the Garrett improvement on four forties, and that seven or eight acres of the improved land was on the forty-acre tract in controversy, and that he remained in possession of the improvements from the fall of 1873 to the spring of 1874, when he was ousted of the possession of three of the forties by suit, and that he thereupon abandoned his improvement, and whatever possession he had on the tract in controversy in this case, though no suit had been brought against him for this tract. From the spring of 1874 down to the present time the railroad company and its grantees have had actual, exclusive, notorious, and adverse possession of the land, and during that time, and long before the plaintiffs obtained their deed from the commissioner of state lands, had placed improvements on the land, valued at $150,000. The grant of the swamp lands to the state by the act of congress of September 28, 1850, passed the title from its date; and after that time the United States could not make a sale of such lands that would divest the rights of the state under that act. But where the United States sold such lands subsequent to the grant, it was competent for the state to confirm the title of the purchaser from the United States, and that was done by the acts approved January 11, 1851, and December 14, 1875. By these acts the state's title to all swamp lands sold by the United States after the 28th of September, 1850, is vested in the purchasers of such lands from the United States, except in cases where such lands had been sold by the state, or persons had acquired a pre-emption or other vested rights to them under the laws of the state prior to their sale by the United States. It has been the constant and uniform policy of the state, and the United States, to avoid confusion and conflict in the title to swamp lands, growing out of the delay in their selection and confirmation, and their sale, in the mean time, by the United States. It was in pursuance of this policy that the acts of the legislature of 1851 and 1875 were passed. The clearly-defined policy of the state has been from the beginning not to contest the title of those who purchased lands from the United States to which the state claimed title under the swamp-land grant, but to confirm the title of such purchasers, and look to the United States for indemnity. This policy finds expression in numerous acts besides those that have been cited. See Acts 1885, p. 71; Acts 1887, p. 102; Acts 1889, pp. 67, 164. The legislation by congress on this subject is in harmony with that of this state. An act of congress on March 2, 1855, provides that patents shall issue to purchasers "of the public lands claimed as swamp lands," and "that upon due proof by the authorized agent of the state or states, before the commissioner of the general land-office, that any of the lands purchased were swamp lands the purchase money shall be paid over to said state or states." And by the act approved March 3, 1857, it is declared that the act of 1855 "shall be, and is hereby, continued in force, and extended to all entries and locations of lands claimed as swamp lands made since its passage."

The plaintiffs' deed is invalid for other reasons. It is quite immaterial what act of the legislature the commissioner of state lands had in view when he made the deed. On the undisputed facts in the case, he

had no authority to make it under any act. The powers of the commissioner to sell swamp lands are regulated and defined by law. He cannot sell the lands of the state at his pleasure. He is but the servant of the law, and, if he departs from its requirements, his acts are nullities. His power to sell under the act approved December 14, 1875, was limited by the words of the act to persons "who shall heretofore have taken or filed, under existing laws, a pre-emption to or upon any of the swamp lands of this state, or who shall have settled upon, improved, or cultivated said swamp lands." Under this act no one but a settler or pre-emptor on the land could purchase. The plaintiffs were neither. For more than nine years next before the commissioner made the deed to the plaintiffs, the defendants, and those under whom they claim, had been in the actual and exclusive possession of the land, making extensive and valuable improvements upon it. The actual occupancy of the land by the defendants was a bar to the plaintiffs making any settlement on the land that would give them a pre-emption right. "A settlement cannot be made upon public lands already occupied. As against existing occupants the settlement of another is insufficient to establish a preemption right." Quinby v. Conlan, 104 U. S. 423. The settlement or improvement which entitles one to the preference right of entry must be an actual bona fide settlement, and the improvement must be an existing and substantial one, which has not been abandoned. Mclvor v. Williams, 24 Ark. 33; Casselberry v. Fletcher, 27 Ark. 385; Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. Rep. 782. The commissioner cannot sell under the act of March 18, 1879, unless the land is a parcel of "the selected and unconfirmed swamp lands of the state," and the purchaser proves by affidavits that he is a "pre-emptor or settler" on the land, or that the land "has no improvements on it, and that no person is residing upon it or claims it by virtue of any pre-emption certificate issued by authority of law." The land was not "selected and unconfirmed" swamp land; the plaintiffs were not pre-emptors or settlers upon it; and other persons were in the actual possession of the land, claiming it, and had made extensive and valuable improvements upon it. The laws and regulations of the land department of the state require that the existence of the facts essential to authorize the commissioner to sell swamp lands under the act of 1879 shall be made to appear by affidavits. No such affidavits were made or filed. The only affidavits filed were to the effect that the land was swamp land. Two other papers were filed: one an application to purchase the land under the act of March 18, 1879, not signed by the plaintiffs, but by persons styling themselves "agents,' etc., and not sworn to by any one, and stating no facts. The other paper is not sworn to by any one, is not signed by the plaintiffs, but by their attorneys, and states that the plaintiffs purchased an improvement on the land, and went into possession of it in September, 1873; but it fails to state how long the possession continued, or that they were in possession at the date of the purchase. On the trial, as before stated, one of the plaintiffs testified that their possession terminated in the spring of 1874. Proof, in the mode required by law, of the fact or facts es

