USA > Iowa > Mills County > History of Mills County, Iowa, containing a history of the county, its cities, towns, etc. > Part 53
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" The manner and basis, therefore, upon which the lists and plats should be made, as contemplated by the act, were left open to the judgment 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 sup- pose, of the secretary, instructed the surveyor-general of this state, to make out lists of all the lands thus granted to the state under this act, remarking 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 furnished 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
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had examined the lines, etc. The commissioner then states the general principles 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 registrar 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 nearly 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 acquainted 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, 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.
"In reply to this inquiry the commissioner first restates the substance of these instructions as follows: 'In all cases where the plats and field notes represent the land as swampy or subject to such overflow as to render them unfit for cultivation, they belong to the state, and will be so certified. When lands are claimed by the state under this act, which are not so rep- resented on the plat and field notes, you will require the production of sat- isfactory evidence that the greater part of each forty acre subdivision of the land is of the character specified in the act.'
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"He then remarks that this point has always been maintained by this office, and that if any instructions, heretofore issued, have been otherwise construed, it has been an error.
"In reference to the necessity of an examination of the surface of the land in each sub-division, he gave, among others, as a reason, that proba- bly many of the lands were surveyed in dry seasons, and hence their char- acter for swamp or overflowed lands were not indicated by the descriptive notes and plats, etc.
"In conclusion, he states, in answer to the secretary's inquiry, that he could not perceive, in view of the clear and definite character of the instructions and to which the authorities of the state had made no objec- tion, that any additional instructions or regulations were required. I have been particular in getting at the real character of these instructions, and the length of time they obtained under the authority and with the sanction of the interior department, for reasons which will hereafter appear.
"As the act granting these lands contained no specific directions to the secretary as to the means to be employed or the manner in which he should select them, and as the field-notes of the surveyor did not contain data sufficiently full to enable him adequately to carry out the rule which the law laid down for their selection, we suppose it was quite competent for the secretary, through the commissioner, to adopt the form and mode of selection suggested in the instructions which we have just been consid- ering. Under these, the state had the option of adopting one or the other of the two methods; either to make the field-notes of the survey the basis of their selection, or to accept the grant upon the basis of a re-survey and examination of the surface of the land, in order to determine with more precision the quantity and boundaries of the swamp and overflowed lands, furnishing the requisite satisfactory evidence of the same. The states of Michigan and Wisconsin adopted the former; this state, with others, elected to take the latter course. See acts of the general assembly, passed February 2, 1851, revision 148.
"The act of congress granting these lands made the secretary of the interior the executive officer for carrying the same into effect. In Decem- ber, 1857, it became necessary for him to determine at what period the grant took effect, whether it was at the date of the law or when the pat- ent issued. In determining this question, he says: 'The granting clause in the first section, namely the words, 'are hereby granted,' seemed to him to impart a grant in presenti: They confer the right to the land, though other proceedings were necessary to perfect the title. This construction of the act, by the secretary, then A. H. H. Stuart, was subsequently con- firmed by J. S. Black, attorney-general, in a very clear and able opinion addressed to Jacob Thompson, who was secretary of the interior at the
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time, founded upon certain judicial authorities to which reference was made.
"It was also confirmed by congress, as we think we have reason to infer from the character and objects of an act passed March 2, 1855, enti- tled, 'An act for the relief of purchasers and locaters of swamp and over- flowed lands.'
"The circumstances giving rise to this act are understood to be these: The lands covered by the grant were not and could not be listed at once, and therefore could not be withdrawn from market without at the same time withdrawing the whole mass of public lands, and inasmuch as entries and locations with land-warrants of the public domain were made in a large number of instances without examination of the character or quality of the same, and the local officers, not having the data in the absence of selections, to make the proper discrimination, the result was, that a very large amount of the swamp lands were disposed of to private parties, by the government, at the local land offices.
"Now, the effect of all this, under the foregoing decision of the secre- tary of the interior that the right to these swamp lands vested in the states at the date of the passage of the law, was to render the title of the private entries and locations exceedingly uncertain, if not altogether ineffectual. Hence it was but natural that those holding lands under such titles, should feel dissatisfied with their purchase, and seek some kind of relief at the hands of congress.
