USA > Iowa > O'Brien County > Past and present of O'Brien and Osceola counties, Iowa, Vol. I > Part 9
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
TAX SALE OF 1880.
As we have shown, the citizens quite generally for four years up to 1880 had refused to pay their taxes, on the line of the picnic speech by Thomas J. Steele. candidate for county auditor. The statutory penalties had added largely to the amount of taxes due. At the tax sale held October 7, 1880. conducted by T. J. Alexander, treasurer. and J. L. E. Peck, county auditor, these delinquent lands were sold for these four or less years as per the facts, for full taxes and penalties. A tax sale purchaser under the then law, got a penalty at once added of twenty per cent. as an inducement to purchase, and then ten per cent. interest on the whole amount. This, in connection
83
O'BRIEN AND OSCEOLA COUNTIES, IOWA.
with the fact that the values of land had risen somewhat, and the further fact that the county had at this date been on a cash basis for one year, and the people were getting heart again, brought out a large number of bidders and was the largest tax sale ever held in the county. The sale, together with funds from a prior sale, amounted to thirty thousand dollars. In the regular course of funds, this sum should have been distributed to the several county, poor, bridge and school funds, as per levies, and in theory of law it could have been enforced. The board, however, took the bull by the horns. as it were, discarded the question of funds, and applied the whole thirty thousand bodily on the debt of two hundred and thirty thousand dollars. This, as can be seen, reduced the debt to even two hundred thousand dollars. While in a sense it was illegal, yet as the four years were past, and even the schools needed only the coming current year's taxes, the people justified the board's action. It was one of the very few cases where a direct violation of law proved a crowning success. At all events, this payment and reduction of thirty thousand dollars of the public debt gave new heart to the people. . It was the first lifting of a dark cloud.
REBONDING OF JANUARY 4, 1881.
On January 4, 1881, on the opening of the second year of the term of J. L. E. Peck as county auditor, a further decisive action was taken by the board. Ten per cent interest on this debt still loomed up as a hard fate. On that date a resolution was passed to rebond this remaining two hundred thousand dollars of the debt by an issue of new bonds to take up all out- standing matters and to bear seven per cent. instead of ten per cent, thus reducing the annual interest six thousand dollars. This also revived the spirits of the people. The grasshoppers had quit. which had also lifted further the clouds. The reduction of the annual expense on the county fund to five thousand dollars, and even as late as 1883 to eight thousand dollars, broke loose still more clouds, for the blue sky and the sun to shine through. The effort to defeat the debt vanished entirely, and this fact gave the county, as well as individual obligations and land loans, a better credit. Land began to be quoted as a thing of real value, though even then at only from five to eight dollars per acre, and the people began to realize the dream of a home in O'Brien county. It took seventeen thousand signatures for the county auditor to sign those bonds and the coupons of interest attached, which still said that the county had a yoke on its neck. The railroads were in the mean- time being actually built, the Milwaukee in 1878 and the Northwestern in
St
O'BRIEN AND OSCEOLA COUNTIES, IOWA.
1881, and the people began to conclude that we might even yet amount to something. New settlers were added and people began to talk of the grass- hopper times as a past calamity. Still later on this debt was again rebonded and the interest this time reduced to five and still later to four and one-half per cent, and the people began to see the clear sky clear down to the horizon. But even then the people were exclaiming that if their land ever got up to twenty-five dollars per acre it would be the top, and they would sell at once, which many of them did, little dreaming that right here in O'Brien county was a soil unequalled anywhere on earth, and that in this year of grace 1914 it would actually sell for one hundred and fifty dollars per acre. The last thousand dollars of the debt was paid off in the year 1908.
CHAPTER V.
HOMESTEADS AND FREE LANDS.
SQUATTER LANDS-LITIGATION OVER THE OVERLAPPING LANDS.