sential to enable an applicant to enter swamp land is a condition precedent to the power of the commissioner to sell. No such proof was made or attempted. If such proof had been made, however informal or false in fact, the commissioner would have had jurisdiction to act in the premises. It is not a case of defective forms, or disputed facts; but one of a total absence of substance. There was no proof offered in any form or shape that the facts then existed that would authorize the commissioner to sell the land under either of said acts. The facts precluded any such proof, and there was no attempt to make it. In Rice v. Harrell, 24 Ark. 409, the court say:

Act

"The land-agent permitted Harrell to enter the land in controversy by preemption, without the declaration and affidavits required by law, that he had an improvement thereon, etc. The sale so made was unauthorized by law. The statute provides: That the land-agents shall have full power and authority to sell any of the swamp and overflowed lands; but in making such sales shall be governed by the rules, provisions, and regulations now in force, and hereafter provided, or which may exist by law at the time of such sale.' January 12, 1853, § 7; Act December 30, 1856, § 2. The making and filing of the proper declaration and affidavits in the oflice of the land-agent, within the time limited, were legal prerequisites to a valid sale of the land by preemption. Without them the land-agent had no legal power to make such sale. As remarked by this court in Cheatham v. Phillips, 23 Ark. 87, the swamp lands belonged to the state. The title to them is not in the land-agent. They derive their power to sell them from the statutes, and have to follow their requirements in order to make valid sales."

On the uncontradicted facts in the case the commissioner had no power to execute the deed, and it would seem this may be shown in an action at law. Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228, and cases cited. Notwithstanding the recital in the deed to the contrary, the land was never selected, designated, or certified as swamp land by any officer or agent of the United States or the state. This is conceded by the plaintiffs, who ask that the recital in the deed to the contrary may be rejected. When this is done, the plaintiffs' title rests on a quitclaim deed from the commissioner for whatever right or title, if any, the state acquired to the land under the swamp-land grant. Whether the state acquired any right to the land under that grant is left for future determination. As between such a deed and a patent previously issued by the United States, the patent must prevail. There is no presumption that all the public lands that belonged to the United States on the 28th of September, 1850, were swamp and overflowed lands. In the absence of proof, the contrary presumption must obtain. The grant to the state was of the swamp and overflowed lands. They had to be identified. To perfect the title of the state, or one claiming under her, to land as swamp land, it must be shown to have been such at the date of the grant, in some of the modes prescribed by law and the regulations of the land department, or, in cases where it is admissible, by parol evidence on the trial. Railroad Co. v. Smith, 9 Wall. 95; Buena Vista Co. v. Railroad Co., 112 U. S. 165, 5 Sup. Ct. Rep. 84; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985; Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228.

Waiving consideration of the question of the competency of parol proof of the quality of the land, in this case, its sufficiency will be considered. On this issue, as presented in this case, the burden of proof is on plaintiffs. To find this issue in the plaintiffs' favor the court must be "clearly satisfied by full proof of the disputed fact that the lands in controversy were swamp and overflowed lands at the date of the act of congress of September 28, 1850." Buena Vista Co. v. Railroad Co., 112 U. S. 176, 5 Sup. Ct. Rep. 90. "Donations of the public domain for any purpose are never to be presumed. Those who claim against the government under legislative grants must show clear title." Rice v. Railroad Co., 110

