The state rights democrat. [volume] (Albany, Linn County, Oregon) 1865-1900, 1875-01-22

grant this land was swamp and over
flowed, and rendered thereby unfit
for cultivation. The body Of water
known as "Wappato Lake" is not
now, nor was it in 1860, permanent
lake. 1t is formed annually, in the
late Fall or early Winter, by a rise
in the creek or river Tualitan, the
waters of which during the rainy
season are impeded in their flow, and
backed up, through the mouth Of
the so-called lake, and cover to q
depth of several feet, valley or ra-
vine surrounded by higher lands. =
The water remains upon the lands
during the winter months and down
to about the first Of June or July, as
the seasons vary, when it then re-
cedes and leaves the bed Of the lake
in a swampy condition during the
rest of the year. During the alb
sence of the water, the land pro
duces a species OF swamp-grass and
becomes very valuable pasture land;
but there can be no responsible
doubt that, in its present condition,
it is entirely unfit for any kind Of
cultivation. I.
understand that it has been the
practice Of your Office to hold all
lands as not swamp when, at the
time of the Government survey, they
were covered by water to such a
depth and in such form as to re-
quire meandering, but have subse-
quently, from natural causes, be-
come dry. 1 see no objection to the
application of this rule to cases
where the State has agreed to accept
the field notes of the Government
surveys as conclusive evidence Of the
character of the land. But it clearly
should not be applied to case like
that under consideration, where the
survey was made long prior to the
grant, and where the State distinct
" refuses to be bound by the Gov
ernment surveys, .y..1. NJ.
The Supreme Court in the case OF
Railroad Company VS.. Smith, already
cited, referring to parol evidence, in
troduced in the trial below to show
the character of the land at the date
of the act, says: "The matter to be
shown of observation and examina-
ton, and whether arising before tie
Secretary, whose duty it was pri-
marily to decide it, or before the
Court, whose duty it became, because
the Secretary had failed to do it,
this was clearly the best evidence to
be had, and was sufficient for the
purpose" +" .lJ ~:
The State had clearly the right to
offer the parol proof presented, and
it is the duty of the Department to
consider it in determining the ques-
tions of fact .0:etia
In my opinion this land was swamp
and overfowed at the date of the
grant, and SO decide.
Second, The proyiso to the first
section of the act of 1860 is cleal
limitation of the grant, excepting
from it's operations all lands which
the Government may have reserved
sold or disposed Of lin pursuance O
any law heretofore enacted) prior tt
the confirmation Of title to be made
under the act of 1850. In view O
the construction given to the act O
1850, by the Courts and the Depart
ment, it is evident that this contir
nation of title referred to in the &C
Of 1860, can only mean the patentint
Of the lands as provided for by th'
second section Of the act of 1850
Any reservation, sale or disposition
of the land by the Government un
der prior laws, therefore, prior to th'
patenting of the same to the State
as provided by the act of 1850, woult
except it from the operation of tn
grant to Oregon, by the act of 1860
Was there such sale or disposi
ton in this case? / have no doub
that q valid settlement under the pre-
emption law, followed by subseque
residence, improvement and cultiva
ton in good faith, and final proof an,
payment or tender of the price, woul'
constitute sale and disposition with
in the meaning Of the act. But !.
order to constitute such sale, it
clearly essential that all these step
should have been taken in perfec
good failh, with the honest intentio
to appropriate the land for agricul
turai purposes, and this must b
afirmatively shown. Grants Of thi
character are construed most strong
ly against the grantee, but the graz
| being once shown to have attached
q class of lands, generally described
any alleged exception therefor
must be clearly and afirmatiyel
, shown.
Now the evidence in this case
, such as almost to preclude the poss
bility of these defendants being claim
J ants in good faith under the pr
emption law. With full knowledg
Of the claim of the State, and th
fact that for more than one half
, every wear the land was covered !
water to the depth of several fee
they moved upon the tracts an
Q erected small houses, or cabin
These cabins were placed upon stak'
! driven into the ground five or 81
{ feet high above the surface, and du
/ inc the few months, when it is CLAIM
I ed they were occupied by the CLAIM
: ants, viz: from October, 1871,
/. March, 1872, they could only !
: reached by the use Of RATS or canoe
s Before the waters came the clair
ants managed to break about half Q
e acre Of ground on the two claim
| but there is no proof Of any succes
i full cultivation, and if the testimoI
O Of many apparently well iniorm'
: and credible witnesses is to be b
) lieved, such a thing is simply IL
: possible upon the land as it nc