USA > Iowa > O'Brien County > Past and present of O'Brien and Osceola counties, Iowa, Vol. I > Part 10
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LAND OFFICE TRIALS AT DES MOINES.
These two claimants, the squatter homesteader and the holder of one of these railroad land contracts, brought on a direct contest for each tract. This, in real result, necessitated two litigations. The hearings or trials before the land office or land court at Des Moines did not end the contest, not even when appealed to Washington. This for the reason that the land office is not what is known in law as a court of record, simply an adminis- trative department. As was decided by the courts, the parties, squatters and contract holders, had not had their day in court. Hence after that was all over, each two men on a tract, squatter and contractor, had a right to and did bring his further action to try anew the same questions they had already spent much money in hearings before the land office. All this was occupying the years and wearing out the squatters, who were blessed with none too much money.
In the meantime Governors William Larrabee and Horace Boies and the Legislature of Iowa and Congress had repeated urgings from many angles to issue governor's deeds or patents from the state, and to enact statutes, which if effective, would arbitrarily end matters. With all these conflicting laws and facts, it took a long time for the idea to become well settled in the minds of the many parties in interest, that neither governors nor legis-
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latures were courts, and could not take away vested rights under grants of Congress, or even to determine them, whatever they were. Herein evidently Doctor Hamblin erred.
A MASTER STROKE.
The fact gradually dawned on the public and the members of the squat- ters' union that it would require the courts to really settle matters. About the year 1887, a petition of squatters and other citizens of the county (indeed all wanted the vexed litigations ended) was directed to Congress asking the enactment of a statute or resolution authorizing the secretary of the interior. through the attorney-general of the United States and the department of justice, to institute a suit in the name of the United States as plaintiff and against the Sioux City road, praying the court for a decree quieting the title against the road. and re-establishing it in the United States, and declaring the same, in result, open to homestead rights. Congress passed such an act on March 3, 1887, known as 24 Statute 556, chapter 376, which provided for an adjustment of land grants of unearned lands, along many lines of difficulty, and ordering the secretary of the interior, under the proper facts shown, to make demand of the road for a relinquishment of its rights, and on his certificate of authority to make it the duty of the attorney-general to bring suit.
This suit was first brought in the circuit court of the United States in an action entitled. The United States, plaintiff, against The Sioux City & St. Paul Railroad Company, and Elias F. Drake and Amherst H. Wilder as trustees. This great suit was finally decided, after appeal, by the supreme court of the United States. This decision was handed down October 21. 1895, and the decree in full may be found in the 43 Federal Reporter, page 617 and forward. The decree and opinion by Justice Harlan is also recorded in full on the records of O'Brien county in Miscellaneous Book "B." pages 307 to 330. It was decided in favor of the United States. The attorney- general's office was assisted by E. C. Hughes, attorney, of Spencer, Iowa. and by Joy, Hudson, Call & Joy, of Sioux City. The railroad was repre- sented by sundry able attorneys.
The subject developed the following conclusions: That the Sioux City road had not earned its lands. That the grants in the act of Congress of May 12, 1864, had provided that this road should receive one hundred sec- tions for each completed ten miles of well built road, and that said road should be built from the state line of Minnesota to Sioux City, Iowa, which the court finds to be eighty-three and fifty-two hundredths miles. That it,
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in fact, built in 1872 only from the state line to Le Mars, Iowa, a distance of fifty-six and thirteen hundredths miles. That it had built and was only entitled to an allotment of lands for five completed sections of ten miles each. That had it completed the road to Sioux City as per the grant it would have been entitled to the fraction over the completed sections, but that having only built as far as Le Mars it was not entitled to allotment for the fraction of the six and thirteen hundredths miles. That said road had leased the franchises and road bed and right to use same, and that it had so used and run its trains over the track and road bed of the Illinois Central Railroad Company from Le Mars to Sioux City. That such leasing and use of a road was not a "building of a road." as contemplated by the land grant of May 12. 1864, and that it was only entitled allotments for five completed sections of ten miles each, for, on July 26. 1872, it had built two sections of ten miles each or twenty miles, on August 10, 1872, ten miles, and on February I, 1873, it had built twenty miles more, or five completed sections. The court further found that it had already received patents for more land than it in fact had earned; that it had received eighty-seven thousand eight hundred and seventy and twenty-one hundredths acres more than it had earned. It was therefore decreed that the Sioux City road was forever barred and estopped from claiming any right or title to any such lands, and that the trust deed securing the railroad bonds of two million eight hundred thousand dollars, and held by Elias F. Drake and Amherst H. Wilder as trustees, was cancelled so far as said lands were concerned. The decree in full of about twelve thousand words is an exhaustive review of all the facts and is a dis- cussion of the details and law questions leading up to the above conclusions. This decision and suit was the master stroke of the whole long-drawn-out fight or series of litigations. It followed that the twenty-one thousand one hundred and seventy-nine and eighty-five hundredths acres in O'Brien county and eight hundred acres in Dickinson county were open to homestead entry.
