USA > Iowa > Chickasaw County > History of Chickasaw and Howard Counties, Iowa > Part 10
USA > Iowa > Howard County > History of Chickasaw and Howard Counties, Iowa > Part 10
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October 29, 1851, Mr. Stewart directed the Commissioner of the General Land Office to "submit for his approval such lists as had been prepared, and to proceed to report for like approval lists of the alternate sections claimed by the State of Iowa above the Rac- coon Forks, as far as the surveys have progressed, or may here- after be completed and returned." And on the following day, three lists of these lands were prepared in the General Land Office ..
The lands approved and certified to the State of Iowa under this grant, and all lying above the Raccoon Forks, are as follows:
By Secretary Stewart, Oct. 30, 1851 81,707.93 acres.
March 10, 1852. 143,908.37
By Secretary Mclellan, Dec. 17, 1853. 33,142.43
Dec. 30, 1853 12,813.51
Total 271,572.24 acres.
The Commissioners and Register of the Des Moines River Im- provement, in their report to the Governor, November 30, 1852, estimate the total amount of lands then available for the work, including those in possession of the State and those to b- surveyed and approved, at nearly a million acres. The indebtedness then standing against the fund was about $108,000, and the Commis- sioners estimated the work to be done would cost about $1,200,000.
January 19, 1853, the Legislature authorized the Commissioners to sell "any or all the lands which have or may hereafter be granted, for not less than $1,300,000."
On the 24th of January, 1853, the General Assembly provided for the election of a Commissioner by the people, and appointed two Assistant Commissioners, with authority to make a contract, selling the lands of the Improvement for $1,300,000. This new Board made a contract, June 9, 1855, with the Des Moines Navi- gation & Railroad Company, agreeing to sell all the lands dona- ted to the State by Act of Congress of August 8, 1846, which the State had not sold prior to December 23, 1853, for $1,300,000, to be expended on the improvement of the river, and in paying the indeb. edness then due. This contract was duly reported to the Governor and General Assembly.
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HISTORY OF IOWA.
By an act approved January 25, 1855, the Commissioner and Register of the Des Moines River Improvement were authorized to negotiate with the Des Moines Navigation & Railroad Company for the purchase of lands in Webster County, which had been sold by the School Fund Commissioner as school lands, but which had been certified to the State as Des Moines River lands, and had, therefore, become the property of the Company, under the pro- visions of its contract with the State.
March 21, 1856, the old question of the extent of the grant was again raised, and the Commissioner of the General Land Office decided that it was limited to the Raccoon Fork. Appeal was made to the Secretary of the Interior, and by him the matter was referrred to the Attorney General, who decided that the grant ex- tended to the northern boundary of the State; the State relin- quished its claim to the lands lying along the river in Minnesota, and the vexed question was supposed to be finally settled.
The land which had been certified, as well as those extending to the northern boundary within the limits of the grant, were re- served from pre-emption and sale by the General Land Commission- er, to satisfy the grant of August 8, 1846, and they were treated as having passed to the State, which from time to time sold por- tions of them prior to their final transfer to the Des Moines Nav- igation & Railroad Company, applying the proceeds thereof to the improvement of the river in compliance with the terms of the grant. Prior to the final sale to the Company, June 9, 1854, the State had sold about 327,000 acres, of which amount 58,830 acres were located above the Raccoon Fork. The last certificate of the General Land Office bears date December 30, 1853.
After June 9th, 1854, the Des Moines Navigation & Railroad Company carried on the work under its contract with the State. As the improvement progressed, the State, from time to time, by its authorized officers, issued to the Company. in payment for said work, certificates for land. But the General Land Office ceased to certify lands under the grant of 1846. The State had made no other provision for paying for the improvements, and disagree- ments and misunderstanding arose between the State authorities and the Company.
March 22, 1858, a joint resolution was passed by the Legislature submitting a proposition for final settlement to the Company, which was accepted. The Company paid to the State $20,000 in cash, and released and conveyed the dredge boat and materials named in the resolution; and the State, on the 3d day of May, 1858, executed to the Des Moines Navigation & Railroad Company fourteen deeds or patents to the lands, amounting to 256,703.64 acres. These deeds were intended to convey all the lands of this grant certified to the State by the General Government not pre- viously sold; but, as if for the purpose of covering any tract or parcel that might have been omitted, the State made another deed
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HISTORY OF IOWA.
of conveyance on the 18th day of May, 1858. These fifteen deeds, it is claimed, by the Company, convey 266,108 acres, of which about 53,367 are below the Raccoon Fork, and the balance, 212,741 acres, are above that point.