U. S. 698, 4 Sup. Ct. Rep. 178. It is an issue not to be determined in the affirmative upon doubtful and disputed testimony. On this issue the plaintiffs introduced five and the defendants three witnesses. It would serve no useful purpose to set out their testimony. The plaintiffs' witnesses give it as their opinion that the greater portion of the 40 acres was swamp and overflowed land, and the defendants' witnesses, with equal means of knowledge, are of the contrary opinion. In 1850 that country was sparsely settled, and most of the lands were in their natural state. There was no special landmark on this tract to attract attention to it, or distinguish it from the vast domain of wild lands surrounding it. None of the witnesses resided on or near the land, or had any interest in it. Not one of them knew where the lines or corners were until 1883, when they were pointed out to them by the plaintiffs, preparatory to their becoming witnesses in this case. Their attention was never called to this tract, any more than to any other 40-acre tract of wild land in that region. Their knowledge of it was acquired chiefly, if not solely, by occasionally traveling along a country road which ran on or near its western boundary. From such imperfect data they express the opinion, 35 years afterwards, that not more than 10 or 12 acres of the 40 was then dry land, and that the balance was swampy and overflowed. The integrity and veracity of the witnesses is not questioned, but they never possessed sufficient, accurate, and exact knowledge of this land to enable them to testify persuasively on this subject. They had no interest in the land, did not know its boundaries, and never went upon it and examined it with a view of determining how much of it was swamp and how much dry land, until more than a third of a century after the grant. Whatever knowledge they had of the condition of the land in 1850 was acquired in the most casual and perfunctory way. It may be said in this case, as was said by the supreme court of the United States in an analogous case:

"Those who could testify from actual knowledge are perhaps all dead. The population of that time has all passed away, and the memories of any who may be living must be very imperfect."

The rule adopted by the courts as to the character of the evidence necessary to maintain the affirmative of this issue is the same as that adopted and acted upon by the commissioner of the general land-office from the date of the grant. In his instructions to the surveyor general of Arkansas, dated December 21, 1853, and April 8, 1854, the com

missioner says "that the witnesses must testify that they have examined the lines and corners of the lands in relation to which they testify," and "that they have examined the surface of the land and the marks or designations on the corner-posts and trees, and that from such examination they have ascertained and know that the greater part of each fortyacre lot of the body of land in relation to which they testify is wet and unfit for cultivation." In a letter of instructions, dated June 5, 1860, addressed to the register and receiver at Little Rock, he says:

"Testimony now, after the lapse of nine years, to be available, must be explicit, resting upon personal and exact knowledge of the locations claimed, and must relate to each quarter quarter section, or other equivalent legal subdivision."

The following is a part of the preamble to an act of the legislature approved March 17, 1885:

“Whereas, more than thirty-four years have now elapsed since such date, (28th September, 1850,) and but few persons are now alive who can testify to the character of such land as it appeared on the 28th day of September, 1850."

* * *

This is a legislative recognition of the difficulty of finding living witnesses to testify intelligently on this subject. The testimony must relate to the condition of the land at the date of the grant. "From divers natural and artificial causes the surface of the earth is continually changing, and lands which were wet, overflowed, and unfit for cultivation in 1850 may now be high and arable; and so vice versa." Hendry v. Willis, 33 Ark. 837. The most satisfactory evidence in relation to the quality of the land remains to be noticed. The statutes of the United States provide that "every surveyor shall note in his field-book all water-courses over which the line he runs may pass; and also the quality of the land." Rev. St. U. S. § 2395, subd. 7. The field-notes of the survey of this land are in evidence. The survey was made in April, 1841, a season of the year when, if the land was wet and swampy, that fact would be apparent, but the field-notes do not show it to be other than dry land at that time. The clear implication from the field-notes is that it was arable land. The value of the field-notes as evidence was settled by the supreme court of the United States in the case of U. S. v. Low, 16 Pet. 166, where the court say:

"The official return of the surveyor general has accorded to it the force of a deposition. So we held in the case of U. S. v. Breward, 16 Pet. 147, and U. S. v. Hanson, Id. 196, to which we refer."

They rank as the deposition of a surveyor, charged under oath with the duty of noting on the spot, and at the time he makes the survey, the quality of the land. Soon after the passage of the act making the grant. the commissioner of the general land-office advised the surveyor general of the state that, "in all cases where the plats and field-notes represent the lands as swampy, or subject to such overflow as to render them unfit for cultivation, they belong to the state under the law, and will be so certified." And by several acts of the general assembly of this state (Acts 1885, p. 71; Acts 1887, p. 102; Acts 1889, p. 67) the state agrees in the adjustment of her swamp-land claims against the United States "to