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16 66 18 51
as under the act of March 3, 1865, title You report that on the map of the city, on the 23d of March last, relative to can only be conveyed by patent' (See township, approved February 17, 1840, the status of certain lands described in Secretary's decision of September 29, the lands in question are designated as accompanying list, hereinafter described, 1874, and December 2, 1875, in case of St. “Sodo Lake.” This might raise the pre- said to be within the limits of a grant of Paul and Pacific Railroad, Copp's L. O., sumption that said sections were not lands to the State of Louisiana, dated vol. 2, p. 134). The certificate states that swamp lands at the date of the granting June 3, 1856, to aid in the construction of the land is listed in accordance with the acts in 1849 and 1850. On the contrary, certain railroads, and also selected by the requirements of the Acts of May 12, 1864, we have the certificate of the Surveyor State as swamp lands under Act of March and July 13, 1866, no reference being made General that in 1852 the lands were swamp, 2, 1849. to the act of March 3, 1865. On July 6, and that they enured to the grant.
It is claimed by said attorneys that the 1857, Solon B. Rumvill filed pre-emption In accordance with the subsequent sur lands in question having been selected as D. S. 7759, for the land in question, al- vey of January 25, 1872, the Surveyor swamp prior to June 3, 1856, there was leging settlement June 1, 1857. The land General reported the sections in question, such a reservation of the tracts as would, withdrawn from entry March 14, together with section 30,
land. under the proviso in the first section of 1857, but by letter of April 9th, 1857, In the recent case of Martin vs. Marks act of that date, exclude them from the the Register and Receiver were directed [Copp's L. O., Vol. 5, p. 11], the Supreme grant for railroad purposes, and therefore to permit pre-emption settlements up to Court held that where the land had been they were confirmed to the State as swamp date of definite location. Rumvill's set- selected and reported as swamp to the by act of March 3, 1857. tlement therefore annulled the withdrawal Commissioner of the General Land Office, The following described tracts within of the land, and it was subject to entry at by the Surveyor General, prior to March the limits of the constructed portion of the date of Johnson's application. The 3, 1857, and remained vacant and unap- the N. 0., 0. & G. W. R. R. east of Braattempted cancellation of the entry not propriated at that date, it was confirmed shears, were selected by the State having been consummated by noting the to the State. The tract in controversy swamp land; but on the 29th of January, same on the records of the local office, and before the Court was a portion of section 1861, they were approved to the State for the party in interest (Mrs. Johnson) evi- 7 now under consideration.
railroad purposes under act of June 3, dently not having received notice of the It must be held, I think, from the action 1856, viz : action of this office, and therefore having of the Surveyor General in 1852, and the All of section 153, Tp. 15 S., R. 16 E. no opportunity for appeal, the decision of presumption which arises from that act Lots 1 & 3,“
17 March 22, 1866, cannot be treated as final. viz.: that the land in question was swamp
All of section 37, 13 Said irregularities are sufficient to bring at that date, that the same was confirmed Lots 2, 3, the case within the exceptions to the gen- to the State by the act of March 3, 1857. 4, W. Lof S. eral rule relative to reopening decided In the year 1872 your office rejected E. & and S. cases. (See Graham vs. Hastings and the claim of the State to the lands in W. À of N. Dakota Railroad Company, Copp, Vol. 9, question, basing its action upon the fact W.,
18 p. 236). that the plats of survey approved in 1840 All of
18 " The entry of Johnson will therefore be and 1872, represented the lands in question
20" reinstated (for the purpose of issuing pat- to have been the bed of a lake at the date
20 " ent on same) subject to appeal by the St. of the swamp grant; hence, that the same
20" Paul and Sioux City Railroad Company, did not enure to the grant as swamp land.
13 the resident attorney of which will be Without discussing the question of ef
13 notified hereof by this office. fect of the action of the Surveyor General
205 in 1852, together with the confirmatory
13 March 3, 1857.-Land in Louisiana selected and sor, I am of the opinion that the evi
13 reported as swamp to the Commissioner of dence before your office did not justify
20" the General Land Office, by the Surveyor Gen
21. eral, prior to March 3, 1857, and remaining the action taken. There was no sufficient
14 vacant and unappropriated at that date, is evidence that the land was not swamp in confirmed to the state. 1849 and 1850.
