September 28, 1850,' is, as respects the disposition of cases on the files of your office at the date of its passage, mandatory in its terms. It confirms the claim of the States to selections of swamp and overflowed lands 'heretofore made and reported to the Commissioner of the General Land Office, so far as the same remain vacant and unappropriated and not interfered with by any actual settlement under any existing laws of the United States,' and directs that they be approved and patented to the several States. It is not for me to call in question the constitutionality of the act of Congress under discussion, or to refuse obedience to a plain requirement of said act, on account of the effect or consequences of such obedience." (Î Lester's Land Laws, p. 558.) In a decision relating to swamp lands and lands granted for railroad purposes in the State of Iowa, rendered July 23, 1859, Secretary Thompson held as follows, viz: (1. "The act of Congress of the 3d March, 1857, confirmed all selections under the swamp grant, which had been regularly reported, and were on file in your office at that date, so far as the lands remained vacant and unappropriated; and we need not now inquire whether lands so selected and reported were or were not swampy on the 28th September, 1850, if they remained vacant and unappropriated on the 3d March, 1857." Lester's Land Laws, p. 570.) The tracts involved in this case were selected by the State as swamp and overflowed lands on October 29, 1853, and said selections had been regularly reported and were on file in your office at the date of the approval of the act of March 3, 1857, and I am, therefore, of opinion that said lands are within the confirmatory provisions of the act. The act of September 28, 1850, and the decision of Secretary McClelland are unimportant in the consideration of the questions at issue in this case, as the claim of the State rests upon the confirmatory act of March 3, 1857, as incorporated into section 2484 of the Revised Statutes, which was in effect a grant de novo of the selected lands, and perfected the title of the State therein, as held by the Supreme Court of the United States in the recent case of Martin vs. Marks, decided at the present term. section 11, On examination of the records of your office I find that the N. of N.W. tp. 6 N., range 1 E., was entered by Nathan Sanford, per certificate No. 29400, upon which patent issued August 20, 1875. As this tract has been patented, it has passed beyond the jurisdiction and control of this department; and the application of the State to have the same certified to her under the act of March 3, 1857 as re-enacted in section 2484 of the Revised Statutes, is refused, as such certification would be equivalent to the issuance of a second patent for the same land, while the first was outstanding and uncanceled. The S. W. of N. W. sec. 1, tp. 4 N., range 1 W., is now vacant land, but at the date of the passage of the act of March 3, 1857, it was covered by cash entry No. 26356, made October 8, 1856, by R. P. Vincent. This entry, however, was canceled on November 16, 1857, on account of the prior swamp selection of the land by the State, and the purchase money was returned June 8, 1861, under the act of February 28, 1859. This tract was not legally appropriated at the date of the confirmatory act and is now vacant, and there is no reason why it should not be certified to the State. The S. E. of S. W. section 17, tp. 28 N., range 1 W., 4th P. M.; the S. E. fr'l of S. W. † sec. 17, tp. 28 N., range 1 W., north of navigable slough, containing 26.25 acres, was entered by John S. Crawford, at Springfield, Ill., April 18, 1856, and patented March 12, 1857. This tract was not, therefore, confirmed by the act of March 3, 1857. The S. E. frl of S. W. sec. 17, tp. 28, range 1, on the right bank of said navigable slough, and containing 6.72 acres, was vacant land on March 3, 1857, and is now vacant, and there is no reason why it should not be certified to the State. The fr'l N. E. sec. 29, tp. 28 N., range 1 W., 4th P. M., containing 27.70 acres, is situated on an island in the Mississippi River, near the Illinois shore, and as the boundary of the State extends to the middle of said river, and the land was unappropriated on March 3, 1857, and is now vacant, it should be certified to the State. Your decision is reversed for the reasons stated; and the papers transmitted with your letter of March 1, 1878, are herewith returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. C. SCHURZ, Secretary. Change of the rules and regulations in regard to proof of the swampy character of lands, for which indemnity is claimed under the act of March 2, 1855 (Rev. Stats., section 2482). DEPARTMENT OF THE INTERIOR, SIR: I have considered the testimony relating to the claim of the State of Iowa for indemnity for swamp lands in Greene County, disposed of by the United States prior to March 3, 1857. The records of your office show that all of the lands for which indemnity is claimed were selected by the State May 11, 1859, under the swamp grant of September 28, 1850, except the S. of S. W. sec. 22, tp. 82, range 29, which was selected June 23, 1863. * * * In view of the facts developed by the investigation in this case, I am of the opinion that some change should be made in the circular of instructions, dated January 23, 1877, for the taking of proof for indemnity under the acts of March 2, 1855, and March 3, 1857 (sections 2482, 2483, and 2484 of the Revised Statutes). After a list of the lands for which indemnity is claimed is received at your office, and before the hearing is ordered, a clerk, possessing experience and intelligence, should be designated to make a careful examination of each of the tracts for which indemnity is claimed, noting in a book, to be kept for that purpose, the topography of the country, whether any portion of the tract has been cultivated or not; if so, how much, its present condition, and such other information in relation thereto as can be obtained from personal observation and examination, and by inquiry of the owner thereof, or resident thereon, if any there be, and persons residing in the vicinity, having