USA > Iowa > Page County > History of Page County, Iowa : containing a history of the county, its cities, towns, etc. : a biographical directory of many of its leading citizens, war record of its volunteers in the late rebellion, general and local statistics, portraits of early settlers and prominent men, history of Iowa and the Northwest, map of Page County, constitution of the state of Iowa, reminiscences, miscellaneous matters, etc > Part 46
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" SWAMP LANDS. "
" By an act of congress approved 28th September, 1850, all the over- flowed and swamp lands within the state were granted to her, and the state authorities were required to select them and report through the sur- veyor general to the general land office the lands selected. For the bet- ter and more certain compliance with the act of congress the state granted the lands to the counties in which they lie, and the counties in most cases appointed agents to make the selection, and the selections were made at the expense of the county, amounting to the sum of $2,000, in many in- stances, and averaging about $1,000 to each county, making the entire ex- pense amount to about $100,000.
" All this expense was incurred under the direction of the commissioner of the general land office, and the form of report and required affidavits were duly returned to the surveyor general's office and by him certified to be overflowed or swamp lands returned as such to the commissioner of the general land office.
" The list returned for the counties in the Council Bluffs land districts, were examined and approved, and orders were issued to the land office to enter the lands contained in the list upon the tract books and plats of the office, and to withdraw them from sale. This was done, if we are cor- rectly informed, about the 23d day of September, 1854.
" In May, 1856, congress made a grant of land to the state to aid in the construction of certain railroads. At the same session an act was passed approving and confirming the selections of swamp lands, and virtually declaring by that act that the swamp lands selected before the passage of the act making a grant to aid in the construction of railroads, were to re- main 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, we understand the present commissioner has decided that
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HISTORY OF PAGE COUNTY.
patents shall only be issued to the state for such even numbered sections within fifteen miles of any of the land grant railroad lines, as are shown to be overflowed or swamp lands by the plats and field notes, made by the government surveyor, and that those even numbered sections selected and not shown to be overflowed or swamp lands shall be patented to the rail- road companies.
" If such a decision has been made we regard it as a gross usurpation of authority, and a violation of the act of September 28th, 1850. If the lands selected are overflowed or swamp lands, they became absolutely the property of the state the day the act was approved. That they are 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, we think he cannot, in justice to the counties, fall back on the field notes of the government surveyor. If the patents were to issue only for such lands as were shown to be overflowed or swamp lands by the field notes of the government surveyor, why were the counties required at a great expense to go through the farce of making selections?
" We take the broad ground that the selections having been made in ac- cordance with the requirements of the commissioner 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 grant- ing lands to aid in the construction of railroads, 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 puposes cannot reach any of the lands selected before its passage.
" If in fact the two grants may be considered as covering 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 over-flowed lands to the state-the state has transferred them to the counties, and the counties have sold them to indi- viduals, 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, we believe it to be 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 have any right to any portion of them, let their right be determined by the judicial tribunal of the county.
" We sincerely deprecate what appears to us to be a strongly developed disposition on the part of the executive officers of our government to usurp the prerogatives and powers of the judicial department, and in no depart- ment is that disposition more strongly developed than in the land depart- ment.
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HISTORY OF PAGE COUNTY.
* * * It has too long been the practice of executive officers to assume the prerogative of deciding the legal rights of parties, which should have been decided by the courts, and in the case before us, if the commissioner could not legally cause patents to be issued to the state for all the swamp-lands selected before the passage of the railroad grant, he could have had patents issued for those about which there was no dispute, and leave the rights of the parties to the balance to be deter- mined 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 has thrown obstacles in the way of adjusting the rights of the counties, and has to some extent forestalled the action of the courts thereon."
In 1862 the county entered into the following contract with the American Emigrant Company :
CONTRACT.
"Agreement made and entered into the first day of September, 1862, between the county of Page, state of Iowa, of the one part, and the American Emigrant Company, by B. F. C. McKay, their general agent for the state of Iowa, of the other part.
" The said county devotes all the swamp lands of the county, and the . funds and proceeds thereof, as fully as the county may be entitled to the same, to the making of improvements hereinafter named by said company, and the said county grants and agrees to convey and dispose of said lands and funds to said company for said use.
But the county reserves from this contract the following parts and par- cels of said lands and funds:
"First. The lands contracted to be sold by the county to LeGrand By- ington, being about 2,080 acres.
" Second. The lands already sold by the county and deeded to purchasers, being about 5,900 acres.
" Third. There are some certificates of pre-emption outstanding against said swamp lands not yet taken up or otherwise arranged; this contract is so far subject to such pre-emptions as that said company take subject to them, and are to respect and fulfill the same as the board of supervisors shall deem just and right.
