USA > Iowa > Taylor County > History of Taylor 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 Taylor County, Constitution of the United States, reminiscences, miscellaneous matters, etc > Part 49
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This second grant of swamp lands has resulted in instituting long and ex- pensive litigation in various counties of the State; litigation from which, however, this county has fortunate been free. It has been deemed best to give the basis of the claims of the county to these lands, as preparatory to their acquisition by the American Emigrant Company. From the facts in the case, it will be observed that the term "swamp," as applied to many acres which have passed from the control of the county, is entirely a misnomer. In the case of Fremont County v. The B. & M. R. R. Co. in the Supreme Court of the State of Iowa, the decision on which was rendered by Chief Justice Ralph P. Lowe, in the June term of 1867, a valuable and succinct account of the legislation in this matter is given. Being a discussion of
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the basis on which the whole legislation relative to swamp lands rests, it is here produced in full :
"The lands in the 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 land under distinct grants by Congress to the State. The plaintiffs insist that they are swamp and overflowed lands, and they deduce their right to the same through the State, under an act of Con- gress, 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 selecting said lands; namely, that 'all legal subdivisions, the greater part of which is wet and unfit for cultivation, shall be excluded 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 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 Con- gress. 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 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 over- flowed, in such a sense, under the act, as to render the same unfit for culti- vation, If he did so from the the field-notes, without more information, it would simply be conjecture. Congress thought best, in its wisdom, to es- tablish 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 surveyor, but leaving it to his discretion to make the list and plats of these lands under that.
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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) granting swamp lands to the States, some additional objects of 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 lands, and to show their distinctive char- acter, whether swampy or otherwise subject 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, 718.
"The manner and basis, therefore, upon which the list and plats should be made, as contemplated by the act, were left open to the judgement 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 said 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 themn; and he states what would be sufficient evidence in the premises; namely, the affidavits of county surveyors and other respectable persons that had understood and 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 con- clude to have the surveys made to determine the boundaries of the swamp and overflowed lands, furnishes a form according to which the lists should be inade 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 commissioner directs that the land selected should be reserved from sale, and, after the selection should be approved by the secretary of the interior, the register should enter all the lands so se- lected in his tract book, as granted to the State by act of the 28th of Sep- tember, 1850, being swamp or overflowed land.
"These instructions were continued for near ten years with but little change for the guidance of the surveyor-general and the States in the selection of the swamp lands. For the confirmation of this statement the secretary of the interior, R. McClelland, in a letter addressed to the commissioner of tlie
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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 propositions: that when the field-notes of surveyors indicated the swampy character of the land, they were to be regarded as conclusive of such character, 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 section, 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 re- mained to be made, the general instructions of November, 1850, were sufficient and should be adhered to, or whether new and additional regula- tions should be adopted.
" In reply to this inquiry, the commissioner first re-states 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 represented on the plat and field-notes, you will require the production of satisfactory evidence that the greater part of each forty acre subdivision of the land is of the character specified in the act.'
" 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 subdivision, he gave, among others, as a reason, that probably many of the lands were surveyed in dry seasons, and hence their character 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 instruc- tions, and to which the authorities of the State had made no objection, that any additional instructions or regulations were required. I have been par- ticular 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 in- terior department, for reasons which will hereafter appear.
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"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 suf- ficienty 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 selec- tion suggested in the instructions which we have just been considering. 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 resurvey and exami- nation 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 inte- rior the executive officer for carrying the same into effect. In December, 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 patent 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 pro- ceedings were necessary to perfect the title. This construction of the act, by the secretary, then A. H. H. Stuart, was subsequently confirmed 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 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, entitled, 'An act for the relief of purchasers and locaters of swamp and overflowed 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 was disposed of to private parties, by the government, at the local land-offices.
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" Now, the effect of all this, under the foregoing decision of the secretary 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 dis- satisfied 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 patents to issue thereon; nor, on the other hand, of granting to the State the in- demnity 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 attor- ney-general, and the secretary of the interior, have given to this act (and we are not advised that any other executive officer of the government, 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 ground, and will reserve 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 Allison v. 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 legislative dealings of the State with these lands, from the secretary of the interior officially declaring the act granting them to be one in presenti (nemine contradicente). 9
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"After this exposition of the effect of the grant, we suppose the State, without provoking unjust criticism, could properly assume control and own- ership of these lands, and deal with them in such way as to attain the ob- jects contemplated by the act of appropriation, first providing, however, for their selection and approval thereof by the department of State.
