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GENERAL LAND OFFICE,
November 21, 1850. Sir :-By the Act of Congress, entitled “An Act to enable the State of Arkansas and other States, to reclaim the swamp lands' within their limits," approved September 28, 1850, (No. 182,) it is directed “ That, to enable the
the swamp and overflowed lands therein, the whole of those swamp and overflowed lands made thereby unfit for cultivation which shall remain unsold at the passage of this Act shall be, and the same are hereby granted to said State.”
1st. By the 4th section of this Act, it is directed that the provisions of it shall be extended to, and their benefits be conferred upon, each of the other States of the Union in which such swamp and overflowed lands may be situated.
2d. And that in making out a list and plats of the lands aforesaid, all legal subdivisions, the greater part of which is wet and unfit for cultivation,' shall be included in said lists and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom.”
This Act clearly and unequivocally grants to the several States, those lands which, from being swampy or subject to overflow, are unfit for cultivation. In this class is included also, all lands which, though dry part of the year, are subject to inundation at the planting, growing, or harvesting season, so as to destroy the crop, and therefore are unfit for cultivation, taking the average of the seasons, for a reasonable number of years, as the rule of determination.
You will please make out a list of all the lands thus granted to the State, designating those which have been sold or otherwise disposed of since the passage of the law, and the price paid for them when purchased.
The only reliable data in your possession from which these lists can be made out, are the
notes of the surveys on file in your Office; and if the authorities of the State are willing to adopt these as the basis of those lists, you will so regard them. If not, and those authorities furnish you satisfactory evidence that any lands are of the character embraced by the grant, you will so report them.
The following general principles will govern you in making up these lists, to wit:
Where the field notes are the basis, and the intersections of the lines of swamp or overflow with those of the public surveys alone are given, those intersections may be connected by straight lines; and all legal subdivisions, the greater part of which are shown by these lines to be within the swamp or overflow, will be certified to the State; the balance will remain the property of the government.
Where the State authorities may conclude to have the surveys made to determine the boundaries of the swamp or overflowed lands, those boundaries alone should be surveyed, taking connections with the nearest section or township corners; or
Where the swamp or overflowed lands are on the borders of a stream or lake, the stream or lake could be meandered and ordinates surveyed at suitable intervals, from the borders of the stream or lake to the margin of the swamp or overflowed lands, and by connecting the ends of those ordinates next to that margin by straight lines, the boundaries of the swamp or overflowed lands can be ascertained with sufficient accuracy. In no case, however, should any such boundaries or ordinates be marked in the field, as they may produce difficulty in determining the lines and corners of the public surveys hereafter, and thus lead to litigation. The selections in all these cases will be made as before directed. Where satisfactory evidence is produced that the whole of a township, or of any particular or specified part of a township, or the whole of a tract of country bounded by specified surveyed or natural boundaries, is of the character embraced by the grant, you will so report it. The adjacent subdivisions, however, to be subject to the regulations above given; and in every case under each rule or principle herein prescribed, forty-acre lots or quarter-quarter sections will be regarded as the legal subdivisions contemplated by the law.
The affidavits of the county surveyors and other respectable persons, that they understand and have examined the lines, and that the lands bounded by lines thus examined and particularly designated in the affidavit, are of the character embraced by the law, should be sufficient.
The line or boundary of the overflow, that renders the land unfit for regular cultivation, may be adopted as that which regulates the grant.
You will make out lists of these lands as early as practicable, according to the following form, one copy of which you will transmit to the land officers and another to this Office. The lands selected should be reserved from sale, and after those selections are approved by the Secretary of the Interior, the Register should enter all the lands so selected in his tract book as "granted to the State by Act of 28th September, 1850, being swamp or overflowed lands," and on the plats enter on each tract “ State Act of 28th September, 1850.” Copies of the approved lists will be sent to the Registers for this purpose. Your early attention is requested in this matter, that the grant may be disposed of as speedily as possible. Very respectfully, your obedient servant,
J. BUTTERFIELD, Commissioner.
" Swamp and Overflowed Lands.”—Public Notice.
