USA > Iowa > Mills County > History of Mills County, Iowa, containing a history of the county, its cities, towns, etc. > Part 54
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80 | Part 81 | Part 82
457
HISTORY OF MILLS COUNTY.
railroad grants, informs the secretary that, whilst they are conditional grants, in presenti, yet they are in the nature of floats, which do not attach to any particular parcel of the public lands until the necessary determinative lines of railroad shall have been definitely fixed. Now, in this sense, the defendant's line was not permanently established till March 24, 1857, which was posterior to the confirmation of plaintiffs' title by act of congress. This fact, in the opinion, both of the commissioner of the general land office, Wm. Hendricks, and Mr. Thompson, the secretary of the interior, as expressed in letters to each other, dated the 2d and 10th of December, 1858, established the priority of plaintiffs' claims, under the confirming act of March 3, 1857. Yet, under all these circumstances, and notwithstanding the plaintiff's had in the meantime, sold much of these lands, and, as the evidence shows, had expended many thousand dollars in reclaiming the same, according to the expressed purpose of the grant, Mr. Edmunds, a new commissioner of the general land office, on the 25th of March, 1862, certified the lands now in dispute as inuring to the state for the use of the defendant, under the railroad grant, May 15, 1856, being some seven or eight years after the same had been selected and approved as swamp lands, by his predecessors, and more than five years after they had been confirmed to the state as swamp lands by a special act of con- gress.
" Now, as this act was directly in opposition to the declared views of the former officers of the interior department, and the land office, to which we have already referred, and also against the express legal opinion of the attorney-general Black, November 10, 1858, in which he held, with great show of reason, that where lands are claimed under a swamp and a railroad grant, either of which would be good if the other was out of the way, the elder one must prevail, 'prior est tempore potior est jure,' it is interesting to learn how this was brought about, and upon what pretense it was done. It will be remembered that soon after the railroad grant was made, in 1856, the interior department was prevailed upon by parties interested in this grant, to suspend the certification of swamp land selec- tions until an adjustment could be made of the rights of the parties under the two grants. For four years thereafter, the commissioner and secre- tary failed to reject any portion of these selections on the one hand, or to certify the same to the state for the benefit of the railway companies on the other. In the meantime, however, they settled questions of conflict between the two grants arising in this and other states, and adopted rules for executing the same, under which they never could have done so, with- out a change of opinion as to the construction of these acts, as we have before shown.
"After they retired from office, and were succeeded by Mr. Smith as secretary, and Mr. Edmunds as commissioner, the agents of defendant,
458
HISTORY OF MILLS COUNTY.
General Dix, president of the Mississippi & Missouri R. R. Co., and a Mr. Steiger, its land agent at Washington, renewed the application for the certification of these lands to the defendant, and persistently urged the same until Mr. Edmunds finally complied. But before he could cer- tify he must first register them from the swamp land selections. This he accomplished by passing through the selections and casting out of the lists those tracts in odd sections within the range of the railway grant, which the field notes of the surveyor did not indicate to be swampy and over- flowed in such manner as to render them unfit for cultivation, thereby overhauling and undoing all that the state and counties had done at much expense under a rule for the selection of those lands, prescribed by his predecessor, and acquiesced in by the department for a series of years. He professed to derive his authority for doing so from a letter of instruc- tions written by the secretary of the interior, dated February 8, 1860. That he failed to apprehend the true import of this letter as applicable to the facts of these cases, there can be but little doubt. A transcript of this. letter is in the record; it will not be found in Lester's land laws.
"Conflicts between the warrants and the road grants assumed different phases, according to the diverse facts under which they sprung up.
"The letter in question is generally designed to cover all and not par- ticular cases, and was intended to lay down rules of adjustment that would meet each class of cases therein specified. The first class and the rule applying thereto is this: that when the lands are claimed under both grants, and the title under the railroad grant had vested after the passage of the confirmatory act, March 3, 1857, are evidenced by a definite loca- tion of the line of road, then the title should be completed under the swamp act.
