USA > Iowa > Kossuth County > History of Kossuth County, Iowa > Part 44
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The Iowa Legislature, desiring to learn how many acres the state had received by the gift and just where they were located, provided for the expense of having them selected and surveyed at the January, 1853, session. As each county was to be benefited by the proceeds of the sales of these lands it contained, the bill
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provided in effect that the surplus funds arising from the sales, after the expense of reclaiming them had been paid, might be used for building bridges and roads when necessary through them, and that if such funds then were not exhausted the remainder might be used for building roads and bridges in any part of the counties where the sales were made. A couple of years later the Legislature made it possible for the county to use these funds for paying the expense of erecting buildings to be used for educational purposes, providing a majority of votes had been previously cast in favor of the proposition at the polls. In May, 1861, the law-makers of the state gave the counties the right to make any disposition of the lands the boards desired provided that they did not violate the law. A year later the Legislature gave warning that counties were not to be released from their obligation to reclaim the lands by proper ditching and draining.
In May, 1864, the boards were given the power to appoint three men to carefully examine and appraise the lands at not less than $1 per acre, after which they might be sold at not less than the appraised value. By this time perplexing complications had arisen over the selections and the titles. Not only were the Legislatures, and the boards of supervisors confused as to what they had a legal right to do about the matter, but the courts were in the same condition as disclosed by their conflicting decisions. Even the learned supreme court of the United States got tangled in the web of legal principles involved. and after floundering amid intricacies reversed its own former deci- sion. This was in the case of the American Emigrant Company vs. Adams county, Iowa, where the court first held that under the terms of the grant swamp lands legally could not be devoted to any purpose except for reclaiming them, and then on a rehearing it decided otherwise.
Until the swamp lands had been selected, the precise location of each 40- acre tract designated and the title confirmed by the government, no one knew just how many acres of such land were controlled by the county. To learn this fact it took a long term of years and occasioned much litigation and many hardships. Had it been possible for the government to designate the exact tracts it was donating to the state, and possible for the state in turn to know just what tracts under the terms of the grant it was practically presenting this county, much trouble would have been avoided. It was this uncertainty of title that caused the manifold complications to arise which puzzled the courts in their endeavor to disentangle them. That authorized agents selected certain tracts as being swampy in nature, was no guarantee that their acts would be con- firmed by the higher authority. The all-important question to be decided was "Is more than one-half of the 40-acre tract unfit for cultivation?" As the witnesses would often give conflicting testimony it seemed impossible to settle some of the disputes.
Early in the spring of 1858 the first steps were taken by the county to ascer- tain the amount and precise location of its swamp and overflowed lands, when County Judge Lewis H. Smith, in accordance with the power delegated to him, appointed W. H. Ingham and Geo. A. Lowe to select and designate by lists and plats all such wet lands as conformed to the provisions of the 1850 grant from the government. The work having been done, the commissioners reported the re-
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sult at the county judge's office in November of that year. It must be remembered that 1858 was a year when it rained more often than in any year since that time. It is known in all Iowa history as having been emphatically the wet year. It was while the sloughs, ponds and lakes were overflowed, and the river bottoms from bluff to bluff covered with a deep sheet of water, that the swamp selections were made. Had the commissioners judged the quality of the lands to be selected by the actual conditions as they found them, they would have been justified in reporting a much larger list of swamp lands than they did. The fact is, more than half of the county that year could have been selected. Every 40-acre tract, having less acres than one-half fit for cultivation, belonged to the county as the gift from the state, the latter having received it previously as a gift from the govern- ment. In order that the county might derive some substantial benefit from the gift by disposing of the lands, and at the same time violate no law of Congress or of the Legislature pertaining to it, the board of supervisors passed many resolu- tions and entered into many obligations. The members resolved and rescinded, contracted and recontracted, released and were released, sued and were sued, pushed forward and slid backward, and kept the people guessing what the next performance would be on the program. Trouble was always near and they re- ceived their full share of all that came that way.