24 " SECRETARY SCHURZ to Commissioner William If the lands in sections 6, 7, 18 and 19 It has been repeatedly decided by the son, January 15, 1879.
were vacant and undisposed of March 3, Department that where one grant has I am in receipt of your report of the 8th 1857, I am of the opinion that the same been fully executed, no action should be inst. relative to sections 6,7, 18, 19 and 30, were confirmed to the State, and that en- had looking to the certifying or patentTownship 20 North, R. 14 W., Louisiana, tries made subsequent to that date musting of the same lands to the same grantee claimed by the State as swamp land. be canceled.
under another grant; therefore this office From your report it appears that sec As the land in section 30 was not re- cannot consider the claim of the State to tions 6, 7, 18 and 19 were selected and ported to your office prior to March 3, the above described tracts under the approved as swamp lands by the United 1857, the same was not confirmed, and the swamp grant, as they have already been States Surveyor General for the State of rules applicable to the adjustment of the certified to it under the railroad grant. Louisiana, May 18, 1852, and transmitted swamp grant should be applied thereto. (See State of Iowa vs. Cedar Rapids and to your office on that day. These four You are hereby instructed to take Mo. River, Dubuque and S. C., and Iowa sections were therefore of the character of action in accordance with the views Falls and S. C. R. R. Companies, Copp's lands mentioned in the Act of Congress, herein expressed.
L. O., Vol. 3, p. 84; also same Vol., p. 99; approved March 3, 1857, as a “selection
State of Minnesota vs. St. Paul and S. C. of swamp and overflowed lands granted to
STATE OF LOUISIANA.
Railroad Company, and State of Arkan. the several states by act of Congress, Status of certain lands embraced within a sas, Copp's L. O., Vol. 4, p. 63. approved September 28, 1850, * * * and grant to aid in constructing certain railroads,
The status of the following described the act of second of March, 1849, * * * and also selected by the State as swamp lands. tracts selected as swamp prior to June 3, heretofore made and reported to the Com- COMMISSIONER MCFARLAND to Reg. and Rec., 1856, differs from the foregoing in this remissioner of the General Land Office," Nero Orleans, La., Feb. 14, 1883. (s. L. C.) spect, that under the provisions of the act and were confirmed to the State of Louisi I am in receipt of an argument filed by of Congress, dated July 14, 1870, U. S. ana, by said act.
Messrs. Pomeroy and Ingersoll, of this Stats., Vol. 16, p. 277, declaring forfeited
20 « 2016
2066 20 6 2066 20 « 20 «
N. E. $
the claim of the R. R. to certain lands, of the railroad to the same was declared railroad grants, formed the basis of a they were restored to the public domain, forfeited by act of July 14, 1870.
letter of inquiry addressed to the DeMarch 15, 1873, and some of them have
partment by this Office, December 2, 1858 been entered with cash or under the home- N. lof N.W.. Sec. 1, Tp. 3 S., R. 2 E. (See L. L., Vol. 1, p. 565), as follows: stead act, viz: S. E. of N. W.
" Were lands within the limits and deAll of Section 31, Tp. 11, S. R. 10 E. All of
" " scription of a railroad grant which were 1, 3, 12 W. S. E. of N. W. !
3 not in fact swamp or over flowed, but were
selected and reported as such prior to W.N.E." 13,
The following described tracts were se- final location of the railroad, and said entered Dec. 2, 1878. Homestead No.5076. lected as swamp prior to June 3, 1856, and road became located prior to the Act of W
Section 13, Tp. 3, S. R. 12, W. have been approved to the railroad, but 3d March, 1857, did that act confirm All of
the State claim under the swamp grant such selections as unappropriated lands, W. } of S. W. 4, Section 29, Tp. 2 S., R. has not been rejected. In other respects and must the lands be patented to 6 W.; Homestead entry No. 974, for their status is the same as those last above the State under the swamp grant? or on which patent has issued; N. E. I of N. E. I, described :
the other hand, did they become appro. Sec. 31, Tp. 2 S., R. 6 W., entered with Lots 5, 7 and 8, Sec. 1, Tp. 17 S., R. 12 W. priated by the railroad grant and the final cash No. 4,802, September 27. 1880.
