USA > Iowa > Fremont County > History of Fremont County, Iowa : containing a history of the county, its cities, towns, etc., a biographical directory of many of its leading citizens, war record of its volunteers in the late rebellion, general and local statistic, portraits of early settlers and prominent men, history of Iowa and the Northwest, map of Fremont County, constitution of the state of Iowa, reminiscences, miscellaneous matters, etc > Part 49
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When the Council Bluffs and St. Joseph railroad was commenced in 1859, it was expected that it would meet at the state line, the Platte coun- try railroad from St. Joseph, but that and some other companies were merged in the St. Joseph and Council Bluffs railroad company, which was organized in the fall of 1866, and completed to the Junction at the Iowa state line, a mile south of Hamburg in August, 1868, when trains com- menced running regularly through from St. Joseph to Council Bluffs. In the fall of 1868 a majority of the stock of the Council Bluffs and St. Joseph railroad company was purchased by Nathaniel Thayer, as trustee,
426
HISTORY OF FREMONT COUNTY.
and in the month of November the road passed in the charge of the Han- nibal and St. Joseph railroad company, it was consolidatod with that com- pany April 7, 1869, taking its title. The consolidation was approved by Nathaniel Thayer, representing 9056 shares, and Willis Phelphs owning 452 shares, which constituted a majority of the entire number issued, which was 10,500.
A second change was made May 19, 1870, and a new consolidation formed with the Missouri Valley railroad company, the united companies taking the title of the Kansas City, St. Joseph & Council Bluffs railroad company. Under this name the road is now operated. The gross earn- ings of the road for 1878 were $1,499,029.80-an average earning per mile of $6,000.20. In the same year the officers of the company were as follows: President, Nathaniel Thayer, Boston, Mass .; Secretary, Charles Merriam, Boston, Mass .; Treasurer, Charles Merriam, Boston, Mass .; Assistant Treasurer, J. S. Ford, St. Joseph, Mo .; General Manager, Geo. H. Nettleton, Kansas City, Mo .; General Superintendent, J. F. Barnard, St. Joseph, Mo .; General Passenger Agent, A. C. Dawes, St. Joseph, Mo .; General Freight Agent, George Olds, St. Joseph, Mo .; Attorneys, W. F. Sapp and partners, Council Bluffs, Iowa.
There are two other lines in the county both operated by and in the interest of the C., B. & Q. R. R. Co. The first and younger of these side lines is the branch running from Sidney to Hastings. This road was commenced in 1878 and completed to its present point, near Sidney, in the same year. The building of the road was insured by a 5 per cent. tax voted by Sidney and Riverside townships. Its southern terminus is nearly a mile east of the city-which militates somewhat against its greater usefulness.
The other branch road enters the county just below Shenandoah, on the eastern side, and takes a south-westerly course to the city of Ham- burg, in the southern part of the county. The road was commenced in 1869, and completed in the spring of 1870. It was the object of not a little contention between the citizens of Hamburg and Sid- ney - the former winning the day. The road was aided by pri- vate subscription in the city of Hamburg. At that point the track of the K. C., St. Joe & C. B. R. R. Co., is used for all points to the south. No swamp land subsidies have have ever been voted for either of these last named roads, and the capital to operate them is furnished by the C., B. & Q., and therefore comes from eastern capitalists.
The almost incalculable advantages to be derived from railroad facilities are offered at their best to the inhabitants of Fremont county. The crea- tion of points of sale and shipment for agricultural products increases the value of farm property, and this county everywhere shows, in its rich, well-cultivated farms and fine buildings, the benefits of home markets and the highest facilities for transportation. To arrest or seriously delay
1
427
HISTORY OF FREMONT COUNTY.
the conveyance of what now comes and goes so promptly by mail and express, would be to take away what constitutes civilization, and remand the community thus affected to comparative barbarism.
THE SWAMP LAND AND RAILROAD GRANTS.