" The company take said lands and funds subject to the aforesaid re- serves, and agree to make such public improvements for the county there- for as by law the same may be devoted to the making of, to the full amount of two thousand and five hundred dollars, the county to furnish specifica- tions of said work and improvements from time to time, as they choose, on or after October 1, 1863, and the work to be finished according to such specifications in one year from the first day of January after such specifi- cations are furnished.
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HISTORY OF PAGE COUNTY.
" The following method is agreed on for the ascertaining of the value of said improvements: If the board of supervisors shall choose to superin- tend the construction of such work without charge to said company, and shall at any time offer so to do, the company will in such case deposit said sum of two thousand five hundred dollars, in current funds, with the treas- urer of said county, as soon as the first day of January, 1865.
" If said board prefer not to superintend said improvements as aforesaid, the same are to be let at public auction to the lowest responsible fair bid- der, who will give ample security for performance, in the usual manner of letting like jobs.
" The company takes the said lands subject to all the provisions of the act of congress of September 28, 1850, and expressly release said county and the state of Iowa from all liability in reclaiming said lands.
"The county shall, at any time when required, convey and transfer said lands and funds to said company or its agents, but the entire interest so conveyed shall be mortgaged back to secure the county for the fulfillment of the contract, unless the same shall have been fully paid up, or other satisfactory security given therefor.
"So long as the county holds the legal title to said lands or funds, or the equitable title by mortgage or otherwise, no taxes are to be assessed against the same, except so fast as the same may be sold to purchasers taxes may be assessed thereon. And the company agree to settle one- third of said land fit for settlement in three years from the satisfaction of this contract; another third in five years, and the whole in eight years. That in settling said lands the company will sell only to white persons, and to sell the same to purchasers in the usual quantities for farms.
"The company will appoint a responsible and proper person in said county as their local agent or special agent, on whom all notices may be served and to whom any notice required by this contract may be given; or, in default of such appointment, such notice may be made or given by mail- ing the same to the general agent of said company, at Des Moines, or to S. P. Lyman, secretary of said company, No. 78, Broadway, New York.
"The county is to appoint any agent named by the company as its agent to finish up and transact any business to be done with said lands or the general government; but the county is not to be responsible for the faith- fulness of any such agent, nor for any cost or expense thereof.
GEORGE RIBBLE, President of the Am. Emigrant Co. By B. F. C. MCKAY, The Gen. Agt. for the State of Iowa.
This company was, for the major part, composed of naturalized for- eigners, and was organized for the purpose of reclaiming certain lands, G
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HISTORY OF PAGE COUNTY.
given to the counties by the state. They were to reclaim them subject to the provisions of the congressional law of September 28, 1850, and ex- pressly released "the county and state of Iowa from all liability in reclaim- ing said lands." The object of the grant by congress to the state was to secure the reclamation of these swamp lands. The American Emigrant Company, acting largely in the interests of the Swedish portion of the community, through their agents, made the contract above noted; and the same was submitted to the voters of the county in 1862 for their ratifica- tion or rejection, after publication for the requisite length of time in the county papers. The proposition was voted on in every township in the county; and in every township, except one, there was a majority of votes in favor of the contract. The total vote, with reference to this proposi- tion, the election occurring simultaneously with the general election, was 531, of which 411 were for, and 120 against, its ratification. "The whole vote on the question of ratifying the contract in question was 75 less than the vote on secretary of state (606), and 112 votes more than that on clerk (410), so that, if we take the largest vote on showing the entire voting population of the county, more than two-thirds of them voted to ratify the contract submitted to them."
The county received from the American Emigrant Company the sum of two thousand five hundred dollars, on the payment of which, it was obligated to transfer the property in question. It does not appear why, but this transfer was never made. Perhaps the discovery by the board of supervisors that they had sold over thirteen thousand acres of land, for the paltry figure above named, had some weight. Certain it is that a general feeling of dissatisfaction became prevalent among the citizens of the county and the board of supervisors refused to convey the said property. The case found its way into the courts, and the district court of Page tried the case and found for the plaintiff, alleging fraud in the procurement of the lands. An appeal was taken to the supreme court of the state, and the decision of the lower court was reversed, the grounds of which are here given in the opinion of Chief Justice Miller in the June term, 1875:
" I. It is claimed, in the first place, that the county had no power to make this contract, and that aside from all the questions of performance, consideration, regularity or the like, the making of this agreement was outside of the power of the board of supervisors to make on behalf of the county, and that, therefore, the agreement is void and in no manner binding upon the county. The same question came before the court in Allen vs, Cerro Gordo county, 34 Iowa, 54, where it was fully considered and determined that the board of supervisors did possess the power to make the contract in question, which was similar to the agreement in this case. It was held in that case that the county, being a municipal cor- poration authorized by statute to hold and dispose of lands granted to it,
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HISTORY OF PAGE COUNTY.
possesses the incidental power, the same as individuals, to do, through its board of supervisors, whatever in their judgment may be necessary to preserve and protect its interest in, and title to the same; and that the statutes confer full and ample authority on the board of supervisors over the swamp lands of the county.