personal knowledge of the past and present character of the tract. After such examination has been made, thirty days' notice of the time and place when and where testimony will be received to ascertain the swampy character of the tracts mentioned and described in the list should be given to the claimant. In cases where the agent shall be satisfied, upon examination and inquiry, that any tract or tracts are of the character granted by the act of September 28, 1850, the testimony of two witnesses, taken in the manner and form prescribed by the regulations of your office of January 23, 1877, should be deemed sufficient proof of that fact. In cases where the agent shall be of opinion that any tract or tracts are not of the character mentioned in said act, he shall not only carefully and thoroughly cross-examine the witnesses produced by the claimants as to the extent of their knowledge and information of a particular tract, but should also obtain the testimony of persons owning or residing upon the lands, or in the immediate vicinity thereof, having a personal knowledge of such tract, extending the inquiry through a series of years, as near to the date of the swamp-grant as possible. While it is true that persons not acquainted with a particular tract or particular tracts after examination may give valuable testimony as to the character of the land, still such testimony is little more than the opinion of the witness, founded upon such examination, while the real question is one of fact, viz: Whether the greater portion of the tract in question is swampy and overflowed, within the meaning of the act of September 28, 1850. I am therefore of the opinion that claimants should be required to produce witnesses who possess an intimate knowledge, derived from personal observation, as to the character of each tract concerning which they testify, and that they should be required to state facts and not opinions. In cases where the agent may be in doubt as to the amount of the particular tract which is swampy or overflowed, he should be instructed to have a survey and plat made of the tract by a competent surveyor, in order that the exact amount of the tract which is swampy or overflowed may be shown. After the testimony is taken, the agent should be instructed to make a full report upon each of the tracts upon which testimony is taken, together with his opinion as to the real character of each of said tracts. In cases where the proofs have been made under the present or former regulations of your office, they should be examined and determined upon the proof presented, if such proofs are found to be in accordance with the particular regulations under which they were taken. In the examination of such cases, however, the testimony should be carefully and thoroughly examined, and unless the testimony satisfactorily shows that the greater portion of any particular tract is swampy or overflowed, the claim should be rejected. The papers transmitted with your letter of the 19th of March last are herewith returned. Very respectfully, The COMMISSIONER OF THE GENERAL LAND OFFICE. C. SCHURZ, Secretary. Examining, adjusting, and reporting accounts. A large and important part of the business of this office has reference to the accounts of surveyors general and receivers of public moneys, and the accounts arising under the laws giving to States 5 per centum of the net proceeds of the sales of the public lands within their respective limits. In the course of numerous and multifarious transactions in lands errors frequently occur which make necessary changes of entry of public lands in some cases, and the repayment from the Treasury of moneys erroneously paid in others, according to the laws providing therefor. The work connected with the examining, adjusting, and reporting to the Treasury for final settlement of the accounts of the registers and receiv ers, with changes of entry, re-payments, and other matters of a similar nature, or incidental thereto, pertains to the division of accounts in this office. What was accomplished therein during the fiscal year ending June 30, 1878, and the unfinished business at its termination are thus stated: Letters received... Letters written (covering 3,125 pages letter post). 15, 392 2,809 Examined, adjusted, and reported to the First Comptroller of the Treasury for final settlement: The above accounts covered 1,842 pages folio post and 284 pages cap. The record of the reports on said accounts, together with other written matter, embraced 3,875 pages folio. All the returns from the district land offices for the fiscal year were received in this division, examined, and properly registered before being distributed to the other divisions of the office. Tabular statement No. 2, hereto attached, was prepared in this division, and represents a great amount of labor. Át the termination of the fiscal year the unfinished business consisted of Repayment claims complete and awaiting adjustment. Repayment claims incomplete and awaiting additional evidence.. 75 500 In the two last annual reports of this office, attention was called to the necessity of an amendment to paragraph 2, section 2238, Revised Statutes, and I respectfully renew the recommendation made on page 5 of my report for the fiscal year ending June 30, 1877, that the registers' and receivers' commissions therein provided for may be in express terms restricted to moneys received from cash sales, for reasons there given. It is impossible to conceive of any class of claims against the government possessing stronger equities than those of parties claiming the repayment of moneys paid for lands erroneously sold, and I would call particular attention to the recommendations made in the same report (page 6) looking to such an amendment of section 2362 United States Revised Statutes as would enable the department to extend prompt relief, where the title cannot be confirmed, and also in cases where erroneous and illegal exactions have been made, by refunding to the parties the money paid in error. The necessity of further legislation on this subject is urgent, and I feel confident that upon attention being again called to it, Congress will take the