The state rights democrat. [volume] (Albany, Linn County, Oregon) 1865-1900, 1875-01-22
SWAMP LAND DECISION.
DEPARTMENT OF THE INTERIOR,

the state OF oregon vs.. FRANK IL.
Scott and John w. Waggoner, in
yolving the title to lots 6, II, s, 8, 10,
IL and N. W. i. N. E. 4, section 12,
rs. A W., Oregon City, on appeal
from your decision of January 20,
1874, in favor OF the defendents.
The State claims the land as
swamp and overaowed, under tie
provisions of the act of Congress,
approved March 12, 1860. az Stat. 81,
having selected the same by list filed
in the local Office, September 8, 1871.
The defendants claiming as pre-
emptors, applied August 28, 1871, at
the local office to file declaratory
statements, alleging settlements Au-
gust Goth and 9th, respectively .-
These applications were referred to
your Office by the local officers in
compliance with instructions there
tofore given them relative to this
class Of cases.
Upon receiving further instructions
from your office, the declaratory
statements were received and filed.
On The 4th of March, 1872, the de-
PENDANTS appeared at the local Office,
made final proof and rendered pay
ment for the land. The proof was
received and filed and the fact OF the
tender was noted. The State having
asserted her claim to the land as
swamp and overfowed lands, and
having selected the same September
19, 1871; your Office May 20, 1872,
ordered q hearing before the local Of
fcers, to determine the rights OF the
respective parties. The local officers
awarded the land to the State, you
reversed their decision and both par
ties appealed to the Department.
You rejected the claim Of the State
upon the ground that the records Of
your Office showed that the tracts in
contest we're covered by a body Of
water at the date Of the act of 1860,
and were not, therefore, included in
the grant by that act to the State.
I do not agree with you, either in
the finding Of this fact, or your ap-
plication Of the law thereto. So far
as appears from the papers presented,
the records of your Office do not show
the character Of the land on the l4th
day Of February, 1859 (date of the
admission of Oregon as State), or
on the 18th day Of March, 186O.-
They do show that when the town
shin III which the land is situated
was first surveyed, viz: in III, 1872,
a large portion of it, including, the
tracts in contest, was covered by
water, forming what appeared to be
lake, the margin Of which was
meandered. You appear to have as
sumed that the land renamed IN
the same condition in March, 1860.
You erred in this assumption. The
State, in the absence OF any express
agreement as to the kind Of proof to
be relied upon, should have been al
lowed to show by any competent ev-
dence, by parol or otherwise, the
character Of the land at the time her
right accrued, and the weight OF such
evidence should have governed youl
findings Of fact (R. r. Go. vs.. Smith
8 Wall, 95). The rule laid down by
the Supreme Court in that case Il
now the accepted rule Of practice II
YOUR office and the Department
lIIConkling VS.. Wendell, Secretary
decision, November, IL, 1879 Blu
admitting the fact to be as found
and YOUR conclusion Of law does no
necessarily follow. A tract is no
necessarily excluded from the gran
because at any given date it may b'
covered by water, having the appear
ance of a lake, and in the judgmen
Of surveyors Of character to b
meandered. That very fact may b
material one in establishing thu
General fact that the land is swami
and oyerfowed.
The presence Of water may not in
dicate the existence of a permanen
lake. 1t may be the result OF period
ical overflow. In the case unde
consideration, as will be hereafte
noticed. this was actually the fact
Under these circumstances it is eyl
dent that the land would be swami
and oyerhowed and within the grant
The first section of tho act Of l86
is in the following words, viz: "Tha
tbe provisions Of the act of Congress
entitled IAN act to enable the State Q
Arkansas and other States to reclaim
the swamp lands within their limits
oruroved September 2S, 1850, be an
: tba same are hereby extended to th
Statae Of Minnesota and Oregon;- :
/ nyovided. that the grant hereby mad
I. sboll not include any lands whic
tbe Government Of the United state
NAV have reserved, sold or dispose
. Of lin pursuance of any law herete
fore enacted) prior to the confirms =,
ton of title to be made under I'd
: authority of the said act.
The act Of 1850 has been repeated
B Nv held by the Courts and by tn
8 Department to the grant IN present
z yesting an indefeasible legal title
e the state to all lands at the date
its passage ''swamp and oyerhowe
lands. made unfit thereby for guilty.
tom (Railroad Company VS.. tr.
J mont Company, 8 Wall, 80; Raj
road Company VS.. Smith, 10. 95;-
Wendell VS.. Conkling, Secretary
z Department, November IL, 1873: J
4 II The State did not attach befoi
i ne at Of 1860 that act exten'
ing that of 1850 to the State
= Oregon was grant in pres9nti
said State Of all lands at that da
swamp and oyerhowed, made ther
. bv unft for cultivation, with the e
: ception Of that class mentioned
the proyiso. =,
Two main questions arise upon u
consideration Of the appeals, VI
. First upon all competent eylden