2, 3, 5, 6,
location of the road, and shall the invesAll of Sec. 23. Tp. 3 S., R. 12 W. N. į of N. W. 1 Sec. 15, Tp 20 N., R. tigations proceed upon contests made by S. W. S.W." 25, S. E. & of S. W. 1
the railroad companies with a view to asAll of N. W. of S. E.
certain the real character of the lands, The following described tracts are with- whether they be swamp or dry ?"
in the granted limits of the contested por These inquiries, which involve the iden3, 4,
tion of the N. 0., O. and G. W. R. R. act tical questions at issue, were answered by 5,
June 3, 1856, but do not appear to have the Department, December 10, 1858, to 3,
5 E. been selected by said road. They were, the effect that the act of 1857 did not Lots 8 and 9, or E. I of N. E. 4, Sec. 9, Tp. however, selected by the State as swamp confirm such selections, and the charac16 S., R. 12 E. entered under the homelands prior to June 3, 1856, but have not ter of the land was therefore a matter stead act, No. 1,040. F. C. 78, dated been certified to it, viz:
that could be inquired into (Lester's L. September 29, 1874 and N. W. Sec. 29, All of Section 21, Tp. 14, S., R. 23 E. L. vol. 1, p. 567). Tp. 16 S., R. :12 E.
6 " The same views were maintained, and The following described tracts were
instructions issued in accordance thereselected by the State as swamp land, sub
with, by Secretary Thompson, July 23, sequent to the act of June 3, 1856, and
1859 (Lester's L. L., Vol. 1, p. 570). their being included in the list as selected
It is argued that this manner of adjustprior to that date, and hence confirmed to
"and ing the grants is not sustained by the U. the State by act of March 3, 1857, as
S. Supreme Court decision cited, but that claimed, was I presume an oversight, viz: The following described tracts are with on the other hand entirely opposite views
Lot 8, Section 37, Tp. 1 S., R. 2 E. in the indemnity limits of the road named, are set forth.
" and and had been selected by the State as Under the proviso in the grant of June N. W. 1 3
swamp lands prior to June 3, 1856, but 3, 1856, above quoted (all railroad grants The W. I S. W. , Sec. 12, Tp. 3 S., R. the title is yet in the Government, viz: referred to having a similar proviso), re2 E., is a part of an even section, and was S. of N. W. )
stricting the grant, the Supreme Court, approved to the State as swamp land Sep- N. W. of S. W.; Sec. 11, Tp. 3 S., R.2 E. in case of R. R. Co. vs. Fremont Co., tember 15, 1870. S. W. of S. W. 1
supra, held (referring to the lands seThe following described tract was ap All of
14, “ 13“ lected as swamp), “ In the language of proved to the State for railroad purposes, Lots 1, 2, 3 and 4, 19, “ 14, 23" the Railroad Act, the whole of the lands and has not been selected as swamp, viz. : The proviso in the act of June 3, 1856, in controversy were otherwise approAll Section 21, Tp. 10 S., R. 6 E. above referred to is as follows:
priated,' and were ó reserved' for the purLots 1 and 5, Section 33, Tp. 16 S., R. " And provided further, That any and pose of aiding the States in their objects 2 E., were approved to the State as swamp all lands heretofore reserved to the United of internal improvements." land May 5, 1852, and are not claimed by States by any act of Congress, or in any In the case of L. L. & G. R. R. Co. vs. the railroad.
other manner by competent authority, for U.S., supra, the question being the conThe following described tracts do not the purpose of aiding in any object of struction placed upon the proviso restrictappear to have been selected as swamp, internal improvements, or for any other ing the grant to the R. R. Co., the Court viz.:
purposes whatsoever, be and the same are held that “these grants have always been W. N. E.
hereby reserved to the United States from recognized as attaching only to so much Lots 1 and 2 / Sec. 5, Tp. 17 S., R. 13 W. the operation of this act; and in support of the public domain as was subject to S. E. À 7,
of the views urged the following U. S. sale or other disposal.” N. W.4
Supreme Court decisions are cited: L. L. The selection of a tract as swamp land, N.W.. & S.W..
and G. R. R. vs. U. S. (2 Otto, 733); New- and placing the same of record, has Lots 4 and 5
hall vs. Sanger (2 Otto, 761); Railroad always been held by this office as withAll of Section 5, Tp. 15 S., R. 13 W., se- Co. vs. Fremont Co. (9 Wallace 89.) drawing it from entry or location. lected prior to June 3, 1856, except the S. The question for decision is, were the Under the decisions as cited, lands
S. E. I, which has not been claimed as tracts selected and reported to this office herein described, selected by the State as swamp, was approved to the State as such by the State as swamp land prior to June swamplands prior to June 3, 1856, May 5, 1852.