" The authority of the board to enter into the agreement in question, we hold to be fully settled by that case. There the contract provided for the sale and disposition, by the county, of one-half the swamp land interest, while in this case all of the swamp land interest is disposed of. This, however, can make no difference in the principle upon which the power of the board of supervisors to make the sale rests. It is the same in each case, and there is only this difference that, in this case the lands themselves being devoted to the county to the making of improvements, a ratification of the disposition thereof by the electors of the county was necessary for * that purpose. * * *
"II. It is next urged by plaintiff that the contract is void because it pur- ports to be a sale of the swamp lands, and swamp land claims of the county at a less price than one dollar and twenty-five cents per acre, con- trary to the provisions of section 959. * It is by no means clear that the lands were disposed of for less than one dollar and twenty- five cents per acre, for beside the public improvements to be made by the defendant, which were afterward commuted and paid in money by the de- fendant, it also, among other things, agreed to take the lands, ‘subject to all provisions of the act of congress of September 28th, 1850,' and ex- pressly released, 'the county and state of Iowa from all liability in reclaim- ing said lands,' thereby agreeing to meet all the expense required for their reclamation under said act of congress, which might be equal or in excess of the price fixed on the land by the above section of the statute. The object of the grant by congress to the state was to secure the reclama- tion of these swamp lands. And the acts of the general assembly of Iowa in respect thereto do not require them to be sold for one dollar and twenty-five cents per acre, in addition to the cost of reclaiming them.
"Furthermore, the Emigrant Company expended large sums of money in procuring the allowance of the greater portion of the swamp land claims of this and other counties, which had been previously rejected by the land department of the general government at Washington, and, but for the efforts of the company in the premises, it is reasonably certain the county would not have obtained any further allowances of either land or indemnity than had been made prior to the making of the contract with the company. * * * * *
"IV. It is further urged on behalf of the plaintiff that it is entitled to a recision of the contract because of the failure of the defendant to bring
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HISTORY OF PAGE COUNTY.
into the county the number of settlers specified in the agreement within the time stipulated.
"We think it clear from the whole contract that this stipulation was not intended as a condition precedent to the making of the conveyance of the land by the county. It is provided in the contract that 'the county shall at any time when requested convey and transfer said lands and fund to the company or its agents; but the entire interest so conveyed shall be mort- gaged back to secure the county for the fulfillment of the contract, un- less the same shall have been fully paid up, or other satisfactory security given therefor.'
"It is also stipulated that the company takes the land and fund subject to all the reserves named therein, and 'agrees to make such public improve- ments for the county therefor as by law the same may be devoted to the making of, to the amount and value of two thousand five hundred dollars, the county to furnish the specifications, etc.' It is also stipulated "if the board of supervisors shall choose to superintend the construction of such without charge to said company, and shall at any time offer so to do, the company will in such case deposit said sum of $2,500.00 in current funds with the treasurer of said county as soon as the first day of January, 1865.' The substance of this is that the company will make the improvements on specifications furnished by the county, or, if the county choose, the com- pany will pay the money into the county treasury. Now this is the only payment of any kind provided for in the contract, and when such payment should be made the county was bound to convey. The mortgage for the fulfillment of the contract was to be given unless the same should be fully paid up. If fully paid up, then no mortgage was to be given, but the con- veyance was to be then made. This is the evident meaning of this clause in the contract.
The agreement in this respect was complied with by the company pay- ing, at the request of the county, the sum of $2,500.00 into the county treasury. Upon such payment and request of the defendant the plaintiff was bound to convey.
" Again, it is shown by the proof that the defendant made frequent efforts to settle emigrants upon swamp lands in the county, but were unable to do so because of the failure of the county to comply with the agreement on its part, by conveying the lands to the defendant. Until the county had conveyed to the defendant the latter could not sell to and settle emigrants thereon, and doubtless this was understood in making the contract; hence, the agreement that the county should convey the lands to defendant on re- quest. This consideration also shows that the settlement of the lands was not understood to be a precedent to the conveyance thereof by the county to the defendant.
