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tests on that point can no longer be properly entertained; but in regard to such tracts as have never been certified to the State, the character and description of the soil may still be inquired into, where a claim to the lands as dry or fit for cultivation without artificial drainage or embankment, is set up under the Act of February 9, 1853. When selections under the Act of September 28, 1850, have been approved and certified, the duty of designating the granted lands imposed by the law on this Department, has been discharged, the acts done cannot be recalled or annulled, and the State has a right to demand a patent for the tracts of land embraced in any certified list that has been delivered to the Governor.

To a demand therefor, this Department responds by issuing a patent pursuant to such certified list, except in those cases in which we are directed to issue the patent for any of the tracts, to a purchaser or purchasers from any of the United States land officers, under the requirements of the Act of March 2, 1855, (No. 275,) or of the last clause of the Act of March 3, 1857, (No. 319,) reviving and extending said Act of 2d March, 1855. It is believed that the uniform course of the decisions of this Department since my attention has been called to these questions, has been consistent with the views now expressed. The decisions of the 29th December, 1857, in the cases from Illinois and Missouri, involved the same principles, and those of the 8th of January, 28th of April, and 12th of August, 1858, are in harmony with the present decision. In all cases, therefore, where the Executive of any State demands a patent for lands which have been approved and certified to said State as enuring under the Act of September 28, 1850, the patent should be issued, notwithstanding any claim that the same tracts ought to be recognized or certified as falling to the same State under a subsequent grant for railroad purposes.

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

No. 594.

Lists of Swamp Selections regularly reported, which had been received

prior to 3d March, 1857, must be regarded as selections pending at that date, except in certain cases, &c.

DEPARTMENT OF THE INTERIOR,

November 1, 1858. Your reports of the 22d July last and 16th ultimo, and the papers therewith, in reference to the claim of the State of Arkansas, under the

swamp grant of September 28, 1850, (No. 182,) and the confirmatory Act of March 3, 1857, (No. 319,) to patents for lands described in certain lists on file in the General Land Office, have been carefully considered.

From the full investigation and mature reflection bestowed on the matter in controversy, I am of the opinion that the lists of selections made by the State locating agents, and regularly forwarded by the Surveyor-General, and which had beeu received at your office prior to the 3d March, 1857, must be regarded as selections "made and reported” to your office, and pending at that date; excepting so far, as by the action of the Surveyor-General or of your office, taken prior to said date, particular tracts on said lists had been noted as dry,

“not swampy, or not granted by the Act of 1850.” Notes on any list, having such purport, and reports from the Surveyor-General, or decisions of your office rejecting in terms, the work of a particular agent, as improperly, incorrectly, or unreliably done, I regard as specific determinations, adverse to the claim of the State to the particular tracts thereby affected; by which determinations, the lists in your office have been purged and reduced in a corresponding degree. For the other tracts on such lists, patents should issue to the State, except in cases where the lands have been otherwise appropriated, or the claim of the State is interfered with by an actual settlement, made under law prior to the date of the Act of 31 March, 1857, or where under that Act, or the Act of March 2, 1855, we are directed to issue the patent to a purchaser from the United States.

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

No. 595.
Where Lands are claimed under a Swamp and a Railroad Grant, either

of which would be good if the other were out of the way, the elder one

must prevail. The Swamp Act of 28th September, 1850, is a present grant. The General Description of all Swamp and Overflowed Lands is definite enough for notice.

ATTORNEY-GENERAL'S OFFICE,

November 10, 1858. Sir:-By the Act of September 28, 1850, Congress granted to the State of Arkansas all the swamp and overflowed lands rendered unfit for cultivation thereby within her limits, for certain purposes mentioned in the Act. On the 3d October, 1856, the Surveyor-General made a report, which was filed in the General Land Office, designating the overflowcd lands which had been selected by the State under the grant. On the 9th February, 1853, Congress made another grant to the States of Arkansas and Missouri, to aid in the construction of a railroad; and under this grant, a part of the lands previously granted to the State of Arkansas under the denomination of swamp lands, was included, and is now claimed for the use of the railroad. The question upon which you ask my advice requires a comparison of the two laws, and the acts done under them, so as to ascertain which of these is the better title. Does the State take it under the first grant, or was that grant so imperfect, that the subsequent disposition of it by Congress passes the right to the later grantee?

