Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-05-04
SWAMP AND OVERLOOKED LAND.
Decision of the General Land Office Re-
yersed by Secretary Lamar.

Decision of the General Land Office Re-
versed by Secretary Lamar.
[By Telegraph
WASHINGTON, May 2d-Secretary Lamar
has reversed the decision of the Commits
sioner of the General Land Office, awarding
to the State of California the land involved
in the case OF the State of California, ex rel.
Ii. II. Thurston VS.. the United States ex
rel William Harrington. involving the
northeast quarter OF section 81 township
3 north. range cast, Mount Diablo me-
ridian, Stockton land district, California,
as presented by the appeal of the latter
from the decision Of the General Land
Office, dated May u, 1882, holding that SAID
tracts enured To said State as swamp and
overfiowed land under the first clause OF
Section 24SS, Revised Statutes OF the United
States. After elaborately setting out the
facts III the case and citing the statutes
bearing on the subject the Secretary says 4:
A careful inspection of the approved plat of
said township on file i'll the General Land Office,
confirms the report of the Register us to the
amount and locality OF the land designated
thereon as swamp and oveThoWel land But II
is strenuously commended by counsel for the
State that the field notes and general descrip-
ton made by the Deputy surveyor show con-
ciusiVely that said tract Is represented us swamp
and uYerfiOwed land. and if the approved plat
does not designate the same, the error IS q mis-
take of the craftsman ana cannot affect the title
OF The state 1t appears however, that the sub
divisional survey of said township was made in
April, 1860 by John Wallace. Deputy United
States Surveyor. Upon the plat of SAID survey the
tract in question, with Others is designated as
- land subject to periodical overflow, and upon
the margin appears TINS note: " The land rep
resented upon this map Is subject 10 periodical
overflow, but can lie cultivated and crops raised
thereon"
AS returned by the deputy, there is nothing in
the field notes to contradict the above statement,
unless it be found i'll the general description.
which is as follows The soil OF Ihe township
Is OF average character, with some OF superior
quality IN the southern portion, which is subject
To iuundatiOn by the overflow of the CalaVeras
river and its branches and 1t is thus rendered
incapable OF being cultivated for the raising of
crops, except by means OF banks and leVees
which have been erected 10 prevent such over
HoW. The numerous slJughs are nearly ali dry
during the summer, but water can be Obtained
at 4 depth OF from twelve to thirty feet
1his general description does not necessarily
apply TO the land in question. While il NAV be
true that where the legend upon the plat does
not correctly represent the return OF the deputy
surveyor, and the sworn and duly approved
field notes as returned by the Gepaty must be
taken as the survey, yet where there is Il dis
clepaucy between the general description of the
field notes Of the boundary lines of the psrtieu-
lar tract il question, the latter must control 1t
is evident therefore, that taking into consider
alton the whole return OF the deputy surveyor.
ana the plat upon which Is represented the
amount and particular section i'll which is stu
ated only swamp ard overhowed land IN said
townships, there WAS 10 such return Of said
lands required by the first clause OF said Sec
ton 2iSS.
Again, the approved plat of the survey of this
territory and the return OF the deputy have
been passed upon by this department i'll the
case Of Wallace ". the state OF California q l..
O., page ~, involving the northwest quarter of
the section embracing the land i'll controversy.
In That case it was held that the township was
eIrr ly- grIF IN It1tt
1866, and the land is returned by the Surveyor
General rs subject 10 periodical overflow, and
not as swamp ana oTer;ioWed as provided i'll
the statute. Hence It is not Subcc. to ccrtilica-
ton to the State by virtue of the return of the
SuTVeyOT-G.nCral. ana also that where 4 qucS
ton is raised as TO correctness of the return of
an officer Il hearing should be ord, red, i'll ac-
cordance with the provisions OF The fourth clause
of the fourth section of the Act of July -, 1866.
L: is, however, urged that if the SIae is not
entitled 20 said tract under the first clause she
has II sht TO the land 10y virtue OF the second
clause OF said Section 2i9S, which provides that
= the Surveyor General OF the United States for
California shall under the direction of the Com
missioner of the General Land Office, examine
the segregation maps and surveys OF the swamp
and overlooked lands made by said State and
where h.; shall find them 10 conform to the
other system of surveys adopted by the United
States. ne shall construct and approve the town
ship pats accordingly aud forward To the Gen
eral Land Office for approval This claim can
not be maintained. Inc only evidence offered
in support thereof IS a copy OF Survey $S2 of the
WeSt One-half OF section 20 and east One-huf of
section - in said township, made pril H. 1865,
by the County surveyor under an Act of the
State Legis AZURE approved April Il, 1866, and
the app ication OF stephen Rogers to purchase
said land Under said Act, dated May -, 1863,
approved by the state SuTyeyoTCicneTai on No
ycmbeT ~, lSi5 1t appears that said appiica-
ton was Tor OYerftoWcd lands, and the word
" swamp" is omitted. II IS further shown by
the record that on June 5, 1867. said Rogers
made presumption cash entry Tor the south
west Ony-iourth Of section IL embraced in said
survey, and that each of the other quarter
sections within It's limits, except the tract i'll
controversy, has been disposed OF under the
redemption laws OF the United states.
Without deciding rs 10 the erect OF the States
Segregation map and tie survey of swamp and
OvUrloWcd land in said state II =de prior to said
Act O! July - 1856 aaI in strict compliance
with the second clause Of said Sect II 2IsS, Re
viscd Statutes, where the land embraced therein
has moi been Used BY the State, am OF The
opinion thai the survey relied upon 10y The state
does not conform to the requirements OF the
law. Il does mol appear tina. any other survey
prior TO july p 1856, showing the state Segreg&-
lion Of said land, nor vas any application made
to the Uuite, States Surveyor General 10 APP
prove any plan and survey representing SAID
tract as swamp and oyertowei under SAID sec
ond clause OF Section PISS, or that said tract has
been certified over TO the STATE under said sec
ton far On the contrary, there is fled n
certificate Of state 81 veyor-GenerAl William
Minis dated February 49, 1871, 10 the effect that
The swamp land survey, No rs, q said tract,
fled for TGuTSion ON September s. lots. and the
swamp land application ut IhurStoa for the
east half OF said tract, dated july y, 1876, are
the only applications or surveys IN this Office fOT
the above described land.
Although said survey Was received and filed
on September ;. 1866 II was not approved until
January Il, lS.9. Under the provision of the
last clause OF section 2isa, Revised Statutes. 4
hearing was Lad before A. ". Won Schmidt
United States Dcpu,. surveyor, ana il was slip
ulatel by counsel for all parties that the teSti-
mony taken before him should be admitted as
evidence and considered BY the United States
Suryeyor-General. T. WAS also agreed by the
parties that Mr. Nou Schmidt with others
should make a personal inspection of the tract
in question, which lie did in company with the
state SuneyOF-GeuoTal. Mr. Won Schmidt re
ports. undertake o; November - 1850, that the
land IN dispute never was, IN my opinion,
swamp land. That 1t has been oveTaowed from
time 20 time there is 10 doubt. These oyerf0ws
occur when heavy rains fail! sometimes lasting
several weeks, at other times few hours.
: careful consideration OF all the evidence
shows that said traCJ is subject to periodical
overflow iu.the winter or spring months, but the
OYerfiOWs Subside 50 as 40, "a render the land
unfit for successful cultivation by reason oi the
overflow. The LAID, therefore. il not swamp
and overlooked land within the meaning of the
swamp Land Act. and the claim OF tie state
must he rejected.