USA > Iowa > Boone County > The history of Boone County, Iowa, containing biographical sketches war records of its volunteers in the late rebellion, general and local statistics, portraits of early settlers and prominent men, history of the Northwest, history of Iowa, map of Boone county etc. > Part 58
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Ninth. The railroad grant. By this grant the State came into posses- sion of a large quantity of land which was donated to certain corporations in aid of several lines of railroad, spoken of more specifically in our chap- ter on railroads.
Tenth. The Agricultural College grant. By this grant each State in the Union received, for the purpose of founding an agricultural college, a quantity of land equal to thirty thousand acres for each senator and repre- sentative in Congress. Out of this fund was founded the college at Ames.
Having thus merely alluded to the different grants, it is now our pur- pose to speak more fully of those grants in which Boone county has more particularly been interested in, viz .: the Des Moines river grant and the swamp land grant.
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HISTORY OF BOONE COUNTY.
At that time Iowa was a territory, organized under the act of June 12, 1838. (5 Stat., 235.) On the 8th of Angust, 1846, Congress passed the act making the Des Moines river grant, the material parts of which are as follows:
" AN ACT granting certain lands to the Territory of Iowa, to aid in the improvement of the navigation of the Des Moines river in said Territory.
" Be it enacted by the Senate and House of Representatives of the Uni- ted States of America in Congress assembled, That there be, and hereby is, granted to said Territory of Iowa, for the purpose of aiding said Ter- ritory to improve the navigation of the Des Moines river from its month to the Raccoon Fork (so-called) in said Territory, one equal moiety, in al- ternate sections of the public lands (remaining unsold and not otherwise disposed of, inenmbered or appropriated) in a strip five miles in width on each side of said river, to be selected within said territory by an agent or agents to be appointed by the Governor thereof, subject to the approval of the Secretary of the Treasury of the United States.
" SEC. 2. And be it further enacted, That the lands hereby granted shall not be conveyed or disposed of by said Territory, nor by any State to be formed out of the same, except as said improvements shall progress; that is, the said Territory or State may sell so much of said lands as shall produce the sum of thirty thousand dollars, and then the sales shall cease until the Governor of said Territory or State shall certify. the fact to the President of the United States that one-half of said sum has been ex- pended upon said improvements, when the said Territory or State may sell and convey a quantity of the residue of said lands sufficient to replace the amount expended; and thus the sale shall progress as the proceeds thereof shall be expended, and the fact of such expenditure shall be certified as aforesaid.
"SEC. 4. 'And be it further enacted, that whenever the territory of Iowa shall be admitted into the Union as a State, the lands hereby granted for the above purpose shall be and become the property of said State for the purpose contemplated in this act, and for no other, provided the legislature of the State of Iowa shall accept the said grant for the said purpose."
On the 17th of October, 1846, the commissioner of the general land office requested the Governor of the Territory to appoint an agent to select the land under the river grant, at the same time intimating that the grant only extended from the Missonri line to the Raccoon fork of the Des Moines river. On the 17th of December, a few days before the admission of the State, the territorial authorities designated the odd numbered sec- tions as the lands selected under the grant. The State accepted the grant in form by joint resolution of the general assembly, approved Jannary 9, 1847. On the 24th of February following, the State created a " board of public works," to whom were committed the work, construction, and man- agement of the river improvement and the care, control, sale, disposal and management of the lands granted the State by the act of 1846. This board was organized September 22, 1847, and on the 17th of February, 1848, the commissioner of the general land office, in an official communication to the secretary of the board, gave it as the opinion of his office that the grant extended throughout the whole length of the river within the limits of the State. On the 19th of June, 1848, without any notice of a revocation of this opinion, a proclamation was issued by the President, putting in mar- ket some of the lands above the Raccoon fork, which would go to the State
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if the commissioner was right in the construction he gave the grant. This led to a correspondence on the subject between the proper officers of the State and the United States, which resulted in the promulgation of an offi- cial opinion by the secreta. y of the treasury, bearing date March 2, 1849, to the effect that the grant extended from the Missouri line to the source of the river. In consequence of this opinion, the commissioner of the general land office, on the first of the following June, directed the regis- ters and receivers of the local land offices to withhold from sale all the odd- numbered sections within five miles on each side of the river above the Raccoon fork.