"On the other hand, when the state, by its agents, came to select and list these lands it found its rights too largely interfered with, to allow it to pass without protest, and lodged a complaint against these intermeddlers, and insisted upon the priority of her claim under the law.
"The manner in which congress adjusted this complaint under the pro- visions of the act, March 2, 1855, shows, quite unmistakably, that the con- struction which congress entertained of the act granting the swamp lands, was accordant with that of the secretary of the interior and the attorney general; otherwise, upon the hypothesis that no right to these lands had vested in the state, congress could not have felt any necessity of extending the relief granted, of validating these private entries, and directing pat- ents to issue thereon; nor, on the other hand, of granting to the state the indemnity therein offered, except upon the idea of a previous investiture in her of the title and right of these lands.
"We have not thus referred to the construction which congress, the attorney general, and the secretary of the interior, have given to this act, (and we are not advised that any other executive officer of the govern- ment, at any time, has expressed a contrary opinion), because we felt it necessary to adopt the same opinion in the disposition of these cases. We expect to place our decision of them on other grounds, and will reserve
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our opinion, as a court, upon the proposition whether the act grants a present right or not, until the question becomes a vital one in some other case. It may not be out of place, however, for the writer of this opinion to suggest that, after a more careful examination of the question, he is confirmed in the opinion expressed on the same subject in the case of Alli- son vs. Halfacre, (11 Iowa, 450).
"But let it be stated that we have referred more particularly to the above official, legal, and legislative opinions, as constituting a part of the history of the swamp lands, and for the purpose of explaining the conduct of the general assembly of this state, in granting the same to the counties where they may be situated, which it did as early as January, 1853, as well as accounting for all the legislation and dealings of the state with these lands, from which the secretary of the interior officially declared the act granting them to be one in presenti (nemine contradicente).
"After this exposition of the effect of the grant, we suppose the state, without provoking unjust criticism, could properly assume control and ownership of these lands, and deal with them in such a way as to attain the objects contemplated by the act of appropriation, first providing, how- ever, for their selection and approval thereof by the department of state. "Now, in the matter of selecting and listing these lands, let us see what the plaintiff's in these have done. The evidence shows that in April, 1853, the county judge of Mills county appointed O. N. Tyson, a county surveyor, the agent to select the swamp lands in that county. The selections were made, and a list thereof returned into the county judge's office on the 31st of December following. The same was duly verified by the affidavit of the selecting agent, to the effect that he under- stood and had examined the lines bounding the tracts therein designa- ted, and that each quarter was swamp or overflowed lands, and of the character embraced in the act of congress approved September 28, 1850. This list was reported to the secretary of state, and by him, on the 1st of February, 1854, duly certified to the surveyor-general of this state, who forwarded the same to the general land office at Washington, on the 20th of September, 1854, with the certificate that he had carefully compared the lists of selections with the field-notes, plats and other evidence on file in his office; and that, by the affidavits of the said county surveyor and state locating agent, it appeared that the greater part of each smallest legal sub-division of the lands embraced in said list was swampy or sub- ject to such overflow as to render it unfit for cultivation, and that it was therefore of the character contemplated by the act of September 28, 1850. The surveyor-general, Warner Lewis, at the same time sent a transcript of this list of swamp lands to the registrar of the land office of the district where the same were situated. About the same time the evidence shows that the registrar received from the commissioner of the general land office,
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John Wilson, a letter, dated September 30, 1854, directing him, on receipt from the surveyor-general of lists of swamp and overflowed lands selected for the state of Iowa, in his district, to note each tract therein embraced, in 'its proper place, on his tract books,' and not to permit any entries or locations upon any part of the same.
" This list includes all the land now in controversy in Mills county. They were selected from actual observations by a county surveyor and sworn to, reported to the surveyor-general, and by him to the general land office in the years 1853 and 1854, nearly two years prior to the pass-, age of the railroad grant.