MILWAUKEE LANDS AGAIN.
The squatters in the first instance occupied all the Milwaukee lands. commencing in the main, as did the squatting on the Sioux City lands, on February 22, 1884, though in a measure it commenced as early as 1882 and continued until evictions were procured commencing January 3, 1887, under writs of possession issued by the district court of the state for O'Brien county. The first squatters' union was organized by the squatters on the lands of both roads, with Dr. Howard M. Hamblin as organizer. It soon
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became evident, however, that the leading questions in the two divisions of lands would involve two quite different set of questions. There soon also dawned on the minds of the people generally the fact that the Sioux City road had not earned its land, while the Milwaukee road had earned all the lands in the county allotted to it, and hence there was but little show for the squatters on the Milwaukee lands, but that the Sioux City lands would be opened to homestead.
EPHRAIM M'MURTREE.
In 1886 the Milwaukee road sent on an Englishman named Ephraim McMurtree as its representative to look after and sell these lands and deal with the Milwaukee squatters. He was well fitted from the road's stand- point, being a capable, well poised man, with good judgment, a good judge of law and business, and, above all. kept his temper in dealing with the ofttimes excited squatter. The very fact that their cause seemed waning seemed to cause many irritations. He proceeded to appraise the lands in tracts of eighties and quarters of from ten to fourteen dollars per acre, and put them on the market at their appraised prices, giving the squatter the first chance to buy, with a time limit which seemed reasonable, and giving him a first chance gave it an attitude of fairness. Each squatter who purchased. and gave up, of course ended that much of the fight and gradually those buy- ing dropped out of the squatters' union.
EVICTIONS.
On January 3, 1887, and up to August, 1887, Mr. McMurtree filed one hundred and seventeen suits for eviction against the squatters and their families. They embraced suits in said court numbered consecutively from 1586 to 1701 and number 1878 and numbers 1914 to 1916. Irrespective of legal questions involved, evictions of families, putting them out of possession by the strong arm of the law, turning them out literally into the road, as in these cases out from under the roofs that covered their heads, involving women and children, even the infirm, from the houses which from their standpoint was home, has in it the elements of pity and distress.
William C. Green, or Clark Green as he was known, was the sheriff of O'Brien county to whom the writs were directed, and who as such made the actual evictions. In fact they were the most pitiful and wholesale set of transactions ever in the county. Probably from the standpoint of the
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road it was the only thing it could do, as the squatters would not remove until compelled. The courts had decided that the road was right in its premises. The squatters on these lands, though wrong in their judgment, went into it under enthusiasm.
In the literal evictions it would well compare with the historic evictions of Ireland. They were all poor people, or they would not have been seeking homesteads. The bankers and promoters who first came on soon found that there was nothing in it for them. No matter who was wrong or right, in most cases they were poor people with large families, who had actually occupied and farmed more or less of the land for sundry years. It was a hard position in which to place a sheriff, whose votes he would necessarily seek at the next election. He accepted the situation as a legal duty and carried it out. The sheriff in fact took along with him four others, sworn in as deputies, and not only the families were turned out into the roads, but the buildings in many cases actually hauled by the sheriff off the land. In the case of Dr. Howard M. Hamblin, who fought his matter so persistently, his buildings were torn to pieces and scattered up and down the road, to which the writer was an eye witness. Quite a good many finally purchased, but many remained gritty. The county will probably never again witness a wholesale set of evictions. It was not a case of a poor landed country, but stern law, giving the railroads what the courts had decreed to be their rights.