The board as a starter in July, 1861, contracted with W. P. Hepburn and Asa C. Call to deed them six percent of all the swamp lands which they succeeded in recovering for the county from the state or government and to pay them the same per cent of all script or its equivalent recovered in lieu of such lands. They were to receive $200 down, a like amount on the Ist of the next October and the re- mainder when the lands were secured. The following February Hepburn and Call asked to be released from the contract, and their wishes were complied with. Then came a resolution by the board to the effect that the interests of the county demanded the immediate sale of all its swamp lands. Thereupon the drainage commissioner was directed to advertise the same for sale. At the same session Asa C. Call was authorized to be the agent for the county in procuring for it from the state or government the swamp lands to which the county was then or in the future might be entitled. He was to make all necessary examinations and sur- veys at his own expense, to return $1.400 he had received on his former contract, to devote his whole time, as far as was necessary, to the work and to receive for the county from the government all patents, money and script. For such services the board contracted to convey to him by deed of special warranty one average fourth of all the swamp lands then claimed or thereafter to be claimed by the county. It was agreed in substance that the deed should convey all of the county's right, title and interest to the one-fourth of such lands as it then had and also as it should later acquire. This deed by its uncertain terms as to the amount of land conveyed was the source of much trouble in after years.
In May, 1862, the board appointed Lewis H. Smith to survey the lands with a view to having them drained, and at the same session took favorable action on the proposition of Samuel Reed and Abiather Hull to erect a grist mill, to be propelled by water power within one mile of Algona, for a bonus of 8,000 acres of swamp land. The resolution passed to submit the proposition to the voters, but the board in June rescinded its action. At this time W. H. Ingham was appointed to assist Mr. Smith in the surveying, and the clerk was directed to issue to Asa C.
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Call swamp-land warrants to an amount sufficient to pay for the quantity to which he was entitled, whenever the latter should procure the necessary signatures to a certain bond then on file in the clerk's office. The board further consented to the surrender of all the swamp land certificates previously issued, and then resolved that the lands affected should be subject to purchase as though no certificates had been issued.
July 19, 1862, the board resolved to convey the lands, except the one-fourth which had been previously deeded to Asa C. Call, to the American Emigrant Company in consideration that the company proceed to erect public buildings in the county to the value of $1,000, providing the voters ratified the proposition. Ingham and Smith on the same day were appointed agents by the board to set off Asa C. Call's portion of the lands. The board, moreover, proceeded to nominate Asa C. Call to the Governor as being a suitable person to settle the conflicting claims to the lands with the state and government. Before the session ended the order empowering Ingham and Smith to set off Call's portion was rescinded as was also the order authorizing them to make the surveys. The clerk was next directed to issue swamp-land warrants to the amount of $26,000 to Asa C. Call to pay for his services and expenses. The latter then in consideration of one dollar and other value released the county from all liability to reclaim the lands derived by him from the county under his contract of February 8, 1862, and agreed to take his lands subject to the act of congress of September 28, 1850. On these conditions the release was accepted.
Abiather Hull, having been appointed a commissioner to set off Call's portion, reported in July, 1862, to the board that he had begun at the southeast corner of the county and going north on range 27 had designated the swamp lands in the first three congressional townships as belonging to the county and then the next one to Call, and so on in that order up that range and back on the next until the route ended in the southwest corner of the county. By this arrangement Call selected his lands from the townships now known as Buffalo, Springfield, Plum Creek, Cresco, Harrison, Seneca and Garfield. Before this division had been made the board had disposed of 588 acres of the wet lands in these townships. In order to indemnify Call for this shortage, 588 acres in the present townships of Riverdale, Portland and Eagle were to be placed at his disposal. At the same session Asa C. Call presented his certificate showing that he had selected, pur- chased and paid for 10,420 acres of swamp lands at the appraised value of $1.25 per acre, as a part of his claim for his one-fourth division. The board, after officially declaring him entitled to swamp-land warrants to the amount of $26,- 000, directed the clerk to issue him such warrants to the amount of $20,000 and to retain $6,000 worth as security for the payment of the $1,400 he was owing the county on his contract. The script delivered to Mr. Call was to be located upon such lands as had been awarded to him, and upon no other. That was the order from the board.