3, 1856, whether swampy or not in char- whether swamp or dry, were otherwise The following described tracts were se-acter, excluded from the grant of lands appropriated within the meaning of the lected by the State as swamp land prior for railroad purposes of that date to the act, and were therefore excluded from the to the act of June 3, 1856, and the State's State of Louisiana ?
operations of the grant of that date to the claim to the same was rejected by this The opinion of the Attorney-General State of Louisiana for railroad purposes; office January 2, 1861, and on the 29th dated November 10, 1858 (Lester’s L. L., from which it follows that said grant did same month, they were approved to the Vol. 1, p. 564), involving the question of not interfere with, or prevent, their conState for railroad purposes ; but the claim 'respective claims under the swamp and 'firmation to the State as swamp lands
under act of March 3, 1857; and I decide by the Creighton survey of 1880. By flowing through the slough extending that if they were otherwise vacant and the first surveys this tract was returned northward from the lake toward the San unappropriated at that date, they were so as lake, and was at that time, in fact, cov- Joaquin river, found an outlet by way of confirmed. ered, or nearly so, by water.
that river. In view of this decision, the action of The swamp land grant is a grant in pre- There is no certainty that the waters this office as stated, in rejecting the State's senti except as to states admitted into the will remain at or near the level repreclaim to any of the tracts selected as Union after the passage of the act (French sented by the new meander line unless an swamp prior to June 3, 1856, was erron- vs. Fyan, 93 U. s., 169). California was artificial outlet is provided : and there is eous, as was also the certifying of these admitted September 9, 1850.
some question whether an adequate outlet lands to the State for railroad purposes. If, then, the tract in question at the could be thus constructed, although some
The action of this office was also erron- time the swamp land grant passed was efforts to that end have been made. eous in restoring the tracts above named covered with water, apparently of a per- Such are the topographical features of to market; and you will note on your manent character, up to or near the old the country and its general situation as records the fact that the lands described meander line, it would not pass to the affecting the tract in question. as having been selected prior to June 3, State under that grant, although subse- The proofs found in the affidavits intro1856, are confirmed swamp selections, and quently, by a recession of the waters, land duced by both parties show that the water refuse to allow entries of the same, and of a dry or swampy character should come in the lake was as high at the time of the also advise parties who have made the en- into existence (Wolf Lake, Illinois, 5. C. surveys of 1853 and 1854, as it has ever tries as stated, that they will be canceled L. O., 19; Beaver Lake, Commissioner's been; that it was about the same height and the purchase money refunded, and in decision, June 17, 1871; county of St. in 1868; that from the first surveys to the case of homestead entries the parties will Clair vs. Lovingston, 23 Wall., 46). year 1876, the lake was subject to great be allowed to make new entries, with It becomes, therefore, of the first import- fluctuations, inundating from one hundred credit for the fees and commissions paid, ance to inquire whether the tract became to three hundred thousand acres of land or on application the money so paid will a reliction after the 28th day of Septem- which were exposed at its lowest level ; be returned to them.
ber, 1850, or whether in fact at that time that the tract in question was often sub
it existed as land and was swamp or over- merged; that since the year 1876, seasons TULARE LAKE REGION, CALIFORNIA. flowed, so as to bring it within the mean- have been generally dry, and the tract in Swamp Lands—Creighton Survey.-—This survey ing of the act of that date.
question has suffered but little from inis approved, and legal title to the lands em- The question thus presented is one undation; that the beds of all or nearly all braced therein will be passed to the State. purely of fact.
the streams running into the lake are dry SECRETARY TELLER to Commissioner Mc Far- There is no common law proof in the at certain seasons of the year, and others land, March 9, 1883.