"The second class is, when claim is made under both grants and the title under the railway grant vested, as aforesaid, before the passage of act March 3, 1857. The rule prescribed in this phase of the conflict looked to an investigation into the character of the swamp selections, and the commissioner was directed to examine these selections in the light of the field-notes of the surveyor and the papers on file and of record, and, if the claim under the older grant was satisfactorily established, to affirm the title under the same, otherwise to certify the title under the junior grant.
" We need not notice the other cases of conflict mentioned in this letter. They refer to selections of swamp land made subsequent to the act of March 3, 1857, and would have no particular pertinency to the cases be- fore us.
" Now, the mistake which we think the commissioner made, was in applying the rule of adjustment laid down for settling conflicts in the second class, to those of the first class, within which the evidence shows
459
HISTORY OF MILLS COUNTY.
these cases fall; and it may not be out of place to suggest that, inasmuch as the act of rejection mentioned was not only without authority, but really at variance with the instructions of the secretary of the interior, the same should be treated as a void act.
" But afterward he certified these rejected swamp lands to the defend- ant; and it is said his act in this respect was approved by Secretary Smith. This is true; yet both the certification and approval contained this qualification: that they did so subject to the conditions of the grant, and any valid interfering rights which might exist. This reservation would seem to imply hesitation and doubt of the propriety of the act; whilst rights injuriously affected thereby might be in some way redressed.
"Nevertheless, it is now claimed that this act of certification being polit- ical and executive in its character, and the formal disposition of the soil, concludes all judicial inquiry into any antecedent right or claim which may be set up to the same.
"That the power to make all needful rules and regulations for the dis- position of the public lands, under the constitution belongs to congress, is no longer an open question in this country; when, within these rules and not interfering with previously acquired substantial rights, the govern- ment officers do dispose of the public domain, the title will not be allowed to be gainsaid or impeached. We do not understand the authorities referred to by the defendant to go any further than this.
" On the other hand, if a legal or vested right is in any way impaired or violated by an executive officer of the government, even in the matter of certifying lists of land granted previously by congress, we suppose such violation to fall as legitimately within the judicial cognizance of the courts, as if the same right had been invaded by an individual of the legislative department of the government. We take it to be a well estab- lished principle of law, that when a party, in the prosecution of a right, does everything which the law requires, and fails to maintain his right by the misconduct, negligence, ignorance, or mistake of a public officer, the law covers and will protect the right.
" We can add nothing to the force of the facts which we have already detailed, showing that the investiture of the plaintiff's right to these lands had really taken place anterior to the date when defendant's right attached by virtue of the permanent location of the road line.
" If anything was left undone by the plaintiff's in selecting and listing these lands which was required by the act granting them, or by the rules and instructions of the interior department, as to the manner of making and reporting them, in order to make good their right, we have been unable to detect it from the record. But, when in addition to this, they were recognized by the department as regular and valid, and subsequently confirmed by congress, after they had been separated from the mass of
460
HISTORY OF MILLS COUNTY.
other public lands, and designated by legal divisions and subdivisions, what other acts could the government have done to have more effectu- ally vested the right in and to these lands than those just enumerated?
" And if the plaintiff's have a vested right, why are they not entitled to a stand in a court of justice, as have all other parties with invaded legal rights? The reply is, they are concluded by the act of the commissioner who rejected them as swamp lands, and certified them as railroad lands. But suppose these same lands had been taken up by private entries (the swamp grant act being out of the way) at any time before the line of the roads were definitely fixed, and they should afterward be certified by the commissioner to the defendants as railroad lands; would such certifi- cation conclude the rights of private purchasers, although they had not yet obtained their patents? It seems to us that upon no fair principle of interpretation of these several acts of congress could the certificate of a mere ministerial officer have that effect.