Where there is a conflict between two titles derived from the same source, either of which would be good, if the other were out of the way, the elder one must always prevail, prior in tempore, portior est in jure.

This difficulty, therefore, is solved, if the mere grant, as you call it, gave the State a right to the land from the day of its date. That it did so, there can be no doubt. In an opinion which I sent you on the 7th of June, 1857, concerning one of the same laws now under consideration, I said that a grant by Congress does of itself, proprio vigore, pass to the grantee all the estate which the United States had in the subject matter of the grant, except what is expressly excepted. I refer you to that opinion for the reasons and authorities upon which the principle is grounded. It is not necessary that the patent should issue before the title vests in the State under the Act of 1850. The Act of Congress was itself a present grant, wanting nothing but a definition of boundaries to make it perfect; and to attain that object, the Secretary of the Interior was directed to make out an accurate list and plat of the lands, and cause a patent to be issued there. for. But when a party is authorized to demand a patent for land, his title is vested as much as if he had the patent itself, which is but evidence of his title. The authority given to the State legislature to dispose of the lands upon the patent, does not make the grantee less the exclusive owner of them than she would be if those words were omitted. The object of that clause undoubtedly was, to prevent the legislature of the State from a premature interference with the lands, before they were so designated as to preclude mistake and confusion.

The subsequent grant by Congress to the State for the use of the railroad, could not have been intended to take away from the State the rights previously vested in her for other purposes. We are never to impute such intentions to the legislative department, where any other construction can be given to the words of a statute. Even if we could suppose that to be the meaning of Congress in this case, it would avail nothing to the later grantee, since in all cases of conveyance, a later grant must yield to an earlier. It has often happened that public grants, by mistake, have been so described in general words, that when they come to be located, they are found to lie afoul of each other. I believe it has never been thought that where this happens, they are not to be treated like inconsistent deeds made by private persons. There are cases in which grants are made under descriptions so vague and indefinite, that neither the grantee nor any other person can tell their location or boundaries, until the grantee does some act which locates and defines them. In such case, if another right which is strictly defined intervenes, the first grantee may lose what he would have been entitled to, if his own grant had been descriptive and definite. But that principle does not apply here, because the general description of all swamp and overflowed lands within the limits of Arkansas is definite enough for purposes of notice. Besides, the grant for the railroad was originally much more indefinite than the other, requiring the location of the road to be made before the locality of the lands could be known at all. The State proceeded to make her selection, and to fix the location of the lands definitely, before the railroad did any such thing with its grant. The State, therefore, has the oldest and the most definite title, and its lands were accurately located, and their boundaries particularly defined agrecably to the Act of Congress, before the same thing was done by the other claimants. The oldest title, the most definite, and the first location, will surely give her priority and preference over another grantee subsequent in title, less definite in the terms of the grant, and later in location.

I am, very respectfully, &c.,

J. S. BLACK. Hon. Jacob Thompson, Secretary of the Interior, Washington, D. C.

No. 596. Lands not Swamp, but which had been selected as such, if previously ap

propriated by a Railroad Grant, are not confirmed by the Act of 3d March, 1857. Where lands in the limits of a Railroad Grant, though not Swamp or

overflowed, were reported prior to the final location of the road, and said rond was not finally located until after 3d March, 1857, they were confirmed.

GENERAL LAND OFFICE,

December 2, 1858. Sir :-Referring to your communication of the 19th inst., enclosing the opinion of the Attorney-General of the United States on the question of conflict of interest between the Swamp Grant of September 28, 1850, (No. 182,) and the Railroad Grant of February 9, 1853, to the States of Arkansas and Missouri, I have the honor to state, that in view of said opinion a question of much magnitude and importance has arisen, which I present for your consideration and decision.

The grant of September 28, 1850, is of “the whole of those swamp and overflowed lands, made unfit thereby for cultivation."

The grant of February 9, 1853, (No. 216,) is of "every alternate section of land designated by even numbers, for six sections in width, on each side of said road and branches," with the right of indemnity within the limits of fifteen miles, for lands of the granted sections disposed of by the United States.