record upon the subject, and keeping out are swollen by rains and melting snows, I have considered the question of sur- of view for the present the Creighton and after passing the old meander line, vey of townships 21 south, ranges 19, 20, survey, which is a subject of much con- spread out and overflow considerable por21, 22 and 23 east; townships 22 south, troversy, the testimony in the record is tions of the tract in question; that in orranges 18, 19, 22 and 23 east; townships made up entirely of affidavits taken ex der to protect the lands channel excava23 south, ranges 19, 22, 23 and 24 east; parte. These affidavits are numerous, are tions must be made, whereby to conduct and townships 24 south, ranges 20, 21, 22, taken and put into the case by both sides the waters of the streams from points in 23 and 24 east, M. D. M., California, made without objection, and are referred to and the old meander line through the tract to by Thomas Creighton, U. S. Deputy Sur- quoted from by counsel for the respective the lake, and extensive levees built along veyor, in January and February, 1880, parties.
the lake and the streams. and approved by Theodore Wagner, U. S. In order to understand the proofs fully, There is but little conflict in the affi. Surveyor General.
it is necessary to state briefly the confor- davits as to what was the condition of the The question involves a tract of land mation of that part of the earth's surface tract as to its being subject to overflow lying upon the borders of Lake Tulare, to which they relate.
prior to 1875 and 1876, the main conflict containing upward of one hundred thou
Lake Tulare is an inland navigable body being as to its condition since that time, sand acres.
of water, some twenty-five miles in extent and the liability of its being inundated in By your decision of February 14, 1882, across its centre, from north to south and the future. you approve of the said Creighton survey, from east to west. It occupies the lowest There is some proof that some of the which represents the whole of said tract depression of a large valley, the water- streams formerly emptying into the lake as swamp lands.
shed being quite extensive, comprising on have in whole or part been diverted for The Southern Pacific Railroad Com the east all the country between the lake purposes of irrigation. I think, however, pany brought an appeal in the interest of and the Sierra Nevada range, distant some that it is clear that there is no adequate its land grant; and certain settlers, repre- seventy miles, and on the south and west, protection of the tract, either by outlet or sented by counsel but not having a stand- that between the lake and the Coast range, otherwise, against a wet season or such ing in the case, requested the Attorney distant from twenty seventy miles. rises of water as occurred frequently prior General to direct an appeal in behalf of The slope upon the north, east and south to 1876, and are quite likely to occur again. the settlers and of the United States. Such is very gradual, but on the west is less so; The affidavits prove that large portions of appeal was accordingly taken.
consequently nearly all of the tract in the tract were dry at the time of the The State of California claims the en- controversy lies upon the eastern and Creighton survey. Other portions were tire tract under the swamp land grant act southern shores of the lake.
covered by a luxuriant growth of tules, of September 28, 1850 (9 Stat., 519). Tule river, Cross creek, Deer Creek, salt-grass, and other vegetation, the pro
The Creighton survey was made at the Kings River, Flat Creek, Elk Bayou, and ducts of a wet soil, and affording pasture request of the Governor of California, by numerous streams and water courses, flow for stock in seasons of drouth. letter of July 31, 1879, addressed to the into the lake from the direction of the It must be borne in mind, however, that Surveyor General of that State, and was mountains. From the old meander line our inquiry must be kept to the conduly authorized by your office.
across the tract in question, these'streams dition of the tract in 1850, and that The first township surveys of land ad- have no defined channels.
