ance. The field-notes could be accompanied by evidence as to the character of the lands required by the United States, and be made under the instructions of the Surveyor-General, subject to the approval of the Gov ernor. The Act establishing a Land Office, makes it the duty of the Register to ascertain the extent, limits, and boundaries of all lands to which the State is entitled, and have the title vested in the State; and, when necessary, to agree upon the same with the proper officers of the United States. · The impracticability of correct surveys being made during the winter season, has already been shown; and, to those at all familiar with the character of the lands and overflows of California, must furnish a convincing and conclusive argument. But the department at Washington seems not to have so clear a perception of the facts as those of us nearer home; and though addressed respectfully and fully on the subject by Executive communication, could, undoubtedly, be brought to a more explicit and determinate understanding of the whole subject, if the evidence, accompanied by proper explanations, were presented in person by a regularly authorized agent of the State, qualified from practice and experience for the proper discharge of that responsible duty. An office of this kind would involve the necessity of explaining to the Commissioner of the General Land Office, the peculiarity of the California seasons; the topography of the country; the extent, locality, kind, and quality of the lands and overflows; the nature of the improvements made, and their effect and influence in turning aside the waters; the class and uses of the spontaneous vegetable growth of the swamp and overflowed lands; the suggestion, and, if possible, the adoption, of an average line of determination between the highest and lowest floods that have occurred since the grant was made; to agree upon the necessary forms to be required for the transmission of lists; and many other incidental questions, of great importance to the State, which could be more fully elaborated, and better explained, orally, than through the medium of correspondence, which would necessarily be voluminous, and not always liable to a correct and perfect interpretation. Every other State has been represented in this manner, and found it highly advantageous to their interests—a success attending the personal efforts of these agents, which could not, perhaps, have been attained in the among any other manner. The appointment of this officer should be earliest Acts of the Legislature; in order to enable him to proceed to Washington with the lists of swamp and school lands already selected, with a view to their acceptance and confirmation by the Department; and, after agreeing upon some general plan for the selections hereafter to be made, return in time for the Surveyors to be placed in the field, for the performance of the summer labor. SWAMP LAND ACT OF 1855. The Swamp Land Act of 1855 is very imperfect, and has been variously interpreted by different interested parties. It provides that the person, or persons, wishing to acquire lands from the State, shall cause the same to be surveyed by the County Surveyor, the purchaser having previously filed an affidavit, to the effect that he (or she) knows of no other legal claim of any description; and that the Surveyor shall deliver a certified copy of the field-notes to the purchaser, who shall cause the same to be recorded within thirty days after the completion of the survey; the pur chaser, at the time, or previous to the filing of the field-notes for record, to pay one dollar per acre for the land, and to be entitled to a credit of five years, by paying interest, at the rate of ten per cent. per annum, one in advance. The lands shall be declared forfeited if the interest is year not paid within one year from the date that it becomes due. The Act further requires that the County Treasurer shall pay the purchase-money into the State Treasury; the State Treasurer to certify the receipt of the same to the Secretary of State, who shall issue a certificate of purchase to the purchaser, etc. Section nine of the same Act further provides that the time of computing interest shall, in all cases, commence from the date of the certificate of purchase. It is to the ambiguity (or, rather, the want of completeness) in those portions of the Act last above quoted, that the numerous difficulties in the final adjustmeut of titles is mainly attributable. Suppose the purchaser to have made his first payment of interest, within the prescribed term of thirty days after the survey, but failing to apply for his certificate of purchase, the same is not issued to him; and the effect is, that he is relieved of, or avoids, the payment of both principal and interest, after having complied with the provisions of the Act relating to the payment of the first year's interest. In other words, interest does not accrue until the certificate of purchase has been issued; the law fails to render such issuance imperative; and the consequence is, that the purchaser holds the lands after paying the paltry sum of ten cents on the acre, and deprives the State of all other benefits contemplated to arise from placing them in the market. It is left for others to determine as to the motives of purchasers, in delaying to make application for certificates of purchase; but the rarity of the instances in which they have done so, very plainly suggests the necessity of so amending the law as to make the act compulsory. Discovering at once the losses which a literal interpretation of the Act was likely to entail upon the State, I submitted the matter to the Attorney-General, who furnished me with