Afterward, the State authorities called on the commissioner of the general land office for a list of lands above the Raccoon fork which would fall to the State under this ruling. The list was accordingly made out, and on the 14th of January, 1850. submitted to the secretary of the interior for approval; jurisdiction of matters of that kind having been before that transferred by law from the treasury to the interior department. On the 6th of April the secretary returned the list to the land office with a letter declining to recognize the grant as extending above the Raccoon fork with- out the aid of an explanatory act of Congress, but advised that any immedi- ate steps for bringing the lands into market be postponed in order that Congress might have an opportunity of acting on the matter if it saw fit.
On the 29th of October, 1851, the secretary of the interior, after consulta- tion with the president and his cabinet, and pursuant to a decision there made, wrote the commissioner of the general land office as follows:
"SIR :- I herewith return all the papers in the Des Moines case, which were recalled from your office about the first of the present month.
" I have reconsidered and carefully reviewed my decision of the 26th of July last, and in doing so find that no decision which I can make will be final, as the question involved partakes more of a judicial than an executive character, which must ultimately be determined by the judicial tribunals of the country and although my own opinion on the true construction of the grant is unchanged, yet in view of the great conflict of opinion among the execu- tive officers of the governinent, and also in view of the opinions of several eminent jurists which have been presented to me in favor of the construc- tion contended for by the State, I am willing to recognize the claim of the State, and to approve the selections without prejudice to the rights, if any there be, of other parties, thus leaving the question as to the proper con- struction of the statute entirely open to the action of the judiciary. You will please, therefore, as soon as may be practicable, submit for my ap- proval such lists as may have been prepared, and proceed to report for like approval lists of the alternate sections claimed by the State of Iowa above the Raccoon fork, as far as the surveys have progressed, or may hereafter be completed and returned."
The lists were made out accordingly.
Until the 17th of December, 1853, the State itself, through its board of public works, carried on the work of improving the river, paying the ex- pense from the proceeds of the sales of the lands included in the river grant. A land office had also been established for the sale of these lands. On that day the State entered into a contract with one Henry O'Reilly to complete the work. This contract O'Reilly transferred, with the consent of the State, to the Des Moines Navigation and Railroad Company, a New York corporation, and on the 9th of June, 1854, in consequence of this
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HISTORY OF BOONE COUNTY.
transfer, a new contract was entered into between the State and the corpor- ation for the purpose of simplifying and more fully explaining the original contracts and agreements. By the new contract the State agreed to con- vey to the company "all of the lands donated to the State of Iowa for the improvement of the Des Moines river by act of Congress of Angust 8, 1846, which the said party of the second part " (the State) " had not sold np to the 23d day of December, 1853." This was the date at which it was sup- posed the sale of the lands could be stopped at the State land office after the contract with O'Reilly.
Prior to the contract with O'Reilley, the State had from time to time disposed of lands belonging to this grant and had applied the proceeds to the improvement of the river, and prior to the making of the contract with the Des Moines Navigation Company, June 9, 1854, the State had sold about 327,000 acres of land, of which amount 48,830 acres were lo- cated above the Raccoon fork.
Subsequent to June 9, 1854, the Des Moines Navigation Company car- ried on the work under their contract with the State. As the improvement progressed, the State from time to time, by its anthorized officers, issued to the company, in payment for said work, certificates for lands. These certificates were in the usual form of certificates issued for entries of pub- lic lands. The first one, dated May 14, 1855, certified 88,853.10. The second, dated May 6, 1856, certified 116,636.54 acres. Together, 205,489.64 acres, and all located above the Raccoon fork, excepting about 50,000 aeres.
