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14th proximo, be with held from the sale, because they have heretofore been sold by the State as swamp lands, I have to state, that if any of the lands so sold by the State, are shown by the field notes of official survey, to be of the description granted, by the Act of Congress of the 28th September, 1850, they should not be offered by the Register and Receiver at 'public sale. I am also willing that the United States Surveyor-General, receive testimony as to the swampy character of particular tracts, claimed under purchases from the State, and if that evidence establishes, prima facie, that the lands are swamp and overflowed, that he should so advise the district land officers, and direct them to suspend the sale of such tracts; but I do not find authority of law for ordering the reservation from sale of all lands that the State of California may have sold, when there is nothing on our official records, authoritatively indicating that the lands have been granted to that State. The papers which accompanied your report are now returned, and you will be pleased to give instructions to the Surveyor-General immediately, who will take the most prompt measures practicable, to carry out the views above expressed.

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

No. 598.

Where lands are claimed by a State, under both the Swamp and Internal

Improvement Grant of 4th September, 1841, it must be found whether the selection under the latter had been made and certified prior to the Act of September 28, 1850; if so, the internal improvement selections will be approved.

DEPARTMENT OF THE INTERIOR,

April 20, 1859. Herewith please find the lists of certain lands in the Newnansville District, Florida, which were submitted with your report of the 15th instant.

In respect to the lists C and D, I have adopted your recommendation, and affixed my signature to them.

List E, is a list of lands, which have been selected as enuring to the State, under the swamp grant of September 28, 1850, but had before the date of the swamp selection, been also selected for the State of Florida, as a part of five hundred thousand acres, granted for internal improvement, by the Act of September 4, 1841. If the selection as a part of the grant, by the Act of 1841, was made and certified to your office, or the local land office, prior to the 28th September, 1850, I will on being so advised, approve the selections. If, however, such selection has been made since the grant of September 28, 1850, the internal improvement selections will be suspended, until the swamp selection is passed upon, and then such as are rejected as swamp lands, may be submitted for approval, as selections under the Act of September 4, 1841.

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

No. 599. The Department having recognized the title of the State, under a Railroad

grant, the selection of the same land as Swamp must be suspended, until the true description of the land can be ascertained.

DEPARTMENT OF THE INTERIOR,

Washington, May 21, 1859. . Sir :-Your report of the 2d instant, in the matter of the appeal of N. P. Causin, Esq., as attorney for purchasers from the State of Missouri, of certain tracts, selected as enuring to that State, under the grant by the Act of Congress of September 28, 1850, is before me, and after consideration of the same, in connection with your report of the 6th April last, my conclusions are as follows:

This Department having recognized fully the title of the State under the railroad grant, to the particular tracts in question, before the SurveyorG ral had reported them under the Swamp grant of September 28, 1850, their selection as swamp lands, is properly suspended at present.

I think that the proper course for you to pursue under the circumstances, will be, to notify the Governor of the State of the condition of the matter, and advise him that on the production of decisive evidence that the tracts, or any of them, are of the description of lands granted by the Act of Congress of September 28, 1850, they will be regarded in the class excepted from approval, by my predecessor of the 9th May, 1854, a prior legal right under the swamp grant, having vested before the approval as railroad tracts, was made. In the event of full proof that the tracts, or any of them, were on the 28th September 1850, within the description of lands granted by the act of that date, they will hereafter be submitted for approval, as swamp selections, and confirmed and patented accordingly.

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

No. 600.

Where lands selected as Swamp, in Arkansas, und approved, are shown to

have been dry at the date of the Swamp Grant, they should be omittel from the patent to the State.

DEPARTMENT OF THE INTERIOR,

Washington, June 25, 1859. Sir:-The list which accompanied your report of the 17th instant, is herewith returned. It appears that the lands therein described, pending an investigation of the fact of their being swampy or otherwise, under instructions of your office, of April, 1858, were inadvertently included in lists which have been reported to me, for approval, and approved. The investigation having been completed and reported to your office, you now find that the tracts were in fact dry, on the 28th September, 1850.