Besides the lands deeded to the Company, the State had deeded to individual purchasers 58,830 acres above the Raccoon Fork, making an aggregate of 271,571 acres, deeded above the Fork, all of which had been certified to the State by the Federal Govern- ment.
By act approved March 28, 1858, the Legislature donated the remainder of the grant to the Keokuk, Fort Des Moines & Minne- sota Railroad Company, upon condition that said Company as- sumed all liabilities resulting from the Des Moines River improve- ment operations, reserving 50,000 acres of the land in security for the payment thereof, and for the completion of the locks and dams at Bentonsport, Crotton, Keosauqua and Plymouth. For every three thousand dollars' worth of work done on the locks and dams, and for every three thousand dollars paid by the Com- pany of the liabilities above mentioned, the Register of the State Land Office was instructed to certify to the Company 1,000 acres of the 50,000 acres reserved for these purposes. Up to 1865, there had been presented by the Company, under the provisions of the act of 1858, and allowed, claims amounting to $109,579.37, about seventy-five per cent. of which had been settled.
After the passage of the act above noticed, the question of the extent of the original grant was again mooted, and at the De- cember term of the Supreme Court of the United States, in 1859- 60, a decision was rendered declaring that the grant did not ex- tend above Raccoon Fork, and that all certificates of land above the Fork had been issued without authority of law and were, therefore, void (see 23 How., 66).
The State of Iowa had disposed of a large amount of land with- out authority, according to this decision, and appeal was made to Congress for relief, which was granted on the 3d day of March, 1861, in a joint resolution relinquishing to the State all the title which the United States then still retained in the tracts of land along the Des Moines River above Raccoon Fork, that had been improperly certified to the State by the Department of the Inte- rior, and which is now held by bona fide purchasers under the State of Iowa.
In confirmation of this relinquishment, by act approved July 12, 1862, Congress enacted :
That the grant of lands to the then Territory of Iowa for the improvement of the Des Moines River, made by the act of August 8, 1846, is hereby extended so as to include the alternate sections (designated by odd numbers) lying within five miles of said river, between the Raccoon Fork and the northern boundary of said State; such lands are to be held and applied in accordance with the provisions of the original grant, except that the consent of Congress is hereby given to the application of a portion thereof to aid in the construction of the
6
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HISTORY OF IOWA.
Keokuk, Fort Des Moines & Minnesota Railroad, in accordance with the pro- visions of the act of the General Assembly of the State of Iowa approved March 22, 1858. And if any of the said lands shall have been sold or otherwise dis- posed of by the United States before the passage of this act, except those re- leased by the United States to the grantees of the State of Iowa, under joint resolution of March 3, 1861, the Secretary of the Interior is hereby directed to set apart an equal amount of lands within said State to be certified in lieu thereof: Provided, that if the State shall have sold and conveyed any portion of the lands lying within the limits of the grant the title of which has proved in- valid, any lands which shall be certified to said State in lieu thereof by virtue of the provisions of this act, shall inure to and be held as a trust fund for the ben- efit of the person, or persons, respectively, whose titles shall have failed as aforesaid.
The grant of lands by the above act of Congress was accepted by a joint resolution of the General Assembly, Sept. 11, 1862, in extra session. On the same day, the Governor was authorized to appoint one or more Commissioners to select the lands in accord- ance with the grant. These Commissioners were instructed to report their selections to the Registrar of the State Land Office. The lands so selected were to be held for the purposes of the grant, and were not to be disposed of until further legislation should be had. D. W. Kilburne, of Lee County, was appointed Commissioner, and, on the 25th day of April, 1864, the General Land Officer authorized the selection of 300,000 acres from the vacant public lands as a part of the grant of July 12, 1862, and the selections were made in the Fort Dodge and Sioux City Land Districts.