proper action thereon. Prior to the last fiscal year the joint fees allowed registers and receivers for reducing testimony to writing in establishing pre-emption, homestead, and mineral rights (subdivisions 10 and 11, section 2238 Revised Statutes) were not required to be accounted for by the receivers of public moneys. On July 9, 1877, this office, after careful consideration, decided that under the law as it now stands these fees should be accounted for as other fees and commissions. The result is that from July 1, 1877, to June 30, 1878, the amount of such fees so accounted for was $27,664.45. The services for which these moneys are received are over and above the ordinary duties of the registers and receivers. The performance thereof involves personal labor, and frequently requires clerical assistance to be employed by those officers for the purpose, and the moneys are to be viewed as in the nature of expenses incident to the prosecution of the claims, rather than fees. I regard it as a hardship to compel the district officers to charge up the same against their maximum compensation, and recommend legislation to relieve them therefrom. Transfer of title. The laws for disposing of the public lands generally provide for transferring the title by patent. The act of Congress approved July 4, 1836 (vol. 5, page 107), in its fourth section enacts "that there shall be appointed by the President, by and with consent of the Senate, a Recorder of the General Land Office, whose duty it shall be, in pursuance of instructions from the Commissioner, to certify and affix the seal of the General Land Office to all patents for public lands, and he shall attend to the correct engrossing and recording and transmission of such patents," "and he shall prepare such copies and exemplifications of matters on file or recorded in the General Land Office as the Commissioner may from time to time direct." (See also Rev. Stat., section 459.) * By act approved March 3, 1841 (vol. 5, page 416), it was enacted "that from and after the passing of this act it shall be the duty of the Recorder of the General Land Office, in addition to the duties now required of him by law, to countersign all patents issued from said office." (See Rev. Stat., section 458.) Under the above and other statutory enactments and official regulations, the following work was done in the Recorder's Division of this office during the fiscal year ending June 30, 1878: showing a decrease from the preceding year of 6,556, which was caused by want of clerical force to prepare them. Number of patents transmitted, 13,959; total number of patents signed and sealed by the Recorder and issued in the General Land Office, 17,718, showing the number issued of mineral, railroad, swamp, and other patents, not agricultural, to have been 748. By the rules and practice of the office all patents other than agricultural are prepared outside of this division, the Recorder being required only to sign and seal the same. In the last annual report of this office, pages 37, 38, and 39, there was given an exhibit of the number and kind of agricultural patents issued for land in the different States and Territories from 1793 to the close of the fiscal year ending June 30, 1877, showing a total of 2,785,784. To that exhibit can now be added those issued for the last fiscal year, as follows: There is at this time 7,325 cases in the division, approved, and ready for patents to issue whenever a force can be obtained for the work. As a correct and exact record is kept in the office of every patent issued, there is an aggregate of work to be done double the amount indicated by the mumber of cases here stated in order to issue patents therefor. Add to this the ordinary increase from the monthly returns, and it will take many months, with a large force employed, to finish the work. There should be employed in this division not less than forty experienced clerks; whereas there is at this time only half that number, a force sufficient only to perform the daily current work, leaving the accumulated and fast-increasing work of patent writing untouched, except where special reasons and wants are presented in isolated cases. When patents are ready for delivery they are transmitted to the local office where entry was made, to be surrendered to the proper party upon return of the duplicate certificate, or receipt as the case may be, or, in case of its loss, then upon filing an affidavit made by the present bona-fide owner of the land alleging such ownership and accounting for the loss of the duplicate. Formerly, when a local office was discontinued, or merged with another office, the patents remaining on hand undelivered were returned to this office, and in this way there have accumulated about 300,000 in round numbers, at the present time, notwithstanding every effort made to place them in the hands of the owners, either the original patentees or those holding under them by regular chain of conveyance. I would again urge the importance of such an appropriation from Congress as will enable this office to continue the work, already well advanced, of preparing lists of such patents and furnishing them to the proper officer of each county in the older States, hoping thereby to relieve the files of this office of a great burden, and at the same time place the patents in the hands of the owners. The patent records now in this division of the office aggregate about seven thousand volumes properly numbered and arranged in cases prepared for the purpose; and the certificates and other papers upon which patents are founded, to the number of about eleven millions, are also arranged in the files by numbers, land offices, and States, so that any desired paper can be found at a moment's notice. The call from outside parties for papers from the files in order to verify title in cases where the patents have been lost or destroyed has increased to such an extent that it now adds greatly to the work of the office. Another cause for an examination of the original certificates and proofs in a case arises from the fact that in the early days of the land system the surveys were more or less incomplete and imperfect, |