SWAMP LANDS—INDEMNITY.

STATE OF LOUISIANA.

As to lands that were granted to the State by the act of 1849, the purchasers are entitled to protection and the State to indemnity, where such lands were sold by the United States between the 2d of March, 1849, and the 28th of September, 1850; but as to such as were excepted out of the grant of 1849, and were first granted by the act of 1850, the State is only entitled to indemnity after the passage of the latter act.

Acting Secretary Muldrow to Commissioner Sparks, January 19, 1887.

On examining the appeal of Van H. Manning, Esq., as agent for the State of Louisiana, from your decision of February 12, 1886, "refusing to allow said State indemnity for swamp lands sold in said State between March 2, 1849, and September 28, 1850," doubts arose in my mind as to the proper construction of the swamp land grants of March 2, 1849 (9 Stat., 352), and September 28, 1850 (9 Stat., 519), and also the indemnity acts of March 2, 1855 (10 Stat., 634), and of March 3, 1857 (11 Stat., 251); and the matter was referred by me to the Hon. Attorney General of the United States for his opinion in the premises. That opinion has been received and on consideration of the same I concur in the views therein expressed, accordingly reverse your judgment in said case, and decide, adopting the views and language of said opinion, "that as to such lands as were granted to Louisiana by the act of 1849 the purchasers are entitled to the protection, and the State to the indemnity, for any such lands as were sold by the United States between the 2d of March, 1849, and the 28th of September, 1850, but as to such as were excepted out of the grant of 1849, and were first granted to Louisiana by the act of 1850, being the lands fronting on rivers, creeks, bayous, watercourses, &c., the State is only entitled to an indemnity after the passage of the act of September 28, 1850."

Herewith are sent the papers in the case, transmitted by your letter of March 16, 1886, and also the opinion of the Attorney General, above referred to.

OPINION.

Attorney-General Garland to the Secretary of the Interior, January 11, 1887.

Your letter of the 15th of December, 1886, submits whether, under the provisions of the act of the 2d of March, 1885, and the act of the 3rd of March, 1857, known as the swamp land indemnity acts, the State of Louisiana is entitled to indemnity for such swamp lands as were sold by the United States between the 2d of March, 1849, and the 28th of September, 1850.

On the 2d of March, 1849, the United States granted the State of Louisiana "the whole of the swamp and overflowed lands within her

borders owned by the United States at that time except lands fronting on rivers, creeks, bayous, watercourses, etc., which had been surveyed." (9 Stat., 352.)

On the 28th of September, 1850, (9 Stat., 519) an act was passed of substantially the same tenor and effect, known as the Arkansas swamp land act, which, by the fourth section applied to each of the other States of the Union in which swamp and overflowed lands existed, without the exception contained in the act of 1849 as to lands "fronting on rivers, creeks, bayous, watercourses, etc." This last act was substantially a re-enactment of the act of the 2d of March, 1849, so far as Louisiana was concerned, with an extension of the grant in that act so as to include the lands which had been excluded by the exception in the former enactment, as to which it was a new and substantive grant on the 28th of September, 1850. Both of these acts were grants in præsenti by which, from their respective dates, the title to the lands therein described became vested in the several States. Railroad v. Smith, (9 Wall., 95); French v. Fyan et al., (93 U. S., 169); Emigrant Co. v. County of Wright (97 U. S., 339); Martin v. Marks (97 U. S., 345); Gaston v. Stott (5 Oregon, 48); Fletcher v. Pool (20 Arks., 100); Hempstead v. Underhill, Ib. 346); Branch v. Mitchell (24 1b. 431); Daniel v. Purvis (50 Miss., 261). Notwithstanding these grants of the swamp lands to the States, by which they became the owners of the lands and the United States had been substantially divested of ownership, and could convey no title thereto, after the passage of the respective acts, through some inadvertence or negligence of the officers of the United States, some of the swamp lands to which the United States had no sufficient title were sold to pre-emptors and others, and the consideration was received therefor. Although the United States could not be legally held as a warrautor as to the defective and void title thus conveyed, yet in equity and good conscience she would be bound to refund to each purchaser the purchase money received for the land. But, as many such purchasers had improved their lands, full justice could not be done them by the mere return of the purchase money. The States at any time could assert their title and eject the purchasers. To avoid this injustice, and invest the purchasers with titles to the homes they had made under a void purchase from the United States; on the 2d of March, 1855, Congress passed an act entitled "An act for the relief of purchasers and locators of swamp and overflowed lands" (10 Stats., 634). This statute is remedial, and should be interpreted liberally so as to include whatever is within the mischief intended to be remedied. (Potter's Dwarris, 207). The substance of the remedy was that the United States, instead of refunding to the purchasers the money which she unjustly obtained from them, would pay it to the States who held the title and owned the land, and thereby save the land with its improvements to the purchasers, and indemnify the States for their loss with the money received. 2278 DEC―30

The second section, being the indemnity clause of the act is as follows:

"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 within the true intent and meaning of the act aforesaid, the purchase money shall be paid over to the said State or States; and where the land has 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, and patents shall issue therefor upon the terms and conditions enumerated in the act, provided, however, that the decisions of the Commissioner of the Land Office shall be approved by the Secretary of the Interior."

The first clause of this section provides that "Upon due proof that any of the lands purchased were swamp lands, within the true intent and meaning of the act aforesaid, the purchase money shall be paid over to the said State or States." The words "of the act aforesaid ", above cited, refer to the act of the 28th of September, 1850, as shown by the preceding section. Whenever the lands were within the intent and meaning of the description of swamp lands as contained in the act of 1850, the purchasers were entitled to the protection and the State to the indemnity of the act of 1855. The description of swamp lands under the act of 1850 is found in the third section and is:

"All legal subdivisions the greater part of which is wet and unfit for cultivation; or when the greater part of the subdivision is not of that character, the whole shall be excluded therefrom."