Many difficulties, controversies and conflicts, in relation to claims and titles, grew out of this grant, and these difficulties were en- hanced by the uncertainty of its limits until the act of Congress of July, 1862. But the General Assembly sought, by wise and appropriate legislation, to protect the integrity of titles derived from the State. Especially was it the determination to protect the actual settlers, who had paid their money and made improvements pr or to the final settlement of the limits of the grant by Con- gress.
VII .- THE DES MOINES RIVER SCHOOL LANDS.
These lands constituted a part of the 500,000 acre grant made by Congress in 1841; including 28,378.46 acres in Webster County, , selected by the Agent of the State under that grant, and ap- proved by the Commissioner of the General Land Office February 20, 1851. They were ordered into the market June 6, 1853, by the Superintendent of Public Instruction, who authorized John Tolman, School Fund Commissioner for Webster County, to sell them as school lands. Subsequently, when the act of 1846 was construed to extend the Des Moines River grant above Rac- coon Fork, it was held that the odd numbered sections of these lands within five miles of the river were appropriated by that act, and on the 30th day of December, 1853, 12,813.51 acres were set apart and approved to the State by the Secretary of the Interior,
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HISTORY OF IOWA.
as a part of the Des Moines River grant. January 6, 1854, the Commissioner of the General Land Office transmitted to the Su- perintendent of Public Instruction a certified copy of the lists of these lands, indorsed by the Secretary of the Interior. Prior to this action of the Department, however, Mr. Tolman had sold to individual purchasers 3,194.28 acres as school lands, and their titles were, of course, killed. For their relief, an act, approved April 2, 1860, provided that, upon application and proper showing, these purchasers should be entitled to draw from the State Treas- ury the amount they had paid, with ten per cent. interest, on the contract to purchase made with Mr. Tolman. Under this act, five applications were made prior to 1864, and the applicants received, in the aggregate, $949.53.
By an act approved April 7, 1862, the Governor was forbidden to issue to the Dubuque & Sioux City Railroad Company any cer- tificate of the completion of any part of said road, or any convey- ance of lands, until the company should execute and file, in the State Land office, a release of its claim-first to certain swamp lands; second, to the Des Moines River Lands sold by Tolman; third, to certain other river lands. That act provided that "the said company shall transfer their interests in those tracts of land in Webster and Hamilton Counties heretofore sold by John Tol- man, School Fund Commissioner, to the Register of the State Land Office in trust, to enable said Register to carry out and per- form said contracts in all cases when he is called upon by the parties interested to do so, before the 1st day of January, A. D., 1864.
The company filed its release to the Tolman lands, in the Land Office, February 27, 1864, at the same time entered its protest that it had no claim upon them, never had pretended to have, and had never sought to claim them. The Register of the State Land Of- fice, under the advice of the Attorney General, decided that pat- ents would be issued to the Tolman purchasers in all cases where contracts had been made prior to December 23, 1853, and remain- ing uncancelled under the act of 1860. But before any were is- sued, on the 27th of August, 1864, the Des Moines Navigation and Railroad Company commenced a suit in Chancery, in the District Court of Polk County, to enjoin the issue of such patents. On the 30th of August, an ex parte injunction was issued. In January, 1868, Mr. J. A. Harvey, Register of the Land Office, filed in the court an elaborate answer to plaintiffs' petition, deny- ing that the company had any right to or title in the lands. Mr. Harvey's successor, Mr. C. C. Carpenter, filed a still more exhaus- tive answer February 10, 1868. August 3, 1868, the District Court dissolved the injunction. The company appealed to the Supreme Court, where the decision of the lower court was affirmed in December, 1869.
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HISTORY OF IOWA.