Some of these evictions, though harsh, had their amusing sides. Will- iamı E. English ("Bill"), a squatter on the northeast quarter of section 21, Center, was game. He wouldn't be put out. His family and old mother joined in the melee. Every time the sheriff went there. some member of the family went to bed sick. All hands were convinced, it was even openly boasted by "Bill" himself, that it was feigned. He was much of a scrapper and contended, in effect, that any fight was justifiable against a railroad. It took the sheriff most of the summer with the four deputies before he was evicted.
But practically none of the suits, even for eviction, ever got beyond the district court. It seemed by this time to be generally admitted and acquiesced in by all having even a superficial knowledge of the law as ap- plied, that the Milwaukee lands really had no serious questions in it. The fight, with many of them, finally simmered down to an effort to secure better terms in a purchase or a little delay, to see if something might turn up. They were ready to grasp at any straw.
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GEN. BENJAMIN F. BUTLER.
One incident occurred which well illustrated the unsettled ideas of title, involving no less a personage than the famous Gen. Benjamin F. Butler, the great attorney and famous Union general during the Civil War.
George W. Schee and J. L. E. Peck, the writer, ran the Primghar State Bank from 1886 to 1890. It had been definitely agreed between a bunch of some fifteen Milwaukee squatters that the bank would loan to each five hun- dred dollars to make their first payments. This number of fifteen had de- cided to give up. Some one of the leaders in a sort of desperation had tele- graphed to General Butler asking him if he could be engaged. General Butler was not at home. A clerk of his telegraphed him, and he in turn telegraphed to Primghar that he would accept a retainer. He had not even a statement of the facts before him. He simply would accept a retainer. As any one can see, this telegram meant nothing. That day a large squat- ters' union was held by the Milwaukee road squatters. That telegram was read amid intense enthusiasm. Even this number of fifteen squatters who had given up, on the strength of this slim straw joined the crowd in the enthusiasm. The crowd threw up their hats and came to the bank with the exulting news that General Butler had given an opinion. Many other such waverings took place. It ended those loans for six months or more. In- deed, it is almost grimly humorous that even from that time on in 1887 many of the Sioux City squatters spent more per acre in expense fighting for their lands than the Milwaukee road got for their lands, namely ten to fourteen dollars per acre. It all simply illustrates what grit, egged on by enthusiasm, and, as the squatters and many others thought, a wrong by the railroads, will do.
THE 1872 HOMESTEADERS NOT AT FIRST FAVORABLE TO THE SQUATTER.
Many, or most of, the early 1870-1880 settlers, the writer included, in the first instance sided with the railroad for two reasons. First, a railroad title immediately made the land subject to taxation and the county needed the taxes. If it all went to homestead it would go from five to eight years before it would be proved up upon and become taxable. Secondly, the older 1872 homesteaders had had free hay and cattle range on these odd numbered sections for so long that they did not welcome a cutting off of this asset.
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SIOUX CITY LAND SQUATTERS AGAIN.
The writer has termed the decision of the supreme court of the United States of October 21, 1895, as the "master stroke" of the Sioux City land squatters. And so it was. However, it was but the beginning of their long and tedious fight. The patenting to the Milwaukee road of their lands re- duced the number of the squatters union to one-third of its prior numbers, though it seemed settled in every body's mind that in the main question the Sioux City land squatters would be sustained.
The blunder of Congress in its act of March 3. 1887, lay in the giving to any person holding a contract from the railroad a preferred right to purchase same. This in result brought on an equivalent of an expensive litigation before the United States land court, only to find, when finished, that the con- tractor could again raise the question before a court of record.
The proclamation of President Grover Cleveland and attendant notices were published in February, 1896, in the Sheldon Eagle at Sheldon, Iowa, and each holder of a railroad contract filed his contest as per the notice given.
