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SWAMP LANDS

UNITED STATES SWAMP LAND REGULATIONS

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 17, 1896.

As soon as practicable after the passage of the swamp land grant of September 28, 1850, viz, on the 21st of November, 1850, the commissioner transmitted to the governors of the respective States to which the grant applied copies of office circular setting forth the provisions of said act, giving instructions thereunder, and allowing the States to elect which of two methods they would adopt for the purpose of designating the swamp lands. viz:

1. The field notes of Government survey could be taken as the basis for selections, and all lands shown by them to be swamp or overflowed, within the meaning of the act, which were otherwise vacant and unappropriated September 28, 1850, would pass to the States.

2. The States could select the lands by their own agents and report the same to the United States surveyor general with proof as to the character of the same.

The following States elected to make the field notes of survey the basis for determining what lands passed to them under the grant, viz: Louisiana, Michigan, and Wisconsin. Later the State of Minnesota adopted this method of settlement.

The authorities of the following States elected to make their selections by their own agents and present proof that the lands selected were of the character contemplated by the swamp grant, viz: Alabama, Arkansas, Florida. Illinois, Indiana, Iowa, Mississippi, Missouri, and Ohio. Later Oregon adopted this method.

The States of Alabama, Arkansas Indiana, Mississippi, and Ohio adopted the second method at the beginning, but they changed to the first method, i. e., to the field notes of survey, as a basis of settlement, in recent years.

The authorities of California did not adopt either method, and the passage of the act of July 23, 1866, rendered such action on their part

unnecessary.

In Louisiana the selections under the grant of March 2, 1849, forming the bulk of the selections in said State, are made in accordance with the terms of said act by deputy surveyors, under the direction of the United States surveyor general, at the expense of the State.

All lands properly selected and reported to this office as swamp are placed of record in books especially prepared for that purpose. Thereafter the selections are compared with the other records of the

office, and lists of such lands as are shown to be swamp or overflowed, within the meaning of the act, and that are otherwise free from conflict are made out by this office and submitted to the Secretary of the Interior with the recommendation that the same be approved.

When the lists have been approved by the Secretary and returned to this office duplicate copies of the same are made out, one of which is transmitted to the governor of the State, with the statement that on receipt of his request patent will issue to the State for the lands. The other list is transmitted to the register and receiver of the land office in which the lands are situated, and they are requested to examine the same with the records of their office and report any conflicts found.

Upon receipt of reply to the letters of this office as above, patents issue to the State for all the lands embraced in said lists so far as they are free from conflict.

Under the provisions of the act of March 2, 1849, granting swamp lands to the State of Louisiana, a certified copy of the list approved by the Secretary of the Interior, transmitted to the governor, has the force and effect of a patent.

The "list" referred to in section 2 of the act of September 28, 1850, is held to be the copy of the list approved by the Secretary of the Interior sent to the governor, upon which his request for patent is based.

The following are the swamp land regulations and decisions:

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The grant of swamp lands, under acts of March 2, 1849, and September 28, 1850, is a grant in presenti. See United States Supreme Court decisions Railroad Co. v. Fremont County (9. Wall. 89); Railroad Co. r. Smith (id. 95): Martin v. Marks (7 Otto 345); decisions of the Secretary of the Interior, December 23, 1851 (1 Lester's L. L. 549), April 25, 1862, and opinion of Attorney General, November 10, 1858 (1 Lester's L. L. 564).

The act of September 28, 1850, did not grant swamp and overflowed lands to States admitted into the Union after its passage. See decision of Secretary Interior, August 17, 1858; Commissioner General Land Office, May 2, 1871 (Copp's L. L. 474), affirmed by Secretary June 1, 1871, and Commissioner General Land Office, January 19, 1874 (Copp's L. L. 473), affirmed by Secretary July 9, 1875.

A State having elected to take swamp land by field notes and plats of survey is bound by them, as is also the Government. See Secretary's decisions. October 4. 1855 (1 Lester's L. L. 553), August 1, 1859 (id, 571), December 4, 1877 (4 Copp's L. O. 149), and September 19, 1879.

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The claim of the State for indemnity for swamp lands sold or located subsequent to September 28, 1850, and prior to March 3, 1857, is not barred by failure of said States to have selected the lands prior to March 3, 1857. See Attorney General's op n'on of April 20, 1866 (2 Lester, p. 382), adopted by the department April 23, 1866.

Under provisions of act of Congress approved March 2, 1855, as extended by act of March 3, 1857, indemnity proof must be taken by the State before an agent from the General Land Office, after the land for which indemnity is claimed shall have first been examined in the field by said agent. See Secretary's decision June 6, 1878 (5 Copp's L. O. p. 125).

Rules and regulations adopted by the General Land Office, with the approval of the Secretary of the Interior, in regard to the proof required in claims for indemnity, under the act of March 2, 1855, extended by the act of March 3 1857 (sections 2482, 2488, and 2484, Revised Statutes of the United States), for "swamp and overflowed lands" sold by the United States prior to March 3, 1857

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., August 12, 1878.