At length a disagreement and misunderstanding arose between the State and the navigation company, and the general land office ceased to certify lands under the act of Angust 8, 1846, and there being no other provision for paying for the improvement, for the purpose of final settlement with the river navigation company, the general assembly, on March 22, 1858, passed the following joint resolution:
WHEREAS, The Des Moines Navigation and Railroad Company have heretofore claimed and do now claim to have entered into certain contracts with the State of Iowa, by its offi- cers and agents, concerning the improvement of the Des Moines river in the State of Iowa; and,
WHEREAS, disagreements and misunderstandings have arisen, and do now exist, between the State of lowa and said company, and, it being conceived to be to the interests of all par- ties concerned to have said matters, and all matters and things between said company and the State of Iowa settled and adjusted; now, therefore,
Be it resolved by the General Assembly of the State of Iowa, That for the purpose of such settlement, and for that purpose only, the following propositions are made by the State to said company : That the said company shall execute to the State of Iowa full releases and discharges of all contracts and agreements and claims with or against the State, including rights to water rents which may heretofore or do now exist, and all claims of all kinds against the State of Iowa and the lands connected with the Des Moines river improvement, excepting such as are hereby secured by the State to the said company, and also, surrender to the State the dredge boat and its appurtenances belonging to the said improvement, and the State of lowa shall, by its proper officers, certify and convey to the said company all lands granted by act of Congress, approved Angust 8, 1846, to the Territory of Iowa to aid in the improve- ment of the Des Moines river of Iowa.
It was further agreed that said river company convey to the State all materials of every kind and description prepared for, or intended for the construction of locks and dams in said improvement and that the State should take the existing contracts but no other liabilities, except construct- ing or repairing the works on certain improvements at Keosauqna, Ben-
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HISTORY OF BOONE COUNTY.
tonsport, Plymouth and Croton; it was also agreed that the river company should be discharged from all claims and was to pay to the State the sum of twenty thousand dollars. It was also provided that certain of the lands not thus granted to the company for the improvement of the river, be granted to the Keokuk, Des Moines and Minnesota Railroad Company to aid in the construction of a railroad up and along the valley of the Des Moines river, provided, further, that Congress should permit such a diver- sion of the lands. This proposition on the part of the State was conditional upon the navigation company accepting it within sixty days from the passage of the joint resolution.
The company accepted the proposition, paid the State $20,000 in cash and conveyed to the State the old dredge boat referred to in the resolution.
On the 3d of May, 1858, the State issued to the company fourteen deeds or patents, conveying to the said company 256,703.64 acres of land, describ- ing the same by section, township and range.
May 18th, same year, the State executed to the company still another conveyance, intended to cover any tracts or parcels which might have been overlooked or omitted in the fourteen deeds previously executed. These fifteen deeds conveyed to the river company 266,108 acres, of which about 53,367 were below the Raccoon fork, and the balance 212,741 acres above the Raccoon fork.
The General Assembly on the 22d of March, 1858, donated to the Keo- kuk, Des Moines and Minnesota Railroad Company all the lands, stone, tim- ber and other material turned over to the State by the navigation company, excepting the land belonging to said grant sold to said navigation company by virtue of a settlement of the old contract. In accepting the donation, the Keokuk, Des Moines and Minnesota Railroad Company agreed to assume certain liabilities growing out of original contracts made by the navigation company and assigned by the State.
Thus the matter stood so far as the State and the river company and railroad company were concerned till 1861. Some progress was made in constructing the railroad, and the river company was disposing of its lands. In the meantime private individuals and other corporations had acquired titles to certain lands along the river above the Raccoon forks and their titles conflicting with the title of the river company and the railroad com- pany, the conflict resulted in litigation, and at the December term, 1859, of the Supreme Court, and during the month of April, 1860, in the case of the Dubuque and Pacific Railroad Company v. Litchfield, 23 How., 66, it was decided that the river grant as originally made did not extend above the Raccoon fork, and thereupon, on the 18th of May, 1860, the com- inissioner of the general land office sent to the registers and receivers of the local land offices a notice to be promulgated, as follows:
" Notice is hereby given that the lands along the Des Moines river, in Iowa, and within the claimed limits of the Des Moines grant in that State, above the month of the Raccoon forks of said river, which have been re- served from sale heretofore on account of the claim of the State thereto, will continue reserved for the time being from sale or fromn location by any species of scrip or warrants, notwithstanding the recent decision of the Supreme Court against the claim.
