SWAMP AND OVERFLOWED LANDS

  7-95. The acts of Congress which granted to certain States the swamp and overflowed lands within their respective boundaries were listed in chapter I. These lands are not conveyed without survey, selection, or patent. Lee Wilson & Company v. United States, 245 U.S. 24 (1923). They are surveyed as public lands and subject to classification at that time.

In San Francisco Savings Union, et al v. Irwin, 28 Fed. 708 (1886), aff. Irwin v. San Francisco Savings Union, et al., 136 U.S. 578 (1890), the court stated:

   The act of 1850 grants swamp and overflowed lands. Swamp lands, as distinguished from overflowed lands, may be considered such as require drainage to fit them for cultivation. Overflowed lands are those which are subject to such periodical or frequent overflows as to require levees or embankments to keep out the water, and render them suitable for cultivation.

Swamp lands include marshes and intermittent ponds which do not have effective natural drainage, particularly where such conditions are long continued.

Overflowed lands include essentially the lower levels within a stream flood plain as distinguished from the higher levels, according to the characteristic effect of submergence where long continued.

  7-96. Tidelands are coastal areas situated above mean low tide and below mean high tide, particularly as they are alternately uncovered and covered by the ebb and flow of the daily tides. As a part of the bed of navigable waters, such lands belong to the States. Pollard's Lessee v. Hagan, 44 U.S. 212 (1844). Tidelands are mentioned here to stress their distinction from swamp and overflowed lands. Coastal "salt marshes" that are covered by the daily tide are tidelands and not subject to survey. On the other hand, coastal marshes that are not covered by the daily tide are swamp and overflowed lands within the meaning of the grants and are subject to survey.

  7-97. It has already been emphasized in section 3-115 that meander lines will not be established between the upland and the swamp and overflowed lands. Riparian rights, which are applicable within the beds of lakes, streams, and tidal waters, are not enforceable over the swamp and overflowed lands granted to the States. The survey of meander lines at the margin of swamps in the past has been in important cause of the erroneous omission of lands from survey.

  7-98. The following rules should be followed in making surveys or field examinations of swamp and overflowed lands:
  (1) According to R.S. 2481 (43 U.S.C. 984), any legal subdivision the greater part of which is "wet and unfit for cultivation," shall be included in the category of swamp and overflowed lands. When the greater part of a subdivision is not of that character, the whole of it shall be excluded. The legal subdivision referred to is the quarter-quarter section or comparable lot.
   (2) "Wet and unfit for cultivation" is interpreted to mean that the land must have been so swampy or subject to overflow during the planting, growing, or harvesting season, in the majority of years at or near the date of the grant, as to be unfit for cultivation in any staple crop of the region in which it is located, without the use of some artificial means of reclamation such as levee protection or drainage ditches.
  (3) A subdivision which becomes swampy or overflowed at a season of the year when this condition does not interfere with the planting, cultivating, or harvesting of a crop at the proper time and by the ordinary methods is not "made unfit for cultivation" and does not qualify under the swamp land grant.
  (4) Tame grass or hay, when produced by the ordinary methods of preparing the ground, is considered a staple crop, as well as the cereals, or cotton, or tobacco.
   (5) In the administration of the swamp acts the States have been allowed optional methods of preparing the lists of subdivisions that are to be identified as swamp and overflowed within the meaning of the acts. But the surveyor must determine with accuracy the position and extent of the swamp and overflowed land within the area under survey regardless of the methods employed by the States in asserting claims.
   (6) Alabama, Indiana, Louisiana, Michigan, Minnesota (excepting as to lands within the Indian reservations), Mississippi, Ohio, and Wisconsin have elected to base their swampland lists on the field note record. In these States it is imperative that the field notes include a specific list of the subdivisions each of which is more than 50 per cent wet and unfit for cultivation, regarding such character as at the date of the passage of the granting act.
   Arkansas, by the Act of April 29, 1898 (30 Stat. 367; 43 U.S.C. 991), relinquished all right, title, and interest to the remaining unappropriated swamp and overflowed lands within its boundaries.
   (7) In California, under R.S. 2488 (43 U.S.C. 987), the swampland lists are based upon the representations of the plat of survey, and in this State it is imperative that the plats correctly show the conditions in this respect.
   (8) The selection of swamp lands in Florida, Illinois, iowa, Missouri, and Oregon, and in Indian reservations within Minnesota, is based upon investigations and reports by representatives of the State and of the Bureau of Land Management, but this does not set aside the Manual requirements for the usual complete showing of the character of the land.

  7-99. It is always important to note any marked changes in the water level and drainage conditions of the region, and to ascertain the situation as of the date of the granting act. It is desirable to secure the testimony of persons who have known the lands for long periods. The most convincing evidence of the land's character at the date of the granting act is the older native timber, as the varieties reflect their site conditions with great certainty.

This line of investigation requires an inquiry into the habitat of the forest species which are found, particularly as to whether the usual range of the tree is within low wet ground, as for example the cypress, tupelo, sweet gum, water ash, water locust, and red bay of the southern latitudes, and the tamarack, white cedar, black spruce, swamp spruce, and black ash of the northern latitudes of the United States. The presence of any of the species named indicates the possibility of swamp land, and while conclusive with some of them, others of the species named have a wider range and may be found associated with upland varieties. If upland varieties are present the plain inference will be that the site conditions are that of upland, even though a forest species may favor moist rich soil.