"The lands in Fremont county in controversy, amount to some 14,255.62 acres, and were selected in nearly equal quantities at two different periods, and in the same manner that the selections were made in Mills county. The first list was made out, authenticated, returned, ratified, and approved both by the surveyor-general and the commissioner of the land office at Washington, and withdrawn from market at the local land office, all within the year 1854.
"The second list of selections was made and duly verified in March, 1856, reported to, and fully endorsed by the surveyor-general, and by him was forwarded and filed in the general land office on the 27th of Jan- uary, 1857, about the same time they were designated as swamp lands on the tract book of the local land office at Council Bluffs, and, by order of the commissioner, withdrawn from sale.
"We are unable to perceive any irregularity or departure from the instructions of the interior department, for the selection and listing of these lands, to which we have above referred. Their very full and emphatic approval by the surveyor-general of this state, to whom, under specific instructions, had been intrusted the duty of superintending these selections, and who, after a careful comparison of the same with data and notes of topography accompanying the original survey, declared that they were of the character and description of swamp and overflowed lands contemplated in the act of appropriation. This, with their subsequent recognition as such by the commissioner of the general land office, and withdrawal from public sale on the tract book at the local offices, it would seem, ought to settle the regularity and accuracy of the selections, and that they were in accordance with the rules of previous instructions from the department. It is worthy of note that we find no legal testimony in all the papers of these cases impeaching the bona fide of the selections mentioned herein, except the certifications thereof, years afterward by the commissioner to the department. The circumstances and ground upon which this was done will appear further on.
"The points next to be noticed in order in the history of these lands, are the difficulties and embarrassments resulting from the action of the interior
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department, in carrying out the provisions of the act, March 2, 1855, for the relief of purchasers and locaters of swamp lands, according to their understood intent and meaning.
" A very large number of controversies at once sprung up, which led to great excitement, exasperation and expense, a detailed explanation of which is not now necessary, but which terminated, on the memorial of the general assembly of this and perhaps other states, in the passage by con- gress of an act of repose, approved March 3, 1857, to the effect that the selections of swamp and overflowed lands, heretofore made and reported to the commissioner of the general land office, so far as the same remain vacant and unappropriated, should be confirmed, approved and patented to the states, as soon as practicable, agreeably to the provisions of the act granting the same.
"The circumstances giving rise to this confirmatory act, as well as the obvious import of the language itself, leave no doubt whatever of its meaning and intent, of investing absolutely in the several states such lists of swamp and overflowed lands, whether actually so or not, as had before that time been made out and reported to the commissioner of the general land office; and such, precisely, was the category of the lands now in dis- pute. They had not only been listed and reported, but their selection had been made in strict compliance with the rules prescribed by the interior department, and all returned, approved, and withdrawn from public sale before this act in question was passed. Now, whatever doubt there may exist as to the precise time when the title to these lands vested, under the original act granting the same, there cannot be the slightest semblance of a question that the effect of this act was the immediate investure of the title to all the selections made and reported at the date of the law, which did not interfere with actual settlement made under pre-existing laws; and such is the construction which the secretary of the interior very prop- erly gave this act again and again; and, under the construction very many contests in regard to the character of these lands, pending at the passage of this act, fell to the ground thereafter, and were no longer the subject of disputation. This act, being mandatory and absolute in its terms, its effect was intended to compose all differences about the character of the selections made and reported; so that the power of the secretary of the interior over these questions was exhausted and at an end, and he had left no duty to perform in reference to them, except the mere ministerial duty of furnishing the several governors of the states with a true certified list thereof, from the commissioner, under the seal of his office, which is all the patent or evidence of title required under another act of congress approved August 3, 1854; and also the additional duty of determining whether any of these reported selections had been otherwise appropriated or interfered with by legal settlements.
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"Subject to this qualification, the right of the state to demand a certifi- cate of these selections cannot be questioned, and it is their right to de- mand which constitutes the plaintiff's claim and which we suppose, in a court of justice, is equivalent to the title; the certified list, when made, being only the evidence thereof.