" This action is deemed necessary to afford time for Congress to con- sider, upon memorial or otherwise, the case of actual, bona fide settlers holding under titles from the State, and to make such provision, by cou-
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firmation or adjustment of the claims of snch settlers, as may appear to be right and proper."
On the 2d of March, 1861, (12 Stat., 251,) Congress passed the follow- ing joint resolution :
" Joint resolution to quiet title to lands in the State of Iowa.
" Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That all the title which the United States still retain in the tracts of land along the Des Moines river, and above the month of the Raccoon forks thereof, in the State of Iowa, which have been certified to said State improperly by the depart- ment of the interior as part of the grant by act of Congress, approved August 8. 1846, and which is now held by bona fide purchasers under the . State of Iowa, be and the same is hereby relinquished to the State of Iowa."
When this resolution of Congress was urged in the interest of the river company in subsequent suits it was claimed by the attorneys and held by the conrts that titles to real estate could not pass by resolution and that an act would be necessary to pass title. Consequently, July 12, 1862, the following act was passed:
" Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the grant of lands to the Territory of Iowa, for the improvement of the Des Moines river, made by the act of August 8, 1846, is hereby extended so as to include the alternate sections (designated by odd numbers) lying within five miles of said river, between the Raccoon forks and the northern boundary of said State; such lands are to be held and applied in accordance with provisions of the original grant, except that the consent of Congress is hereby given to the application of a portion thereof to aid in the construction of the Keokuk, Fort Des Moines and Minnesota railroad, in accordance with the provisions of the act of the general assembly of the State of Iowa, approved March 22, 1858; and if any of said lands shall have been sold or otherwise disposed of by the United States before the passage of this act, excepting those released by the United States to the grantees of the State of Iowa, under the joint resolu- tion of March 2, 1862, the secretary of the interior is hereby directed to set apart an equal amount of lands within said State to be certified in lien thereof; provided, that if the said State shall have sold and conveyed any portion of the land lying within the limits of this grant, the title of which has proved invalid, any lands which shall be certified to said State in lieu thereof, by virtue of the provisions of this act, shall inure to and be held as a trust fund for the benefit of the person or persons respectively whose titles shall have failed as aforesaid."
After the passage of the joint resolution of March 2, 1861, the commis- sioner of the general land office called on the governor of the State for a list of the tracts of lands " held by bona fide purchasers of the State of Iowa" on that date. In response to this request, the governor and land commissioner of the State, on the 20th of November, 1862, furnished the list required, and, among others, included the tracts granted to the naviga- tion company, on the settlement made with that company under the joint resolution of March 22, 1858. This list was filed in the general land office December 1, 1862.
Notwithstanding this additional legislation, and frequent decisions by the higher courts, much of the land thus granted to the river company was
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HISTORY OF BOONE COUNTY.
preempted by settlers, and quite a number of parcels were patented by them. These transactions have eventuated in interminable lawsuits, dis- putes and neighborhood disturbances, which at times have resembled riots. These disturbances have contributed to greatly retard the settlement of the country. While the best jurists hold that there is no longer any question in regard to the title of these lands being vested in the river company, yet there seem to be some legal points in favor of the settlers, and the moral grounds being generally considered to be that of the preemptor, there are many who still hold out and defy the river company. The whole history of this river land controversy is a most deplorable one, and as many inno- cent persons have been made to suffer by the rulings of the court, they, of course, have the public sympathy on their side. It is one of those instances in which there seems to be a conflict between legal right and moral right. One of the most formidable disturbances which has grown out of these land controversies occurred several years ago, an account of which is given in one of a series of articles entitled " Boone County Wars," recently pub- lished in the Boone " Democrat," which we reproduce at another place.
