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Show 330 HISTORY OF PUBLIC LAND LAW DEVELOPMENT some lands later to be selected as swamp or overflowed land and thought their investments secure, only later to be told that the state was claiming their land. By 1855 many thousands of occupants and purchasers- 20,000 in Arkansas, it was said, and many in Illinois-were in this predicament. Meantime, the states were hurrying to sell their lands, some like California selling their swamplands years before patents had been received from the Federal government. There were even instances where two parties each had a title, one from the United States and the other from one of the states. Remedial Measures Taken Congress had gotten itself, the Land Office, the states, the surveyors general, and thousands of settlers into a most confused state because of its failure to be more precise in framing the Acts of 1849 and 1850. Elihu Washburne from Illinois, in the House, and Judah P. Benjamin in the Senate drew up a remedial measure that, after being amended in committee of both Houses, and in conference, was signed by Pierce in 1855. It was a most awkwardly phrased act to achieve a desirable objective. In the discussion it appeared that many members thought the Acts of 1849 and 1850 were grants in praesenti, as the courts were later to hold; that is, all swamp and overflowed lands became the property of the states from the date of enactment. Nor did the members seem aware that the terms "swamp" and "overflowed" were difficult of interpretation, that disputes would arise between the state agents making the selections and the Federal officials who were to pass upon them, and that there had been many rejections despite the general leniency of land officers. The Act of 1855 acknowledged that the states had clear title to the land they selected (or land that was ultimately approved to them) from the enactment of the two measures. Those who had settled on state swampland, on the assumption that it was public land, were to be allowed ownership if the purchase antedated any purchase from the state. If the state had sold selected but unapproved swampland which in the end was not patented to it, and if it had done so before the United States sold the same tract, no patent was to issue until the state had listed all the lands it had sold with date of sale. This information was to be provided within 90 days.31 The indemnity feature of the Act of 1855 provided that states in which swamplands were selected by railroads or entered by pre-emptors after the adoption of the Act of 1850 but prior to their selection by the state officials should receive either the money equivalent of all such land they lost, if the lands had been sold, or the right to enter an equivalent amount of land if they had been entered with warrants. It is easy to see how absurd this section was, for preemptors or other settlers and investors would scarcely be inclined to buy lands that were swampy and overflowed when there was an abundance of dry land available. The purpose of the swampland act had been to provide for the ditching, leveeing, and draining of land not otherwise attractive. But the states were not content and were selecting lands that might be wet in the spring for a short time but, within the meaning of the Act of 1850, were not swamp or overflowed lands. This first remedial act took the Land Office and its local agents off the hook and generally satisfied the states. Though they did not secure their selections where settlers had anticipated them, they received either $1.25 an acre cash or scrip. Moreover they were involved in no further administrative expenses with respect to the land they had lost, whereas state lands were sold frequently at less than the government minimum and always on credit, which took long years to close out. The scrip they received could be entered on the best dry land still in public hands within the state. 31 Cong. Globe, 33d Cong., 2d sess., Jan. 2, 1855, Feb. 27, 1855, pp. 160 ff., 961 ff.; Act of March 2, 1855, 10 Stat. 634. |