a written opinion (herewith submitted,) agreeing entirely with my own views of the case, viz.: that, as the law evidently intended payment should be made for the lands, interest must be calculated from the date the certificate of purchase should have been issued—that is, the time that payment is made into the State Treasury. I have, accordingly, so held and decided. The attention of the Legislature is respectfully directed to this subject, with the expression of a hope, on my part, that, in amending the Act of 1855, to render its provisions more effective, the purchasers of swamp and overflowed lands may be required to make application for, and compelled to receive, a certificate, within six months from the passage of the Act, on penalty of forfeiture of title. It is impossible for the State Register to perform strictly the duties imposed on him, unless some such amendment to the Act should be adopted. More than one-half the lands already sold, are, by strict construction of the law, forfeited, so far as the present records of this office show. It is barely possible that payments may have been made to the County Treasurers, and no returns made by them to the State Treasury. If so, the Act is none the less defective, as it permits money to be retained in other hands than where it properly belongs, to the injury of our entire people. In many instances, the provisions of the Act are so indifferently observed, that both the names of purchasers, and the descriptions of the lands purchased, have been omitted, in the returns made to the State Treasurer. At other times, the lands are described without naming the purchaser; or, the purchaser being named, the description of the lands is neglected; so that, although the Register may be satisfied, from the certificate of the State Treasurer, that certain persons have paid for swamp lands, yet, as these lands are not described, it is necessary for him to refer to the original survey for the description. As there may be several persons of the same name, or one purchaser of several tracts of land, the Register is frequently at a loss to determine for which particular tract payment has been made. I suggest that this difficulty might be avoided, by compelling the parties to make application directly to the Register, or through the County Treasurer, for certificates of purchase, and to state that they hold the receipt of the County Treasurer for the lands for which they seek a certificate of purchase, with a description of the same accompanying. If the certificate of the State Treasurer failed to show that the money had been paid, the purchaser could then exhibit his receipts; which would at once fix the blame of omission or culpability upon the County Treasurer, and enable the State Treasurer to demand the amount due, when the County Treasurer came forward for a settlement of his quarterly accounts. In many instances, where discrepancies occur in the settlement of the accounts of County Treasurers with the State Treasurer, the latter is unable to certify the payments of swamp and overflowed lands to this office. I am of opinion that when the State Register is satisfied that the proper payments have been made, by purchasers, to the County Treas urers, he should be empowered to issue the required certificates of purchase. I would also further suggest that where the purchaser has failed to comply strictly with the provisions of the Act of 1855, so far as it relates to the payment of interest within the prescribed time, and there are no applica tions of second or third parties to purchase the same, the Register be permitted to exercise discretionary judgment as to the cause of failure as assigned, and issue or withhold the title, as may seem to conform with the spirit of the law, and subserve the best interests of the State. Under the Act of 1855, the purchaser is required to have the field-notes recorded, as well as pay for the land within thirty days from the date of survey. The record of the field-notes being one of the requirements of the Act, a neglect to make the record must work a forfeiture. The Re or not. the Government more than they would bring, if offered for sale; which precludes the belief that it will ever set up a separate claim to them. It is asserted by the settler, that should he buy from the State, and the land is proven to belong to the United States, the purchase-money would be lost to him. In proof, he cites the fact that the seventh section of the Swamp Land Act of 1858 provides that the title of the State shall have no other force nor effect than as a quit-claim on the part of the State. I have invariably taken the ground, that the Legislature never would permit such an injustice to be done; that the title would undoubtedly be perfected by the State, or the money refunded to the parties purchasing, or other lands be given instead. Certainly, I have not overrated either the honesty or the generosity of the people's representatives in this particular. The object of the section above referred to, as I construe it, is merely to secure the State against any claim for constructive damages, should an effort be made to recover, in cases where parties are compelled to relinquish the State's title. Another reason why there has not been a greater demand for these lands, rests in the fact that advance payment is required to be made for them in full. The Law of 1855 was very properly repealed, requiring, as it did, simply that the interest on the purchase-money should be paid, and no part of the principal. Under its provisions the purchaser could enjoy the possession and use of a tract of land for two years by paying the trifling sum of ten cents on the acre. If the lands were timbered, he