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Governor LaFayette Grover's Administration

Public Lands Correpondence, 1871

Source: Messages and Documents, Executive Correspondence, 1871, Salem, Oregon, Eugene Semple, State Printer, 1872.

EXECUTIVE CORRESPONDENCE.
PUBLIC LANDS.
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
WASHINGTON, D.C., May 3d, 1871

His Excellency,
L.F. Grover,
Governor of Oregon:

SIR: I have the honor, herewith, to transmit certified transcript of List No. 2, embracing tracts selected in the Roseburg District, containing in the aggregate 167, 633. 57 acres, as lands "in place," and inuring to the State of Oregon under Acts of Congress approved July 2, 1864, and March 3, 1869, entitled "An Act grating lands to the State of Oregon to aid in the construction of a Military Road from Eugene City to the eastern boundary of said State."

Also, herewith, certified transcript of List No. 3, containing selections within the indemnity limits of six miles of said Military Road, as provided by the Act of Congress approved December 26, 1866, and embracing in the aggregate 23, 475.66 acres.

You will please acknowledge the receipt of said transcripts.

Very respectfully,
Your obedient servant,
WILLIS DRUMMOND,
Commissioner.


DEPARTMENT OF THE INTERIOR
GENERAL LAND OFFICE
WASHINGTON, D. C. May 15, 1871.

To His Excellency,
L.F. Grover,
Governor of Oregon:

SIR: Herewith I have the honor to transmit certified transcript of List No. 1, embracing tracts selected in the Oregon City and Roseburg Districts, and containing in the aggregate 46,814.45 acres, as lands inuring to the State of Oregon under the Act of Congress approved July 5, 1866, as amended by Act of July 15, 1870, "to aid in the construction of a Military Road from Albany, Oregon, to the eastern boundary of said State," known as the Willamette Valley and Cascade Mountain Military Wagon Road.

You will please acknowledge the receipt of said transcript.

Very respectfully,
Your obedient servant,
W.W. CURTIS,
Acting Commissioner.


STATE OF OREGON,
EXECUTIVE OFFICE,
SALEM, May 8, 1871.

Hon. Columbus Delano,
Secretary of the Interior,
Washington City:

SIR: There are several Acts of Congress heretofore passed making grants of land to the State of Oregon, to aid in the construction of military wagon roads. The Act of July 2, 1864, entitled "an Act granting Lands to the State of Oregon to aid in the construction of a Military Road from Eugene City to the eastern boundary of said State," may be taken as an example.

You will observe that the granting clause is in the following words: "That there be and hereby is granted to the State of Oregon," &c. I am desirous of being informed what is the decision or practice of the Land Department of the United States under land grants of this character, with reference to the issuance of patents.

May the State of Oregon Expect to receive patents for lands to which she is entitled under these grants, upon a showing of facts constituting her right? Or, do these Acts of Congress constitute such grants as are considered to pass the lands without patents?

An indication of the view taken by your office will facilitate the adjustment of questions of title under these grants, and greatly oblige,

Your obedient servant,
L. F. GROVER,
Governor of Oregon.


DEPARTMENT OF THE INTERIOR,
WASHINGTON, D. C., May 23, 1871.

SIR: I have received your letter of the 8th instant, inquiring as to what is the decision or practice of the Department under land grants of the character of those made to Oregon for certain wagon roads, with reference to the issue of patents for the granted lands.

In reply, I have the honor to state that the act to vest in the several States and Territories the title in fee of the lands which have been or may be certified to them, approved 3d August, 1854, provides, that where the law making the grant "does not convey the fee simple title of such lands, or require patents to be issued therefor, the lists of such lands which have been, or may hereafter be certified by the Commissioner of the General Land Office, under the seal of said office, either as originals, or copies of the originals or records, shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such act of Congress, and intended to be granted thereby."

The act of July 1st, 1864, to regulate the compensation of Registers and Receivers in the location of lands by States and corporations under grants from Congress, provides that those officers shall be entitled to receive a fee on the final location of each 160 acres, to be paid by the State or corporation making such location, which fees are to be accounted for to the United States.