In order to dispose of the claims for indemnity provided for by the act of Congress approved March 2, 1855, entitled “An act for the relief of purchasers and locators of swamp and overflowed lands," which act was extended by the act of March 3, 1857 (as revised, now secs. 2482, 2483, and 2484 of the Revised Statutes of the United States), the following rules and regulations in regard to the "due proof" to be made to the Commissioner of the General Land Office, under the second section of said first-mentioned act (as revised, now sec. 2482, Revised Statutes of the United States), in order to obtain the indemnity aforesaid, are adopted:

The governor, or other duly authorized officer or agent, of the State claiming indemnity will be required to furnish this office with a list of the lands for which indemnity is claimed. As soon as practicable after the receipt of this list an agent will be appointed to make an examination in the field of each of the tracts therein described, and secure such reliable information as to the character thereof as can be obtained from personal examination and observation, and by inquiry of the owner or resident thereon, if any there be, and of persons residing in the vicinity having personal knowledge of the past and present character of the land. Upon the completion of this examination at least 30 days' notice will be given the State, or claimants under the State, of the time and place when and where testimony will be received touching the character of the lands described in the list filed in this office.

At the times and places thus fixed the agent of this office will attend for the purpose of examining witnesses and adopting such other measures as may be necessary to protect the interests of the Government.

The evidence offered by the State, or its agent, as to the character of the land, must be the testimony of at least two respectable and disinterested persons who have personal and exact knowledge of the condition of the land during a series of years extending to the date of the swamp grant (September 28, 1850).

Where the testimony of witnesses having a knowledge of the condition of the land at the date of the grant can not be obtained, the evidence of at least two respectable and disinterested persons, who have a knowledge of the land during a series of years extending as near to the date of the grant as possible, may be presented; but before presenting this secondary evidence the State agent should file his own affidavit setting forth fully and satisfactorily the reasons for the failure to present the testimony of the first-mentioned class of witnesses, and also setting forth that the witnesses whose testimony he offers have the best knowledge of the land extending nearest to September 28, 1850, of any that can be obtained.

The testimony of each witness should not only show that at the time when he first knew the land the greater part of each 40-acre tract, or other smallest legal subdivision, was swamp or overflowed within the meaning of the grant, but it must be full and explicit on the following points:

The cause of the swampy character or overflow, with the time of the year and the length of time such was the condition of the land, and how much or what proportion of the tract was thus rendered unfit for cultivation in its natural condition.

The nature and extent of the means necessary to reclaim the land.

The kinds of timber, plants, shrubs, grasses, etc., growing on the land, and whether or not plowing and the removal of timber or other natural growth would not have caused the land to become dry enough for cultivation without ditching, draining, or protection from overflow.

The names of water courses, lakes, etc., on or near the land, with a description of the size of the same, and, where not on the tract, the direction and distance from it.

The general character of adjacent and surrounding lands.

The present condition of the land, and in case any changes have taken place within the knowledge of the witnesses the nature and cause of such changes, with a full description of such artificial means of reclamation as have had any effect on the character of the land, and all other facts known to the witnesses which may tend to show the true condition of the land.

The witnesses should be required to state facts, not opinions, and their testimony should be as full and complete as to every fact within their knowledge as if it were needed to establish the character of the land to the satisfaction of a judge or jury.

Ex parte affidavits will not be considered, and all testimony must be taken in the presence of the agent of this office.

Depositions may be taken before any officer authorized by law to administer oaths; provided that if taken before an officer other than the clerk of a court of record having a seal, the official character of such officer shall be established by the certificate of the clerk of the proper court of record under the official seal thereof.

In all cases the disinterestedness of the witnesses must be established under oath, and the credibility of the witnesses must be certified to by the officer taking the depositions, or established by the oath of witnesses to whose credibility he certifies.

In cases where the agent of this office shall be satisfied, from the previous examination in the field, that any tract or tracts are of the character contemplated by the swamp grant, the testimony of two witnesses, as above mentioned, will be deemed sufficient proof; but in cases where said agent shall not be so satisfied from the previous examination in the field, he will take measures to secure such additional evidence as may be necessary to fully determine the character of the land, by obtaining the testimony of the owner or occupant of the land, or, if those persons have testified, other well-informed persons residing in the vicinity of the land, allowing the agent of the State full opportunity to cross-examine such witnesses should he desire to do so.

If the agent of this office shall be in doubt as to the amount of a particular tract which is swampy or overflowed, he will have a survey and plat made of the tract by a competent surveyor, in order that the exact amount of swampy or overflowed land in the tract may be shown.

After the testimony is taken the agent will make a full report to this office upon each of the tracts upon which testimony is taken, together with his opinion as to the real character of each of said tracts.

These regulations will supersede all former regulations; but cases where proof has heretofore been taken and filed in this office will be examined and determined upon such proof, if it is found to be in strict accordance with the regulations existing at the time of taking the same. J. A. WILLIAMSON, DEPARTMENT OF THE INTERIOR, August 20, 1878. Approved.

Commissioner.

A. BELL, Acting Secretary.

In States where the field notes of survey govern in adjusting claims for land under the act of 1850, said notes are the basis for adjusting claims for indemnity. (Secretary's decision of April 17, 1880.)

The grant of swamp lands to the States of Oregon and Minnesota was a grant in presenti, and the land so granted can not be otherwise disposed of by the Government. See Secretary's decisions, April 15, 1880; Crowley v. State of Oregon (7 Copp's L. O. 28), and the State of Oregon v. United States, June 4, 1880 (id. 53).

Status of lands within the meander lines of shallow bodies of water at date of survey that might have been temporarily overflowed considered. See Secretary's decision, December 2, 1874 (Copp's Land Laws 475).

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