Pursuant to the instructions of the Secretary of the Interior, public notice is hereby given, that, in order to bring to a close the business under the Act of Congress, approved September 28, 1850, (No. 182,) entitled “ An Act to enable the State of Arkansas, and other States, to reclaim the · Swamp Lands' within their limits," and at the same time afford to parties who claim that portions of the lands selected under said law are dry and fit for cultivation, an opportunity to introduce evidence, all lands so selected, to the approval whereof no objection be made within six months from the date hereof, will be certified and patented to the States.
Such objections as are contemplated by the above, must be made under oath, and filed with the Register and Receiver of the proper land office for
transmission to the General Land Office. The necessary forms for affidavits are in the hands of said officers.
The following classes of land are exempt from objection, to wit:
1st. Lands entered with cash, or located with military bounty land warrants or scrip, after the passage of the Act of 28th September, 1850, (No. 182,) and prior to the passage of the Act of 2d March, 1855, (No. 275,) “For the relief of purchasers and locators of swamp and overflowed lands."
2d. Lands already patented to the State under the swamp law.
In all cases where objection is raised, testimony must be taken before the Register and Receiver of the land office at such time after the expiration of said six months as they may appoint, with the consent of the Commissioner of the General Land Office.
The lists of swamp and overflowed lands are open to inspection during the regular business hours of the land office.
Given under my hand, at the city of Washington, this 21st day of December, 1855.
Thos. A. HENDRICKS, Commissioner of the General Land Office.
Form of Affidavit in Contested cases under the Swamp Land Grant.
State of County of — , ss.
On this day of , 1856, personally appeared before me, the undersigned, Register of the Land Office at , in said State, who being by me duly sworn, deposes and says, that he is well acquainted with the character of the soil in the following described tract of land, to wit: of section in township of range in the district of lands subject to sale at — in the State aforesaid, and being in the county of - ; that he has been over and examined the lines of said land, and the marks or designations on the corner posts or trees, and from such examination, has ascertained and knows the greater part of each forty-acre tract thereof to be dry and fit for cultivation, without artificial drainage or embankment, and free from such regular periodical overflow, either at the planting, growing or harvesting season, as would materially injure or destroy a crop. And further, that such was the character thereof on the 28th of September, 1850, the day on which the Swamp Land law was passed. Subscribed and sworn to before me, on the day aforesaid.
- , Register.
NOTE.—It is not indispensable that the foregoing affidavit should be made before the land officers. Where that cannot be conveniently done, it may be made before any officer authorized to administer oaths, and in that case, his official character must be certified under seal.
GENERAL LAND OFFICE,
February 11, 1856. Gentlemen :-You have already been furnished with copies of the public notice relative to “swamp and overflowed lands," issued from this Office under date of 21st December last ; and, also, with the form of affidavit required from contestants of the State's claim to lands alleged to have been
* See No. 577.
erroneously selected under the Act of Congress approved September 28, 1850, (No. 182.) In the letter by which said papers were accompanied, it was stated that further instructions on the subject would be furnished to you at an early day.
The purpose of this circular is to set forth, in a brief and concise manner, the several steps necessary to be taken by you in conducting cases of the nature contemplated by the public notice, from their inception to their consummation; and a careful and steadfast adherence to the rules herein prescribed will be imperatively required of you.
. In the first place, you are required to receive all affidavits offered to you, endorse upon them the date of their receipt, the name and address of the party by whom filed, or his agent, and transmit them to this Office.
These returns may be made at such times as shall best suit your own convenience; but shall not, in any case, be delayed longer than one month, because it is essential that all affidavits should be sent here for examination as early as possible, in order that, if any are found to be defective, to refer to lands exempt from objection, to embrace tracts previously applied for, or present other difficulties, an opportunity for correspondence with the party, and for correction of the papers, may be afforded before the expiration of the time limited by the notice aforesaid.