The State is therefore required to file in the proper local land office, through her authorized agents, lists of the lands granted for the purpose of aiding in the construction of wagon roads, and pay the fees of the Register and Receiver due thereon. Those officers are then required to certify and forward such lists to the Commissioner of the General Land Office. On the receipt of the lists at the General Land Office, the lands described therin, if found correct, are approved, and certified copies of the approved lists vesting the title in the State are forwarded to the Governor.

The circular approved by this Department on the 24th January, 1867, copy herewith, prescribes the form of selecting and certifying the granted lands.

I am, Sir,
Very respectfully,
Your obedient servant,
C. DELANO,
Secretary.
His Excellency, L. F. Grover, Governor of Oregon, Salem, Oregon.


STATE OF OREGON
EXECUTIVE OFFICE,
SALEM, May 12, 1871

Hon. Columbus Delano,
Secretary of the Interior,
Washington City, D. C.:

SIR: On the 30th of November, 1868, lists of indemnity school lands in the Oregon City District (from one to seven, inclusive), embracing 13,383.53 acres; on the 31st day of December, 1868, lists (from eight to thirteen, inclusive), embracing 17,637.52 acres; and on the 27th day of February, 1869, lists (from fifteen to eighteen, inclusive), embracing 11,007.16 acres, were forwarded from that office to the General Land Office at Washington City for the action of the Commissioner. Nothing has been received at this office showing any action on them by him.
As a great many of these indemnity lands have been sold by the State, under the impression that their selection had been already approved by the Commissioner of the General Land Office; and as immigrants to this State are pressing their applications to purchase these lands, I would most respectfully ask you to give the matter your early consideration.

I have the honor to be,
Very respectfully,
Your obedient servant,
L. F. GROVER,
Governor of Oregon.


DEPARTMENT OF THE INTERIOR
WASHINGTON, D. C.,
MAY 29, 1871.

SIR: I have the honor to acknowledge the receipt of your letter of the 12th instant, concerning certain lists of indemnity school lands, and to inform you that the same has been referred to the Commissioner of the General Land Office "for early attention."

Very respectfully,
Your obedient servant,
C. DELANO,
Secretary.
His Excellency, L. F. Grover, Governor of Oregon, Salem.


DEPARTMENT OF THE INTERIOR
GENERAL LAND OFFICE
WASHINGTON, D. C., June 1, 1871.

His Excellency
L. F. Grover,
Governor of Oregon:

SIR: Your letter of the 12th ult., addressed to the Hon. Secretary of the Interior, relative to indemnity school selections in the Oregon City Land District, Oregon, under the Acts of Congress of February 14, 1859, and February 26, 1859, (as per lists, from No. 1 to No. 18, inclusive), has been referred to this office.

In reply I have the honor to state that the lists referred to, which are now on file in this office, will be taken up without delay, all selection therein found to be free from legal objection will be included in a clear list which will be made up and submitted to the Hon. Secretary of the Interior for his approval, of which, when approved, you will be furnished with a certified copy; and regarding any of the selections to which legal objection may appear, the same will be promptly communicated to the Register and Receiver of the District Land Office.

Very respectfully,
Your obedient servant,
WILLIS DRUMMOND,
Commissioner


STATE OF OREGON
EXECUTIVE OFFICE,
SALEM, May 17, 1871

Hon. Willis Drummond,
Commissioner of the General Land Office,
Washington City, D. C.:

SIR: On the 1st day of March last, lists of University Land selections, from one to seven inclusive, embracing 35,959 99-100 acres of old selections, and List No. Eight, of 4, 080 78-100 acres of new selections, made by me under Act of Congress of February 14, 1859, admitting Oregon into the Union, were forwarded from the Oregon City Land Office to you for your action; and on the 12th inst., List No. Two, of 200 47-100 acres of new selections, made by me under authority referred to in relation to List No. Eight above, were forwarded to you from Roseburg Land Office. Those on the old lists were made several years ago under authority of the Territorial Legislature, and were approved by the Surveyor General. (See Act of Congress of September 27, 1850, relating to Public Lands in Oregon.) But as the Surveyor General did not have the selections properly platted on the township maps, and the lists not being in a very clear condition, conflicts arose on a great many of them, and those in conflict were abandoned by the State. The lists sent you are free from conflict of any kind. A great many of these lands have been disposed of under the conviction that the Territorial and State authorities had a right to dispose of them a fee simple grant; and in order to prevent future conflicts and delay to settlers, and expense and trouble on the part of the State, I respectfully urge early and final action of your office upon these selections by way of confirmation.

