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No. 581.

Selections of Swamp Land, whether approved or not, held to be in the same

condition, until the approval shall be communicated to the local land office.

DEPARTMENT OF THE INTERIOR,

September 18, 1855. I herewith return the papers enclosed in yours of the 10th instant, on the subject of swamp land selections contested by individuals.

The paper of Judge Davis speaks of the late Commissioner's making a distinction between "lands approved, but approval not sent to Illinois, and those not yet approved.” My understanding of the decision, and the principle upon which it is based, leads me to suppose that there is a misunderstanding in this respect; I can see no difference between selections approved and not approved, unless the approvals have been officially communicated to the land officers, and by their being marked upon the books or plats, placed the land in question in a different condition than when simply noted as a selection; and I do not think that the distinction should be made, until after the latter course has been taken, and the public thus advised by the proper information through the books of the land office, of the change in the character of the selection.

I must also decline authorizing any suspension of action under the existing law, to await action by Congress.

R. M'CLELLAND, Secretary. Commissioner of the General Land Office.

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No. 582. In the State of Wisconsin, lands are determined to be Swamp or not, by

the field notes of survey.

DEPARTMENT OF THE INTERIOR,

October 4, 1855. I herewith return the papers received in yours of the 2d instant, on the appeal of John Winans, through his attorney, B. H. Baldwin, Esq. It appears that certain lands in the Menasha District, Wisconsin, indicated by the field notes of survey as swamp land, and in consequence thereof, reported as such by the Surveyor-General, have been applied for by Mr. Winans, and his right of entry insisted upon, on the ground that the lands are not swamp Your office has decided, upon the principle early adopted in reference to these selections, and applied, it is believed, in all the States to which the grant of these swamp lands extended, that the field notes of survey were to be regarded as conclusive upon the subject, and the Department feeling no disposition to change this principle, nor interfere with the various cases already determined upon its basis, confirms the action had by you this particular case, especially, as in the case in the same State to which you refer in your letter, the action recommended therein by your office, was adopted by the Department, with a full knowledge that it was thereby sanctioning this principle, and in effect deciding the very question now specially presented in Mr. Winans's appeal. I would, however, take occasion to state, that it might be well for your office to refer the matter to the Surveyor-General, with a view to the re-examination of his field notes, and his report of the manner of his determining therefrom the swampy charac

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ter of the particular tract specified by Mr. Winans, provided copies of such notes are not in your possession, to enable you to verify the correctness of the selections, as based thereon.

R. M'CLELLAND, Secretary. Commissioner of the General Land Office.

No. 583.

The Swamp Grant of 2d March, 1849, covers all the swamp land in Louisi

ana, with the exceptions specified. The approval of the lists, exhausts the power of the Secretary over the

subject. The Act of 1849 is not merged in that of 1850. The term "scripdoes not refer to that issued by the State.

DEPARTMENT OF THE INTERIOR,

January 14, 1856. I herewith return the list of swamp land selections, under Act of 2d March, 1849, (No. 166,) in the New Orleans Land District, which accompanied your letter of the 16th November last. I have given the subject connected with said list, and the various points involved and set forth in your letter, the most careful and attentive consideration, and have arrived at the following conclusions, that the Act of 2d March, 1849, covers all the swamp and overflowed lands in Louisiana, with the exception refered to in the 2d and 3d sections of said Act, to wit, such tracts as at the date of their selection, may have been “claimed or held by individuals,” and such tracts fronting on rivers, crecks, bayous, watercourses, &c., which have been