Elsewhere in this volume will be found a complete history of the legis- lation on these much vexed topics, together with an account of the causes leading to the grants, and the action of the general government thereon. Before the commencement of that series of negotiations and legal diffi- culties in which the county became involved, the condition of affairs was briefly as follows:
By an act of Congress approved 28th September, 1850, all the over- flowed and swamp lands within the state were granted to her, and the state authorities were required to select them and report through the sur- veyor general to the general land office the lands selected. For the bet- ter and more certain compliance with the act of Congress the state granted the lands to the counties in which they lie, and the counties in most cases, appointed agents to make the selection, and the selections were made at the expense of the county, amounting to the sum of $2,000, in many instances, averaging about $1,000 to each county, making the entire ex- pense amount to about $100,000. All this expense was incurred under the direction of the commissioner of the general land office, and the form of report and required affidavits were duly returned to the surveyor gen- eral's office and by him certified to be overflowed or swamp lands, returned as such to the commissioner of the general land office. The list returned for the counties in the Council Bluffs land districts were examined and approved, and orders were issued to the land office to enter the lands con- tained in the list upon the tract books and plats of the office, and to with- draw them from sale. This was done, if we are correctly informed, about the 23d day of September, 1854.
In May, 1856, Congress made a grant of land to the state to aid in the construction of certain railroads. At the same session an act was passed approving and confirming the selections of swamp lands, and virtually declaring by that act that the swamp lands selected before the passage of the act making a grant to aid in the construction of railroads, were to remain undisturbed, and no portion of them could by any construction be included in the railroad grant. But notwithstanding these selections were made in conformity with instructions from the general land office, and by his order entered upon the tract books and plats of the Council Bluffs land office, and notwithstanding that they were approved and confirmed by an act of Congress, the commissioner decided that patents should only be issued to the state for such even numbered sections within fifteen miles of
428
HISTORY OF FREMONT COUNTY.
any of the land grant railroad lines, as were shown to be overflowed or swamp lands by the plats and field notes, made by the government sur. veyor, and that those even numbered sections selected and not shown to be overflowed or swamp lands should be patented to the railroad companies
Such a decision was regarded as a gross usurpation of authority, and a violation of the act of September 28, 1850. If the lands selected were overflowed or swamp lands, they became absolutely the property of the state the day the act was approved. That they were such is proved ir the very manner the commissioner required the proof to be made, and having required this kind of testimony to be produced, and having approved the selections upon this testimony, he could not, in justice tc the counties, fall back on the field notes of the government surveyor. If the patents were to issue only for such lands as were shown to be over- flowed or swamp lands by the field notes of the government surveyor why were the counties required at a great expense to go through the farce of making selections? We take the broad ground that the selec- tions having been made in accordance with the requirements of the com- missioner of the general land office, and having been approved by the surveyor general, and marked upon the plats and entered upon the tract books, and withdrawn from market by order of the commissioner before the passage of the act granting lands to aid in the construction of rail- roads, that the right of the state, and through it the right of the counties to all the lands selected became vested in the counties, and the act making the grant for railroad purposes could not reach any of the lands selected before its passage. If in fact the two grants may be considered as cover- ing the same land, the rights of the two will depend upon the facts in the case, which become the subjects of judicial investigation and decision. The law grants all the swamp and overflowed lands to the state-the state has transferred them to the counties, and the counties have sold them to individuals, and have expended the proceeds of the sale in draining the lands, thus carrying out the intention of congress in making the grant. Under all the circumstances, it was the duty of the executive officer to issue the patents for all the lands selected under the swamp-land act, and if the railroad companies had any right to any portion of them, their right could be determined by the judicial tribunal of the county.
It has too long been the practice of executive officers to assume the prerogative of deciding the legal rights of parties, which should have been decided by the courts, and in the case before us, if the commissioner could not legally cause patents to be issued to the state for all the swamp lands selected before the passage of the railroad grant, he could have had patents issued for those about which there was no dispute, and leave the. rights of the parties to the balance to be determined by a judicial decision; but by his determination to cause patents for a portion of the lands
429
HISTORY OF FREMONT COUNTY.
selected to be issued to the railroad company, he threw obstacles in the way of adjusting the rights of the counties, and to some extent forestalled the action of the courts thereon.