I have the honor to be,
Very respectfully,
Your obedient servant,
L.F. GROVER,
Governor.


STATE OF OREGON
EXECUTIVE OFFICE,
SALEM, June 12TH, 1871.

Hon. Willis Drummond,
Commissioner General Land Office,
Washington, D. C.:

SIR: By reference to copies of certified approved lists of lands selected under the provisions of the 8th section of the Act of Congress, entitled "An Act to appropriate the proceeds of the sales of the public lands, and to grant preemption rights," approved September 4, 1841, sent to this office by the Commissioner of the General Land Office, I find that 431, 576.42 acres of the lands granted this State of the 500,000 acre grant, have been approved by the Secretary of the Interior. On the 1st of last March lists from 36 - 47, inclusive, embracing 16, 177.21 acres, under the last mentioned Act, were forwarded to your office from the Oregon City Land office, for your action, and on the 12th ult., lists Nos. 2, 44, and 50, embracing 121,23.74 acres, were forwarded from the latter office about two years ago, but no action has yet been taken on them to the knowledge of this office.

You will observe by summing up the several selections forwarded, there is selected an excess of 67, 136.20 acres over and above the allowance of the grant. That amount, therefore, will necessarily be rejected by your office in making final approvals.

Owing to a misapprehension on the part of the authorities of this State, and on the part of settlers who have entered upon lands selected by the State under this grant, certain portions of these lands which yet remain unapproved, have been occupied and purchased under State authority by bona fide settlers, believing that the lands so purchased and occupied had been already approved by your office.

You will perceive, therefore, if for any reason the occupied lands should be disapproved at this time, and thereby become lands of the United States, it will seriously embarrass both the State of Oregon and these settlers, many of whom have made extensive and valuable improvements upon the lands. I will, therefore, take the liberty of suggesting those lands which have been disposed of and have become occupied and improved in the manner stated, and of making request that the same to be first examined and approved by your office, as follows to-wit: Land suggested to be approved. Lists from 36 to 47, inclusive, of Oregon City Land District, embracing 16, 177.21 acres; lists Nos. 2, 44, 49, 50 and 51, and sections 6 and 7, T. 40 S., R.8 E.; sections 6,7,13,18,19,24, 28, 29, 31, 32, 33, and 34, T. 38 S., R. 9 E.; sections 31 and 32, T. 39 S., R. 8 E; sections 3, 5, 8, 9, 17, 18, 20, 21, and 28, T. 39 S., R. 9 E.; and sections 22, 27, 28 and 34, T. 39 S. R. 10 E., of lists 1, 2, and 3, sent from Roseburg Land Office - the latter list, No. 2, having been forwarded some two years ago.

As to balance to complete the complement of the 500,000 acre grant, the records of your office will furnish sufficient indication. When the approved list of the above mentioned lands shall have been received at this office, I will forward an additional list to make the complement of the 500, 000 acres granted by said Act, from the lists already in your possession. I will also transmit at that time in abandonment of all other lands of such selections, in case the course here suggested will meet your approval.

I have the honor to be,
Very respectfully,
Your obedient servant,
L. F. GROVER
Governor of Oregon.


DEPARTMENT OF THE INTERIOR
GENERAL LAND OFFICE
WASHINGTON, D. C., August 23, 1871.

His Excellency,
The Governor of Oregon,
Salem, Oregon:

SIR: Referring to your letter of the 12th June last, enclosing list of selections by the State of Oregon under Act of September 4, 1841, and requesting that the same be taken up and certified over to the State at as early a day as practicable, I have the honor to state that the selections described in said list will be taken up a an early day and, upon examination, should the same be found clear, a list will at once be prepared of these selections and submitted for approval. When the list shall have been approved, copies of the same will be transmitted to your Excellency, and to the local offices.

I am, Sir,
Very respectfully
Your obedient servant,
WILLIS DRUMMOND
Commissioner.


EXECUTIVE OFFICE
SALEM, August 22, 1871.