The long-drawn-out contest, or series of contests, over the overlapping lands in O'Brien county commenced with the "squatter" in 1882 and did not end until 1910, and even yet, for several years, some of the fragments will appear in the courts. It has included several score of forcible entry and detainer suits, before justices of the peace, for possession, probably about eight hundred suits and litigations in the district court of the county. several hundred larger and test suits in the district and circuit courts of the United States, probably forty of same being before the circuit court, and half that number before the circuit court of appeals at St. Paul and St. Louis, and perhaps about ten before the supreme court of the United States. In addition to this, every tract in eighties or quarter sections has been before the land court of the United States land office at Des Moines, comprising two hundred and fifty separate hearings, with rehearings and intermediate items, with large numbers appealed to the general land office, and quite a number of hearings had before the secretary of the interior. There have been several special acts of Congress directed specifically to the lands in O'Brien county, and the matter has engaged the attention of the Legis- latures of the state of Iowa'in about a dozen acts and amendments. It is not every county that will receive a special proclamation by the President of the United States, but such was the case in the proclamation of President Grover Cleveland in 1896 in opening up these Sioux City lands to homestead entry. The questions involved several governors and attorney-generals of Iowa. Probably one hundred and fifty attorneys have been engaged on one side or the other in the multitude of items in litigation. Even such men as the celebrated Judge William Lawrence and Gen. Benjamin F. Butler have given it their attention. The board of supervisors of O'Brien county for twenty-five years have at almost every session had some tangled question relating to taxes, either with the railroads or with the squatters. Squatters'
86
O'BRIEN AND OSCEOLA COUNTIES, IOWA.
unions of litigants were continuous for twenty years, organized to keep up united investigation and action from their standpoint.
It involved two divisions of lands. That known as the Chicago, Mil- waukee & St. Paul Railroad Company, or, as we shall for brevity call them, the Milwaukee lands, involved forty-one thousand six hundred and eighty- seven and fifty-two hundredths acres, and which were patented to that road by the United States on September 27, 1886. The second division, com- posed of 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 originally granted to the Sioux City & St. Paul Company on May 12, 1864, but which they failed to earn, as we shall see herein. The claims of this latter road form the basis of the contentions we will recite in this chapter. The real questions involved were finally submitted to and decided by the supreme court of the United States on October 21. 1895. in favor of the squatters and the President's proclamation opened the same to homestead entry, as preferred entrymen under the act of Congress of May 14, 1880, which act provided that whoever took actual bona fide posses- sion of any vacant tract of public land, whether surveyed or unsurveyed. in good faith intention to make same a home, should have the first thirty days' right after proclamation by the President of the United States that same was subject to entry, to file his application and proofs of possession. In fact, the matter has been one of the biggest single items of public interest ever in the county, and forms the basis or reason for devoting a lengthy chapter in giving its details.
The first half of the fight included both the Milwaukee and Sioux City lands. The whole trouble and litigation grew out of the crude and incon- sistent acts of Congress in making its grant of lands to aid railroads in their construction in the newer countries or sections where the traffic of railroads would not collect a paying revenue to run and manage a road.
GRANTING ACT OF CONGRESS.
The Congress of the United States, on May 12, 1864, passed an act for the grant of lands to the state of Iowa, in alternate sections of land, to aid in the construction of railroads, namely, granting one hundred sections, or about sixty-four thousand acres, for each section of ten miles of a fully equipped railroad built.
This grant applied to both the Chicago, Milwaukee & St. Paul Railroad Company and the Sioux City & St. Paul Railroad. Each of these roads was
87
O'BRIEN AND OSCEOLA COUNTIES, IOWA.
first known by the name of the construction company building same, but to avoid confusion we will speak of them by their later names. The grant, in result, provided that the Milwaukee company should be built from Mc- Gregor, lowa, west and form a junction with the Sioux City road in O'Brien county, or, as it later developed. at Sheldon, Iowa.
These lands were to be selected in alternate sections, by the odd num- bers, under certain conditions within the ten-mile limits, and under certain other conditions within twenty miles of the respective lines of road. Thus it may be seen that in the very grant itself the subject of friction was laid and at once became a bone of contention between the two roads. This question arises at each point of forty miles square wherever two great roads cross, receiving such a grant, but as two roads can only cross once, and as these grants were made only to long through lines, there are but few such cases, and it fell to the lot of O'Brien county to be inflicted for twenty-five years with the litigations of such an overlap of lands, hence called "overlap- ping lands."