The electors in the fall of 1862 ratified the provisional contract the board had made with the American Emigrant Company in July. By its terms the company was to have three years in which to erect the buildings; was to take the lands, except Call's portion, at its own risk as to amount and value; was to pay its own expense in having the titles quieted, and was to put a clause in all its deeds conveying any portion of the same, reciting that the grantees should settle in good
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faith upon the lands in a limited period therein to be stated. The county, on the other hand, was to have the right to dispose of any portion of the lands by quit claim deeds during the three years, and to be required to take mortgages back and then retain them as security for the performance of the company's con- tract. At the end of the three years the remaining tracts unsold were to be quit claimed by the county to the company on final settlement. Complications having arisen which were giving the board much trouble, it empowered Addison Fisher in September, 1865, to employ counsel to protect the interests of the county. The following January, D. W. King was appointed to act with him in conferring with the company with reference to the disposal of the remaining lands, and to the set- tling of conflicting claims. In March the company consented to have the contract so changed that the county could erect the buildings and apply the cost on the $1,000 deal. The first courthouse was built as the result in the fall of 1866. The American Emigrant Company about this time, to even up some differences, offered to donate $5,000 for schoolhouse purposes. In October the board resolved to build a seminary in Algona with the funds when received, but the project did not materialize. More trouble appearing, Marcus Robbins, Jr., was appointed in January, 1870, to quiet the swamp-land titles, but in July that order stood rescinded unless the board was petitioned by a majority of the voters asking that such counsel be employed. As every move the board had made had brought on more trouble, the board in October changed its former plans completely by contracting to sell to John Lawler at one dollar per acre all the lands in controversy to which he should succeed in quieting the titles at his own expense. In November, 1870, C. C. Chubb, J. H. Warren and J. C. Chapin were appointed to appraise the value of the swamp lands.
In August, 1872, the board flew off on another tangent by accepting the propo- istion of J. H. Hawkins to unravel the perplexing and serious problems. This attorney declared that it was his opinion that the swamp-land contracts made by the board were null and void and that the people were not bound by them. He proposed to carry on suits to set aside sales illegally made; recover the lands for the county and perfect the titles for one-tenth of all lands so recovered and so quieted in title and one-tenth of all script received in lieu of such lands. He was sharp enough to stipulate that he was to have this fee whether the lands were recovered by compromise or otherwise, and that the county was to pay all the court costs and other costs necessary in preparing and prosecuting the suits, as well as his actual and necessary expenses while absent from home on this busi- ness. By the further terms of his contract he was to receive only the sum of $50 in case he failed to recover any lands for the county. As strange as it may seem, after both parties had signed this agreement the board in August offered to donate all of the county's interest in the lands to the Iowa, Minnesota and North Pacific Railway Company whenever a train on that road succeeded in run- ning into Algona. Furthermore, John Lawler and the American Emigrant Com- pany coming into legal battles, caught the board between two firing lines. Hawk- ins also, by beginning proceedings, entangled the web into a snarl which made the situation deeply interesting if not pleasant and desirable. Suits were pending in the federal courts in which many parties were concerned, and the wail of the op- pressed was heard on every side.
The board in May, 1873, made another startling move by making a new con-
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tract with the Emigrant Company and by not only dismissing the suit which Hawkins had brought against it, but by dismissing Hawkins himself from all connection with the case. The company and board both being more than anxious to have their controversies settled, entered into a contract that was satisfactory and one that was quite well approved by the people at that time. This agreement was reached in May, 1873. By its terms the company released all its claim to about 12,500 acres of the land and the county in turn released its claim to the re- maining tracts. The county further agreed to cease claiming any interest in the lands by virtue of the sale to John Lawler. The company also was generous in its attitude towards settlers in removing the clouds from their titles. Suits in court were withdrawn and decrees in the federal court were asked to be rendered in favor of the company. The board breathed an air of freedom when the long controversy with the company had ended. But there was trouble ahead which they did not realize when they ousted the attorney from the case. He was a full- fledged fighter and knew all the tricks of his profession.