"Congress never intended to attach any undue solemnity to these cer- tificates, as will abundantly appear from the language of an act passed August 3, 1854, which, while it provides that the certified list by the com- missioner shall have the effect to convey the fee simple of all the lands embraced in said lists that are of the character contemplated by the act of congress, and intended to be granted thereby, yet further declares ' that, when lands embraced in such lists are not of the character embraced by such act of congress, and are not intended to be granted thereby, said lists, so far as thesc lands are concerned, shall be perfectly null and void, and no right, title, claim, or interest shall be conveyed thereby.'
"This negatives the conclusive character of these certificates, and when they are made in the manner supposed, so as to make them null and void, there must be some tribunal to determine that question. If they contravene substantial legal rights, as in this case, we do not see why the courts of the county are not open to afford the adequate redress. Believing that they are, and that the court below decided right in these cases, we shall affirm the same."
From this decision the B. & M. railroad company appealed on a writ in error to the supreme court of the United States. Pending the decision of this case by the tribunal first named, and notwithstanding the pres- tige of two decisions in the county's favor, the board of supervisors made a proposition to the company, as follows, to-wit:
In order to settle and finally adjust the law suit now pending in the supreme court of the United States, wherein Mills county, in the State of Iowa, is plaintiff, and the Burl- ington & Missouri River railroad company is defendant, and secure the completion of said railroad through Mills county via Glenwood, in said county, we, the undersigned, agents of said county, submit the following proposition to the board of directors of said railroad company, to-wit :
There are in dispute between the parties to the said law suit, twenty-three thousand
461
HISTORY OF MILLS COUNTY.
three hundred and sixteen acres. For the purpose of having our proposition understood, we acknowledge that we owe acres of land to the amount of 23,316, to pay which we have and offer you odd sections vacant, (most of which is a part of the 23,316 acres) and even sections patented to the county and unsold, in the aggregate 9,080 acres Balance of land due you, 14,236 acres For further payment we have, and offer to you of the odd sections (about all of which is of the 23,316 acres claimed by you), subject to pre-emption, made through the county, acres to the amount of (on which nothing has been paid to the county) 4,660. Of these pre-empted lands we estimate that about one-half of the pre-emptions are fraudulent and ought not to be recognized ; but the county must ask that when bona fide improvements have been made on the same the pre-emptors must be secured in their rights to the same, and have the privilege of purchasing at one and 25-100 dollars per acre of the county or company, which amount shall in any event, go to the railroad company. Now you will have land for law, subject only to the pre-emptor's claims, until there will be due you in acres 9,576. The remainder, 9,576 acres, belongs to bona fide settlers and purchas- ers, who, we must insist, shall be protected by the county ; and as we have paid you all the land we have, we offer you for this balance ten thousand dollars in money. The company shall understand that the balance of 9,576 acres is the land, portions of which it has been settling with our individual citizens for; and there is included in the 9,576 acres all the lands the company has sold to citizen settlers at one and 25-100 dollars per acre. With this understanding the $10,000 balance we offer you will be just as much less than 9,576 acres as the company has thus sold, and therefore, our pay would perhaps amount to one and 50-100 dollars, or more. It is understood that the suit now pending shall be continued by agreement of the parties from term to term until the conditions of this contract, or propo_ sition shall be complied with. It is also further understood that the foregoing proposi- tion shall not be binding upon the county of Mills unless said railroad company shall complete said railroad through Mills county via Glenwood, and build a depot at Glen- wood, in said county ; and in case said railroad company shall fail or neglect to build said railroad through Mills county via Glenwood, and also build and establish a depot at Glenwood, in said county, then and in that event, the said law suit shall stand for final hearing in the supreme court of the United States, the same as if this proposition had never been made. In case the suit shall be settled on the basis of this proposition, each party shall pay their own costs.
The manner of tranferring the land, whether the county shall deal with the purchasers and pre-emptors, or whether with the railroad company under the restrictions indicated, the county is not particular about, but will agree to what may seem most practicable.
The amount in acres, as stated above may not be exactly correct, and probably is not, but it is believed to be nearly so; but we wish it understood that the company shall have all the swamp lands the county now holds, or is entitled to in Mills county, Iowa, subject only to the conditions indicated in the foregoing.