could cut down the trees and dispose of the wood; and if it were found at the expiration of five years that the land was worth more than the price asked by the State, of course he would find it to his advantage to have his title perfected. If, on the other hand, the land was found to be worth less than the price demanded, the premises would be abandoned, and the title forfeited. This gave the purchaser a discriminative right of decision; and whether he remained an occupant of the land, or abandoned it, the State was a loser by the operation. To remedy this defect, and also to overcome the objections made, the gister has now no means of knowing whether the record has been made find little or no difficulty in paying for his lands. If a forfeiture should SWAMP LAND ACT OF 1858. The sales of land under this Act have not been so numerous as it was purchaser might be required to pay twenty per cent. of the principal, and ten per cent. interest on the balance, after the land has been surveyed, as is now done in the case of the school lands. The purchaser would then ensue, the lands would revert to the State; and the amount already advanced by the purchaser would probably be amply sufficient to indemnify for damages sustained by the removal of timber, etc. In this connection, I would respectfully refer your Excellency to the the provisions of the law of 1855, embrace, probably, the most valuable and Mr. Beaumont, I know, has given much attention to the best method anticipated they would be. The swamp lands which were excluded from port of Mr. Beaumont, Surveyor of San Joaquin County. San Joaquin than other County in the State, portion of the grant. The United States Land Office has given its inter for the sale and disposition of them. Should the plan suggested be pretation to the Act of Congress, making the grant-with regard to the true meaning of which a difference of opinion is entertained--and the ported by the Legislature, there is little reason to doubt the ga, great settler hesitates to purchase the title of the State, for the failure of the portion of these lands could be sold in a very short time. A question arises, whether the interests of the State would pot Legislature, as heretofore, to make provision for their selection, expose subserved by allowing purchasers, after a certain time, to locats, te the land to the contingency of being again offered for sale by the Geners than three hundred and twenty acres. The price of swamp lands might I am of the opinion, from personal examination, that the lands border one dollar per acre, a much greater proportion of them is not worth onealso be graduated. If the best of these lands are worth no more than quarter so much. Some can be reclaimed at a trifling cost, while to rendollars Government. test sides, must be confirmed to the State; and have, therefore, in all case der others fit for cultivation, would require an outlay of at least thirty ing upon, and for some distance back of, the Sacramento River, on both advised the purchase of the State's title. If exceptions exist to the rule they are rare, and extend only to an occasional isolated forty-acre The labor of searching for these spots and surveying them, would cos per acre. Placer 20 Sutter.... Stanislaus ..... 20 Yolo 1,82 Fresno Del Norte... 1,80 Total....... Of this amount, about 19,000 acres are situated on the banks of the 21,45 Sacramento River. Probably no other lands than those excluded from the provisions of the Act of 1855, will be sold during the coming year. Of the total amount derived from the sale of swamp lands, the sum of $48,136 95 was paid into the General Fund before the passage of the Act 1,34 of April, 1858, creating a Swamp Land Fund, and should be restored to its proper place, and expended in the selection and reclamation of those lands. REIGNTY. the name of the purchaser, date, and description. This request has, LANDS OF THE STATE OWNED BY VIRTUE OF HER SOVEmost instances, been complied with; but, owing to the great press business, arising from the sale of school lands, and the want of sufficie clerical force, it has been impossible for me to so arrange the returns a records, as to show the exact state of affairs in regard to the lands so before the State Land Office was created. I hope, however, to be able if allowed the necessary assistance, to give, in my next Report, a stat ment of the true condition of all the lands sold up to that time. Und the Act of 1858, there have been returned to this office surve of swapp lands, comprising acres as follows: Of this class of lands there have been sold as follows, and paid to the Total ..289.82 acres 12.82 acres ....302.64 acres [Communication to the Governor concerning Letter of Gov. Denver.] His Excellency, says: JOHN B. WELLER, STATE LAND OFFICE, Governor of California: I have made surveys in most parts of the State, and I know, from personal observation, how these lines of segregation were run-how they must have been run at the price allowed by the General Government for such work. The seasons of California are wholly unlike those of any of the older States of the Union within whose borders swamp lands are found. We have here but two-the wet and dry. During the rainy season, it is almost impossible for the Surveyor to perform his duties in the field; consequently, it is in the summer months that most of his work is done. He is instructed to run the line dividing the dry from the swamp lands. He honestly runs this line, separating the overflowed from the dry land, as it appears to him at that time; and yet, over the very line which his men are then chaining without wetting the soles of their shoes, a few months before, or later, he might find a volume of