Hon. Wm. H. Odell,
Surveyor General,
Eugene City:

SIR: I desire to be informed whether, at any time since the admission of the State of Oregon as a State of the Union, instructions have been received at the Surveyor General's Office from the Land Department at Washington, recognizing the lands on the sea coast of this state, lying between the ebb and flow of the tide, as vested in the State by right of her sovereignty over the same, and whether the public surveys under charge of your office have been directed to be limited upon the line of high tide at the sea coast and upon the inner line of salt marshes made such by the tide; and I also desire to know If instructions have at any time been received since 12th of March, 1860, being the date of the Act of Congress extending the right to hold the swamp lands embraced within the limits of this State, directing your office to recognize that right and to ascertain by the public surveys the extent and location of such swamp lands.
If instruction have not been received, definitely referring to the points herein mentioned, will you be kind enough to inform me if instructions have been received on any of these subjects, and to what effect? I desire this information to enable me to correspond intelligently with the Secretary of the Interior relative to these rights of the State.

I have the honor to be,
Very respectfully,
Your obedient servant,
L. F. GROVER,
Governor.


U. S. SURVEYOR GENERAL'S OFFICE, OREGON,
EUGENE CITY, September 4, 1871.
Hon. L. F. Grover,
Governor of the State of Oregon,
Executive Office, Salem, Oregon:

SIR: Your letter of the 22d ult. is received, and contents noted. In answer, I have to state that I have examined the letter files from 1858 to the present, and find nothing relating to the swamp or tide lands in this State; hence I conclude that no correspondence has ever been had between General Land Office and this office upon the subject.

Very respectfully,
Your obedient servant,
W. H. ODELL,
Surveyor General, Oregon.


STATE OF OREGON
EXECUTIVE OFFICE,
SALEM, October 25, 1871.

To the Commissioner of the General Land Office,
Washington City, D. C.:

SIR: I herewith transmit a certified copy of the approval by the Surveyor General of Oregon of lands selected under authority of the Legislative Assembly of the Territory of Oregon, in the county of Benton, under and by virtue of the tenth section of the Act of Congress of September 27, 1850, entitled "An Act to create the office of Surveyor General of public lands in Oregon, and to provide for the survey and to make donations to settlers of said public lands."
You will observe that the last clause of this section provides as follows: "the selection to be approved by the Surveyor General." The list forwarded is a selection approved by the surveyor general. Question: Can we treat these lands as finally approved under said Act?

Very respectfully,
Your obedient servant,
L. F. GROVER,
Governor of Oregon.


DEPARTMENT OF THE INTERIOR.
GENERAL LAND OFFICE,
WASHINGTON, D. C., December 6, 1871.

His Excellency,
The Governor of Oregon,
Salem, Oregon:

SIR: Referring to your letter of the 25th ult. (October 25), I have to state that no selection by the State can be considered as finally approved, until the same has been submitted to the Secretary of the Interior, and by him approved.

The list of selections transmitted by you will be taken up and examined at as early a day as practicable, and if found correct and free from conflict, the same will be submitted for approval. I have, also, to acknowledge the receipt of list No. 50, of Internal Improvement selections in the Roseburg District, transmitted with your letter of October 20th, last.

The selections under the several Acts of Congress, in Oregon, will receive the earliest possible attention from this office, consistent with the rights of other States, and will be listed with as great a degree of rapidity as is possible.

I am, Sir,
Very Respectfully,
Your obedient servant,
WILLIS DRUMMOND,
Commissioner.


STATE OF OREGON
EXECUTIVE OFFICE,
SALEM, November 1, 1871.

Hon. Willis Drummond,
Commissioner General Land Office,
Washington City:

SIR: A letter has been referred to this office, communicated by you to Quincy A. Brooks, of Ashland, Oregon, under date of September 7, 1871, in which you state that the records of the General Land Office do not show that the State of Oregon ever made any selections under the act of Sept. 4, 1841, in T. 38 S., R. 9 East.

The records of the Roseburg Land Office show that selections in this township, among others in the same part of the State, were made by my predecessor, and that the fees required by the United States of the State of Oregon for the approval of these selections, have been paid out of the State Treasury of Oregon, and that the same have been duly reported through said office to the proper office at Washington, over two years ago.