It was this very issuing of patents to the railroad companies that led to the institution of the suit by the county against the B. & M. R. R. Co. This case involves conflicting claims by the respective parties to the same lands under separate congressional grants. The plaintiff's petition alleges that the plaintiff is the owner of the lands in controversy by virtue of the act of congress of September 28, 1850, known as the "swamp land grant," and the act of the general assembly of the state of Iowa, of June 13, 1853, disposing of the swamp lands within the state to the several counties therein, and the act of congress, of March 3, 1857, confirming the swamp land selections previously made; that the defendant was unlawfully inter- fering with the plaintiff's title to those lands, and disturbing plaintiff in the use, possession, and enjoyment of the same, and asserting and claiming title thereto under color of some subsequent and subordinate grant unknown to plaintiff. A list of the lands as claimed was attached to the petition, and is as follows, to-wit:
PARTS OF SECTION.
Sections.
Town.
Range.
PARTS OF SECTION.
Sections.
Town.
Range.
Se 4 and se } of ne } and se ¿ of sw ..
27 70 40
W & ne { w & se 4.
29 70 |43
Se + of ne # and s & of sw 4.
5 69 40 E& ne { e } se + sw + se 4. 31 70 43
Sw + of se & and nå of se ł.
5 69 40 S & se + w { sw } seł swz.
33 70 43
N { of nw and sw 4 of sw 4.
7.69 W & ne te & nw +
3|69
43
N & of ne 1.
7 69 40|E { e } sw }, sw }nw+.
5 69 43
Se 4 and e & of ne 4.
1 70,40
Lot 3 and 4 and sw } se ł
5 70 43
W 3.
3.70 43
23 70 40 Ne 4 ne 4, lot 1.
5 70 43
Sex and se { sw } and sz ne 1
S &.
9 70 43
33 70 40 E _ ne + sw { ne 1.
9 70|43
All of.
56941 Se & nw # w & nw }
9.70 43
Se È ne 4 and net se 4.
7 69 41 W 3. 11 70 43
Swą nw { and s & ne } ne 4 ne È s ₺.
9.69 41|Nw 4. 17 70 43
17/70 43
Nw 4 w & swł.
3 70 41 E { sw 14 nw 14 sw 14. . .. 17 70 43
E& swing nwł
5 70 43 Lots 1, 2, 3, 4 and e z sw 14
19 70 43
E& net e & se 4.
7 70 43 Nw 14 and e 2 ne 14 s 14 . . . 21 70 43 9 70 43|N & s & se 14 s & sw 14. 27 70 43
Nw Į nw ł.
15 70 43 E 2 w ₺ nw 14 w & sw 14.
29 70 43
Enw & w ¿ swą ne sw 4.
17 70 43 S ¿ e ¿ ne 14 ne 14 nw 4 . . 31 70 43
E ¿ se { sw } se 4.
19 70 43|W & se 14 and w & ne 14 ... 21 70 43
33 70 43
E 2.
Szsznelsenwł 15 70 43
Sz and s & ne {s2 nw4.
11 69 41 |Sw { ne 14 se 14.
All of ..
W gnw +.
27|70 43
W & sec and sw 4 of ne ł .. .
13 70,40 ez se ł
Ne 4 and w & of se } and e ¿ of sw ł.
430
HISTORY OF FREMONT COUNTY.
The plaintiff further set forth in his petition that the said lands were duly and legally selected and returned as, and were, swamp and overflowed lands, and that by virtue thereof, and the several acts of Congress and the general assembly aforesaid, it became the owner of said lands, and enti- tled thereto in fee simple, and to the full, free and uninterrupted use, pos- session and enjoyment of the same; that, relying in good faith upon her right to sell to various persons, citizens of said county and state, a large part, to wit, nearly all of said tracts of land, for the purpose of carrying out the provisions of the acts aforesaid, and that she received from the numerous purchasers of said lands various and large sums of money in part payment therefor, and expended the same in draining and reclaiming the swamp and overflowed lands in said county, granted and confirmed to said county by the acts aforesaid, of which lands the tracts in contro- versy constitute a part, and that for the purpose aforesaid said county has expended a large sum of money, to wit, one hundred thousand dollars, and by means thereof a large amount of the lands in controversy, which were swampy and unfit for cultivation, have been reclaimed and made tillable land, and that in many instances the purchasers have settled upon the lands purchased of the county as aforesaid, and made improvements thereon, and are still living on and cultivating the same.