" The point next to be noticed in order in the history of these lands, is the difficulties and embarrassments resulting from the action of the interior department in carrying out the provisions of the act March 2d, 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 explication 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 Congress 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 commis- sioner of the general land-office, so far as the same remain vacant and un- appropriated, 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 mean- ing and intent, of investing absolutely in the several States such lists of swamp and overflowed lands, whether actually so or not, as has before that time been made out and reported to the commisioner of the general land- office; and such, precisely, was the category of the lands now in dispute. They had not only been listed and reported, but their selection had been made in strict compliance with the rules prescribed by the interior depart- ment, 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 preexisting laws; and such is the con- struction which the secretary of the interior very properly gave this act again and again; and, under that construction, very many contests in re- gard 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
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reported; so that the power of the secretary of the interior over these ques- tions 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 sev- eral governors of the States with a true certified list thereof, from the com- missioner, 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 selec- tions had been otherwise appropriated or interfered with by legal settle- ments.
"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 demand 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, is the only evidence thereof."
The first action of the county officials of Taylor county with reference to these lands bears the date of Monday, February 13, 1854. Judge Lowe on that day appointed Otis Fenno and Henry Baker, as commissioners "to lay off the wet and overflowed land in said county"; the former having allotted to his special charge ranges thirty two and thirty-three; the latter caring for thirty-four and thirty-five. On March 5, 1855, John Hayden was appointed, by the same judge, "to survey the swamp land and Report the station that draws is Necessary and the length and debthe of sd draws and the proba- ble cost of the drawing of all the swamp lands is a part of R. 34, 35 and all of 35." No reports ever were made by these parties, so far as the records relate thereto. But subsequently to these appointments other appointments seem to have been made, having in view these same objects. On October 24, 1855, Otis W. Fenno, John Lowe and Thomas F. Kimball all reported on swamp lands which they had been appointed to survey, and W. C. Gib- son, county judge, states that the plats made by these commissioners had been sent to the governor of Iowa. There is no record of their appointment, nor are there any data from which to learn the nature or the completeness of the report made.
No further action appears to have been taken until September, 1862. Meantime, the agents of the American Emigrant Company, a corporation of capitalists with headquarters at Hartford, Connecticut, had been visiting various of the counties in the State, and among them Taylor county. Attracted by the fertility of the soil and the evidently bright future of the county, overtures were made to the county officials to purchase the swamp lands, reclaim them in accordance with the provisions of the various acts of the general assembly, and settle them with a staunch and reliable popu-
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lace. The agent of the company, C. D. F. Mckay, was the one interested for his employers. The first entry relative to the transfers of these lands is found in the proceedings of the board of supervisors for September, 1862. The proposition, it will be seen, emanated from the party contemplating the purchase, and is as follows:
Comes now C. D. F. McKay, agent of the American Emigrant Company, and makes the following proposition to purchase the swamp land of Taylor county, Iowa; to-wit,
"Agreement made the 2d day of September, A. D. 1862, between the county of Taylor, in the State of Iowa, of the one part, and the American Emigrant Company by F. C. D. Mckay, their general agent for the State of Iowa, of the other part. Then the said county devotes the swamp land belonging to said county, and all the funds and claims of the county on the general government therefor to the making of the public improvements hereinafter mentioned by said company, and agree to sell, release and convey the same to said company according to this agreement.
"The said company agrees to take said land and funds and claims, and to make for said company any public works or improvements therefor which the board of supervisors may re- quest, and which are authorized to be made therewith by loan of the full amount and value of one thousand and eight hundred dollars. The specifications of such public works to be furnished to them as they prefer, at any time after October 1, 1863, and the work to be fin- ished according to specifications by one year from the first day of January after the furnish- ing of such specifications. In order to ascertain the value of such work and improvements, it is agreed that if the board of supervisors shall offer to superintend the working of such improvements without charge to said company, then said company shall pay into the treasury of said county the sum of one thousand and eight hundred dollars, in current funds, as soon as the first day of January, A. D. 1865; and if said board does not choose to superintend the working of said improvements, then the jobs of work are to be let at public auction, to the lowest fair bidder, who shall give ample security for performance in the usual way of letting such jobs.
"No taxes are to be assessed against the property agreed to be sold by this contract while the county holds the legal title thereto, or the equitable title by mortgage, or otherwise; but as fast as any of it is sold to purchasers the same may be taxed, and the company agree to settle said land fit for settlement with white settlers and purchasers, and by selling farms of the usual average size, one-third thereof in three years, and another third thereof in five years, and the whole of said lands in eight years from the ratification of this contract by a vote of the people and the canvass of the votes. Any part of said land, funds or claims the county will assign or convey to said company, or its agents, at any time on request; but if the claim of the county is not fully paid, and sales made, the entire interest so conveyed shall be mortgaged back to the county to secure the fulfillment of this contract, unless other sat- isfactory security be given. Therefore, the company take the said lands subject to all the provisions and conditions of the act of Congress of September 28, 1850, and expressly release the State of Iowa, and the said county of Taylor from all liability in reclaiming said lands, or in the draining thereof, any contract now existing between the county and any persons in relation to said lands to be respected and fulfilled by said company as the board of super- visors shall decide to be just and right. The said board will appoint any agent to transact any business relating to said swamp lands, or funds, or claims which said company, or its
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