evidence of its subsequent condition is joining the lake were made in 1853 and At the time of the surveys of 1853 and material only in aiding us to ascertain 1854. The tract in controversy lies be- 1854, there was no outlet of the lake, its real condition at the time the swamp tween the meander line of the lake, as natural or otherwise, except that after grant act was passed. There is proof, shown by those surveys, and the waters attaining at or about the height marked in the affidavits of deputy surveyors and of the lake or new meander line as shown by the old meander line, the waters over-'others, that at the time of the surveys
of 1853 and 1854, there was a belt of Undoubtedly at the time of the Creigh- The Surveyor General, before his apswamp land on the lake side of the me- ton survey the actual condition of lands pointment as such, acted as attorney for ander line then established, and that at was generally dry, and that they were in the State in reference to the lands now in that time there existed instructions "is- that condition also at the time of the ex- question, although not in relation to the sued by the United States Surveyor Gen- amination by the special agent in 1881. present controversy. After the survey in eral, not to extend any section lines into Upon an examination of the lengthy re- the field, the books of survey were transswamp and overflowed lands, but to estab-port of the special agent, I think it will mitted to him by Creighton, and were relish a meander post on the margin of the clearly appear that he had in mind the turned by the Surveyor General, accom
condition of the lands as he found them in panied by the letter of May 8, 1880, for The deputy surveyor, who made the 1881, and as they had been for some years correction, which letter indicated that the survey and established the old meander prior to that time, but that he did not notes of survey should show more definitely line, says that the water then seemed at consider nor report upon their condition the condition of the lands September 28, its highest; that from the meander line the in 1850, nor seek, to any considerable ex- 1850, if he (Creighton) should be of that water was very shallow for a long distance tent, for evidence to establish their actual opinion. Creighton then added to his into the lake, and so muddy that he had condition at that time, nor do I think his notes, after nearly every subdivision, as to go nearly half a mile into the lake daily instructions required him to do so. And follows : Subject to overflow and unfit for drinking water; and that such was the when he reports Creighton's classification for cultivation within the meaning of the general character of the overflow in the of the lands to be erroneous, he evidently act of September 28, 1850,” giving in townships in which this tract is located. refers mainly to the condition he then many instances the name of the stream
In 1849, there was a great rise of water found them in, and the condition they from which the overflow was liable to in the lake, which seems to have remained actually were in at the time of the Creigh- come. After these additions were made, up to and after the time of the surveys of ton survey. In proof of this I quote the survey was approved. 1853 and 1854.
briefly from his report. He says: “I It is undoubtedly within the duty of the Such is substantially the case as made have no hesitation in reporting that the Surveyor General to supervise and direct by the proofs and the record, aside from land returned by the Creighton survey as corrections to be made of the field notes the Creighton survey.
swamp and overflowed land is not correct, of subordinate surveyors, and it is a duty In relation to this survey and the recita- and that the land returned as swamp and often exercised. But for the fact of the tions found in it there is much controversy. overflowed, is not of that character; that Surveyor General's former relation to
The survey is important, since if it can no water stands upon the land except these lands as attorney, the question of not be sustained the lands cannot be cer- that which I have mentioned, and no re- his interference with the notes and surtified to the State in the present proceed-clamation is required to raise a crop on veys would not probably be raised. Such ing, even if it should clearly appear the same. After referring to the fact relation ought, it would seem, to disqualify that they were swamp and overflowed that formerly the lake had no outlet, he a Surveyor General from action; but lands in 1850. They were not, as we have says: “But its condition has changed probably it does not—at least, not by posseen, represented as such lands upon the materially ; it has lost its chief water sup-itive law. surveys and plats of 1853 and 1854. ply by canals and ditches, and it never I think, however, that such additions do Therefore it became necessary, under the can, while those canals and ditches keep not vitiate the surveys, nor for that act of July 23, 1866, to quiet land titles in up their flow, receive any great amount of reason require that they should be reCalifornia, (14 Stat., 218,) that the Gov- water.” And the purport of the great jected and canceled. Such additions are ernor should make application to the Sur- share of his report is to the same effect. in effect but the statement of a conclusion veyor General, and that by your direction On the other hand, the general descrip- of law, and may very properly be disresegregation surveys should be made“ of tion of the physical formation of the garded. I think the addition was unall the swamp and overflowed lands in region about the lake, as given by the called for and unnecessary. It occurs, such townships, and to report the same to agent, affords very strong proof that the the same in substance, more than four the General Land Office, representing and lands were subject to overflow, and unfit hundred times. The surveyor (Creighdescribing what land was swamp and for cultivation, in 1850. He describes the ton) has already, without any suggestion, overflowed under the grant, according to lake as having no outlet at the time of the incorporated into his notes, at the end of the best evidence he could obtain." If great floods of 1861-2, 1867–8, and that the surveys of the townships, a complete the State made claim, under the act of it then took the waters a long time to and much more satisfactory statement as 1850, to lands as swamp and overflowed recede by evaporation and percolation; to all the lands within the townships emwhich were not represented as such by the that the lake was situated in the lowest braced in the surveys. As an instance, I returns of any surveys, the claim was to depression of the San Joaquin valley, a cite the statement at the end of the surbe determined by testimony to be taken great basin and receiving the natural waters vey of township 24, range 20 E., which is before the Surveyor General.
of all that country, being “a vast area of as follows, viz. : The Creighton survey was duly author over 7,000 square miles.