water through which to navigate a vessel of fifty tons burden. With equal propriety the State might have sent out her Surveyors at the height of the flood in 1853, when those portions of the State bordering on streams presented the appearance of one vast lake, and taken the water-line then as the true boundary of segregation. Either course would be the adoption of an extreme not contemplated by the interested parties. "The SIR :-I have the honor to transmit, herewith, a copy of a letter received a few days since from Gov. Denver, suggesting the necessity of immed ately forwarding to Washington lists of the selections of swamp and overflowed lands made by authority of the State. Owing to a want of a just appreciation of the importance of making the selections, our Legislature has never acted in the matter, other than to authorize the sale of swamp and overflowed lands, upon certain con ditions. The lands thus sold, amounting to but a small portion of the grant, are the only selections yet made. It is a notorious fact, however that the United States Deputies have largely encroached upon lands As I am led to understand, the instructions of 1850 relative to the really the property of the State, if a fair and liberal construction is pu upon the intent and meaning of the Act granting the swamp and over proper method of selecting the swamp lands, have been set aside for Howed lands to the State. It is to be supposed that Congress, by the A those of a more recent date, said to have emanated from the present of 1850, making the grant, really intended to give something of value to chief of the General Land Office, a copy of which I have not, as yet, been the different States; and the Commisssioner at that time (Mr. Butter able to procure. From the Report of the Surveyor-General for 1856, 1 find mention field,) seemed to be impressed with that idea, judging from his instruc tions to the United States Surveyors-General, issued the same year.. Hmade of a letter, addressed by Mr. Hendricks, Commissioner of the Gen"If the authorities of a State are willing to adopt the field-note eral Land Office, to your predecessor in office, in which he states: of the United States surveys as the basis of the list of swamp land sele question of cultivation has been carefully examined, and we have long tions, you will so regard them;" in which event, of course, there cou since decided that, to place the land without the purview of the Act, it is not necessary for the cultivation to be in grain. It was not the design be no further controversy between the State and the United States. Mr. Butterfield continues: "If not, and those authorities furnish yo of Congress to grant to the States those rich prairie meadows whose satisfactory evidence that any lands are of the character embraced by the crops of grass may be cultivated and harvested-hay being regarded as grant, you will so report them." Again, he says: "Where the Sta much a staple production as wheat or corn." The Commissioner of the Land Office, in 1850, the year the grant was authorities may conclude to have surveys made to determine the bound aries of the swamp or overflowed lands, those boundaries alone should made, in his instructions says: "All the lands which, though dry a part surveyed, taking connections with the nearest section or township of the year, are subject to inundation at the planting, growing, or har Where satisfactory evidence is produced that the whole of a tow vesting season, so as to destroy the crop, and therefore are unfit for calship, or any particular part of a township, or the whole of a tracte tivation, taking the average season, for a reasonable number of years, as country, bounded by specified surveyed or natural boundaries, is of th the rule of determination, are to be considered granted to the State. The Act of 1850 grants to the States all "swamp and overflowed lands, character embraced by the grant, you will so report it. The affidavits the County Surveyors, and other respectable persons, that they unde made thereby unfit for cultivation." Because the waters recedends, stand and have examined the lines, and that the lands bounded by liniently, during a few months in the year, to allow a crop of rank grass, tules, and aquatic plants, to grow to such a height that they may be cut, dried, and fed to cattle, for lack of a better food, should be no proof that the land is fit for cultivation. Swamps, in many of the Western States, yield luxuriant and profitable crops of cranberries, and yet they This is evidently fair-both to the grantor, who undoubtedly desires when cultivated upon good lands, like grain, or other crops; and, choice is a staple production, el crops being left with the farmer, he might raise hay, or somethi as he saw fit. If he were to await the falling of the waters, however, to harvest this rank vegetation, of spontaneous growth, I am disposed to think the market would be glutted with dried bulrushes, and the farmer convinced that, although hay might be as much a staple as wheat, yet, it would not prove quite as nutritious a food for the ners. thus examined and designated in the affidavits, are of the character braced by the law, should be sufficient. The line or boundary of the overflow that renders the land unfit for regular cultivation, may be ado the gift. Who, sir, I ask, is the more proper judge of the true char ter of the land-the United States Surveyor, who sees it for the first last time when running his lines in the driest season of the year, or County Surveyor, or other competent witness, who has lived upon or joining it for years, and who anxiously watches the rise and fall of are else, corn or waters, which are liable at any moment to destroy