surveyed into lots or tracts, under the Acts of 3d March, 1811, and 24th May, 1824;” that the approval of the list directed to be prepared under Act of 1849, exhausts the power of the Secretary of the Interior over the subject matter, and he can no more, of his own motion, revoke or cancel any part of an approved list under that act, after it has passed from him, than a patent for land after its delivery; that the Act of 1849 is not merged in the Act of 1850, but each is to be executed according to its special tenor and provisions, the latter being merely cumulative, and embracing land which was excepted from the operation of the former; and that the term "scrip,” in the Act of 2d March, 1855, does not refer to the “internal improvement warrants," "school warrants," "seminary warrants," or any other like expedient adopted by the State of Louisiana to locate, and at the same time dispose of land which she might legally claim, under the several laws of the United States, making grants to her internal improvements, schools, seminaries, &c. The Act of 2d March, 1855, (No. 275,) in authorizing the President to issue patents to purchasers or locators, where the purchases or locations interfered with swamp land selections, contemplated only such cases of individuals to whom patents would under ordinary circumstances have been issued, and of course, where the “scrip” location was based upon an instrument bearing that designation, issued by authority of the United States.

R. M-CLELLAND, Secretary. Commissioner of the General Land Office.

No. 584. Land selected as swamp, if it is of that character, will be approved as such,

notwithstanding it may also be selected under the 8th section of Act of 4th September, 1841.

DEPARTMENT OF THE INTERIOR,

January 15, 1856. Referring to my letter of yesterday, on the subject of the Louisiana State scrip, I am of opinion that the Act of 2d March, 1855, (No. 275,) has no applicability to the case, the subject of this communication ; but that your action of February, 1855, in rejecting the selection under Act of 1841, (No. 48,) made nearly four years after the swamp land selection, was correct, provided the land was of the character contemplated by the Act of 2d March, 1849, (No. 166,) and that the only point of investigation now necessary, is, as to the swampy character of the land. If after an investigation into this question, after due notice to parties interested, you should be satisfied that the land is swamp and overflowed, and unfit for cultivation, you will submit the selection for my approval, under Act of 1849; if it is not, then the State selection under the Act of 1841, will be submitted for such approval.

R. M‘CLELLAND, Secretary. Commissioner of the General Land Office.

To a like effect as the foregoing.

DEPARTMENT OF THE INTERIOR,

January 15, 1856. The land in question has been selected as swamp land, under the act of 28th September, 1850, (No. 182,) and if really swamp land, was granted to the State of Louisiana by said act; and the selection as internal improvement land, subsequent to the date of that law, through the medium of State internal improvement warrant, No. 610, could not affect the validity of the swamp selection. The State would not knowingly have located land already granted to it by another law.

R. M'CLELLAND, Secretary. Commissioner of the General Land Office.

No. 585.

Lands erroneously embraced in a private claim, if swamp, at the date of

the act, would be subject to selection. If they had been reclaimed by leveeing, this would be a bar to any right of the State.

DEPARTMENT OF THE INTERIOR,

June 21, 1856. The subject matter of your letter of the 3d December last, has been fully considered, and I can see no just reason for denying the right of the State to the land really swamp and overflowed, merely because, at the passage of the Swamp Land Act of 1850, (No. 182,) it was set apart as land within the limits of an alleged private claim, and which private claim has been since determined to be invalid, and the lands restored to the mass of public lands.

The spirit and intent of the Swamp Land Act, were to grant to the States referred to therein, all the land of the particular character referred to,

SWAMP LAND SELECTIONS.

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within their respective limits, to which the United States had title, and which had not been reserved for some special purpose, inconsistent with the idea of any other disposition thereof, without special authority. In the matter of the reservation or setting a part certain tracts of land for these alleged private claims, it was merely a with holding them from sale or other disposition by the land officers, during the continuance of the reservation, with a view of preventing conflicts of interest, whilst the investigations were in progress, as to the public or private character of the land, and when the former was settled as its status, it became on the return thereof to the mass of public lands, subject to the laws which made a specific grant of all public lands for other purposes, according to the provisions thereof existing, at the time of such return. *

Although it is therefore considered that the private claim of Dr. Villemont, would afford no bar to the selection of the land, as swamp and overflowed land, if it be really such, or was so at the date of the Act of 1850, the other point made by you, to wit, that the tracts in question, if once swamp, had, prior to the date of said Act, been reclaimed by leveeing, &c., is entitled to great weight, and in my opinion would be a bar to any right on the part of the State. That right did not extend to land which at the date of the law, was not of the character contemplated by the grant.