Under these circumstances, the proper course to pursue, I think, will be to omit these lands from the patents, to be issued on confirmed swamp lists, Nos. 3 and 4, in the Little Rock District, and to inform the Governor of the State fully, in respect to the mistake made, advising him that the lands will be listed as falling under the grant for railroad purposes, unless he should present paramount objections to that course.

J. TI1OMPSON, Secretary. Commissioner of the General Land Office.

No. 601.

Where a tract of land has been approved and certified as Swamp, its

swampy character must be regarded as being determined afirmatively. The listing of lands as Swamp, will not prevent the issuance of a patent to a Pre-emptor who has an older title.

DEPARTMENT OF THE INTERIOR,

Washington, July 22, 1859. Sir:-In returning the papers which were submitted, by request of Hugh Short, Esq., with your letter of the 20th inst., I remark, that when a tract has been selected, and has been approved and certified as a swamp tract, enuring under the Act of 2d March, 1849, to the State of Louisiana, the fact of the land being of a swampy description must be regarded by us as affirmatively determined, and not to be drawn in question, or subject to a different adjudication.

In this case, if Benbrook, or his heirs, had a valid claim to the land, which had vested prior to the date of the swamp grant, the tract or tracts were not of those granted by that law, but were specially excepted from the grant; and as the approvals of selections are uniformly made, subject to valid legal rights to any of the tracts, the lands in controversy would be of the class excepted from approval. The listing of the lands, as part of the swamp grant, will not be an insuperable obstacle to the issuance of a patent on the pre-emption entry, if the pre-emption is the older and better title. Should the decision of your office be in favor of the pre-emption, as the superior title, the Governor of Louisiana should immediately be informed of your decision, and the position of the Department in regard to the case.

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

No. 602.

In cases where lands are claimed under both Swamp and Railroad Grants,

if the title under the latter had not vested prior to March 3, 1857, they would pass under the Swamp Grant.

DEPARTMENT OF THE INTERIOR,

Washington, July 23, 1859. Sir:-Your report of the 15th instant, has called my attention to the fact that affidavits were on file in the General Land Office, on the 3d March, 1857, which had been presented under Circulars of the 21st December, 1855, and 11th February, 1856, in which it is represented that certain tracts of land were dry, which had been selected as swamp lands, under the grant of 28th September, 1850, and carried upon lists which had been regularly reported, and were on file in your office, on said 3d day of March, 1857. These tracts are also of the legal designation of lands which would fall to the State of Iowa, under grants for railroad purposes. The confirmation of the selection as swamp lands, has for some time been suspended, and the question arises, what course shall be adopted in the adjustment of the two grants, as regards these particular tracts of land.

It is a very obvious remark, but quite important in this connection, that the State is entitled to all these tracts, under one or the other of the two grants. The only interest or object which the United States and its officers can have, is a faithful administration of the laws making the grants. This we shall not accomplish by delay in administering one, because of the existence

of the other. Should the adjustment be delayed for investigations to be made, we could only expect thereby to avoid a few mistakes, which, if made, we may assume, would not seriously injure any one; and to the State and the United States, the delay would be a greater detriment than any number of errors that can occur.

The Act of Congress of the 3d March, 1857, confirmed all selections under the swamp grant, which had been regularly reported, and were on file in your office at that date, so far as the lands remained vacant and unappropriated; and we need not now inquire whether lands so selected and reported, were or were not swampy, on the 28th September, 1850, if they remained vacant and unappropriated on the 3d March, 1857. If, therefore, the title of the State, under the grants for railroads, to the particular tracts now under discussion, had not vested prior to the 3d March, 1857, I think Congress has decided that the land should pass under the swamp grant; and with cases of that kind, you may at once proceed with the certification and patenting of the tracts.

If, however, the title, under the grants for constructing railroads, to any of the tracts under discussion, had vested prior to 3d March, 1857, such tracts were appropriated, and they should not be carried upon the swamp lists, unless they were in fact swamp lands, on the 28th September, 1850. The question of the description of such tracts,--whether swamp and overflowed or otherwise, at the date of the swamp grant, you may examine and determine, upon the record, papers, and affidavits now on file; and if you find that they were of the description of the lands granted by the Act of 28th September, 1850, you will so report; but if the record and evidence before you will not warrant that decision, the selection as swamp may at once be rejected, and the lands may be carried upon the lists of lands enuring under the grants for constructing railroads, and the title of the State, under those grants, fully recognized.