VIII. SWAMP LAND GRANT.
An act of Congress, approved March 28, 1850, to enable Arkan- sas and other States to reclaim swampy lands within their limits, granted all the swamp and overflowed lands remaining unsold within their respective limits to the several States. Although the total amount claimed by Iowa under this act does not exceed 4,000,000 acres, it has, like the Des Moines River and some of the land grants, cost the State considerable trouble and expense, and required a deal of legislation. The State expended large sums of money in making the selections, securing proofs, etc., but the General Government appeared to be laboring under the impression that Iowa was not acting in good faith; that she had selected a large amount of lands under the swamp land grant, transferred her interest to counties, and counties to private speculators, and the General Land office permitted contests as to the character of the lands already selected by the Agents of the State as "swamp lands." Congress, by joint resolution December 18, 1856, and by act March 3, 1857, saved the State from the fatal result of this ruinous policy. Many of these lands were selected in 1854 and 1855, immediately after several remarkably wet seasons, and it was but natural that some portions of the selections would not ap- pear swampy after a few dry seasons. Some time after these first selections were made, persons desired to enter parcels of the so- called swamp lands and offering to prove them to be dry. In such cases the General Land office ordered hearing before the local land officers, and if they decided the land to be dry, it was permit- ted to be entered and the claim of the State rejected. Specula- tors took advantage of this. Affidavits were bought of irrespon- sible and reckless men, who, for a few dollars, would confident- ly testify to the character of lands they never saw. These ap-
plications multiplied until they covered 3,000,000 acres. It was necessary that Congress should confirm all these selections to the State, that this gigantic scheme of fraud and plunder might be stopped. The act of Congress of March 3, 1857, was designed to accomplish this purpose. But the Commissioner of the General Land office held that it was only a qualified confirmation and un- der this construction sought to sustain the action of the Depart- ment in rejecting the claim of the State, and certifying them un- der act of May 15, 1856, under which the railroad companies claimed all swamp land in odd numbered sections within the lim- its of their respective roads. This action led to serious complica- tions. When the railroad grant was made, it was not intended, nor was it understood that it included any of the swamp lands. These were already disposed of by previous grant. Nor did the companies expect to receive any of them, but under the decision of the Department adverse to the State the way was opened, and hey were not slow to enter their claims. March 4, 1862, the At-
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HISTORY OF IOWA.
torney General of the State submitted to the General Assembly an opinion that the railroad companies were not entitled even to con- test the right of the State to these lands, under the swamp land grant. A letter from the Acting Commissioner of the General Land Office expressed the same opinion, and the General Assembly by joint resolution, approved April 7, 1862, expressly repudiated the acts of the railroad companies, and disclaimed any intention to claim these lands under any other than the act of Congress of September 28, 1850. A great deal of legislation has been found necessary in relation to these swamp lands.
IX. THE RAILROAD GRANT. ยท
One of the most important grants of public lands to Iowa for purposes of internal improvement was that known as the "Rail- road Grant," by act of Congress, approved May 15, 1856. This act granted to the State of Iowa, for the purpose of aiding in the construction of railroads from Burlington, on the Mississippi Riv- er, to a point on the Missouri River, near the mouth of Platte River; from the city of Davenport, via Iowa City and Fort Des Moines to Council Bluffs; from Lyons City northwesterly to a point of intersection with the main line of the Iowa Central Air Line Railroad, near Maquoketa; thence on said main line, running as near as practicable to the Forty-second Parallel; across the said State of Iowa to the Missouri River; from the city of Dubuque to a point on the Missouri River near Sioux City, with a branch from the month of the Tete des Morts, to the nearest point on said road, to be completed as soon as the main road is completed to that point, every alternate section of land designated by odd numbers, for six sections in width, on each side of said roads. It was also provided that if it should appear, when the lines of those roads were definitely fixed, that the United States had sold, or right of pre-emption had attached to any portion of said land, the State was authorized to select a quantity equal thereto, in alternate sec- tions, or parts of sections, within fifteen miles of the line so lo- cated. The lands remaining to the United States within six miles on each side of said roads were not to be sold for less than the double mininum price of the public lauds when sold, nor were any of said lands to become subject to private entry until they had been first offered at public sale at the increased price.
Section 4 of the act provided that the lands granted to said State shall be disposed of by said State only in the manner following, that is to say: "That a quantity of land not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold; and when the Governor of said State shall certify to the Sec- retary of the Interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby
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HISTORY OF IOWA.
granted, not to exceed one hundred and twenty sections for each of said roads having twenty continuous miles completed as afore- said, and included within a continuous length of twenty miles of each of such roads, may be sold; and so from time to time until said roads are completed, and if any of said roads are not com- pleted within ten years, no further sale said shall be made, and the lands unsold shall revert to the United States."