The petition further set forth that the defendant, "The Burlington and Missouri Railroad Company," claimed the title to said lands, and assumed and pretended to own the same by virtue of an act of Congress entitled "A bill making a grant of lands to the state of Iowa in alternate sections, to aid in the construction of certain railroads in said state," approved 15th May, 1856, and certain acts of the general assembly of the state of Iowa, as lands granted to said company to aid in the construction of a railroad from Burlington, on the Mississippi river, to a point on the Missouri river, near the mouth of Platte river.
The petition further alleged, that the railroad company had failed in every particular to comply with the conditions of the congressional grant, and that therefore the defendant had no legal right, title nor interest to nor in said lands; and that the commissioner of the general land office, in cer- tifying or approving the lands in dispute to the railroad company, it was done in violation of the rights of plaintiffs, and without authority of law, and that inasmuch as the acts of said defendant in the premises are contrary to equity and good conscience, and in violation and fraud of plaintiff's' . rights; and inasmuch as she cannot have adequate relief in a court of law, this court may hear this her cause in chancery and render a decree fully and completely setting forth and decreeing the right and title in fee sim- ple in said land, and every part and parcel thereof, to be in said Fremont county, and all claim thereto by defendant, and all persons claiming under them, be declared and decreed void and held for nought.
431
HISTORY OF FREMONT COUNTY.
This petition was filed October 11, 1864, and the original notice to the parties defendant was served January 6, 1865, on the acting superintend- ent in the city of Burlington, Iowa. The cause came up on continuance, for hearing in the February term of the district court, 1866. In the de- fendant's answer it was denied that said lands, or any part of them, are swamp lands, or were liable to inure to plaintiff as such, and denied that they, or any part thereof, were selected under and in accordance with said act of congress and legislative acts, as in said petition was alleged, and furthermore denied that any such selection was ever made or returned, as was by law required, and denied that such lists or selection of land was ever confirmed by act of congress, as the plaintiff in petition alleged. The defendant further specifically denied the each and several allegations of the petition, and averred that the tract and line of the contemplated road had been surveyed and marked out.
A replication was filed by plaintiff September 1, 1865, which denied each and every material affirmative allegation contained in the answer of the defendant, which was not admitted or alleged in the original petition of plaintiff. The attorneys in the cause agreed that the case should be submitted to the court to be decided on written briefs and arguments. This was accordingly done, and decision made by Judge James G. Day on September 9, 1865, was to the effect that the plaintiff was entitled to the relief prayed for, and it was ordered, adjudged, and decreed by the court that the title in fee simple to the land described in plaintiff's petition and every part and parcel thereof was legally vested in the plaintiff. By this decision of the district court Fremont county became the owner in fee simple of said lands, and was entitled to the uninterrupted control, use, benefit, and enjoyment of the same.
The defendant, through its attorney, David Rorer, filed a notice of ap- peal to the supreme court of the state of Iowa, February 28, 1866.
The decision of the cause was intrusted to Chief Justice Ralph P. Lowe, in the June term of 1867. In giving his opinion he gave a valua- ble and succinct account of the legislation in the matter, and ably grounded his opinion on the authorities of highest moment in questions of law. His. opinion is here given in full, as being not only a full account of the ques- tions at issue, and therefore of great interest to the people of the county, but a discussion of the basis on which the whole legislation relative to the swamp lands rests, and therefore of especial interest to owners of such lands in this county.
" The lands in controversy have a legislative history, federal and state, to which it would be well to advert in advance of, and as shedding light upon the questions of priority between the parties.
" They both claim the same lands under distinct grants by congress to the state. The plaintiff's insist that they are swamp and overflowed lands,
432
HISTORY OF FREMONT COUNTY.
and they deduce their right to the same through the state, under an act of congress, approved September 28, 1850, entitled 'an act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits.' The first section of this act, without reserve or condition, grants to the states, all the lands of the description therein specified which shall remain unsold at the passage of the same. The second section declares what must be done by the secretary of the interior, and the governors of the states, in order to vest the legal title of these lands in the several states.
" The third section lays down a rule to be observed in listing or select- ing said lands, namely: that ' in all legal subdivisions, the greater part of which is wet and unfit for cultivation, shall be included in saidlist and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom.'
