The state rights democrat. [volume] (Albany, Linn County, Oregon) 1865-1900, 1880-05-21

IL Is therefore clear That pending the
consideration Of the States claim after
she has submitted it for such coniirma-
ton, no otdcr disposition ofAe laad caa
H. made
A construction of the Act of 1850
that would admit Of disposition Of
land in Oregon to pre.em Ption claim
ants pending an asserted and undeter-
mined claim Of the State, or with oil.
cial knowledge on the part Of the Gov
ernment that tho land was actually
swamp and overllowed ut the date Of
the grant would bo rePngnant to every
canon aud principle Of construction in
snch cases known to The law, as well ns
against the ordinary method of pro-
eeedines Of your Office.
Such construction would involve a
possible defeat of The grant and should
bo avoided.
Again the swamp land grant Of $50
has been uniformly held TO lc grant
Ia present. yesiing AN immediate inter
est in the State decision Of the depart
mens lat, Lostcr, Eo's 57s, 595. April
25th, lsG3, june eth, ls62. End,
Lester, No. ESQ, l3,and Nov. IL, 1873,
Decision Of the Jupreme conrt, Rail
road Co. vs. Frcrmout County, ., Walb
81; Railroad Co. ~. Smith. ii. %.
French Va. Fyan.
3 Otto, 100.
Tho provisions Of Tie Act making
such grant were exlen,led u Minnesota
aud Oregon by the Act Of 1860, the
Grant being limited only hy tbs provi-
so. and the statute ,aast Dc construed a.
DaH prorisioas ofhe Acf ef fS5D haf
been actually Incorporated Il, u.
Tho grant thus made 10 Minnesota
aud Oregon has been held 10 lie l,rcz.
cnt one.
Decision Of the Qsp-rCusnt, Estate
". Stolt Ct al and estate rs. Pre-
eml.tors," Supra Dec (. 1867, Capp J.
o-p January 1873. ~ sei "e;es,on
IA. Stott." ;, Oregon o.
The grant Of So ha,i l,,.,,. 'r,-afed
~ j,rrs~Dt ose ni,d gensf,iiy "a .ler-
stood tu i'e rucii i.itg l.'i.r O. 1850.
IN extending that gfn.; IA Minne-
sofia and Oregon Cuneitrs ku.w la,y-
fcctiy ,sv;t II WIS II1es m,kiUs "a
grtnt IN PRESENT..
Il wonid therefore i. ni,-url e.
suPPse 80 that after milking such u
grant a proviso inicndcd - defeat II
wns added.
II follows that, where the Govern-
ment has finally determined, either
by evidence submitted by the state
or furnished by lis own surveys that
Lands In Oregon are OF the character
granted by the Act OF 1860. they are
tAon identified rs falling within Tho
operative times. of the grant itself,
and they cannot bc brought within
the exception, nor can the States title
he divestcd by any other attempted
disposal,
Again lands thus Identified do not
belong 10 the United States, and con-
scquentiy are not Public lands, I'm
der the Act OF lSil pre-emption set
Element Is admissible only upon Pub
lie land; and by Section 2a57 U. S.
Revised Statutes; only lands belong
ing to the Uaited States and subject
TO the right of pre-emption. aiore-
over under the Act Of 1S4l, and Sec
225S u. S. Revised Statutes Lands
lawfully reserved Tor any purpose are
expressly excluded from pre.emption
disposal and in The Cises of Railroad
Company VI. Fremont county and
Railroad Company vs.. Smith IL was
held that the Act of 1850 created
reservation of Swamp land aml 1t
has been frequently decided that n
patent issued for land previously
granted or reserved Is VOID.
A pre- emption claim cannot there
fore be recognized to land known to
be granted or reserved where the
claim was initiated subsequent to the
grant or reservation, aud it seems
clear that lands identified us falling
within the operative terms of n pres
ent grant cannot be otherwise dis
posed OF by the United States.
1t is unnecessary in the case to fur
ther consider the scope, force or in
tent Of the proviso to the Act Of 1860,
whether it was intended to protect
only valid claims initiated prior to
the passage Of the Act, or to prevent
the disturbing of entries which in the
course of adjusting the grant may be
found to have been allowed in good
faith in the absence Of any claim Of
the State and without proof or knowl-
edge by the Government that the
lands covered thereby We're swamp.
That 1t wasnot intended tocontinue
the. disposal under general Laws of
land found to be swamp or to odispose
oflands in the face of an asserted and