Witness our hands this July 13, 1868.
WM. HALE, E. C. BOSBYSHELL, D. H. SOLOMON, L. W. TUBBS.
? Majority of the Committee.
At a meeting of the board held November 10, 1868, the special rail- road committee, appointed to submit the foregoing compromise to the officers or agents of the company, made the following report:
The undersigned appointed, by the board of supervisors of Mills county, Iowa, to settle, adjust and compromise the suit in relation to swamp lands in Mills county, Iowa as plain- tiff, and the B. & M. R. R. R. Co. as defendant, beg leave to report that in accordance with the authority and power vested in us by your honorable body, we proceeded to the city of Burlington, Iowa, and there submitted to said railroad company, the proposition hereto
462
HISTORY OF MILLS COUNTY.
appended, and which was, on the 31st day of October, 1868, accepted by said railroad com pany, and which we submit to your honorable body for approval and ratification.
Respectfully submitted this 9th day of November, 1868.
E. C. BOSBYSHELL, r
WM. HALE, D. H. SOLOMON, L. W. TUBBS.
Committee.
The facts in the case until the completion of this compromise here fol- low in the language of the original entries in the minute book of the road:
BURLINGTON, IOWA, October 27, 1868.
This proposition is hereby accepted, and the terms, stipulations and conditions are agreed to by the Burlington & Missouri River railroad company-
Burlington & Missouri River railroad company, by
C. E. PERKINS, Superintendent.
Notice of the acceptance of the within proposition by the Burlington & Missouri River railroad company has been served on us, this 31st day of October- 1868.
D. H. SOLOMAN, E. C. BOSBYSHELL, WM. HALE, L. W. TUBBS.
¿ Committee.
After giving the report duc consideration, it is
Resolved, By the board of supervisors of Mills county, Iowa, at their regular session in November, 1868, that the proposition submitted to the Burlington & Missouri River rail- road company, by our special railroad committee, and the acceptance of the same by said company be and the same is hereby confirmed and ratified, and that the same be spread upon the record of this board.
The ayes and nays being called for, the vote stands as follows:
Ayes :- Allis, Forrester, Haynie, Lamb, Utterback, Wing, Ward, Russell and Mr. Chair- man.
Nayes :- None.
In pursuance of this contract the following deeds were executed by the county to the railroad company: 18th October, 1869, one for 2,260.55 acres; October 18, 1869, one for 1,960 acres; January 4, 1870, one for 920 acres; September 6, 1870, one for 1,640 acres; June 19, 1871, one for 220 acres, making five deeds in all and conveying all the lands in controversy.
From this compromise two suits were the outcome. The first suit was instituted by the county against the B. & M. R. R. R. Co. and com- menced by filing the following:
ORIGINAL NOTICE.
In the district court of Mills county, Iowa, February term, 1874.
Mills County v8.
The Burlington & Missouri River railroad 1 In Equity.
company, John M. Forbes, Henry P. Kidder, John N. A. Griswold, J. W. Brooks and Al- - pheus Hardy.
To John M. Forbes, Henry P. Kidder, John N. A. Griswold, John W. Brooks and Alpheus Hardy :
You and each of you are hereby notified that there is now on file in the office of the clerk of the district court of Mills county, Iowa, a petition with amendments thereto, in the above entitled cause, making you and each of you parties defendant thereto, asking for
HISTORY OF MILLS COUNTY.
463
a decree against the defendants thereto, declaring that a certain contract purporting to have been made between Mills county, Iowa, by the board of supervisors of said county, and the Burlington & Missouri River railroad company, at the November term, 1868, of said board, in regard to certain swamp lands of Mills county, Iowa, and proceeds of the sale thereof is void, and that the five deeds made in pursuance of said contract, signed by the members of the board of supervisors of Mills county, Iowa, and purporting to con- vey to said Burlington & Missouri River railroad company, the following tract and par- cels of lands situate in Mills county, Iowa, to-wit;
DESCRIPTION.
