upon, and a route or line surveyed and staked off on the ground, prior to the 3d March, 1857, the date of the Act of Congress confirming certain swamp selections, I do not find any error in your decision.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 592. A party applying informally to enter lands which had been erroneously selected as Swamp, acquired no right thereby.


August 31, 1858. Having examined the case submitted with your report of the 24th May last, wherein Elisha T. M'Clure appeals from your decision in favor of the validity of the entry, per certificate, No. 11914, by Gideon S. Dickinson,

at Washington, Arkansas, I concur in the opinion expressed by you, and your said decision is accordingly hereby affirmed.

It appears that M'Clure appeared at the local office, and expressed to the Register a desire to enter the land in controversy, stating that he had the money with him to pay for it. He was informed by the officer that he could not do so, as the tract had been selected as swamp lands. This information was erroneous; and the lands were subsequently entered by Dickinson. There is no evidence or charge of any collusion or bad faith against the Register or Mr. Dickinson, nor does M'Clure show that he made formal application to purchase, and tendered the money to the Receiver; and his informal request to make the entry, did not give him a right which is superior to that of a purchaser, who subsequently made the legal application and payment for the lands. The papers in the case are now returned.

J. THOMPSON, Secretary. Commissioner of the General Land Office.

No. 593. In cases where the Executive of a State demands a patent for lands as

Swamp, which have been approved as such, the patent should issue, notwithstanding an adverse Railroad claim.


October 24, 1858. Herewith I return the “ Arkansas True Democrat,” of August 4, 1858, submitted with your report of the 16th instant, upon a communication of E. H. Porter, Esq., of Arkansas, which had been filed in this Office on the 14th instant, and referred to you.

The newspaper above mentioned, contains a “public notice” issued by the Governor of Arkansas, and dated the 24th of July, 1858, embodying therein your instructions to the Surveyor-General of Arkansas, directing an examination to be held as to the character and description of a large number of tracts of lands, which have been selected and reported as swamp lands enuring to the State under the Act of Congress of September 28, 1850, (No. 182,) a claim to the same lands having been set up in behalf of railroad companies, under the grant to the State by Act of Congress, approved February 9, 1853, (No. 216.) In your instructions to the Surveyor-General, I do not observe that any distinction has been made between those tracts, the selection of which as swamp lands, has been approved and certified to the Governor of the State under the Act of Congress of September 28, 1850, and those tracts which have been selected and reported, but not finally certified to the Governor, as enuring to the State under the swamp land grant. Your letter of the 28th May, 1857, to M. Brayman, Esq., a copy of which you have submitted with your recent report, exhibits the same views, according to which your instructions of the 27th April, 1858, to the Surveyor General, appear to have been prepared. On consideration of this branch of the case now before me, on the appeal of E. H. Porter for himself and others, who claim that a patent shall issue to the State for said lands, under the swamp land grant, I am of the opinion that the question of the swampy character of such tracts as have been carried into approved lists, and certified to the Governor of the State as such, has already been determined affirmatively, so far as the action of this Department is concerned, and con

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