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Show 326 HISTORY OF PUBLIC LAND LAW DEVELOPMENT surveyors general who were charged with supervising the selections complained about the extreme difficulties involved in determining whether land was swamp or overflowed on the basis of the surveyors' notes, which proved to be defective, far from complete, and in many instances fraudulent.18 The surveyor general for Florida pointed out that field notes only showed what lands were under water at the time the surveys were made. Consequently, surveys which had been made in the dry season would show little land as swampy, whereas other tracts that were surveyed in the wet season would show a high proportion as wet or overflowed. In Illinois, it was brought out, the spirit of speculation had stimulated the state agent "to select every tract which could be supposed to be subject to the law" and large quantities had been erroneously selected.19 Similarly, Arkansas fell to wrangling with the land officers over the selection of its swamplands. The state's officials claimed that the field notes were quite inadequate as a basis of selection because the surveys had been made in the dryest season or when the ground was frozen.20 Butterfield had complicated the task of selecting swamplands by a series of "unskillful 18 GLO Annual Report, 1851, pp. 18, 52-53, 163, 166. 19 John Loughborough, surveyor general for Illinois and Missouri, Oct. 28, 1853, to John Wilson, Commissioner, S. Doc, 33d Cong., 1st sess., No. I, Part 1 (Serial No. 690), pp. 145-46. 20 It may be useful here to summarize the very optimistic statement of the surveyor general of Arkansas concerning the progress the state had made in building levees and draining its swampland by October 1853. George Milbourne reported that the grant had accomplished much good. The greater part of the Mississippi had been leveed and considerable portions of both banks of the Arkansas. One contract for the building of a levee 42 miles long had been let. On the Red River cutoffs being planned would shorten the river by 92 miles. Levees on the Mississippi and Arkansas were reported from 5 to 10 feet high. Levees 10 feet high would have a base of 70 feet and be 10 feet wide at the top. Contracts to ditch and drain the land back of the levees were being let. S. Doc, 33d Cong., 1st sess. (Serial No. 690), Vol. 1, pp. 159-60. instructions" which gave the impression that if the greater part of any legal subdivision was swamp the whole section, even the whole township, could be selected by the state instead of a mere 40 or 160 acres. His instructions of November 21, 1850, stated that where the field notes of survey indicated land to be swampy that was to be the deciding factor but where the field notes gave no such indication the word of "credible and disinterested witnesses" would suffice. There was thus added a heavy burden to that already carried by the local land officers. They were increasingly obliged to act as a court in passing upon the credibility of applicants and witnesses without having any opportunity to examine the land themselves or to have an official examine it. The instructions of Butter-field created a "myriad of conflicts" between those who entered or filed entries upon tracts of public land and the purchasers of the state title to swamplands.21 Vacillations from a hard line to a soft line in the instructions did not help matters. Instead they made for uncertainty and confusion.22 It soon appeared that the states were being more than liberal in their selection of lands as swamp or overflowed; indeed they were including lands that by no stretch of the imagination could be so regarded. Settlers were swarming to lands on the borderline between swamp and not swamp and the failure of Butterfield to segregate all such tracts was the occasion for deep regret at a later time. Squatters were already on some land the states were selecting and others were later to take up lands they assumed to be open to preemption but which were in process of being designated as swamp. Furthermore, railroads with land grants found themselves in conflict with the states which were selecting tracts already con- 21 Ibid., pp. 145-46. 22 H. Ex. Doc, 33d Cong., 2d sess., Vol. I, Part 1 (Serial No. 777), p. 138; S. Ex. Doc, 34th Cong., 1st sess., Vol. 14, No. 86 (Serial No. 823). |