What further defects and embarrassments may be met with before securing the full investment of these lands in the State of Oregon, I am unable to appreciate in the absence of any action by the General Land Office on the subject of my communication of June 12 last, to which I most respectfully but urgently again call your attention, for the reason that every days delay tends to complicate the title to these lands and to embarrass both those claiming under the State and under the United States, and tending to retard the settlement of the country.

Very respectfully,
Your most obedient servant,
L. F. GROVER,
Governor.


DEPARTMENT OF THE INTERIOR
GENERAL LAND OFFICE,
WASHINGTON, D. C. Dec. 7, 1871.

His Excellency,
L. F. Grover,
Governor of Oregon:

SIR: Referring to your letter of the 1st ult., in reply to ours of September 27, 1871, to Quincy A. Brooks, Esq., in reference to selections by the State of Oregon, under the act of 4th September, 1841, in Township 38 S., Range 9 E. I have again to state that no selections of any kind in the above named township have ever been reported to this office. If there is no mistake as to the township and the lists were transmitted as you state, the same must have been lost in the transmission. I have therefore the honor to request that you will cause duplicate lists to be made of the selections in that town ship and also of any others supposed to have been embraced in the lists referred to and transmit the same to this office at your earliest convenience.

I am, Sir,
Very respectfully,
Your obedient servant,
WILLIS DRUMMOND
Commissioner.


STATE OF OREGON,
EXECUTIVE OFFICE,
SALEM, November 9, 1871.

To the Secretary of the Interior:

SIR: I beg leave to call your attention to the right of this State to hold the swamp and overflowed lands within her borders, not disposed of by the United States before March 12, 1860. By the act of Congress, approved September 28, 1850, it was provided "That to enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of this act shall be and the same are hereby granted to said State. That it shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this act to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor of the State of Arkansas," and at the request of said Governor cause a patent to be issued to the State therefor.
By they act of Congress, approved March 12, 1860, the provisions of the last named act were extended to Oregon. The second section of this act provides "that the selection to be made from lands already surveyed in each of the States, including Minnesota and Oregon, under the authority of the act aforesaid, and of the act to aid the State of Louisiana in draining the swamp lands therein, approved March 2, 1849, shall be made within two year from the adjournment of the Legislature of each state at its next session after the date of this act; and as to all lands hereafter to be surveyed, within two years from such adjournment at the next session after notice by the Secretary of the Interior to the Governor of the State that the surveys have been completed and confirmed."

You will observe that by act of September 28, 1850, the first step vital to the complete investing of the title of these lands in the State is to be taken by the Secretary of the Interior. He is "to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor of the State" interested in the grant, "as soon as it may be practicable after the passage of this act," and at the request of said Governor cause a patent to be issued to the State therefor.

It is also provided by the act of March 12, 1860, that the selections of these lands in districts then surveyed should be made "within two years from the adjournment of the Legislature of each State at its next session after the date of this Act; and as to all lands hereafter to be surveyed, within two years from such adjournment at the next session after notice by the Secretary of the Interior to the Governor of the State that the surveys have been completed and confirmed."

Although more than eleven years have elapsed since this State has been entitled to a segregation of the swamp and overflowed lands within her borders, currently as the surveys have progressed, yet nothing has been done, to the knowledge of this office, by the United States Land Department to that end. It is true that a letter was addressed to the Governor of Oregon, bearing date May 21st, 1860, by Commissioner Joseph S. Wilson, of the General Land Office, notifying him of the swamp land grant, and asking: "First, whether in the even of non-acceptance of these notes as a basis, the State would furnish evidence that any lands are of the character embraced by the grant."

This letter seemed merely to be preliminary to action by the Secretary of the Interior in his work of preparing a "list and plats of the lands described," to be forwarded to the Governor, as required by the law. But no list and plats have ever been received by the Governor, nor has any notice ever been given to the Executive of this State, that the surveys embracing the swamp and overflowed lands have been completed and confirmed.

For the purpose of information as to what action, if any, had been taken by the Land Department toward a segregation of these lands, according to the provisions of the acts of Congress recited herein, I addressed a letter to the Surveyor General of Oregon, asking what instructions if any, his office had received in relation to the surveys of swamp and overflowed lands in this State. His answer, a copy of which is hereto appended, indicates that "no correspondence has ever been had between the General Land Office and this (Surveyor General's) office upon the subject."