J. H. Hawkins had begun suit against the American Emigrant Company to quiet the title to about 36,000 acres of the land and had followed it through one term of court when he was dismissed. In June, 1873, he presented his bill to the board for his services under the contract. He demanded $3,000, but was allowed $75. H. S. Vaughn and F. M. Taylor were appointed arbitrators to settle the dis- pute, but failing to agree, Orson Rice and A. W. McFarland were chosen. They too came to no conclusion. In the February, 1874, term of the district court Hawkins sued the county for the sum of $6,500 based on the theory that as the county had recovered on its claim against the American Emigrant Company $65,000 worth of land in the compromise settlement, his ten per cent of that amount would be $6,500. In the following June, in the Palo Alto court where the case had been sent, the case was tried before Judge Henry Ford, who decided that Hawkins was entitled to $3,000. After the trial and during the time the judge was holding the case under advisement, Hawkins assigned all his interest in the case or judgment to D. P. Russell, June 22, 1874, and on August 17th, the latter assigned $600 of the same back to plaintiff. The next day Russell assigned half of the judgment to Geo. E. Clarke, the lawyer who was representing Hawkins in the matter. In October Hawkins got an order of mandamus in the district court of this county directing the board to levy a tax sufficient to pay his judgment, as he claimed that Russell had assigned his interest back to him. The board on appealing the case to the supreme court got the decision of the court below re- versed and sent back for further proceedings. The case was docketed first in the Palo Alto court but later came to this county. After much wrangling the board acknowledged a debt to the plaintiff of $2,000 and took steps to pay off the claim.
During the spring of 1885 the county again brought suit against the American Emigrant Company. This time it was for a large amount that was due on unpaid taxes on the swamp lands. The case was removed to the federal court. In Sep- tember the case was compromised, Geo. E. Boyle, chairman, representing the board in the settlement. By this proceeding the county received the sum of $4.000.
Ending the trouble with the Emigrant Company and with Hawkins did not end all the trouble the people were to have over swamp-land transactions. It grew out of one of the most stupendous blunders ever made in the conveying clause of a deed. So great was it that people from all parts of the county were thrown into
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the wildest state of rage and excitement. This exhibition of feeling arose after it became known that a deed had been recorded which affected the titles to the lands which they owned. This deed was from Asa C. Call to J. Volney Swetting, of Wisconsin, and conveyed all his right, title and interest which he then had or might later acquire, through the county, in and to one hundred and eighty-nine sections of land. Of this amount twenty-two full sections were in the present township of Buffalo, thirty-one in Portland, twenty-nine in Ledyard, twenty-five in Springfield, twenty in Cresco, twenty-three in Harrison, twenty in Garfield and eighteen in Seneca. While this deed only conveyed the interest which Call then had or might later acquire, through the county, in each of the sections de- scribed, it, of course, clouded the title to that portion of the sections which he neither owned nor claimed to have any interest. The people could not understand why such a deed was put on record and were justified in both demanding an ex- planation and asking for redress through the courts. Judge Call at that time was so infirm that he had not been able to attend to business matters for several months. The deed went on record September 15, 1886. While the storm of in- dignation was growing more demonstrative the sons of the judge were inter- viewed by the press reporter on the subject. From them it was learned that the object of the deed was intended to protect their interest in and to about 20,000 acres of land, directly or indirectly involved in a suit in the federal court with the American Emigrant Company, where their father was seeking to recover what was due him on certain swamp-land deals; that as a portion of the land had been previously conveyed to the same grantee, who afterwards on a test case recovered successfully against the company in the federal court, it was thought that he might also recover on the whole if conveyed to him; that the describing of whole sec- tions in the deed instead of the parts in which they really claimed an interest was done unfortunately to save labor; that their father had no hand in directing the wording of the deed, and that as they all realized a great injury had been done unintentionally, their father was beginning a suit in the circuit court to have the deed set aside, cancelled and annulled.