"Subsequent to the making of the contract the parties modified it in re-
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HISTORY OF PAGE COUNTY.
spect to the matter of bringing emigrants or settlers into the county, as follows: 'It is mutually agreed between said county and said company, that the contract existing between them, so far as it provides that one- third the lands therein named fit for settlement thereon, be settled by said company in three years, and one-third thereof in five years, and the re- mainder thereof in eight years from the time mentioned in said contract, be changed, so as to be as follows: That said company shall cause to come into the county of Page such a number of settlers, who shall become actual settlers, either upon said lands purchased of said county by said company, or upon other unimproved lands in said county, or upon both such lands, as will equal in number the persons that would be so brought in by said company, if the company were to fill said contract as it was at first made, and that such settlement upon such other lands shall be deemed to be so far in fulfillment of said contract by said company, the same as though they had settled upon the lands originally bought by the company of the county. '
" It is claimed by the plaintiff's attorneys that the board had no power to make this modification-the same not being ratified by a vote of the peo- ple-and that it is therefore invalid. If this be so, then the contract, as at first made, remains unchanged, and, as we have seen, the failure to bring in the settlers is no ground for rescinding the contract. If this change, however, is valid, the same result still follows, no time being fixed within which the settlers are to be brought into the county, and in no other re- spect is it made a condition precedent to the conveyance of the lands to the defendant. It becomes immaterial, therefore, to determine whether the board of supervisors had authority to make this change in the contract or not.
" V. It is insisted by the plaintiff that the contract is invalid, because it did not specify the particular work or improvement to be made by the company for the use of the county.
" The statute made is ' lawful for the counties owning swamp and over- flowed lands, to devote the same or the proceeds thereof, either in whole or in part to the erection of public buildings for the purpose of education, the building of bridges, roads and highways, for building institutes of learning, or for a permanent school fund for the use of the county to which such lands belong, or for building county buildings, or for making railroads through the county or counties to which such lands belong.' See revision, section 986, as amended by chapter 77, laws of 1862.
"The contract provided that the defendant should make " such public im- provements for the county as by law the same may be devoted to, the county to furnish specifications for the work and improvements.' Here the con- tract devotes the land to the defendant, for the purpose of carrying out or assisting in carrying out the very purposes named in the statute, to be
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HISTORY OF PAGE COUNTY.
specified by the county. The agreement is to the effect that the lands and fund shall be devoted to some of the purposes specified in the statute, to be determined by the board of supervisors of the county. We think the contract in this respect clearly complies with the statute. The provisions referred to limited the use of the lands or their proceeds to the objects named in the law; these were to be made specific by the county author- ities. In such case no authority was conferred to devote the lands or fund to any other than lawful purposes. It was as certain as if the par- ticular improvement had been named in the contract, for that is certain which can be made certain.
"VI. In respect to the claim of the plaintiff that the contract should be rescinded because of frauds committed by the defendant and its agents, in the procurement of the agreement, we merely say that after a careful reading and examination of the evidence, we fail to discover any proof of fraud or bad faith whatever, on the part of the defendant or any of its agents, touching the making of the contract.
"VII. In respect to the claim of the defendant for a specific perform- ance of the contract, by the delivery of a conveyance to the defendant of the land in controversy, we are of the opinion that it is entitled to a decree therefor. The proof shows that in the pursuance of the contract, recog- nizing it as valid and binding, the county executed a deed, received the consideration money agreed to be paid, ordered the deed to be recorded and delivered to the defendant upon the execution of a mortgage by the latter for the fulfillment of the contract on its part, and placed this deed in the hands of the agent of the defendant for delivery to its chief officer, upon the making of the mortgage. As we have already seen, the only condition precedent to the making and delivery of the deed had already been performed by defendant in the payment to the plaintiff of the sum of $2,500.00. All the money to be paid in any event, under the contract, had been fully paid before the execution by the county of a conveyance, and it had no right to demand the execution of a mortgage as a condition to the delivery of the deed. The defendant became entitled to the delivery of the deed upon request, after having paid this sum of money. This sum of money, however, was only a part of the consideration already paid by the defendant for the land, etc. It had expended, as we have al- ready seen, large sums of money, and devoted much time and labor by its agents in obtaining the recognition of the claims of the county by the federal authorities. The defendant has, in all respects, fully performed its con- tract so far as to entitle it to a conveyance of the land under the contract. The judgment of the court below will be reversed, plaintiff's petition dis- missed on the merits, and a decree entered requiring plaintiff to specific- ally perform its contract by executing a proper conveyance.
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