In the building of the Keokuk, Des Moines and Minnesota railroad the the conditions of the grant were complied with in locating the line to Des Moines, but in extending the road north of the latter place the company used their utinost endeavor to evade any conditions laid upon them and at the same time claimed with urgency and exactness their full grant ac- cording to the act. They first sought to extend the line up the Raccoon river, claiming that by running their road up any of the tributaries of the Des Moines river was filling the conditions of the grant which called for a road up the valley of the Des Moines. The matter was brought into the legislature and the proposition of the company to locate their road entirely outside the bounds of the grant was defeated only by the most active and energetic measures of Judge Mitchell and a few others, who were then members of the general assembly. In reply to the claim that running up Raccoon river would fill the conditions of the grant, Judge Mitchell made the following argument in the State senate, of which he was at that time a member, March 24, 1870:
" In 1860 the Supreme Court in the Litchfield case held that the grant extended up to the mouth of 'Coon river; then the legislature memoralized Congress to extend the grant above Raccoon forks up the Des Moines river, and Congress extended the grant, and all subsequent legislation was had in reference to running a railroad up the Des Moines valley above the month of 'Coon river. This became a new point of departure, and it would be just as reasonable to say that when an act or contract requiring a rail- road to be built up the Mississippi valley above the mouth of the Ohio river, was made or entered into it would be a compliance thereunto to run it up the Ohio river to Wheeling and Pittsburgh."
The railroad company were compelled to abandon the idea of running np 'Coon river, but nevertheless failed to comply with the spirit and letter of the grant, greatly to the disappointment and disadvantage of the peo- ple of Boone county, and, as before remarked, greatly to the detriment of the railroad itself. Had the conditions of the grant been strictly complied with, as the railroad company would doubtless have been compelled to do had it not been for the bad faith of the representatives of Webster county, the road would have passed through the center of Boone county instead of cutting across a corner of it, and had it been thus located the county
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would have been greatly benefited and the road would have had a much more lucrative traffic.
The history of the swamp land grant is brief and can be quickly re- counted; it nevertheless has an important bearing upon the history of Boone county.
When that region of country lying in the central and northern portions of Iowa was surveyed it appeared that there were many sloughs or small swamps. In 1850 the Congress of the United States passed an act en- titled " An act to enable the State of Arkansas and other States to reclaim the swamp lands in their limits."
By this act the general government donated to Arkansas all the swamp lands in the State, the proceeds from the sale of the same to be applied to the draining and reclaiming of said lands. The last section of the act ex- tends the provisions of the bill to any and all States in the Union having swamp lands within their limits.
By virtue of the provisions of this act the title of the swamp lands in Iowa became vested in the State. These lands were afterward donated by the State to the several counties in which they were located. It was the duty of the County Surveyors and other officials appointed by the county courts, to select and survey all the swamp lands in the several counties and when these lands were certified to, the title, which had already passed from the general government to the State, was passed from the State to the county. We have already seen that the swamp lands of Boone county were sur- veyed as early as 1854 by County Surveyor Wood, and the expense of sur- veying the same, amounting to $240, had been assumed by the county. In Boone county there were over 18,000 acres of these swamp lands, all of which became the property of the county in 1855. According to the pro- visions of the aet granting these lands, it was necessary that the proceeds of their sale should be used in draining and reclaiming them. These lands had now become the property of the county, but the county could make but one disposition of them, and that was to reclaim them. Thus it was that shortly after the county received the title to the swamp lands con- tracts began to be made with various parties in the county whereby said parties were to receive certain parcels of swamp land for and in considera- tion of having drained a certain portion swamp lands. This plan was con- tinued for some time, when it was found that the lands were passing into the possession of private individuals who had given no consideration ex- cept, probably, plowing a furrow and calling it a ditch. Thus matters stood in March, 1858, when Congress passed another act permitting coun- ties by a vote of the people to contribute their swamp lands in aid of rail- roads or the erection of seminary buildings.
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