At a special session of the General Assembly of Iowa, by act ap- proved July 14, 1856, the grant was accepted and the lands were granted by the State to the several railroad companies named, pro- vided that the lines of their respective roads should be definitely fixed and located before April 1, 1857; and provided, further, that if either of said companies should fail to have seventy-five miles of road completed and equipped by the 1st day of December, 1859, and its entire road completed by December 1, 1865, it should be competent for the State of Iowa to resume all rights to lands re- maining undisposed of by the company so failing.
The railroad companies, with the single exception of the Iowa Central Air Line, accepted the several grants in accordance with the provisions of the above act, located their respective roads and selected their lands. The grant to the Iowa Central was again granted to the Cedar Rapids & Missouri River Railroad Company, which accepted it.
By act, approved April 7, 1862, the Dubuque & Sioux City Rail- road Company was required to execute a release to the State of certain swamp and school lands, included within the limits of its grant, in compensation for an extension of the time fixed for the completion of its road.
A careful examination of the act of Congress does not reveal any special reference to railroad companies. The lands were granted to the State, and the act evidently contemplated the sale of them by the State, and the appropriation of the proceeds to aid in the construction of certain lines of railroad within its limits. Section 4 of the act clearly defines the authority of the State in disposing of the lands.
Lists of all the lands embraced by the grant were made, and cer- tified to the State by the proper authorities. Under an act of Con- gress approved August 3, 1864, entitled, "An act to vest in the several States and Territories the title in fee of the lands which have been or may be certified to them," these certified lists, the originals of which are filed in the General Land Office, conveyed to the State "the fee simple title to all the lands embraced in such lists that are of the character contemplated" by the terms of the act making the grant, and "intended to be granted thereby; but where lands embraced in such lists are not of the character em- braced by such act of Congress, and were not intended to be granted thereby, said lists, so far as these lands are concerned, shall be perfectly null and void; and no right, title, claim or in-
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HISTORY OF IOWA.
terest shall be conveyed thereby." Those certified lists made under the act of May 15, 1856, were forty-three in number, viz .: For the Burlington & Missouri River Railroad, nine; for the Missis- sippi & Missouri Railroad, eleven; for the Iowa Central Air Line, thirteen; and for the Dubuque & Sioux City Railroad, ten. The lands thus approved to the State were as follows:
Burlington & Missouri River R. R 287,095.34 acres
Mississippi & Missouri River R. R. 774,674.36
Cedar Rapids & Missouri River R. R. 775,454.19
Dubuque & Sioux City R. R. 1,226,558.32
A portion of these had been selected as swamp lands by the State, under the act of September 28, 1850, and these, by the terms of the act of August 3, 1854, could not be turned over to the rail- roads unless the claim of the State to them as swamp was first re- jected. It was not possible to determine from the records of the State Land Office the extent of the conflicting claims arising un- der the two grants, as copies of the swamp land selections in some of the counties were not filed of record. The Commissioner of the General Land Office, however, prepared lists of the lands claimed by the State as swamp under the act of September 28, 1850, and also claimed by the railroad companies under act of May 15, 1856, amounting to 553,293.33 acres, the claim to which as swamp had been rejected by the Department. These were consequently cer- tified the State as railroad lands. There was no mode other than the act of July, 1856, prescribed for transferring the title to these lands from the State to the companies. The courts had decided that, for the purposes of the grant, the lands belonged to the State, and to her the companies should look for their titles. It was generally accepted that the act of the Legislature of July, 1856, was all that was necessary to complete the transfer of title. It was assumed that all the rights and powers conferred upon the State by the act of Congress of May 14, 1856, were by the act of the Gen- eral Assembly transferred to the companies; in other words that it was designed to put the companies in the place of the State as the grantees from Congress-and, therefore, that which perfected the title thereto to the State perfected the title to the companies by virtue of the act of July, 1856. One of the companies, how- ever, the Burlington & Missouri River Railroad Company, was not entirely satisfied with this construction. Its managers thought that some further and specific action of the State authorities in ad- dition to the act of the Legislature was necessary to complete their title. This induced Gov. Lowe to attach to the certified lists his official certificate, under the broad seal of the State. On the 9th of November, 1859, the Governor thus certified to them (com- mencing at the Missouri River). 187,207.44 acres, and December 27th, 43,775.70 acres, an aggregate of 231,073.14 acres. These were the only lands under the grant that were certified by the State authorities with any design of perfecting the title already
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