"Having traced out the nature and foundations of the plaintiff's right and claim to these lands, let us see next the nature and basis of the defend- ant's claim to the same lands.
-'Derived, as it is, from an act of congress, approved May 15, 1856, appropriating land to the state in alternative sections to aid in the con- struction of certain lines of railway therein specified, it will not do to over- look the restrictions and reservations which it contains, as qualifying the right of the state under the grant, and the date at which she would take under the same. First, it reserves from the operation thereof all lands heretofore appropriated for the purpose of aiding in any objects of inter- nal improvements, or for any other purpose whatever. This reservation is sufficiently broad to except the swamp land grants; besides, we are not at liberty to suppose that congress would be guilty of the folly of grant- ing the same lands for two distinct objects. Second, the enacting or granting clause contains this provision:
"But in case it shall appear 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 that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents, to be ap- pointed 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 near- est to the tiers of sections above specified, so much land in alternate sec- tions as shall be equal to such land as the United States have sold or otherwise appropriated, or to which the right of premption has attached. The object of this provision is too clear for misapprehension. It was to keep the grant open so as not to prevent private entries from going on, or other disposition of the same by the government, until the lines of the several railways were definitely established, before which it would be im- possible, in the nature of things, for the right of the state to attach for the reason that the grant is limited to odd sections within a prescribed dis- tance from such line. In the absence of such restriction, the difficulties that arose under the swamp land grant (to relieve against which the act of March 2, 1855, above referred to, was passed by congress), would have been duplicated. Congress was confined either to this restriction, or the withdrawal of all the public lands in the state from sale, for the time being or otherwise witness a repetition of the conflicts and embarrassments that grew out of the swamp land grant, for the want of a similar restriction. Now, as entries at large were permitted under this railroad grant up to
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the time that the line should be definitely fixed, it will hardly be contended that a party having a pre-emption right on, or who should be a purchaser of one of the odd sections after the date of the grant, but within its limits, as subsequently ascertained by a final location of the route, could be divested of his right and title by the superior claim of the railroad com- pany. If not, upon what principle is it that the defendant in this case claims priority of right over the plaintiffs to the land in dispute, when the final location of the line of its road was not definitely determined until the 24th of March, 1857, being subsequent in date to the act confirming irre- vocably the title thereto as swamp lands?
"There can be but one answer to this, worthy of our consideration, which is, that, inasmuch as the commissioner of the general land office, under the real or supposed authority of the secretary of the interior, has certified these lands to the department, his action in the premises, whether right or wrong, being political and executive in its charcter, cannot be reviewed or drawn in question by the courts of the country.
"This is the principal and certainly the most important point of the defense in these cases. It merits attentive consideration, and should be preceded by a statement of some of the circumstances leading to the cer- tification in question.
"First, it will be remembered that as early as 1851, the secretary of the interior declared the swamp land act a present grant; that shortly there- after, the legislature of this state granted these lands to the counties; that Fremont and Mills counties, plaintiffs herein, proceeded to select the same pursuant to instructions emanating from the interior department; that these selections were of the character contemplated by the act, as proven in the manner prescribed in the instructions, and certified to by the survey- or-general, ratified and approved by the commissioner, entered as such on the tract books of the local offices, and withdrawn from public sale. Afterward, but before the defendant had the route of the road definitely fixed, congress, by a special act, March 3, 1857, confirmed the selections and directed that they should at once be certified to the state as swamp lands. The effect of this act, in the opinion of the secretary, as he fre- quently expressed it, was to foreclose all questions in regard to the swampy character of these lands, leaving no duty for him to perform in relation thereto, except to determine how far these selections, so confirmed, were interfered with by prior vested rights under other acts of congress.
" The secretary had informed the commissioner that, before title to rail- road lands would vest, the route must be staked off and marked upon the ground in such manner as to indicate clearly the fixedness of the line; that the mere survey of the line fixes nothing; that it is only means of in- formation, not location. He says, 'definitely fixed' implies fixed without capacity of change. Attorney-General Cushing, speaking of the Iowa
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