This objection is disposed of by reference to the fact that the notice provided for has never been given.

Your decision is reversed, and the tracts in contest are awarded to the State.

The papers transmitted with your letter of Aug. 17, 1874, are herewith returned.

C. DELANO, Secretary.

To the Commissioner of the General Land-Office.

No. 462.

Regulations in regard to proof required for indemnity under act of March 2, 1855, extended by act of March 3, 1857. DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 18, 1872. In order to make a final disposition of all 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, the following rules and regulations in regard to the "due proof" to be made. to the Commissioner of the General Land-Office, under the 2d section of said act, in order to obtain the indemnity aforesaid, have been adopted by this office, viz:

1st. No ex parte testimony will hereafter be considered, except such as may have been already forwarded to this office, taken in strict accordance with the rules and regulations of the office existing at the time of taking the same.

2d. The State, or its agent, claiming such indemnity, will be required to furnish this office with a list of the lands on which such indemnity is claimed, and indicate the time when the claimants will be prepared to offer testimony to establish the swampy character of the land.

So soon after receiving such list as practicable, this office will appoint times and places when and where such testimony will be taken, and will give the claimants at least thirty days notice thereof.

At the times and places thus fixed, some person accredited by 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.

When the testimony is thus taken, the case will be considered by this office as closed, and no further evidence will afterwards be received. The testimony in support of such claims must be evidence of at least two respectable and disinterested persons, who have personal and exact knowledge of the land as it existed on the 28th of September, 1850, the date of the swamp grant. Said witnesses must not only state that the greater part of each forty-acre tract, or other smallest legal subdivision, was on the 28th September, 1850, swamp and overflowed within the meaning of the grant, but at what seasons and to what extent this was its condition, designating particularly, also, how much or what proportion of the tract was thus rendered unfit for cultivation in its natural condition.

They must also give the reasons for their conclusions, state the

causes of the overflow, give name and description of the timber, shrubs and plants on the land, character and extent of the means necessary for their reclamation, contiguity of rivers, water-courses, lakes, &c., with a general description of the adjacent and surrounding tracts, and whether plowing and the removal of the timber, without ditching or draining, would not at that time have caused the water to disappear. They must also state and show what is the present condition of the land, and if any changes have occurred in the character or quality thereof, what has caused such changes.

The witnesses here contemplated should be the person who purchased the land of the United States, and the present owner or occupant. Where the original purchaser is a non-resident of the State, or had no knowledge of the character of the land in 1850, or for any reason refuses to testify, or where the tract is unoccupied, or the occupant is in like manner uninformed, or refuses to testify, the facts herein required may be established by the testimony of two other respectable and disinterested witnesses resident nearest the land. In such cases, however, the State agent must file with the testimony his own affidavit also, stating the absence, want of information, or refusal, on the part of the first-named witnesses herein required, to testify, or of the non-occupancy of the land, and that the persons whose testimony he offers are the nearest well-informed residents to the premises.

The 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 as to the matter in issue must be established under oath, and the credibility of such witnesses must be certified to by the officer taking the depositions, or established by the oath of witnesses to whose credibility he certifies. WILLIS DRUMMOND, Commissioner. DEPARTMENT of the Interior, March 21, 1872. Approved: C. DELANO, Secretary.

No. 463.


Selections for indemnity for swamp lands located by warrant or scrip must be made out of any of the unsold public land within the State in whose behalf application for indemnity is made.


Washington, D. C., Feb. 2, 1874. SIR: I have received your letter of the 27th ult., transmitting appeal from the decision of your Office in regard to indemnity for swamp lands claimed by the State of Illinois.

The act under which the claim is preferred was approved 2d March, 1855, (10 Stat., 634,) and provides in the second section thereof "that where such lands have been located by warrant or scrip, the said State or States shall be authorized to locate a quantity of like amount upon any of the public lands subject to entry at $1.25 per acre or less," etc. The first application for such indemnity appears to have been made by the State of Indiana. The present Governor of that State, Hon. T.

A. Hendricks, then Commissioner of the General Land-Office, held "that selections for such indemnity must be made out of any of the unsold public lands in said State ;" and this construction of the act was approved by the Department on the 6th September, 1855.

On the 31st of March, 1858, on appeal from the decision of your Office by the agent of Henry county, Ill., the action of your predecessor in holding that such selections must be confined to said State was affirmed by Mr. Secretary Thompson.

On the 23d of April, 1861, the same question was presented to Mr. Secretary Smith in a report from your Office concerning the claim of the State of Iowa; and in a letter to your Office of 8th May, 1861, he used the following language: "It appears to have been the policy of this Department heretofore to confine the indemnity selections to the limits of the respective States entitled to such selections, and this policy is based upon a construction of the acts just mentioned as in pari materia with the act of 28th September, 1850, which expressly restricted the original grant to lands within the limits of the respective States to which the grant inured.

"This policy having been adopted under the act of 1855, and since adhered to under that act and the act of 3d March, 1857, without very serious opposition from the States interested, and being so manifestly fair as between the several States that may be entitled to indemnity in lands for swamp lands that have been located, will still be adhered to by your Office.

"Should cases hereafter arise in which the vacant public lands in any State should be found insufficient to satisfy a claim of this kind, it will be the duty of the Department to lay the facts before Congress for such measure of relief as that body may deem just and expedient."

