USA > Iowa > Mills County > History of Mills County, Iowa, containing a history of the county, its cities, towns, etc. > Part 52
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The attention of the reader is invited to the following statistics, relative to the railways of the county:
HISTORY OF MILLS COUNTY.
441
TABLE I.
Statement showing the Number of Miles of Railroad in the different Townships and Cities in Mills County, in May, 1880, as Certified by the County Surveyor.
NAMES OF RAILROADS.
TOWNSHIP OR CITY.
NO. MILES.
ASSESSM'T
PER MILE.
Chicago, Burlington & Quincy.
Emerson City
.44
$12 200
Chicago, Burlington & Quincy.
Hastings
.40
12,200
Chicago, Burlington & Quincy.
Malvern 66
.59
12,200
Chicago, Burlington & Quincy.
Glenwood "
.60
12,200
Chicago, Burlington & Quincy. Indian Creek township ..
8.56
12,200
Chicago, Burlington & Quincy.
Silver Creek
3.79
12,200
Chicago, Burlington & Quincy.
Glenwood
66
5.42
12,200
Chicago, Burlington & Quincy.
Plattesville
66
5.189
12,200
Chicaga, Burlington & Quincy.
Center township
6.26
12,200
K. C., St. Joe & C. B.
St. Marys
6.13
8,600
K. C., St. Joe & C. B.
Plattesville «
6.08
8,600
K. C., St. Joe & C. B.
Lyons township
6.1748
8,600
C. B. & St. Louis
Oak
3.232
2,000
C. B. & St. Louis
Ingraham
5.502
2,000
C. C: & St. Louis
Center
1.839
2,000
C. B. & St. Louis
Silver Creek township
4.700
2,000
C. B. & St. Louis.
Malvern City
.301
2,000
C. B. & St. Louis
White Cloud township ..
5.225
2,000
C. B. & St. Louis .
Deer Creek
4.891
2,000
Nebraska City & Sidney
Hasting City
.03
2,000
Nebraska City & Sidney
Indian Creek township .. .
1.69
2,000
Nebraska City & Sidney
White Cloud township .. .
7.228
2,000
TABLE II.
Statement showing the length in Miles of the several Railroads in Mills County, Iowa, December 31, 1879, and the Assessed value thereto per Mile, as fixed by the Executive Council, March 18 to 29, 1850:
NAMES OF ROAD.
MILES
IN COUNTY.
ASSESSED VAL-
UE PER MILE.
TOTAL VALUE
IN COUNTY.
Chicago, Burlington & Quincy
30.249
$ 12,200 $
369,037 80
Council Bluffs & St. Louis.
25.680
2,000
51,380 00
Kansas City, St. Joseph & Council Bl'ffs
18.3848
8,600
158,109 28
Nebraska City, Sidney & N. W
8.818
2,000
17,836 00
Total .
83 2418
$ 596 364 08
. .
NO. OF
66
442
HISTORY OF MILLS COUNTY.
THE SWAMP LAND TROUBLES.
For the purpose of enabling the reader to intelligently follow the his- tory of the titles to the lands known as "Railroad lands" within the county the congressional and assembly acts relative thereto are transcribed as introductory to the several suits which have been instituted. The re- marks following the acts are to be taken independently of them:
Following is the act of congress known as the
RAILROAD GRANT.
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled: That there be and is hereby granted to the State of Iowa, for the purpose of aiding in the construction of railroads from Burlington, on the Mississippi River, 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 nearly as practic- able to the forty-second parallel; across the State of Iowa to the Misouri River, from the. City of Dubuque to a point on the Missouri River, near Sioux City, with a branch from the mouth 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. But in case it shall ap- pear that the United States have, when the lines or routes of said roads are definitely fixed, sold any sections or any part thereof, granted as aforesaid, or the right of pre emption has. attached to the same, then it shall be lawful for any agent or agents to be appointed by the Governor of said State to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land in alternate sections or parts of sections as shall be equal to such lands as the United States have sold, or otherwise appropriated, or to which the rights of pre-emption have attached as aforesaid; which lands, (thus selected in lieu of those sold and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sec- tions by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by the State of Iowa, for the use and purpose aforesaid :
Provided, That the land to be so located shall in no case be further than fifteen miles from the lines of said roads and selected for and on account of said roads: Provided further, that the lands hereby granted for and on account of said roads severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, as the work progresses, and the same shall be applied to no other purpose whatever. And provided further, that any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for. the purpose of aiding in any object of internal improvement, or for any other purpose whatever, be and the same are hereby reserved from the operations of this act, except so far as it may be found necessary to locate the routes of said railroads through such reserved lands; in which case the right of way only shall be granted, subject to the approval of the President of the United States.
