[Code of Federal Regulations]

[Title 43, Volume 2]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 43CFR2625.0-3]



[Page 171-172]

 

                    TITLE 43--PUBLIC LANDS: INTERIOR

 

    CHAPTER II--BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR

 

PART 2620_STATE GRANTS--Table of Contents

 

                     Subpart 2625_Swamp-land Grants

 

Sec.  2625.0-3  Authority.



    Source: 35 FR 9610, June 13, 1970, unless otherwise noted.





    (a) Circular dated Mar. 17, 1896, containing the swamp-land laws and 

regulations, states:



    As soon as practicable after the passage of the swamp-land grant of 

September 28, 1850, viz, on the 21st of November 1850, the commissioner 

transmitted to the governors of the respective States to which the grant 

applied copies of office circular setting forth the provisions of said 

Act, giving instructions thereunder, and allowing the States to elect 

which of two methods they would adopt for the purpose of designating the 

swamp lands, viz:

    1. The field notes of Government survey could be taken as the basis 

for selections, and all lands shown by them to be swamp or overflowed, 

within the meaning of the act, which were otherwise vacant and 

unappropriated September 28, 1850, would pass to the States.

    2. The States could select the lands by their own agents and report 

the same to the United States surveyor general with proof as to the 

character of the same.

    The following States elected to make the field notes of survey the 

basis for determining what lands passed to them under the grant, viz: 

Louisiana, Michigan, and Wisconsin. Later the State of Minnesota adopted 

this method of settlement.

    The authorities of the following States elected to make their 

selections by their own agents and present proof that the lands selected 

were of the character contemplated by the swamp grant, viz: Alabama, 

Arkansas, Florida, Illinois, Indiana, Iowa, Mississippi, Missouri, and 

Ohio. Later Oregon adopted this method.

    The States of Alabama, Arkansas, Indiana, Mississippi, and Ohio 

adopted the second method at the beginning, but they changed to the 

first method, i.e., to the field notes of survey, as a basis of 

settlement, in recent years.

    The authorities of California did not adopt either method, and the 

passage of the Act of July 23, 1866, rendered such action on their part 

unnecessary.

    In Louisiana the selections under the grant of March 2, 1849, 

forming the bulk of the selections in said State, are made in accordance 

with the terms of said act by deputy surveyors, under the direction of 

the United States surveyor general, at the expense of the State.



    (b) The grant of swamp lands, under Acts of March 2, 1849, and 

September 28, 1850, is a grant in praesenti. See United States Supreme 

Court decisions Railroad Co. v. Fremont County (9 Wall, 89, 19 L. ed. 

563); Railroad Co. v. Smith (id. 95, 19 L. ed. 599); Martin v. Marks (7 

Otto 345, 24 L. ed. 940); decisions of the Secretary of the Interior, 

December 23, 1851 (1 Lester's L.L. 549), April 25, 1862, and opinion of 

Attorney General, November 10, 1858 (1 Lester's L.L. 564).

    (c) The Act of September 28, 1850, did not grant swamp and 

overflowed lands to States admitted into the Union after its passage. 

See decision of Secretary of the Interior, August 17, 1858; 

Commissioner, General Land Office, May 2, 1871 (Copp's L.L. 474), 

affirmed by Secretary June 1, 1871, and Commissioner, General Land 

Office, January 19, 1874 (Copp's L.L. 473), affirmed by Secretary July 

9, 1875.

    (d) A State having elected to take swamp land by field notes and 

plats of survey is bound by them, as is also the Government. (See 

Secretary's decisions, October 4, 1855 (1 Lester's L.L. 553), August 1, 

1859 (id. 571), December 4, 1877 (4 Copp's L.L. 149), and September 19, 

1879.

    (e) The Swamp-Land Acts do not contain any exception or reservation 

of mineral lands and none is to be implied, since at the time of their 

enactment the public policy of withholding



[[Page 172]]



mineral lands for disposition only under laws including them, was not 

established. Work, Secretary of the Interior v. Louisiana (269 U.S. 250, 

70 L. ed. 259).