You will observe that by the second section of the act of March, 1860, the selections of swamp lands from the districts then surveyed were limited to the period of two year from the adjournment of he Legislature of this State at its next session after the date of that act, which period elapsed without action on the part of the Secretary of the Interior as directed by the law, and consequently without action on the part of this State. But as to all swamp and overflowed lands within surveys made since March 12th, 1860, they can now be selected because no limit is placed against selections of this class except that they must be selected "within two years from such adjournment (of the Legislature), at the next session after notice by the Secretary of the Interior to the Governor of the State, that the surveys have been completed and confirmed," which notice has never yet been given, nor have any lists and plats been received at the Executive Office, and consequently the time of the limit has not yet begun to run.

I, therefore, respectfully urge that as to all swamp and overflowed lands within the surveys of this State approved since March 12, 1860, the Department of the Interior cause to be made a "list and plats of the lands described aforesaid," and to be transmitted to the Governor of this State, as provided in section 2d, of act of September 28, 1850; and that notice be given that "the surveys have been completed and confirmed," as provided in section 2d, of Act of March 12, 1860, in order that the selections of said lands to be made by this State may be properly recognized and patented.

In relation to all the swamp and overflowed lands in Oregon not "reserved, sold or disposed of," by the United States on March 12, 1860, the position of this State is, that by virtue of the Acts of Congress recited, a complete grant and indefeasibly title were vested in the State "of the whole of those swamp and overflowed lands;" the consideration of the grant being that the proceeds of the lands should be applied to their reclamation as far as is necessary to make them arable. That the nature of the land is notice to all the world of what is granted; and that the subject of the grant is definite and certain; as in law, that is certain which can be rendered certain by measurement or calculation; that non-action or mistaken action on the art of the United States, or of this State, cannot defeat this title; that while, by reason of the lapse of the two years limit affecting Department action on selections made from surveys approved prior to 12th March, 1860, no patent can issue for the same without action by Congress extending said limit, yet the right to the land still rests in this State by virtue of the grant, and cannot be impaired by act or omission of the United States.

Pursuant to these views and in default of any action or part of the United States tending to facilitate further recognition of the right of this State to these lands, the Legislature, at its last session, passed "An Act providing for the selection and sale of the swamp and overflowed land belonging to the State of Oregon." (Laws of Oregon, 1870, p. 54, a coy of which I have had the honor to transmit to your office). By authority of this Act the agents of these State are now in the field making selections of these lands.

You will, therefore, appreciate the propriety of my soliciting that you cause instructions to be issued to the several Land Offices in Oregon requiring of them to take no action which will involve adverse occupancy has been allowed by them since the date of said Act of the Legislature of October 26, 1870, until this subject shall have been concluded between this State and the United States.

And I respectfully ask your attention to be given to that class of these lands falling within surveys approved since March 12, 1860, that the selections by the State may be recognized, and that patents issue to the State therefor, in order that Oregon may be placed on the same footing with the other States entitled to the benefit of said Acts of Congress.

Very respectfully,
Your obedient servant,
L. F. GROVER,
Governor of Oregon.


DEPARTMENT OF THE INTERIOR,
WASHINGTON, D. C.,
11TH Dec., 1871.

SIR: Your letter of the 9th ultimo in relation t swamp lands in Oregon was received and referred to the Commissioner of the General Land Office. I have the honor to inclose herewith a copy of his report on the subject, under date of the 5th instant, with the accompanying papers.

I am, Sir,
Very respectfully,
Your obedient servant,
C. DELANO
Secretary.
His Excellency, L. F. Grover, Governor of Oregon, Salem, Oregon.


DEPARTMENT OF THE INTERIOR
GENERAL LAND OFFICE
WASHINGTON, D. C., Dec. 5, 1871.