SEC. 2. And be it further enacted, That the sections and parts of sections of land which by such grant shall remain to the United States, within six miles on each side of said road, shall not be sold for less than the double minimum price of the public lands when sold, nor shall any of said lands become subject to private entry until the same have been first offered at public sale at the increased price.
443
HISTORY OF MILLS COUNTY.
SEC. 3. And be it further enacted; That the said lands hereby granted to the said state shall be subject to the disposal of the legislature thereof, for the purposes aforesaid, and no other; and the said railroads shall be and remain public highways, for the use of the government of the United States, free from toll or other charge upon the transportation of any property or troops of the United States.
SEC. 4. And be it further enacted; That the lands hereby granted to said state shall be disposed of by said state only in 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 Secretary of the Interior that any twenty continu- ous miles of any of said roads is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for each of said roads having twenty con- tinuous miles completed as aforesaid, and concluded within a continuous length of twenty miles of each of said roads, may be sold; and so from time to time until 'said roads are completed, and if any of said roads are not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States.
SEC. 5. (Transportation section.)
The general assembly of the state of Iowa July 14, 1856, passed, among others, the following sections relative to the land hereinafter men- tioned as the subject of litigation:
SEC. 2. That so much of the lands, interest, rights, powers and privileges as are or may be granted and conferred, in pursuance of the act of congress aforesaid, to aid in the con- struction of a railroad from Burlington, on the Mississippi river, to a point in Missouri near the mouth of Platte river, are hereby disposed of, granted and conferred upon the Burlington & Missouri River railroad company, a body corporate, created and existing under the law of the state of Iowa.
SEC. 10. All persons, who at the time said grant was made, held valid claims of actual occupation and improvement upon any of the lands embraced in said grant, shall be pro- tected in the same, and entitled to purchase and enter the same upon the terms and condi- tions hereinafter provided.
SEC. 11. Any person, wishing to avail himself of the provisions of this act, shall within three months of the passage thereof file his application for that purpose with the judge of the county where such lands may be situate, and shall prove to the satisfaction of said judge, that his claim is valid, and that the same existed at the time said grant was made; and upon such proof being made, such judge shall give to the applicant a certificate of the fact, and such certificate shall entitle the holder, or his bona fide assignee, to enter such land at two dollars and fifty cents per acre; Provided, That no person, claimant or assignee of a claim, shall be entitled to more than one hundred and sixty acres of land, under this act; And provided further, that the person asserting a claim, whether as claim- ant or assignee, shall file his affidavit that he has not, either directly or indirectly received the benefits of the provisions of this act. Before any rights shall be acquired under such certificate, a copy of the same, together with the evidence, shall be served on the secretary of the company interested, and such company shall have the right to appeal from the decision of such judge to the district court, in the same manner as appeals are taken from the decisions of the justice "of the peace, at any time within ninety days after the service of such paper, and the same shall be tried as other appeal cases, and an appeal may be taken to the supreme court by either party, in the same manner as appeals in other cases.
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
444
HISTORY OF MILLS COUNTY.
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 $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 district 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 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 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 com- panies.
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 in 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 to the counties, fall back on the field notes of the government surveyor. If
*For the act of Congress and that of the General Assembly, see supra.
445
HISTORY OF MILLS COUNTY.
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? The broad ground is taken 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 tribunals of the country.
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 this case 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 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 alleged 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
*For a list of the lands in controversy the reader is referred to the original notice on a subsequent page.
446
HISTORY OF MILLS COUNTY.