the entire produce bipeds of his family, and he would probably proceed to reclaim his lands, his labor? by levees and ditches, that he might, by cultivation, have an election as to the kind of staple he would prefer to raise ! From the great amount of current business in this office, it will be impossible for me to furnish proper lists of even those lands the State has already sold. Some of these lands, as I have before informed 21 in Congress on this subject, asking them to procure from that body, at as early a day as possible, the passage of an Act explanatory of the Act of 1850, granting the swamp and overflowed lands to the several States. your Excellency, are offered for sale by the President, in Februar Let us have some definite rule for our guidance. Let Congress say what next; although, in a note appended to the proclamation, it is said that swamp and overflowed lands will be excluded from the sale. I have ad dressed circulars to the different United States Land Offices, asking my protest, as agent of the State, would be sufficient to induce them to withdraw certain swamp lands from market; or, if proof as to the char acter were required, in what manner should I present it. The Regis acts of the San Francisco and Marysville Districts replied, that the tend not withhold from sale any of the lands offered, except under d rect instructions from Washington. I have no doubt, in my own mind, but the Registers have power to In the proclamation, certain described lands ar withhold the lands. offered for sale; yet why should the note be appended, were it not in tended that if, in the list offered, there should be found swamp lands, the should be withdrawn from market? With the exception of those lands for shall be taken as the true line of segregation. Why would it what proper to take the mean of the greatest and least overflow since 1840 be the line? or, say that, in this State, all lands shall be considered as embraced in the grant of 1850, which are ordinarily overflowed in the rainy season-taking an average of the various floods from 1849 to 1858? To simplify the matter, let the points of intersection of the United States section-lines with the line of average flood be established. Let these inter sections be connected by straight lines, and all quarter-quarter sections, or forty-acre lots, the greater part of which are shown by these lines to be within the swamp or overflow, be certified to the State. I think there can be no doubt that our next Legislature will take some measures to ascertain the true line of segregation. This can be done by running the lines according to the evidence of persons who have been familiar with each locality for years. I transmit, herewith, a list of the swamp lands sold by the State, and which the State has already given title, it makes but little difference which are now offered for sale by the Government, in February next. her whether she sells the swamp lands, or they are disposed of by the General Government. The second section of an Act of Congress, passed March 2, 1855, provides that, "upon due proof, by the authorized ager of the State, before the Commissioner of the General Land Office, tha any of the lands purchased (i. e., from the United States,) were swam lands, within the true intent and meaning of the Act aforesaid, (of 1850) But the purchase-money shall be paid over to the State," etc. etc. should the United States again sell lands which have been purchase Respectfully your obedient servant, H. A. HIGLEY, Surveyor-General, and ex officio Register of Land Office. A list of the swamp lands sold by the State was transmitted to A. G. from the State in good faith, supposing them to be swamp, which have Bradford, Esq., Register of United States Land Office at Stockton. In been levied and drained, and upon which valuable improvements bar an official communication, he informs me that, although some of these been erected, she would be inflicting upon the settler great injustice and lands are offered for sale in February, he will, in justice to the purchasers jury. He, relying upon his title derived from the State, of course new from the State, withdraw them from the market, until further instrucdreamed of the necessity of securing it by pre-emption; and the constions are received from Washington. upon offer quence will be that, should the United States authorities insist ing these lands for sale in February next, the settler, who has spent mu money and time in making the land valuable, will be at the mercy of th heartless speculator, who, of course, would bid the tract off at the fo value of improvements and land. It has always been the policy of o Government to assist the actual settler and tiller of the soil. The mone to be derived from the sale of the lands referred to is a matter of no m ment to the State, or United States. In fact, I would assume the r ponsibility of saying, that if these lands are really the property of th United States, the Legislature of California would willingly agree fund ten times their original cost, rather than the hard-working citiz should suffer so great an injustice as to be despoiled of them. I am afraid that no action of the next Congress, in this matter, can had in time to prevent the evils which the February sale must infi Still, I think upon a proper representation of the facts to the Gener Land Office, that the Secretary of the Interior would, at least, instr the United States Registers in California to withhold from sale the la already sold by the State, until such time as the true character of t land can be proven. I would suggest to your Excellency, in view of the exigency of occasion, the propriety of addressing our Senators and Representativ |