Under the Public Notice of December 21, 1855, the railroad companies in Arkansas filed protests against the approval, as swamp, of many tracts within the limits of that grant, alleging that they were not of the character of lands granted by the Act of 1850.

The Act of 3d March, 1857, (No. 319,) confirmed the selections of swamp and overflowed lands, then made and reported to the Commissioner of the General Land Office, “ so far as the same shall remain vacant and unappropriated, and not interfered with by an actual settlement under any existing law of the United States."

The routes of the roads in Arkansas were definitely fixed prior to the passage of that act.

It is held, that all contests by individuals, undetermined at that date, except in the case of settlers, are brought to a close,

This law expressly excepting from confirmation lands appropriated by Congress for other purposes, instructions have been issued directing an investigation into the character of the lands described in the protests above referred to.

It will be observed, that in these cases the railroad companies had protested against the recognition of the claim of the State, under the swamp grant prior to the Act of 3d March, 1857.

The question now arises, whether these contests are terminated by the opinion of the Attorney-General of the 10th inst.

My opinion is, that they are not, for the reason that the grant of 1850 was, by description, “swamp and overflowed,” and that no title vested in the State under it, except for lands of that description; that the Railroad Grant of 1853 is of lands, (not disposed of,) in place, and that it took hold of all dry lands not subject to overflow, falling within the granted boundaries, and they thereby became appropriated, notwithstanding the State may have wrongfully selected and reported them as swamp or overflowed, prior to the location of the roads, and that upon the final location of the roads, such lands became disposed of, (see Opinion of Attorney-General of June 7, 1857,) and are not confirmed by the Act of 3d March, 1857.

The question, in a modified form, will probably arise in other States. In 1856, grants were made to Iowa and other States for railroad purposes. The routes of some of the roads were definitely fixed prior to the passage of the Confirmatory Act of 3d March, 1857, and of some of them subsequent thereto.

I have the honor to ask your decision on the following points :

1st. Where lands, within the limits and description of a railroad grant, which were not in fact swamp or overflowed, but were selected and reported as such, prior to the final location of the railroad, and said road became located prior to the Act of 3d March, 1857, did that act confirm such selections as unappropriated lands, and must the lands be patented to the State

under the swamp grant? or, on the other hand, did they become appropriated by the railroad grant, and the final location of the road; and shall the investigation proceed upon the contests made by the railroad companies, with a view to ascertain the real character of the lands, whether they be swamp or dry ?

Upon this question, I have expressed my opinion above.

2d. Where lands, within the limits and description of a railroad grant, which were not in fact swamp or overflowed, but were selected as such, and reported to the General Land Office prior to the final location of the railroad, and said road did not become finally located until after the passage of the Act of 3d March, 1857, did that act confirm such selections, and must they be patented to the State, under the swamp grant? or, on the other hand, did they become appropriated upon the passage of the railroad grant; and shall the investigation proceed upon any contests that may be made by the railroad companies, with the view to ascertain the real character of the lands?

Upon this question my opinion is, that the Act of 3d March, 1857, did confirm the selections.

With great respect,
Your obedient servant,

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

The following is the reply to the foregoing.

DEPARTMENT OF THE INTERIOR,

Washington, December 10, 1858. Sir :-Having carefully perused your report of the 2d instant, communicating your views upon certain questions arising in the administration, by your office, of the swamp and railroad grants, I have to inform you that I fully concur in the opinions expressed by you.

They are regarded as having been sustained by my Decisions of 29th December, 1857, in the case from Missouri ; of 8th January, 1858, in the case from Illinois; and of 28th April, 12th August, and 230 November last, in cases from the State of Louisiana; and as being in harmony with the Opinions of the Attorney-General of the United States, of June 7, 1857, and November 10, 1858, and will therefore be the basis of your official action. Very respectfully, your obedient servant,

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

No. 597. Where lands which have been sold by the State of California as Swamp,

are shown by the field notes to be of that character, they should not be offered at public sale.

DEPARTMENT OF THE INTERIOR,

January 17, 1859. Having considered your report of the 6th instant, upon the communication of the Governor of California, suggesting that certain lands, which are advertised to be offered for sale by the United States land officers, on the

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