The record-union., 1891-03-27

now before this court, the proper officers
have made due investigation, and have
determined that it vested in the State I'M
der the statute of 1850. This determine
ton was therefore decision not only
that it was made thereby unfit for cult
vation,' for, under the statute, it was not
granted to the State unless unfit
tor cultivation When the present Con-
stitution was formed and adopted the
State was entitled to various classes of
lands. the chief of which were school and
swamp lands. The lands of the first
class were partly suitable for cultivation
and partly not, but the lands of the latter
class could not, unless obtained in def
ancc OF law. be otherwise than unfit for
cultivation"
That is because the officers of the United
States, i'll q proceeding to which the State
was not party and was not represented,
acting under rules made by themselves,
determined that on the 2Sth of Septom-
Der, 1850, these lands We're swamp and
overfiowed and therefore segregated
them as such to the State, therefore the
State cannot be understood as intending
To include them in this section, although
every member OF the convention knew
as fact that millions of acres had at that
time been reclaimed by natural causes.
The test, applied under the Arkansas
Act, to determine whether lands passed
to the State, has always been, their con-
ditiOn on the 2Sth OF Septem Der, 1850. The
very existence of such test implies that
it was well known that their condition as
to being swamp and oVcriiowed and
thereby rendered unsuitable for cultiva-
ton, was liable to change. The rulings
OF the Land Department. OF the United
States have recognized the fact that some
OF these lands have been in fact reclaimed
before the survey segrcgating them to the
State. Commissioner Mcfarland said:
"a survey made il California III Feo-
ruary, 1880, as Of all swamp land where
part had become dry from natural ,.auSes,
II appearing that it WAS al swamp III 1853,
was properly so designated on the sur
vey.' decisions Depart. Interior, pp.
312-320.)
And as stated above tho members of the
convention and the people when they
adopted 1t, must be held to have known
of such natural reclamation.
That some ofthese lands might be suit
able for settlement WIS recognized by the
statutes Of the United States and Of this
State, prior to the constitutional amend
ment. By act of Congress OF March ),
1850 provision was made for pre-emption
or homestead locations upon these lands
As to the State, see Sections 34i2-;4 )
POI. Code.
If one proposing to purchase from the
State may be supposed 10 be concerned
as 10 how the State shall discharge the
obligation-if any-imposed upon it 10
ieclaIm these lands, sUch apprehension
may well be set at rest by The fact that
fund has been provided, available for that
purpose, made up CT the proceeds OF the
sale Of the lands, and by this very Section
j, which aims 10 place them, SO lar as
possible, in the hands OF actual settlers
who must reclaim them as q means OF
getting livelihood.
SO far, the argument has proceeded.
y,
are in fact swamp lands or subject to
overflow so that they cannot be cult
waited until reclaimed, are also TO be con-
Sidered unsuitable for cultivation within
the'meaning Of Section s, now under con-
sideration. But this propositiG1 cannot
be admitted. We see no reason Why the
rule laid down in Manly VIZ. Cunning
ham should not be universal in its appli-
cation. The matter should be looked at
from the point of view OF an intending.
settler. ii the land is OF such q character
that such person is likely TO be willing to
settle upon 1t i'll its present condition. and
to undertake its reclamation for the pur-
poses of agriculture, and can do so
successfully with such outlay as the
circumstances would justify, it should be
held to be suitable for cultivation within
the meaning of this section. The drain
age Of land 50 as TO render it fit for the
plow, is an ordinary farming process.
much more so than clearing land of Tim
her, or grubbing up trees and brCSh.
The latter is mostly confined to new land.
The former IS perpetual subject of
interest in agriculture. Probably there
are few farms in this State, thoroughly
cultivated. some portion of which has
not been drained. And the drains must
be constantly looked after.
The State is in 10 way bound to apply,
as between herself and purchasers. the
test found in the Arkansas Act. There it
is used for a purpose altogether different,
and evidently also with very different
meaning. The primary purpose seems
to have been to enable the State of Ar
kansas to control the margins of streams
for the erection of levees. The meaning
of the phrase there used undoubtedly is,
not suitable for cultivation until re-
claimed. 1t is not used in that general
sense by which lands would be classed by
settlers, or by the land officers under an
other law making the fact Of suitability
material in the discharge of official du-
ties. This we have already shown.
AL such laws, as well as the section of
the Constitution, must be understood as
applying to wild, unimproved lands,
which are known not TO he fit for ctilti-
vation generally until something is done
to reclaim them. The section must be
construed as intending this. Are the
lands suitable for cultivation in the sense
public domain in its wild condition can
generally be said to be suitable for culti-
vation? The necessity for reclamation is
taken for granted in the Constitution.
The contrary doctrine would almost
amount to a judicial repeal of the provis-
ion; and would sound strange before the
declared policy which declares the hold
ing of lands in large tracts, and without
cultivation, is against the public inter
eStS, and stranger still in the face OF the
many cases already argued here, and
now pending for decision, in which the
lower court has found the fact of the suit
ability and present iuhabitance.
The debates in the Constitutional Con-
vention show, that it was there under
stood, that the provision in question,
would include swamp and oyerilowed
lands, and that the lands mainly regarded
as unsuitable for cultivation were graz
ing lands, which it was said must be held
in larger tracts than three hundred and
twenty acres, to be utilized profitably.
We can think at present, of only three
cases i'll which swamp lands can be truly
said to be unsuitable for cultivation
within the meaning of this section:
First-Where the lands cannot be made
fit for cultivation.
Second-Where, although they can be
so reclaimed, it cannot be done without
the cooperation of others, unless by an
expenditure greater than can reasonably
be expected from settler upon tract of
three hundred and twenty acres. This
would be case for a reclamation district;
and,
Third-Where the lands are not fit for
human habitation until reclaimed For of
course it Is necessary in order to comply
with this section that the settlement lie
made before the purchaser can acquire
any rights in the land.
We understand this conclusion to be in
entire accord with the decision in Manly
VS.. Cunningham.
1t is claimed that this conclusion is at