Section.
Town.
Range.
DESCRIPTION
Section.
Town.
Range.
E hf ne qr se qr ..
4 73|40|Ne qr ne qr sw qr ne qr nw qr ne qr
W hf ne qr sw qr.
9 73 40
ne qr nw qr se qr nw qr sw qr sw qr ..
5 72 40
W hf sw qr.
14 73 40
Sw qr s hf se qr.
6 72 40
Nw qr se qr.
17 73 40
Ne qr ne qr n hf nw qrs hf nw qr w hf sw qr w hf se qr e hf se qr. .
72 40 7 8 72|40
Nw qr sw qr sw qr sw qr.
22
73 40
E hf ne qr. 17 72 40
Ne qr nw qr n hf sw qr whf sw qr. .
28
73 40
Ne qr se qr
18 72 40
N hf ne qr nw qr
19 72 40
Se qr nw qr e hf ne qr sw qrne qr c hf sw qr se qr .. ..
29 73 40
Sw qr w hf se qr ... 13 72 41
N hf ne qr sw qr ne qr s hfnw qr. 31 73 40
Nw qr ne qr e hf sw qr .. 1/73 42
Nw qr nw qr. . .
18 73 42
W hf ne qr w hf se qr sw qr.
19 73 42
Ne qr nw qr
31 73 42
Ehf nw qr ehf sw qr.
17 73 43
Nw qr ne qr
18 73 43
Sw qr ne qr nw qr nw qr nw qr ...
18
73 43
S hf nw qr ne qr nw qr w hf sw qr e hf ne qr ..
20 73 43
Ne qr ne qr sw qr ne qr ne qr sw qr
30 73 43
Lot No. 2 ..
23 73 44
Lot No. 3.
23
Lot No. 1.
26 73.44
Ne qr ne qr.
3673 44
Se qr ne qr se qr sw qr.
32 71 41
Se qr sw qr
26 72 43
Nw qr sw qr
27 72 43
33 74 41
W hf nw qr w hf sw qr w hf ne qr ne qr ne qr.
W hf se qr w hfsw qr whf nw qre hf ne qr.
1 71 43
Ne qr nw qr w hf nw qr.
71 43 3 71 43
W hf ne qr w hf se qr e hf ne qr e hf se qr. ..
31 72 43
4 71 43
32 W hf nw qr se qr sw qr .. 72 43
5 71 43 9 71 43
W hf se qr e hf nw qr.
10 71 43
35 72 43
W hf ne qr.
1 72 44 2 72 44
W hf sw qr se qr sw qr sw qr se qr ne qr sw qr nw qr se qr ne qr se qr.
17 71 43
Lot No. 1 .. 11 72 44 Neqr ne qr.
18 71 43
Nw qr se qr sw qr nw qr.
20 71.43
W hf ne qr ne qr nw qr nw qr se qr 13 72 44 Ne qr ne qr ne qr se qr lot No 4 36
Sw qr sw qr w hf sw qr ne qr. 2 71 41 Lot No. 1. 31 71 43
Shf se qr ...
9 71 41 Ehf se qr.
32 71 43
Sw qr sw qr.
10|71 41
Sw qr ne qr nw qr nw qrn hf se qr
Se qr nw qr n hf nw qr .... 11 71 41 se qr se qr. 34 71 43
W hf nw qr se qr sw qr w hf se qr.
15 71|41|Nw qr sw qr s hf sw qr sw qr se qr. 35|71 43
W hfne qr nw qr nw qr se qr nw qr ne qr sw qr nw qr nw qr nw qr sw gr. . 24 72 41
N hf se qr sw qr se qr se qr ne qr n hf ne qr sw qr ne qr. 26 72 41 5 72 43 Ne qr ne qr. .
Nw qr se qr s hf se qr sw qr. 17 72 43 19 172 43 Se qrnw qr.
