Year: 1859



 Arkansas all the Swamp and Overhowed lands rendered unfit for cultivation there- by within her limits, for certain purposes mentioned in the Act.

 On the 3d Oct. the Surveyor General made report which was filed in the Gen eral Land Office, designating the over flowed lands which had been selected by the State under the grant. On the 9th Feb'y, 1853. Congress made another grant 10 the States of Arkansas and Mis- souri, to aid m the construction of rail- roads; and under this grant, a part of the lands previously granted to the State of Arkansas under the denomination Of Swamp Lands, was included, and is now claimed for the use of the railroad

 The question upon which you ask my advice requires comparison of the two laws, and the Acts done under them, so as to ascertain which of these is the bet ter title. Does the State take it under first grant, or was that grant so imperfect that the subsequent disposition of it by Congress passes the rights to the latter grantee Where there IS a conflict be- tween two titles derived from the same source, either of which would be good if tue other were out Of the way, the elder one must always prevail, prior in ten1- pore porfior est injure.

 This difficulty, therefore is solved, if the mere grant, as you call it, gave the State a right 10 the land from the day of its date. That 1t did so, there can be no doubt In an opinion which sent you on the 7lh Of June, 1857, concerning one of the same laws now under consideration, 1 said that grant by Congress does of itself proprio vigore pass to the grantee all the estate which the United States had in the subject matter of the grant, except what is expressly excepted.

 refer you to that opinion for the req sons and authorities upon which the prin- ciple is grounded. It is not necessary that the patent should issue before the title rests in the State under the Act of 1850. The Act of Congress was itself present grant, wanting nothing but a definition of boundaries 10 make it per feet and to attain that object, the Secre- tary of the Interior was directed to make out an accurate list and plat of lhe lands, and cause patent to be issued therefor.

 But when party IS authorized to de- mand a patent for land, his title is vested as much as if he had the patent itself which is but evidence of his title. The authority given to the State Legislature to dispose of the lands upon the patent, does not make the grantee less ihe ex- elusive owner of them than she would be if those words were omitted. The object of that clause undoubtedly was 10 pre- vent the Legislature of the State from a premature interference with the lands be- fore they were so designated as to pre- Jude mistake and confusion. The subse- quent grant by Congress to the State for the use of the railroad could not have been intended to take away from the State the rights previously vested in her for other purposes. We are never to inns pute such intentions to the Legislative de- partment, when any other construction can be given to the words of statute.

 Even if we coald suppose that to be the meaning of Congress in this case, 1t would avail nothing to the later grantee, since in all cases of conveyance. a later grant must yield to an earlier. It has often happened that public grants, by mistake, have been so described in general words that when they come 10 be located they are found to lie afoul of each other. 1 believe it has never been thought, that where this happens they are not to be treated like inconsistent deeds made by private persons.

 There are cases in which grants are made under descriptions so vague and in. definite, that neither the grantee. nor any other person can tell their location or boundaries, until the grantee does some act which locates and defines them. In such case, if another, right which is strict ly defined intervenes; the first grantee may lose what he would have been ent- tied to, if his own grant had been descrip- tive and definite. .u But that principe does not apply here, because the general de- scription of all Swamp and Overhowed 1 Lands within the limits of Arkansas, is definite enough for purposes of notice. Besides, the grant for the railroad was originally much more indefinite than the | other, requiring the locat on of the road to be made before the locality of the lands could be known at all. The State pro- ceeds to make her selection, and to fix the location of the lands definitely before the railroad did any such thing with its grant.

 The State, therefore, has the oldest md most definite title, and it's lands were accurately located, and their boundaries defined, agreeably to the act ,f Congress before the same thing was lone by the other claimants.

 The oldest title, the most definite, and he first location will surely give her pri- 'rIty and preference over another gran ee subsequent in title, less definite in the erms of the grants, and later in location.

 am very, respectfully, &c.,

 LSignedl J. S. BLACK. II Ion. JAcoB THOMPSON, Sec'y of the h. terior, Washington, D. c.