"This act does not point out the particular mode to be followed by the secretary, in making the required lists and plats, nor how he was to obtain the information, in order to comply with the rule above prescribed by con- gress. It is manifest, that this information is not supplied by the field- notes of the original survey. A summary of objects and data required to be noted by the surveyor will be found stated on pages 716, 717, of Lester's Land Laws. Among them, bearing upon the character of the land, are, first, its general topography, whether level, rolling, broken, or hilly; second, the quality of the soil, whether first, second or third rate; and third, whether the bottom lands were wet or dry,and, if subject to inundations, to state what depth.
"A literal compliance by the surveyor would fall far short of affording the requisite information to enable the secretary to determine whether the greater part of the particular forty acre tract of land was swampy or overflowed, in such a sense, under the act, as to render the same unfit for cultivation. If he did so from the field-notes, without more informa- tion, it would simply be conjecture. Congress thought best, in its wis- dom, to establish the rule above specified, as a guide to the secretary, not limiting him in the sources of his information to the field-notes of the sur- veyor, but leaving it to his discretion to make the list and plats of these lands under that rule in the best way he could. It is proper here to state that some time after the passage of the act, (September 28, 1850) grant- ing swamp lands to the states, some additional objects of topography were required to be observed and stated in the field-notes of the surveyor, in order to define more clearly the quantity and quality of such land, and : to show their distinctive character, whether swampy or otherwise sub- ject to overflow, to an extent that, without artificial means, they would be ' rendered unfit for cultivation. But this was after the lands in contro- versy had been surveyed. Lester's Land Laws, 718.
" The manner and basis, therefore, upon which the lists and plats
433
HISTORY OF FREMONT COUNTY.
should be made, as contemplated by the act, were left open to the judg- ment of the secretary of the interior.
" In November following the passage of the law, J. Butterfield, the then commissioner of the general land-office, with the sanction, we are to suppose, of the secretary, instructed the surveyor-general of this state, to make out lists of all the lands thus granted to the state under said act, remark- ing to him that the only reliable data in his possession from which such lists could be made were the notes of the surveyor on file in his office, and that, if the authorities of the state were willing to accept them as the basis of those lists, he might so regard them. If not, and those authorities fur- nished him satisfactory evidence that any lands were of the character embraced by the grant, he should so report them; and he states what would be sufficient evidence in the premises, namely, the affidavits of county surveyors and other respectable persons that understood and had examined the lines, etc. The commissioner then states the general prin- ciples which should govern the surveyor general in making up these lists, both where the field notes are the basis of his action, and where the state authorities shall conclude to have the surveys made to determine the boundaries of the swamp and overflowed lands, and furnishes a form according to which the lists should be made, directing that one copy of the same should be transmitted to the several land offices, and another to the general land office at Washington. In the same instructions, the com- missioner directs that the land selected should be reserved from sale, and, after the selection should be approved by the secretary of the interior, the register should enter all the lands so selected in his tract-book, as granted to the state by act of 28th of September, 1850, being swamp or overflowed land.
" These instructions were continued near ten years with but little change, for the guidance of the surveyor-general and the states in the se- lection of the swamp lands. For the confirmation of this statement the secretary of the interior, R. McClelland, in a letter addressed to the com- missioner of the general land office, explanatory of the swamp land act, dated November 20, 1855, states that under it, certain instructions were issued for carrying it into effect, embracing substantially these proposi- tions: that when the field-notes of surveyors indicated the swampy char- acter of the land, they were to be regarded as conclusive of such charac- ter, and that when the land is claimed by the state, as such, it shall be by selections made by duly authorized agents of the state, and accompanied by their affidavits that they have examined the said land, and, being ac- quainted with the mode of surveying the public land, that the greater part of each forty acre tract included in such selection, is swampy, etc.'
"Again, on the 12th of January, 1858, the secretary of the interior, J. Thompson, addressed a letter to the commissioner, Hon. T. A. Hendricks, 8
434
HISTORY OF FREMONT COUNTY.
inquiring whether, in his, the commissioner's opinion, in bringing to a close the grant of September 28, 1850, in cases of selections reported to his office since the 3d of March, 1857, and in cases where the selections yet remained to be made, the general instructions of November, 1850, were sufficient and should be adhered to, or whether new and additional regulations should be adopted.
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