The United States land court was presided over by Hon. Edward B. Evans, register of the land office. In the meantime sundry divisions of squatters employed this and that attorney or firm of attorneys, usually under a written contract wherein they agreed to pay one dollar per acre when title was procured and fifty dollars per year as long as they were maintained in possession, varying in condition with the sundry attorneys. Sundry of these attorneys who made these conditional contracts, were Judge William Lawrence. of Ohio, a man of national prominence ; Joy, Call, Joy & Wright, of Sioux City ; John W. Corey, of Spencer, Iowa : King & Stearns, J. L. E. Peck and O. H. Montzheimer, of Primghar; J. F. Conrad, A. R. Lowry, Judge George H. Carr, of Des Moines; Ex-Attorney-General Henry O'Con- ner and others; while W. P. Jewett, of St. Paul; W. D. Boies, O. M. Barrett and Milt H. Allen, of Sheldon; C. A. Babcock, of Sanborn; J. T. Conn, of Hartley ; J. H. Swan and Judge Chase, of Sioux City, appeared for the rail- road contract men. This land court was in almost continual session during the year 1896 and a large part of 1897. Test cases were agreed upon by the parties and attorneys, as would most nearly include as many of the con- tested questions as possible. The case of Olive Manley, plaintiff (squatter) against Andrew Tow, was, among others, appealed to the general land office
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at Washington and finally to the courts, and perhaps was the most noted case tried. This court tried about one case per day.
THE SQUATTERS SUSTAINED IN THE MAIN.
During this period of about a year and a half as these trials proceeded. from time to time the register rendered his opinions, in the main sustaining the squatter as against the railroad contract. In some considerable number of cases, however, the contracts were upheld. But in most of such cases it was where the contract man was able in the early local scrimmage to retain actual possession, and where he was in that position that had he not held it under the contract, he could have homesteaded it as did the squatter. The contract man was also sustained in some cases, where that phrase "bona fide," which occurs in both statutes, was considered, and in the special case seemed the stronger with the contract holder, this phrase, as we have shown, occur- ring in both the squatter statute of May 14, 1880, and the railroad statute of March 3, 1887. Each of those statutes applied to all alike, of course, but we use the expression, squatter's and railroad's statutes as the public got to know him. However, in all that litigation there were scores of technical questions of law and fact, especially of first possession.
ODD INCIDENTS IN SQUATTER MELEES.
Fights and scraps for possession are not always consistent. A goodly number of scrimmages took place between the squatters themselves, and also with the old settlers, in attempts to forcibly move buildings across the road. either to get possession or to get somebody else off, and which at times would bring together quite a crowd. Nobody was ever seriously injured physically, but one can see the tension of feeling aroused.
GLAD HE WAS EVICTED.
It was Mr. Squatter, Mr. M. D. Finch. He first took possession of a piece of the Milwaukee land and had got his buildings erected, and lived on same some years and until the evictions in January. 1887. He and his family were among the evicted. As good luck should happen, a good quarter section of Sioux City land which had not yet been landed upon cornered to this Milwaukee quarter. Sheriff Clark Green, with his four deputies, came on with good official Irish eviction ceremonies, to land off and put out this
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good son of Erin, and proceeded to land Mr. Finch, family, buildings and all over on the other corner. A goodly crowd had assembled to witness Sheriff Green hold court, and perhaps take a hand, should need arise. But the Milwaukee road was on top and he was officially landed over onto a rich quarter of Sioux City land that proved out with other squatters' homesteads a good title and on which he still resides with his family, and the land worth one hundred and fifty dollars per acre. When you evict old Ireland, look out. She is still on hand for home rule at the next session of Parliament. as was squatter M. D. Finch.
AN INSANE CASE.
The writer, with his family, on one Christmas day, in 1889, was riding by one squatter's homestead land and house. I mistook the place for another man I wished to see. His barn was between the house and the road, some distance apart. As the barn was passed the thought came to look in the barn, as perhaps he was there. But all at once here came the squatter from the house, almost in a frenzy, cursing at the top of his voice, and insisting that I was "spying round to get a hook of possession on him and get him off." It was least in my mind. . A few months later he was sent to the insane hospital at Cherokee, and is yet there, incurable. It was not the special incident that drove him insane. as the evidence at the hearing de- veloped. but the severe tension of the three to four years of scrapping in the excitements for possession unbalanced him. It was a sad and true incident.
A HAY STACK POSSESSION.