R. M'CLELLAND, Secretary. Commissioner of the General Land Office.

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No. 586. Where an entry conflicted with a swamp selection, the land must be shown

not to be swamp, before it will be patented to the purchaser. The Act of 2d March, 1855, applies only to entries made prior thereto.

DEPARTMENT OF THE INTERIOR,

November 18, 1856. Sir:--The papers in the pre-emption case of James A. Hearick, accompanying your letter of the 12th inst., are herewith returned.

As his settlement would appear to have been made in good faith, and of a date anterior to the selection of the State of Illinois, under Act of 3d August, 1854, the Department confirms your decision in his favor, so far as the conflict between his entry and the aforesaid selection is concerned, but as the remaining portion of his entry conflicts with a swamp selection under Act of 1850, his right to such portion, viz., northwest quarter northwest quarter section 14, township 29, range 8, east, is dependent upon the fact, whether said tract is or is not swamp land, such as was contemplated by the Act of 28th September, 1850. If it is, then his claim cannot embrace that quarter-quarter section ; if it is not, then the whole entry as made by him should be patented. # I do not regard the Act of 2d March, 1855, (No. 275,) as authorizing the issue of patents to individuals for swamp lands, except where entries had actually been made at its date.

Respectfully, your obedient servant,

R. M CLELLAND, Secretary. Commissioner of the General Land Office.

No. 587.

In reply to the recommendation that a former approval of certain Swamp

Lands to the State of Missouri, be revoked, the Surveyor General having stricken the tracts from the lists, the following reply was made.

DEPARTMENT OF THE INTERIOR,

December 29, 1857. In my opinion the approval and certification of my predecessor, are the completion of a duty in regard to swamp and overflowed lands, imposed on the Secretary of the Interior by said Act of September 28, 1850, and his act cannot now properly be reviewed or recalled. The State authorities have a right to call for a patent or patents pursuant to certified lists, unless fraud or mistake has been discovered. The practice of the Department of late years has not been in accordance with those views, but the confirmatory Act of 3d March, 1857, (No. 319,) introduces a change of policy and indicates to me a principle of action in such cases which I do not hesitate to adopt.

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

No. 588.

A party who surrendered his duplicate .certificate of location on Swamp Land, prior to Act of 2d March, 1855, is not relieved by said Act, &c.

GENERAL LAND OFFICE,

January 2, 1858. Sir :-An appeal having been taken by the party in the case of Charles E. Pleasants from the decision of this Office of 14th November last, I have the honor to submit it herewith, and the following facts :

On the 17th September, 1852, the Register at Clarksville, Arkansas, permitted Charles E. Pleasants to locate warrant No. 40614, Act of 1850, upon the southeast quarter southwest quarter, and the southwest quarter southeast quarter, section 8, township 8 north, range 31, west. Of these tracts, the southeast quarter southwest quarter, etc., was selected as swamp land by the State of Arkansas.

On the 19th July, 1853, the location was cancelled because of the selection of part of the land by the State, as above stated.

On the 2d March, 1855, the act was passed authorizing the issue of patents to locators and purchasers of swamp lands.

On the 11th November last, the party applied to this Office for privilege to enter these tracts, the swamp tract, under the Relief Act of 1855, above named, and the other tract, under the customary preference of a former locator. In reply, he was informed that as to the swamp tract, his entire connection with it as a locator was extinguished before the Act of 2d March, 1855, the papers showing that before that date he had surrendered his duplicate certificate of location and sold his warrant : and as to the other tract, that whatever he might have expected at the time of cancellation, no exclusive preference of entry could properly be extended now, after so long a period had elapsed without his application, during which the tract had been selected by the Fort Smith and Little Rock Railroad under the Act of 9th February, 1853.

In taking his appeal, it will be observed that the party relies chiefly on the fact that in the letter directing the cancellation, and in the letter to

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