FIRST FIGHT BETWEEN THE TWO RAILROADS.
The first legal contest occurred between the two railroads to determine what those overlapping interests caused by this grant meant. This was brought on by a suit in equity brought in the United States circuit court at Sioux City, Iowa, in 1884 by the Chicago, Milwaukee & St. Paul Railroad as plaintiff against the Sioux City & St. Paul Railroad Company, and Elias F. Drake and Alexander H. Rice as Trustees (later Mr. Rice resigned and Amherst H. Wilder was named in his place), and who were holders of said lands as trustees to secure two million eight hundred thousand dollars in the bonds of said road, to raise funds to build same, John H. Gear, Governor of lowa, and J. K. Powers, Register of the State Land Office for Iowa, de- fendants.
There were many legal questions involved relating to the relative rights of the lands within the ten-mile and twenty-mile limits. In brief, the court dealt with the matter on equity principles as in partition of lands, solving it out in sundry classes according to those rights, but, in result, giving to each road its particular sections or parts thereof in sole ownership. This suit was finally submitted to Judge Love. October 7, 1886, and decided as above. A referee or master in chancery was appointed by the court to make the actual partition. This he did and his report of same was confirmed and decree rendered December 18, 1886. This decree will be found recorded in the office of the county recorder. But this decision only decided the matters
88
O BRIEN AND OSCEOLA COUNTIES, IOWA.
between the roads themselves. It did not and could not decide whether or not the roads had in fact earned the lands under the grant.
THE MILWAUKEE RAILROAD LAND.
This allotment of lands to the Milwaukee road was in fact patented to that road by the state of Iowa under the patent on September 27, 1886, and its record found in book 23. page 436, of deed records of the county. The question of its title to these lands never got into the large courts seriously, though Dr. H. M. Hamblin in part raised the question at one time, as did the lands of the Sioux City Company. The question of its title and the issuance of its patents was solved largely in the general land office at Wash- ington. This company sold all this large allotment of forty-one thousand six hundred and eighty-seven and fifty-two hundredths acres to the Western Land Company, of which E. McMurtree was one of its officers and chief manager so far as its activities in this county were concerned. This com- pany had many years of contentions with the squatters in evictions, as below shown, and Mr. McMurtree became for ten years a well known and fighting character in the county and its courts, and in his dealings in inducing many of them to purchase and in evicting by writs those who refused to purchase. In result, its titles were maintained.
COMMENCEMENT OF REAL SQUATTER POSSESSION.
The real squatting on lands applied to the lands of both roads. Credit must be given to the discovery of the real squatter idea to Dr. Howard M. Hamblin, who came to O'Brien county in 1881 and purchased school lands in Highland township, settling in Primghar. He proceeded at once as a squatter on the northeast quarter of section I, in Dale township, being now a part of Derby & Rowan's addition to Primghar, and erected a residence on what is now Main street. We say residence, but in fact it was a squatter's shanty, though of the better variety. Doctor Hamblin came as a real settler and farmed for many years his lands in Highland township. He had been an office holder in Washington and there got hold of this squatter idea. He was a very sanguine man, set positively in his idea, which amounted almost to a hobby, though not quite sufficiently practical to get down to the real legal questions involved, which all saw later must govern. He never got down to the real fact that the two roads were not on the same footing. one, the Milwaukee road, having already, in 1878, completed its road to
89
O'BRIEN AND OSCEOLA COUNTIES, IOWA.
Sheldon as per the grant, while the Sioux City road had only built to Le Mars, Iowa, which was finally fatal to its proofs relating to the earning of its lands. His fight was much a mass fight against all railroads. It had been true that both roads had dilly-dallied in building, waiting as long as they dared, and building only when they had to, not in reality fulfilling the real intent of Congress to aid railroads in building across the then barren prairie to induce settlers to come in. Indeed the roads waited for the settler him- self. This provided the argument for prejudice against the railroad. Many squatters accepted this fiery argument against the railroad as the law, losing sight of the fact that the courts and departments, and even the supreme court of the United States, on cold principles of law, must and did finally decide. Doctor Hamblin proceeded too much in moral efforts with mem- bers of Congress and the Legislature for new proceedings and enactments. He evidently overlooked the fact that even Congress by new enactment could not take away a single right that either road had acquired under the grant by building. The roads had acquired vested rights and must have their day in court, and the courts only could decide the questions finally.