At a large meeting held at the courthouse September 25th, to consider what was best to be done under the circumstances, W. E. Morrison was the presiding officer and Harvey Ingham the secretary. The meeting was full of interest from the start, but the best of order prevailed. A. F. Call on being called to the front spoke with evident feeling on the matter and did it in such a way as to win over the sympathy of the audience. He said that he regretted what had happened and that no one was more sorry than his father who was in no way responsible for the bungling manner in which the deed was drawn; that the instrument was the work of someone else in the office, and that the family would have the record expunged if it took every dollar they were worth. He further stated that as an action had already been begun by themselves to have the deed set aside, the clouds from the titles would soon be removed if a little patience was manifested. At the close Doctor Armstrong, J. B. Jones and W. E. Jordan, J. M. Comstock and Addison Fisher were appointed to assist as best they could in having the injured parties receive the proper redress.
Judge Macomber, presiding at the 1886 October term of the circuit court, and having sufficient evidence before him, rendered a decree cancelling, annulling and setting aside the deed in controversy, recorded in Book 23 on page 105 in the office
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of the recorder of deeds in this county. Each litigant was represented in court by an attorney who was his son, A. F. Call appearing for the plaintiff and E. V. Swetting for the defendant. The decree was based on a stipulation signed by both attorneys and approved by the committee. In urging the decree the stipulation recited that the deed "was executed by mutual mistake and casts a cloud upon a large amount of land to which neither party has or claims any interest."
How many acres of the swamp lands Judge Call finally succeeded in obtaining the fee simple title to, through his contract with the board, cannot easily be esti- mated, but the number is much less than is generally supposed. Many of these lands that he claimed as his one-fourth division he lost in suits to recover them. A considerable amount was proven to be fit for cultivation and not coming under the class of lands intended by the original grant, and many other tracts were clouded by the claims of others. Those who still think that his services were worth no such an amount of land as was turned over to him should remember that the board was one of the contracting parties, and that the members were elected by the voters. They should remember, moreover, that these lands in the early days were considered practically worthless, as has been illustrated by the fact that the board in 1862 offered three-fourths of all such lands in the county to the American Emigrant Company for $1,000 worth of public buildings. As it is frequently stated that the lands were trifled away it is well also to remember that the law required them to be ditched and drained. Had the county kept them and undertaken this job it would have cost ten times more than the land was worth at that time.
During the month of October, 1867, an unsigned communication appeared in the columns of the old Upper Des Moines, hinting at fraud in the swamp-land deals. A couple of weeks later Judge Call replied to the article at considerable length by way of explanation, the material and closing portion of which was as follows :
"The governor appointed several agents who were required to file securities with the secretary of state to the amount of $10,000.00 for each county employing them. I was appointed agent for certain counties, this county being one of them. Some counties paid their agents one-half of all they should finally get them, others paid forty per cent, and still others less. I charged twenty-five per cent which was regarded by the state officers, the Legislature, and the lawyers generally, as a very moderate compensation in view of the difficulty and the uncertainty as to whether we could ever get anything. But in this county, as the work was to be done at home, I agreed to act as agent for twenty-five per cent and also to pay the county $1,400.00, which the land had cost us up to that time, being just $1,400.00 better terms than I gave Humboldt county. In this way the county would get her three-fourths clear if it got any, while I took all the risk, did all the work, and paid the county $1,400.00 for the chance of one-fourth. Subsequently the county sold its land subject to my contract to parties who undertook to make their own remaining proofs, thus relieving the county of interest in the matter. The $1,400.00 I stipulated to pay has been paid, thus fulfilling my obligations to the county. I have since sold my interest in the land, mostly to The American Emi- grant Company at thirty cents per acre for what was certified, and have received up to this time just about enough to cover the $1,400.00 paid the county, and a moderate return for my time and expenses. This closes my connection with the
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