The state rights democrat. [volume] (Albany, Linn County, Oregon) 1865-1900, 1881-02-04

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the State "for the use and benefit Of
said corporation and it's assigns pur-
porting to grant tho lands in contro
versy, and transmitted il to the Cover
nor of Oregon, who "rcccivcd" the
satno "and caused it to be- recorded ia
the counties wherein the lands therein
described are situated"
The act Of October 2G, 1870, supra
entitled "sn act providing for tho selec.
tion and sale of swamp and ovcrilowed
lands belonging to tho State of Oregon"
by operation Of the swamp lnnd act Of
March II, 1860, (l2 Stat. - extending
over Oregon, tho Arkansas swamp land
net of Sept. ~, 1850, provided for the
selection of such lands by persons EN-
ployed by the State and the sale OF the
same in unlimited quantities, ut not less
than ) per acrs-tho purchaser to pay
net less than 20 por contum OF the pur-
ckase price within 90 days after the
selection is completed, and tho balance
upen proof that the land "has been
drnined or otherwise made fit for cult
vnti'i, :" but il such final payment and
pioof of reclamation arc not made
within ten years frsm tho time OF the
first payment tho land is TO revert to
tho State aud il is declared ia the net
"tkat nil swamp land which has been
successfully cultivated in either grass,
the cereals or vegetables for three years,
shall be considered as fully reclaimed. 4"
The premisesaro situate to tho east Of
the Cascade mountains and ON the north
bank of the Ochoco creek. The de
fondant went into that country from
the Willamette Valley with stock,
when il was unsettled, in the fall OF
1861, and selected the place in contro.
versy because it was good meadow land,
aud lived thereon Z or eight years, dur.
ing which time ho cultivated garden
Of less than mn acre in extent, and an
nually cut the wild grass from about
100 acres of it, without, il appears,
making any claim to the Premises I'M
der nny net of Congress, until in 1872,
ss hereinafter stated. The United
States surveys were not extended over
the premises until October, 1869, buI
no notice thereof was given To tho Gov.
eruor by The Secretary of the Interior
until sometime in 1872, in which year
the State aelecicd the premises az swamp
and over flowed lands, and on Septem
bcr *. 1872, the defcn.!ant purchased
the same therefrom under the act of
October -. 1870, supra, aud paid
ibereeu 20 per eeutum OF the purchasa
prioc, but has not yet paid tbs balasce
or done anything 10 reclaim the
shme, except to cat An Uncomfortable
ditch thereon hiucc the commencement
OF this litigation that the land IL thor
onghly drained would be thereby in
lued and ierrsciAtei IN value aud no
lists or plats of SwaIBl, lands elsl yracing
the premises IN controversy have been
made or Glrd or transmitted tn toe
Gove,ner of thig slAis ~ lse Secretary
10 thp inteiior.
The tir.t aud material question to be
decided IN thus case IL, whether the
Im,rHt issued TO the State under the
erunt Of July =, 1866. for tho premises
~ controversy is conclusive evidence in
Ihis action that they belong to the wa
l."n read erHAt and not 10 the swamI
lapd en".
The swamp land grant VAS II gan,
in lr~aenti Of all the swamp aud over.
lowed lands III tho State thereby made
''unft for cultivation" but the determi
sation of what lands come within tLi.
category and what do not, rests with
the Secretary OF tho interisr, and hi.
decision IL Gnsl unless impeached for
fraud or mistake. French Va. Fyan,
Otts, 40. The provision in s > Of th,
act of March Il, lsG0, supra, which
requires the landn "alrsEdy surveyed
to DO selected within TIVE year. from
tho adjournment of the next session o
the legislature, and those TO be surveyec
within two years from the next session
after notice by the Secretary of tn,
Interior OF tho Governor "that tht
surveys have been completed aud con
frtnea," is nat in the original awamy
land act. The effect of it appears L
bO that it is the duty Of tina State t,
make the selections IN the frat inatanc,
and scbmit them for approval to tn,
SscrStary, and that if this is not doa,
within the terEi prescribed, the gran
reverts, Hut however that may be
| the pswsr to determine what land pass
es under the grant AZ being "wet ant
unfit for cultivation still rests with tn
gecrstary.
The statutes of the United State
provide that the Secretary of the Int
rior is charged with the supervision
fHal direction-of the public bushes
relating to the public lands, and TIA
the commissioner Of tha general Ian
office shall psrferm under his direction
all the executive duties appertainine
among other things, to 'the iGGuing .
patents for all grants of land under tn
authority of the government" SS44l
453, II. s. And by s 9 of the swan
land act it is made his special duty t
determine what lands are within il
purview.
The wagon road grant was gran
in pr@sonti also for the odd seqtions fc
sig miles en- either aide of the roat
! wherever it Iaight be located, betwee
, the termini named, which, so soon o
the line of the road was designated, g
! taehed to SUCH sections within the pre-
soribed limits on either side of said lin
. and took effect from the date thereo
, Shulenberg V. Hartman, 81 Wall, &C
But the grant to the wagon road b.
ing subsequent in point of time to tina
OF the swamp land, the former coul
r not attach to any legal subdivisio
l within the oneration of the lattar III