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 interfering with the plaintiff's title to those bonds, and disturb- ing plaintiff in the use, possession, and enjoyment of the same, and assert- ing and claiming title thereto under color of some subsequent and sub- ordinate grant unknown to plaintiff. The petition continues:
"And that relying in good faith upon her right thereto by virtue of said acts, she had made divers contracts of sale to various individuals, but that she has not conveyed the same but retains and still holds the right to said lands vested in her by the acts afore- said.
To this petition* the defendants filed an answer denying all averments to plaintiff's peti- tion, except that plaintiff claimed to own the lands in controversy, and admitting that de- fendant claimed to own the same by virtue of the act of Congress of the fifteenth of May, 1856, in plaintiff's bill referred to, and certain acts of the Legislature of the State of Iowa, and averring that by virtue of the act of Congress dated May 15, 1856, there was granted to the State of Iowa, for the purpose of aiding in the construction of certain railroads in said act named and described, certain lands of the United States, and that the General Assembly of the State of Iowa, by an act to accept the same and carry into execution the trust con- ferred upon her by the act of May 15, 1856, granted to the defendant so much and all of the lands, interests, rights, powers and privileges as were or might be granted or conferred by said act to aid in the construction of said railroad, in like trust, and to aid in the construc- tion of said railroad, and avers that the lands in complainant's bill and exhibit described, were and are a part of the lands so granted by said acts of Congress and Iowa Legislature to the State, and to the defendant to aid in the construction of said railroad, and have been and are listed and set off and certified and approved to this defendant, on and under date of the respective exhibits hereto annexed by the proper authority of the United States, which said lists and certificates confer legal title to said lands on thedefendant, and by vir- tue of which defendant makes and claims title thereto, " wherefore the defendant denies the right of complainant to said lands, and says that this defendant has the better legal and equitable title thereto, and further assuming, defendant says, that the railroad and the line and route thereof was actually surveyed and marked out on the ground as the permanent route, through said Mills county, on and between the ninth and fifteenth days of October, 1857, by the route and line designated and laid down on the plat thereof, and which said railroad line was, on the twenty-fourth of March, 1857, formerly adopted by said railroad company as the permanent line of said railroad through Mills county, and that said adop- tion, when so made, related back to the times of the said actual survey and making of the different sections indicated by the flags on the line of said road, at certain times, naming them, and prays to be dismissed with judgment for costs."
Upon such bill and answer, when the case came up for a hearing in the district court of Mills county, for the April term, 1866, the following decree was rendered:
MILLS COUNTY, IOWA, VS.
THE B. & M. R. R. R. Co.)
Now, at this time, this cause coming on to be heard, and the court having heard and cx- amined the allegations of the parties, the evidence submitted, and the agreements of coun- sel, and being fully advised in the premises, find the facts stated in the petition and amended
*Particular attention is called to the portions in small type.
.
447
HISTORY OF MILLS COUNTY.
petition herein to be true, and that the plaintiff is entitled to the relief therein prayed for. It is therefore ordered, adjudged and decreed by the court that the lands in fee simple to the lands described in plaintiff's amended petition, and every part and parcel thereof is legally vested in the plaintiff, Mills county, Iowa, and it is adjudged and decreed by the court that the said plaintiff is the owner in fee simple of said lands, and is entitled to the uninter- rupted control, use and enjoyment of the same, and it is further adjudged and decreed that the claim of the defendant, to wit: the B. & M. R. R. R. Co., to said land and to each and every parcel thereof is illegal, null and void; and it is further adjudged that the defendant pay the cost of this suit, taxed at $47.15, and that execution issue therefor.
Read, approved and signed April 17, 1866.
JAMES G. DAY, Judge.
From this decision of the district court the railroad company appealed to the supreme court of the state of Iowa. There being a case in Fre- mont county by and between Fremont county, plaintiff, and the same defendant, involving the same indentical issues and questions, the two cases were argued, treated, and decided together.
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 valu- able 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 land 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, 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 said list 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
448
HISTORY OF MILLS COUNTY.
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 congress. 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 lists 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 to the 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 controversy had been surveyed. (Lester's Land Laws.)
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