The above remarks, it is believed, are entirely consistent with the position the Department has maintained since the 3d March, 1857, and are merely in exemplification of the views embodied in my letter to you of the 15th April last.

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

No. 603. The State authorities of Wisconsin having adopted the field notes of survey

as determining whether lands were Swamp or not, the Secretary declines ordering a change in that respect.

DEPARTMENT OF THE INTERIOR,

Washington, August 1, 1859. Sir:-Concurring in the views of your office, relative to the survey of islands in the Mississippi and Wisconsin rivers, which are claimed to be of the description of lands granted to the State of Wisconsin by the Act of Congress, approved September 28, 1850, and in your opinion unfavorable to a change of policy in setting apart the lands which enure to that State, under that act, I deem it proper to add a few observations in reply to the letter of Governor Randall of the 2d May last, submitted with your report of the 6th ultimo.

Since the grant was made, and up to the present time, the field notes of the public surveys have been the basis of the selections, and on that basis more than one million six hundred thousand acres have been selected and approved to the State.

The Act of Congress imposed the duty of setting apart these lands upon the Secretary of the Interior, and in November, 1850, two plans for the performance of this duty were suggested, and the Governors of the several States were requested to inform the Department which plan they deemed preferable, so far as the interests of their respective States were concerned.

The Governor of Wisconsin, in June, 1851, after mature deliberation and consideration of the best interests of the State, advised the Land Office that Wisconsin would be willing to adopt the field notes of the United States surveys as the basis of setting apart the granted lands.

The present Governor, however, in a communication of the 2d May last, says that the surveys in Wisconsin previous to 1850, had no been very accurate, and all the lands that ought to be listed as part of the grant, were not by the field notes of those surveys, shown to be unfit for cultivation without artificial drainage or embankments.

He therefore expresses the opinion that Wisconsin, out of the lands that had been surveyed and remained unsold on the 28th September, 1850, within her limits, is entitled to "a further amount of lands;" and he suggests a re-examination and resurvey, with a view of ascertaining what lands have been erroneously omitted from the lists of swamp lands, that they may be hereafter certified to the State.

The most serious objection to this course is, that it would unsettle everything that has been done. The re-examination would necessarily extend to the lands heretofore certified and patented, and the State would have to restore to the United States such tracts as may have been improperly listed as enuring to her; for it could not be asked that all errors and inaccuracies should be corrected in favor of the State, but none corrected against her.

The inevitable results would be, delay in administering the grant, dissatisfaction and litigation among the citizens of the State, and appeals to the legislature for relief or damages.

A second consideration is this : our predecessors in office, both on the part of the State and the United States, in view of all the facts existing at the time, concluded that the method of adjustment adopted, was the most just and fair, and dictated by the best interests of Wisconsin. As I view the matter, they stood in just the same relation to the subject as we do; and I should hesitate to adopt any other plan than the one entered upon by them, even if my opinion did not agree with that which they entertained. What rendered their action peculiarly appropriate was the consideration of the fact, that the best knowledge which Congress possessed in 1850, of the swamp and overflowed lands unfit for cultivation, surveyed and then remaining unsold, may be presumed to have been derived from those official records, the field notes of survey; and the tracts thereby shown to be unfit for cultivation, at that time, may be regarded as those which, especially, Congress intended to grant.

We will bear in mind that Governor Randall, alluding to surveys which have been made and returned since 1850, states, that they “ have been made with more care, and are more satisfactory,” thus waiving any complaint against the plan of selection that has been pursued, in respect to its operation in those districts when the surveys have been made since 1850.

As it thus appears that the plan of administering the swamp grant in Wisconsin, was fully endorsed by the State officers at its inception as just and beneficial; as no serious complaint has arised during a period of nearly nine years, and as its present and future operation are not the subject of any complaint, I think we have a very strong case against a change. It

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