Doctor Hamblin, however, was a very active and persistent man and kept the roads, as well as the squatters, sitting up and taking notice. He was sincere and dealt with the squatter candidly from his viewpoint. He pro- ceeded to advertise in sundry Scandinavian, Dane, German and American papers, that there were large tracts of homestead land subject to entry in O'Brien county. He talked to the writer as county auditor, through whom he purchased his school lands, on this squatter subject as early as 1880, and wanted him to go into the matter. This was discussed in the county, at first faintly, but did not reach a stampede or influx of squatters until February 22, 1884.
AN EXCITED CROWD.
On that date the writer arrived home from a trip and found the whole public square around the court house, and every hitching post in town, lined with teams, buggies, wagons and saddle horses in hundreds. The motley crowd thus called together were much excited over these homestead lands. People came during the next several days and weeks from everywhere, real homesteaders of the bona fide class, land speculators, promoters, young men not even twenty-one years of age, even ladies, attorneys, bankers, business men and wealthy people. Many foreigners came in response to the adver- tisements in the papers and with small idea of what it all meant. An entry
90
O BRIEN AND OSCEOLA COUNTIES, IOWA.
for homestead may be made before a clerk of courts, provided they are more than one hundred and fifty miles from the land office which in this case they were. This fact, together with getting actual possession, brought the crowd. The clerk could not make out papers fast enough. The writer was besieged for advice and to draw papers. He gave to all the same advice as did most other attorneys, namely, that he would draw the papers, but that the whole law question or questions were yet unsolved and that they must take their chances on results.
POSSESSION NINE POINTS OF THE LAW.
The act of Congress of May 14. 1880, has already been referred to, giving to every person first, in possession of such government lands with bona fide intent, the first thirty days' right to enter it as a homestead. This made quick work necessary to get possession and to make a bona fide show- ing of a home and house and to be actually in possession. Much of it would have been humorous had it not been so serious.
Thus far and for six years this excitement applied itself to the lands of both roads, neither Doctor Hamblin, who assumed the leadership, nor the squatters in their choice of location making any difference as to which lands they jumped or took possession of.
THE OLDER SETTLERS BECOME A FACTOR.
These lands being the odd numbered sections, and the still older home- steaders of 1870-71-72 having homesteaded the even numbered sections, many of them for one reason and another had either broken up a few acres, or broke around some haystack to protect them, or broke up a strip in front of their premises as a protection against prairie fires, or built some cattle corral or shed, sheep shed, granary or secondary building across the roads from their homes, on some part of these railroad lands. Many of these people or their grown-up-sons at once saw the point of possession, and many families or a member at once put in a bed or a cot, stove and cupboard and were housekeeping within a few hours. Old stoves were at a premium. Improvised chimneys were built in old sheds, all to make up a bona fide appearance. A few even proceeded, so excited were they, to move their main substantial buildings, even buildings that it would materially damage to so remove. These new comers at once saw that they had to get quickly into possession.
91
O'BRIEN AND OSCEOLA COUNTIES, IOWA.
SQUATTERS' SHANTIES.
As one can see, in this excitement little shacks jumped up over night all over these lands, and resulted, in many cases, in two and three men getting possession the same day, and often on getting up in the morning to find themselves "jumped," as it was called by some enterprising squatter who had during the night built or pulled on a shanty on the other end of his land. One load of lumber in many cases built a "home," often at a cost of about fifteen dollars. In the later litigation on the Sioux City lands, these first sudden possessions became in fact very material.
JUMPING BECAME A BUSINESS.