30 173 43 Ne qr sw qr
Ne gre hfnw qr e hf sw qr se qr se qr w hf nw qr w hf sw qr. . 20 72|43 W hf sw qr w hf ne qr sw qr nw qr 28 71 41
E hfsw qr w hf seqr. .
|71 41
73 44 [Se qr se qr. 31 71 41
Se qr sw qr e hf nw qr ne qr se qr w hf sw qr e hf se qr. .
72 43 Sw qr se qr. . 30 72 43
29
W hf ne qr se qre hine qr nw qr .. Ne qr ne qr nw nr nw qr s hf se qr. S hf ne qr se qr nw qr.
33 172 43 Nw qr ne qr n hfnw qr
S hf se qr n hf ne qr ne qr nw qr w hf nw qr w hf sw qr se qr sw qr ... Nw qr nw qr
Lot No. 1.
Ne qr ne are hf nw qr se qr sw qr 12 72 44 sw qr se qr.
Sw qr nw ny w hf sw qr. 21 71 43 W hfnw qr nw qr sw qr 28 71 43
72 44 Se qr se qr ne qr se qr. 29 71 43
E hf se qr se qr ne qr.
20 73 40
Ne qr s hf sw qr se qr. .
21 73 40
Sw qr.
N hf ne br sw qr ne qr se qr ne qr nw qr se qr. . 23 72 41
Nw qr. ..
10 73 40
Are also void, and to declare that the plaintiff is the owner in fee simple thereof, notwith.
464
HISTORY OF MILLS COUNTY.
standing said deeds, and asking a judgment against said railroad company for five thou- sand dollars as for moneys had and received by said company which belong to the plain- tiff.
And asking that you, John M. Forbes, Henry P. Kidder, John N. A. Griswold, John W. Brooks, and Alpheus Hardy, and each of you have acquired by virtue of said contract or said deeds no interest in or lien upon any of said lands. and that the claims of the de- fendants to any and all of said lands be declared groundless and void; and that, unless you appear thereto and defend before noon of the second day of the next term of the dis- trict court of Mills county, Iowa, which is to be begun and held at the court house in Glenwood, in Mills county, Iowa, on the 8th day of February, 1875, detault will be entered and judgment thereon rendered against you, pro confesso.
This 30th day of December, 1874.
L. W. Ross, C. B. LAWRENCE, & Attorneys for Plaintiffs. D. H. SOLOMON, -
In the District Court the company won the cause, whereupon the county appealed to the Supreme Court of the State of Iowa. The history of the cause and its results here follow.
The plaintiff in this case set up the fact, in order to defeat the compro- mise, that the lands in controversy were swamp lands and that it had therefore, no power to convey them as provided by the terms of the com- promise. It will be noted that it was a condition of the settlement that the railroad company should continue its road through Mills county, and should locate a station at Glenwood. The county set forth that the lands could not be legally transferred on the grounds that there was no proper or adequate consideration for such transfer, in reply to which the defend- ant held that the company was not bound by the act of Congress to locate its line by the way of Glenwood, nor to establish a station there, and that an agreement to do so constituted a valid consideratiou for the agreement to compromise. The county further claimed "fraud" in effecting the compromise, or rather in leading to the proposition to so settle the case on the grounds that the surveying party of the company were running " scare lines " to lead the people of the county generally, and the citizens of Glenwood particularly, to infer that they would, after all, fail entirely of the road. But no adequate proof was adduced that the lines were run where the company had not a legal right to locate its route. The third ground urged by the attorneys of the company was excess of powers on the part of the Board of Supervisors in making the contract. This was ably answered by the attorneys for the company in their argu- ment before the Supreme Court, and the question at issue was decided in their favor, on the grounds that a trustee-as the county set up that it held the lands in trust-in the exercise of a reasonable discretion, may certainly compromise debts, and in the proposition of the county to effect such a settlement, it alleged debt in express terms. The decision in this cause was rendered by Justice Adams, and the decree of the inferior court was affirmed.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.