In the act of 1849 the description of swamp lands is:

"Subject to overflow and unfit for cultivation, all legal subdivisions the greater part of which is of that character shall be included-but when the greater part of a subdivision is not of that character the whole shall be excluded therefrom."

These definitions of swamp lands in the acts of 1849 and 1850 are substantially the same. Therefore all swamp lands granted by the act of 1849 would be within the intent and meaning of the words "swamp lands" in the act of 1850. The consideration for the grants in the acts of 1849 and 1850 was the same. The errors committed by the officers of the United States against both grantees were the same in effect. The wrongs done to both classes of purchasers were the same. If Congress had intended to remedy the wrong and to relieve only the purchasers who had purchased from the United States, titles granted to the States by the act of 1850, and leave those who stood in exactly the same relations, under circumstances exactly similar, to the mercy of the State of Louisiana, or purchasers from her, doubtless, instead of using the language "within the intent and meaning of the act aforesaid," such unjust discrimination against those purchasers would have been indicated by fit words, such as "granted by the act aforesaid," or some other

equivalent language. No such language is found in the act of 1855. On the contrary the language which is used is equivalent to "all who are subject to the same mischief shall have the benefit of the same remedy." The "intent" of the act was to give a good title to those to whom the United States had sold such lands, and the "meaning" was to indemnify the States by giving them for their lands she had sold the purchase money she had received therefor, and thereby do justice to both.

This view is enforced by legislative interpretation by the act of the 3d of March, 1857, (11 Stat., 251) by which the titles under the acts of 1849 and 1850 are confirmed as on the same footing; and by the proviso thereto the act of 1855 is extended to the third day of March, 1857, as to both as follows:

"Provided, however, that nothing in this act contained shall interfere with the provisions of the act of Congress entitled 'an act for the relief of purchasers of swamp and overflowed lands, approved March 2, 1855,' which 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."

It is scarcely conceivable that Congress would extend the act of 1855 from the 2d day of March, 1855, to the 3d day of March, 1857, as to lands in Louisiana, unless those lands, within the "intent and meaning" of the act of 1855 were embraced in that act. It is ruled in a well-considered opinion of Attorney-General Speed, found in 11 Opins., 472, that the proviso to the act of 1857 should be interpreted as though at tached to the act of 1855. If so attached, the language "an act approved March 2, 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" must certainly embrace lands granted to Louisiana by the act of 1849. The departmental interpretation, which is entitled to great weight, has, in principle, been conformable to this view of the statute. In 3d Land Decisions, p. 396, an opinion of the Commissioner of the Land Office, approved by the Secretary of the Interior, dated 12th of February, 1885, is found, which decides that the indemnity act of 1855 was applicable to Louisiana as to land granted to that State by the act of 1849, sold by the United States, since the act of 1850. If that indemnity was payable to the State as to any of the lands granted by the act of 1849, the same principle would apply as well to those which were sold by the United States before 1850 as those that were sold after; if the act of 1855 applied to any of the lands conveyed by the act of 1849 to Louisiana, it must, on the same principle, apply to all, for, as to such lands, the title was as fully vested in the State of Louisiana before the passage of the act of 1850 as it was after. Hence, it is concluded. that as to such lands as were granted to Louisiana by the act of 1849, the purchasers are entitled to the protection and the State to the indemnity for any such lands as were sold by the United States between

the 2d of March, 1849 and the 28th of September, 1850, but as to such as were excepted out of the grant of 1849, and were first granted to Louisiana by the act of 1850, being the lands fronting on rivers, creeks, bayous, watercourses, etc., the State is only entitled to an indemnity after the passage of the act of the 28th of September, 1850.

MINING CLAIMS—APPLICATION.

CIRCULAR.

Commissioner Sparks to surveyors-general and registers and receivers, February 16, 1887.

The provisions of circular N, of May 11, 1885 (3 L. D., 542) are hereby extended to all cases in which application for patent was filed and publication commenced prior to the receipt by the register and receiver of circular N, of December 4, 1884 (3 L. D., 540).

Approved:

H. L. MULDRow,

Acting Secretary.

RAILROAD GRANT-DETERMINATION OF LIMITS.

SCOTT v. KANSAS PACIFIC RY. CO.

The actual road as made or located is the measure by which the locality and quantity of the grant is to be ascertained and determined.

The lateral limits of a grant are determined by drawing lines on each side of the route of the road through a series of points, at the precise distance therefrom of the width of the grant, on tangential lines to arcs having a radius equal to the width of the grant on each side of the route.

By this system any point on the lateral limit will be distant the length of such radius from some point on the road as located.

Secretary Lamar to Commissioner Sparks, March 10, 1887.

On January 28, 1884, Leander Scott made application to enter under the homestead law the W. of SW. 4 of Sec. 29, T. 18 S., R. 5 W., Salina, Kansas. His application was rejected by the register, "for the reason that the land as shown by the records of this office is within the graut to the Kansas Pacific Railway Company;" whereupon Scott appealed to your office, alleging that "the tract applied for is by actual measurement more than twenty miles from the line of said road." On January 22, 1884, your predecessor affirmed the action of the register, holding that the tract in question "is within the limits of the grant as adjusted," and that the limits would not be re-established. The case came on appeal to this Department, and on application by the attorney for Scott was afterwards remanded to your office by the Assistant Secretary for further investigation and report.