"Jumping" brought on many contentions. Indeed, in many cases, where two men jumped on in the night, and on different parts of a quarter section of land, it became difficult to tell or prove who was first. Others openly jumped the other man and took his chances. The older settlers of 1870-72 who already had shacks on these lands, claimed they had possession all the time for all those years. This brought on physical combats, and even burnings of each others' buildings and openly moving each other's shacks off. It happened in many instances, for even a number of years, that two men, fully knowing the facts, would put double crops in on top of each other, and often of different grains. This brought on litigations and proceedings to keep the peace. Farming with a revolver was often indulged in. Many forcible entry and detainer suits for possession before justices of the peace were brought to put one another off. The writer participated in many of them as attorney. Many odd and amusing scenes took place.
NOT A CRIME-DIDN'T STEAL THE LUMBER.
I will give one actual incident to illustrate. One dapper little attorney came hurriedly from Chicago, on hearing of the excitement, dressed as if out of a band box. He was on the ground early and proved much of a scrapper. He hauled two separate loads of lumber on two separate tracts, on the theory that he would at least succeed on one of them. He got one load hauled on the southwest quarter of section 29, in Center township, where Bert Foskett had broke up and farmed a little strip for several years, ad- joining his father's farın. Bert heard of it and in the night proceeded to run the lumber up into the attic of the school house on the land. The Chi-
92
O'BRIEN AND OSCEOLA COUNTIES, IOWA.
cago attorney in the morning was minus his lumber, or at least could not find it. He had Bert arrested for stealing the lumber. The writer defended on the ground that there was no intention to appropriate his property, simply to hide it temporarily, which was the true fact, hence no theft, and that theory at least was sustained. In the meantime during the two days occu- pied with this suit Bert had built a counter building of fair proportions and established his possession. It being Milwaukee land. he later bought it and got title. The little attorney who had come out from Chicago with quite a flourish of law, after spending about one hundred and fifty dollars, as he told me. went home in disgust, but with the idea that "teaching the natives" on western wild prairies was a new experience.
PRETEXTS OF POSSESSION.
The 1872 settlers, who had been for twelve years in the habit of cutting hay and grazing their stock on these odd numbered sections of land, sought all kinds of pretexts for claiming possession, some winning out and some failing.
A "HOME" IN A BIG DRY GOODS BOX.
One man got so excited that he hustled out with a big dry goods box and actually slept in it for three nights, until he could get something substantial on the ground. and in his case he actually won out.
TWO INCONSISTENT STATUTES.
First-I have already referred to the act of Congress of May 14, 1880, giving, in effect. the squatter first in possession, with bona fide intentions to make the land a home. the first thirty days' right to enter same when declared to be opened for homestead entry. This was the statute under which the squatters made their fight.
Second-On March 3, 1887, Congress passed a very extensive act re- lating to public lands, but among its provisions was a clause providing that any purchaser of land from a railroad, bona fide in good faith, whether earned or unearned, shall have the first thirty days' right to purchase the land from the government at the regular government price of two and fifty hundredths dollars or four hundred dollars per quarter section of land. This was evidently passed in the interest of the railroads. In result, it enabled the railroad to sell and get the full value of the land less this four
93
O'BRIEN AND OSCEOLA COUNTIES, IOWA.
hundred dollars per quarter section, and this, too, whether it had built the road or not.
Here, however, the courts, as well as the squatters and railroads and contract holders from the railroads, found two diametrically inconsistent statutes, each giving the first right to two necessarily opposing men. In each case the phrase "bona fide" or good faith entered as a requirement, and this opened up much contending evidence of eye witnesses in the later hearings. The Sioux City road had in the meantime anticipated the matter by selling and issuing contracts for a large part of this twenty-one thousand one hun- dred and seventy-nine and fifty-two hundredths acres allotted, but not earned. Then, when it saw that a real contest was on in earnest, proceeded to sell all unsold balance in one drag-net contract to one Gotleib Schwartz, evidently to make one last clean-up. Then later, by assignments from him to various other parties it was sought to press before the courts this contract and these assignments as bona fide purchases, but this man Schwartz having been shown to be virtually acting for the road, the courts after long litigation held them frauds. Some residents of the county even helped to carry out this scheme.
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.