Another incident I must mention as coming under my personal atten- tion in which I took a part. Many squatters came and went, got sick and quit, it all being experimental. They would often become intensely excited, especially when crowds assembled. This incident occurred on section 17. in Highland, in 1885. This six hundred and forty acres was all vacant, and covered with good prairie grass. Squatters had squatted on each quarter of it. William King, one of the old 1872 homesteaders, had cut and stacked on this section about sixty tons of hay in sundry stacks on different parts of the section. These new squatters feared that this haystack possession might be construed into a claim of possession, and they forbade Mr. King to re- move the hay. One day about twenty sympathizing squatters from sur- rounding sections assembled on this section, and lay down on the tops of
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these hay stacks, in singles, twos and threes, and then sent Mr. King a notice not to haul any hay. They did not need the hay, as they had no stock. It was purely a fear as to possession. Mr. King came to myself and George W. Schee for advice. Mr. King had a large family of sons and sons-in-law. We advised him to meet the question on the same basis of numbers. To watch for a day, when they seemed to be absent, and then have each son and son-in-law get a team and hay rack, go in a body and load and move the hay. This seemed so formidable that the squatters let them move the hay.
THE COWS NOT MILKED FOR TWO DAYS.
This incident occurred on this same section 17 in Highland. Mr. King had gone to attend the Sheldon district fair. His cattle, including a large number of milch cows, were ranging and grazing on this section. On the theory that these cattle were trespassing, and under the herd law which had been voted upon in O'Brien county and passed, squatters took possession of the whole herd and engaged the cattle corral of the neighbor, and locked up the cattle and several stood guard to see that he did not get his cattle out. Mr. Schee and I were again called in. It was a rainy season and the lot deep in mud. We went down. The squatters were firm in their legal opin- ions. This was the second day and the cows not milked and standing in the mud. They wanted one hundred and fifty dollars damages. A parley was held well into the day. Not an inch from that sum did they move. The owner of the lot, however had not fully sized the matter up. As a matter of fact, this owner was the only one who was financially good. The others were safe. As a last resort, we drew up an original notice and served on this man claiming in damages the full value of the cattle. He then woke up. They parleyed and began to drop in price, by tens of dollars at a time. They finally got down to two dollars damage. By that time we got gritty and held out. They were finally released with no damages allowed to the squat- ters. But after all they were in reality contending for supremacy of possession.
We have thus given a very extended account of this long-drawn-out squatter fight. It lasted practically thirty years, as a decisive public question. The lands of the Sioux City Company were in seven different townships and the Milwaukee lands in a larger number, all covering large legal questions and, including both squatters and old settlers, involved over half the citizens of the county. We realize that this squatter chapter may be thought too
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long and out of proportion in length for a well-proportioned county history, but as it has covered three-fourths of the whole period of the county's years, and including the whole business career of the writer, and in which the writer personally participated, it is fully given, the writer concluding that he will therefor be pardoned at times in using the pronoun I in reciting the details.
KING & STEARNS, ATTORNEYS, AND ROBERT P. JONES, SQUATTER.
This chapter on the squatters should not be closed without special men- tion of the very great services performed for and on behalf of the squatters by the firm of King & Stearns, composed of John T. Stearns, one of the very oldest settlers in the county, dating back to about 1875, and John H. King, of Huron, South Dakota, who put in practically ten years of labor in direct every-day consultations with the large number of one hundred and twenty- five on the Sioux City lands who finally won out, to say nothing of the still larger number on the Milwaukee lands and the scores of others who fell by the way for one reason and another. One could not state the matter in con- nection with them without mentioning the name of Robert P. Jones, who was constant in and out of season on all occasions. In the land court trials at Des Moines, covering more than one and one-half years, and at intervals, from day to day and week to week, he sat through with King & Stearns in continual advice and in keeping track of the actual facts in each special case that should be brought out. He was dubbed at times a part of the court; being constantly on hand, he had, next to Mr. Stearns, a better knowledge of the set of facts in each case in hand than any attorney on either side of the question. It was his part also in the county itself to go from man to man, squatter to squatter, from "shack to shack," as the expression went, to dig out the facts. So intense was the zeal in the matter that no item was considered too small to search out in its finest details. In addition to the "master stroke" decision in the United States supreme court, and even prior to that decision, the Sioux City road, on August 2.4, 1887, brought a suit for ejectment against practically all the squatters in separate suits. It was the case of Robert P. Jones in district court No. 1961 in O'Brien county. and a second case that against L. Mulligan that were made test cases. It was first decided in the district court against Mr. Jones, but, on appeal to the state supreme court, was reversed and decided in his favor.
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