The same question was again presented to Mr. Secretary Usher on the 26th January, 1863, on appeal from the decision of your Office. Mr. Acting-Secretary Otto, on the 12th March, 1863, stated that if the question were "now before the Department for the first time, the disposal of it would involve a consideration of very just and weighty arguments on both sides." After reciting the previous action of the Department, he adds: "Where continued practice has confirmed a construction of law through a series of years, as in this case, and this public administration and construction is of such importance as to be well known to Congress, and to be sometimes mentioned in annual reports to that body; and Congress has never interposed to modify or change that construction, but has rather sustained it by its declared policy in other matters of a similar kind, it would have to be a very strong and plain case of error and wrong that would justify a change in the administration of the law.

"Without saying that the original construction was or was not correct, it appears to be my duty to adhere to it whilst the law remains unchanged in any respect."

He also reiterates the opinion expressed in the last paragraph of the quoted portion of Mr. Secretary Smith's decision.

Mr. Secretary Browning, on the 8th February, 1868, the same question having been submitted to him on the Illinois claim, held that the question was finally settled by the decision of his predecessor, and, without entering into any discussion of the merits of the case, affirmed the decision of your Office.

It may, perhaps, be worthy of notice that in Mr. Browning's decision

it is stated that there were no public lands in Illinois subject to entry at $1.25 per acre; the contingency on the happening of which both Mr. Smith and Mr. Otto had stated that it would be the duty of the Department to bring the matter before Congress. If this was done by Mr. Browning or his successors, it is not known to me. Neither can I say that in my opinion such is the duty of the Department. That State is ably represented in both the Senate and House of Representatives by gentlemen who are presumed to know and do their whole duty in guarding her interests.

Be that as it may, however, I entertain no doubt whatever that I am concluded by the uniform action of my predecessors from disturbing the decision of your Office. The question is res adjudicata, and must so remain until Congress orders otherwise. Your decision is affirmed, and the papers are herewith returned.

I am, sir, very respectfully, your obedient servant,

C. DELANO, Secretary. HON. WILLIS DRUMMOND, Commissioner General Land-Office.

No. 464.


Rejected swamp lands in Missouri.

March 23, 1875.


GENTLEMEN:-Annexed is an act of Congress approved February 23, 1875, "for the relief of actual settlers on lands claimed to be swamp and overflowed lands in the State of Missouri." Part II., No. 135.

In order to enable persons entitled thereto to avail themselves of the provisions of this act, the following regulations are prescribed, with the approval of the Secretary of the Interior.

In addition to compliance with existing regulations governing entries under the pre-emption and homestead laws, claimants must establish the following facts:

1st. That the land was duly selected as swamp land, and withheld from market in consequence of such selection.

2d. Purchase in good faith from the State or county, with settlement upon, and improvement of the land, to the value of one hundred dollars. 3d. That the purchaser from the State or county, or his heirs, assigns, or legal representatives, has continued to reside thereon.

4th. That the claim of the State under the swamp grant has been rejected for the reason that the land was not in fact swamp and overflowed.

All pre-emption settlements and homestead entries made prior to February 23, 1875, where the requirements of law have been fully complied with, will take precedence of claims presented under this act. S. S. BURDETT, Commissioner.

Approved: C. DELANO, Secretary.

No. 465.



Relative to the effect of a State selection of land.

Washington, D, C., Jan. 5, 1872.


GENTLEMEN :-It frequently occurs that where a proper selection by a State has been made under Congressional grants, as for instance, for school purposes, internal improvements, universities, agricultural colleges, swamp lands, &c., and the selections duly filed with the district land officers, that said officers allow private entries and locations, preemptions and homesteads, to be made for such lands. The consequent result of this error is, unnecessary conflict and needless expense to claimants.

A selection by the State has the effect of an entry of the land, and withdraws the tract from further disposal, unless the selection shall be subsequently rejected for cause, subject of course to the perfection of any pre-existing valid pre-emption claim. Therefore, when such selections are filed, you will enter them on your records, report them in the usual manner, and allow no further disposition of the tracts except in case of prior pre-emption, or instructions from this office. Acknowledge receipt of this.

WILLIS DRUMMOND, Commissioner.

No. 466.


Mitchell settled on Sec. 16 in Minn., Dec. 15, 1870. The section was surveyed in the field in Sept., 1870, and approved Tp. plat filed June 17, 1871. Held-That under Joint Resolution of March 3, 1857, (11 Stat., 254,) and act of Feby. 26, 1859, (11 Stat., 385,) the land should not go to Mitchell,


Washington, D. C., 28th March, 1873. SIR: I have considered the question raised by the appeal of Dennis E. Mitchell from your decision of July 16th, 1872, holding for cancellation his pre-emption entry for the W. N. W. 1, N. E. 1, N. W. 1, and N. W. 1, N. E., Section 16, Tp. 137, R. 35, St. Cloud, Minnesota, on the ground that Section 16 was reserved for school purposes, and the alleged settlement of Mitchell was subsequent to the survey of the township,

It is alleged upon appeal that you erred in holding that the land was surveyed prior to the settlement of Mitchell.

The survey of township No. 137 was commenced in the field, September 19th, and completed September 30th, 1870. The approved township plat was filed in the local office June 17th, 1871. Mitchell's alleged settlement was December 15th, 1870.

The date of the survey in the field, and not the time when the township plat is filed in the local office, is the date prior to which settlement must be made in order to give pre-emptors valid claims in school sections. The Joint Resolution of March 3d, 1857, (11 Stat., 254,) upon

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