“ The quality of land in Fr. Tp. 24 S., ized,
and was made in the field in January It became Creighton's duty under the R. 20 E., is generally good. The land is and February, 1880. The field notes were act aforesaid, being section 2488 U. S. Re- swamp and overflowed in nature, being returned to the Surveyor General, and ap- vised Statutes, to represent and describe made so by the waters of Kern River, proved by him. By such survey the tract what land was swamp and overflowed [which] coming down through the Buena in question was returned and classified as under the act of 1850, “ according to the Vista, and having no definite channel, swamp and overflowed land.
best evidence he could obtain.” I think overflow the whole country at time of A protest with various allegations, was an examination of his survey and report high water. It is also liable to overflow made against the survey by said railroad leads inevitably to the conclusion that his from the rising of Tulare Lake, having company, which resulted in the appoint- classification of the lands as swamp and been under water for these causes since ment of a special agent by your office to overflowed referred to their condition in 1860, the water gradually receding for the make personal examination of the lands, 1850. As I read the reports of Creighton last six or eight years, being seasons of and report upon the Creighton survey. and of the special agent, the supposed drought in this country. The land is liaThis agent, after an extended examina-conflict does not exist.
ble to be again inundated from these tion, reported that the survey was techni- The Creighton survey is severely as- causes (unless thoroughly protected by cally correct, but was erroneous in the sailed by the protest on the part of the levees) at any season of anything more classification of the lands as swamp and railroad company as fraudulent and ille- than an average rainfall. overflowed within the meaning of the act gal. The principal ground of the charge I shall refer but to one other criticism of 1850. is as follows:
of the Creighton survey. It is claimed
ray 9, 1883.
that, under section 2395 of the Revised was that mainly covered with water, and pliance with legal requirements at the date Statutes, all water courses must be noted had been since 1849, and that at different of entry, and the entry had been canceled in the field book, and that in fact no water times, for long periods down to 1876, it because the proofs were false, the entry courses are noted upon the plats in ques- had been so covered and overflowed, the could not be regarded as having been tion, but all the numerous streams disap- conclusion is manifest that the tract in erroneously allowed, nor could repayment pear upon reaching the old meander line, question, at the time of the passage of the be authorized. so that no streams appear as passing act of September 28, 1850, was swamp
Inasmuch as there has been no error in across the tract in question to the water and overflowed lands, made unfit thereby the premises on the part of the United of the lake. This is explained by evi- for cultivation.”
States, and as the said entry was canceled dence which shows that in fact there are After a somewhat extended examination pursuant to decision of this Department, no channels across the tract, but that, the of the several matters involved, I am sat- wherein it was held that Boyce had failed ground being nearly level, the waters isfied that the lands properly belong to to show bona fide compliance with statuspread out over the tract after reaching the State, and have therefore concluded tory requirements, I am of opinion that it the old meander line.
to affirm your decision approving the would not be expedient to refund said A large map of Tulare county, which I Creighton survey, and to direct the neces- purchase money. Your decision is acfind in the record, approved by the super- sary steps to be taken to give the State cordingly affirmed. visors as the official map of the county, the legal title to the lands covered thereby. and apparently having no connection with
TIMBER DEPREDATIONS. the case, has clearly marked upon it the
Don A. DODGE. tract in question, and shows all streams as ending at the old meander line. The
JAMES R. BOYCE.
Patented Lands. — Damage may be sustained examination and report made by special Repryment-Erroneous Entry Defined-- Desert
against timber trespassers after the land agent Hardenburg, conceded to be a very
Lands.--Where a desert land entry has been
in question has been sold to parties other canceled for non-compliance with law, the
than the trespassers. competent surveyor, states that the
purchase-money cannot be repaid.—What COMMISSIONER MCFARLAND to Don. A. Dodge Creighton survey is technically correct.
constitutes an erroneous entry under act of Special Timber Agent, Duluth, Minn., FebruLeaving out of view the additions be June 16, 1880.