When the prescribed time (six months from the date of said notice,) shall have expired, you will be furnished with a complete list of all the lands relative to which affidavits have been filed, exhibiting the tract or tracts contested, the name of the contestant, the date of application, and the order in which testimony is to be taken. This will be sent to you in duplicate, one copy to be retained in your possession, as a guide to your own action, and the other transmitted to the proper State authorities having control of the swamp land business, with a notice, setting forth, that, under the instructions of this Office, you will, on a certain day, at least thirty days thereafter, at an hour and place to be designated, commence taking testimony relative to the lands, and continue the hearing from day to day until the business is concluded. .
At the time of giving notice to the State authorities, you will also give or send notice to the several contestants, or their agents, whose names and residences you will find on the list, specifying therein the number of each particular case—as designated in the list furnished by this Office--and the particular day on which it will be reached.
This you must determine, as nearly as possible, by an examination of the papers; and it is expected that you will'exercise great care and discretion in the matter.
The important interests involved in these cases demand this at your hands; and your own labors will be materially lessened by a systematic and well considered arrangement.
In the several States where the swamp lands” have been donated to the counties, the lists will be prepared as accurately as possible in view of the lack of information regarding their limits, so as to embrace all of the lands in each county, and the cases numbered and heard by you in regular order.
The list furnished by this Office will be your calendar, and you will proceed regularly through the same, without preference or favor to any party, calling each case on the day specified in the notice. Upon good cause shown you may postpone the hearing of any case, but with the understanding that the same shall be put at the foot of the calendar, or heard at such time as shall not interfere with the rights or interests of parties awaiting your action.
Great discretion must be exercised, however, in granting postponements, and they should be seldom allowed except by mutual consent of the parties in interest.
It will be required that at least ten cases shall be disposed of on each day, unless the same embrace so many tracts that the labor cannot possibly be discharged in connection with your other official duties. Whenever it may occur that a case arises which cannot be fully heard without much expenditure of time, it would, perhaps, be advisable, with the consent of the parties, to take testimony out of the regular hours of transacting business, so as not to interfere with the systematic progress through the calendar.
The method of taking testimony will be as follows : on the day and at the time appointed, you will give notice that you are ready to proceed with the case, specifying its number, calling the name of the contestant or his agent, and also the party to whom notice has been issued on behalf of the State.
The evidence of the witnesses for the contestant must be first taken, reduced to writing, and the depositions subscribed in your presence. The agent or attorney for the State shall have the privilege of cross-examination; and when the contestant has signified the conclusion of his testimony, witnesses on behalf of the State's claim may be introduced and examined. The following interrogatories and cross-interrogatories, copies of which, printed for this especial purpose, will be furnished you, must be propounded to each witness.
Interrogatories.—State your name, age, and residence, and whether near the land in controversy.
Are you acquainted with the character of the soil in the quarter of the quarter of section - in township
of range in the district of lands subject to sale at ? Is your knowledge of that land based upon an actual survey, or upon a mere examination ?
Have you been over and examined the lines of said land, and the marks or designations on the corner posts or trees ?
Were you familiar with that particular tract of land on or about the 28th
Is or is not said land susceptible of cultivation in grain or any other staple production, by reason of a swampy and wet character ?
Is or is not said land susceptible of cultivation in grain or any other staple production, by reason of periodical and regular overflow?
State whether successfully to cultivate said land, it would be necessary to use artificial means? if so, what, and to what extent.
What portion of the land in question, from your survey (or examination, did you ascertain to be dry and fit for cultivation, and what portion wet and unfit for cultivation ?
What is the general character of the land in the section of country in which this tract is situated ?
Cross-Interrogatories.- Are you familiar with the mode and manner of surveying and marking the public lands of the United States ?
Do you make your statements as to the character of this land from your own personal knowledge, or from the representations of others ?
In making the survey (or examination of this land, did you inspect such portion of its entire surface as would enable you, from your own knowledge, to state its general character ?