Hon. C. Delano,
Secretary of the Interior:

SIR: The letter of the Governor of Oregon, of 9th ultimo, in reference to swamp lands in that State, referred by you to this office for report, has been received. As preliminary to a statement of the facts in regard to the claim of the State of Oregon for swamp lands, a brief statement of the practice of the Department, under the swamp grant, may aid in a better understanding of the case. The Act of September 28, 1850, required the Secretary of the Interior to make out lists, etc.; this duty could be performed only through the subordinates of the Secretary, to wit: the officers connected with the General Land Office. Soon after the passage of said Act, to wit: November 21, 1850, a circular was issued by this office, directed to the Surveyors General of the several States; also sent to the Governors of those State in which public lands were situated (a copy of which circular is herewith enclosed marked "A"), from which it will be seen that two distinct systems were adopted by the Department of selecting land and establishing its swampy character; thus giving the States the choice of adopting the field notes of surveys as the basis of the lists, and by that means avoid the trouble and expense of examining the lands by agents of the State; or in case the State authorities were not willing to adopt that mode, they might furnish evidence which would satisfy the Surveyor General, and on review thereof, this office and the Department, that the land was of the character embraced by the grant. One or the other of these systems was adopted by all the States in existence at the passage of the Act of September 28, 1850, and the selections were made in all except Michigan and Wisconsin, by agents in the field, and reported through the State officers to the Surveyor General, and if the evidence was satisfactory to that officer, lists were made out by him and returned to this office, and when approved by the secretary of the interior, copies were transmitted to the State Executive, followed on request of the Governor by patent.

The Act of March 12, 1860, extending the benefits of this grant to Oregon and Minnesota, indicates that there wold be something to do b the State authorities. If no action were needed by the State, why make the limitation of time within which selections should be made two years from the adjournment of the Legislature at its next session after the date of the Act? Or in a case of land afterwards to be surveyed, within two years from the adjournment of the next session after notice by the Secretary of the Interior to the Governor that the surveys had been completed?

On the 21st May, 1860, this office addressed a letter to the Governor of Oregon (copy inclosed marked "B,") in which the privilege of accepting either manner of selecting lands was offered; also, enclosing copy of the Act of September 28, 1850, and that of March 12, 1860. This letter was acknowledged by the Governor February 22, 1861, (copy of acknowledgement inclosed marked "C,") and information given that he had submitted the letter of this office, with inclosures, to the Legislature, which convened on the second Monday of September, 1860 but that the Legislature had failed to determine which of the two propositions should be accepted. No information has since been received from the State authorities signifying that any action had been taken in reference to the said propositions.

The attention of this office has been called to the subject by the Senators and Representatives in Congress from time to time, as follows: By Hon. J. R. McBride, Dec. 9, 1865; by Hon. G. H. Williams, Feb. 9, 1871; and each was promptly answered that the State authorities had been notified, as stated (21st May, 1860,) and had taken no action of which this office had been advised.

The Governor, in his letter of 9th ult., seems to consider the letter from this office of May 21, 1860, as merely preliminary to action by the Secretary of the Interior in his work of preparing lists, etc., when in fact it is apparent from the tenor to the letter that its object and design was to settle the preliminary question of the manner in which the State chose to have her lands selected and their swampy character determined.

If the State had at once chosen, as advised by the Commissioner, to abide by the field notes, the lists would have been made at once by the Surveyor General, and copies sent to the Governor after approval, followed, on his request, by patents. If the State had chosen the other way of selecting, by her own agents, and presenting satisfactory evidence to the Surveyor General of the swampy character of the lands, the first work would have devolved on the State, and when its lists were presented to the surveyor General, the work of approval or rejection would have been performed by that officer, subject to revision by this office and the Secretary of the Interior. Although, as the Governor says, more than eleven years have elapsed since Oregon has been entitled to a segregation of her swamp lands, nothing has been done except to give the State authorities notice, and to ask them to choose in what way they will have the claim adjusted, and this office as waited until now, without having been informed that the State had made her selection.

I return, herewith, the Governor's letter, and inclosure, together with wrapper, as requested.

Very Respectfully,
Your obedient servant,
WILLIS DRUMMOND,
Commissioner.


Formula of Instructions issued to the Surveyors General of the several States interested in the swamp land grant of 1850, in execution thereof, and inclosed to the Governor of Oregon in the foregoing letter:

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, it is directed "that to enable the State of Arkansas to construct the necessary levees and drains to reclaim 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 fourth section of this Act it is directed that the provisions of it shall be extended to, and their benefits 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, through 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 a 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 embrace 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 line; 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 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 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 b the Secretary of the Interior, the Register should enter all 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,
_______ ______________,
Commissioner.

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722

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