(A. G. McK.) fore referred to, I think the Creighton SECRETARY TELLER to Commissioner McFar You desire to be informed if the govsurvey is full and intelligent, and all its land, March 26, 1883.
ernment can claim damages for timber recitations bear the evidence of being fair I have considered the appeal of James taken from the public lands where title to and truthful. I find no ground for im- R. Boyce from your decision of September the lands has subsequently vested in peaching it.
9, 1882, declining to recommend repay. parties other than the trespasser. The evidence shows that there are but ment of the purchase-money paid by him In reply thereto, you are advised that it few settlers upon the tract except those on desert land entry No. 62, (F.C. No. is the opinion of this office that a claim who are there under a claim of right from 42,) of the W. of S. E. & and S. W. 4 of for damages can be sustained on the part the State. It is doubtful whether there Section 28, Tp. 10 N., R. 3 W., Helena of the government in all cases for any are any other actual or bona fide settlers. district, Montana Territory.
trespass committed on the public timber Of the eighteen persons who signed the The entry was canceled pursuant to lands prior to sale of same, except in cases request (Exhibit No. 6) for appeal to this Departmental decision of August 2, 1882, of trespass which come under the provisDepartment, it is proven that not any of in the case of Wallace vs. Boyce (9 Copp, ions of the act of June 15, 1880. It may them reside upon lands within the Creigh- 120), wherein it was held that “inasmuch not, however, always be good policy to ton survey, but are residents of adjoining as it has been proved to my satisfaction prosecute cases of this kind, particularly towns. Undoubtedly some of these per- that Boyce has failed to comply in good so where the trespasser has purchased and sons have made claim to some of the faith with what I conceive to be the re- improved the land and made actual settlelands within the Creighton survey, and quirements of the statute, his entry should ment. But where it can be shown that have made some improvements thereon. be canceled.”
the party is an old offender, or that mill In a very few instances quite a large Section 2 of the act of June 16, 1880, owners or others have incited the trespass, amount of money has been expended in (21 Stat., 287,) provides for the repayment or have been parties thereto, either before the construction of levees, but I under- of purchase money “in all cases where or after the act of trespass, an investigastand from the evidence that such expen- homestead or timber culture or desert land tion should he had, and the facts and cirditure has been made by persons claiming entries * * of public lands have heretofore cumstances connected there with reported under the State.
(been) or shall hereafter be canceled for to this office for its consideration and furThe Creighton survey and notes (disre- conflict, or where from any cause, the en-ther action. garding the additions before named), af- try has been erroneously allowed and canford much satisfactory evidence as to the not be confirmed."
DEPARTMENT OF THE INTERIOR, condition and situation of the lands and In the case cited it was not shown that
GENERAL LAND OFFICE, their liability to overflow, and the hazards the entry in question had been erroneously
WASHINGTON, D. C., March 1, 1883. of cultivation without a large expenditure allowed, nor had the regularity thereof SPECIAL TIMBER AGENTS, General Land Office : for protection. This evidence, taken in been called in question; but the affidavit Respecting the measure of damages to connection with the physical conformation of contest which was filed after the issuance which the Government is entitled in setof the country, and the fact that there is of the final certificate, contained allega- tlement for timber trespass upon the pubno adequate outlet for the waters liable tions touching Boyce's failure to comply lic domain, the U. S. Supreme Court has at any unusual rise to be precipitated into in good faith with legal requirements, recently decided that, the lake, show that these lands are at were subsequently verified, and showed 1. Where the trespasser is a knowing present in a condition unfit for safe and that the proofs upon which such certificate and willful one, the full value of the propcontinued cultivation. Most of the tract was based were not made in good faith. erty at the time and place of demand, is so nearly on a level with the water in your decision appealed from, you with no deduction for labor and expense the lake at its present stage, that a small state that when a person fails to comply of the defendant, is the proper rule of rise therein, without protection, would in- with legal requirements," the fee and com- damages. undate the entire tract.
missions or purchase money paid on such 2. Where the trespasser is an unintenWhen these well established facts are entry cannot be refunded." In such cases tional or mistaken one or an innocent purconsidered, with the proof furnished by the Department has invariably held that chaser from such a trespasser, the value the surveys of 1853 and 1854, and the evi- if there was no error on the part of the of the timber at the time when first taken dence connected therewith that the tract' United States, or if the proof showed com-' by the trespasser, or if it has been con