Western Historical Co.

The history of Jefferson County, Iowa, containing a history of the county, its cities, towns, &c., a biographical directory of citizens, war records of its volunteers in the late rebellion, general and local statistics, portraits of early settlers and prominent men, history of the Northwest, his online

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Online LibraryWestern Historical CoThe history of Jefferson County, Iowa, containing a history of the county, its cities, towns, &c., a biographical directory of citizens, war records of its volunteers in the late rebellion, general and local statistics, portraits of early settlers and prominent men, history of the Northwest, his → online text (page 24 of 75)
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to the State by Act of Congress of August 8, 1846, which the State had not
sold prior to December 23, 1853, for $1,300,000, to be expended on the im-
provement of the river, and in paying the indebtedness then due. This con-
tract was duly reported to the Governor and General Assembly.

By an act approved January 25, 1855, the Commissioner and Register of
the Des Moines River Improvement were authorized to negotiate with the Des
Moines Navigation & Railroad Company for the purchase of lands in Webster
County which had been sold by the School Fund Commissioner as school lands,
but which had been certified to the State as Des Moines River lands, and had,
therefore, become the property of the Company, under the provisions of its
contract with the State.

March 21, 1856, the old question of the extent of the grant was again raised
and the Commissioner of the General Land Office decided thc-> it was limited to



HISTORY OF THE STATE OF IOWA. 209

the Raccoon Fork. Appeal was made to the Secretary of the Interior, and by
him the matter was referred to the Attorney General, who decided that the grant
extended to the northern boundary of the State; the State relinquished its
claim to lands lying along the river in Minnesota, and the vexed question was
supposed to be finally settled.

The land which had been certified, as well as those extending to the north-
ern boundary within the limits of the grant, were reserved from pre-emption
and sale by the General Land Commissioner, to satisfy the grant of August 8,
1846, and they were treated as having passed to the State, which from time to
time sold portions of them prior to their final transfer to the Des Moines Navi-
igation & Railroad Company, applying the proceeds thereof to the improve-
ment of the river in compliance with the terms of the grant. Prior to the final
sale to the Company, June 9, 1854, the State had sold about 327,000 acres, of
which amount 58,830 acres were located above the Raccoon Fork. The last
certificate of the General Land Ofiice bears date December 30, 1858.

After June 9th, 1854, the Des Moines Navigation & Railroad Company
carried on the work under its contract with the State. As the improvement
progressed, the State, from time to time, by its authorized officers, issued to the
Company, in payment for said work, certificates for lands. But the General
Land Office ceased to certify lands under the grant of 1846. The State
had made no other provision for paying for the improvements, and disagree-
ments and misunderstanding arose between the State authorities and the
Company.

March 22, 1858, a joint resolution was passed by the Legislature submitting
a proposition for final settlement to the Company, which was accepted. The Com-
pany paid to the State $20,000 in cash, and released and conveyed the dredge boat
and materials named in the resolution ; and the State, on the 3d of May, 1858,
executed to the Des Moines Navigation & Railroad Company fourteen deeds
or patents to the lands, amounting to 256,703.64 acres. These deeds were
intended to convey all the lands of this grant certified to the State by the Gen-
eral Government not previously sold ; but, as if for the purpose of covering any
tract or parcel that might have been omitted, the State made another deed of
conveyance on the 18th day of May, 1858. These fifteen deeds, it is claimed,
by the Company, convey 266,108 acres, of which about 53,367 are below the
Raccoon Fork, and the balance, 212,741 acres, are above that point.

Besides the lands deeded to the Company, the State had deeded to individual
purchasers 58,830 acres above the Eaccoon Fork, making an aggregate of 271,-
571 acres, deeded above the Fork, all of which had been certified to the State
by the Federal Government.

By act approved March 28, 1858, the Legislature donated the remainder of
the grant to the Keokuk, Fort Des Moines & Minnesota R^iilroad Company,
upon condition that said Company assumed all liabilities resulting from the Des
Moines River improvement operations, reserving 50,000 acres of the land in
security for the payment thereof, and for the completion of the locks and dams
at Bentonsport, Croton, Keosauqua and Plymouth. For every three thousand
dollars' worth of work done on the locks and dams, and for every three thousand
dollars paid by the Company of the liabilities above mentioned, the Register of
the State Land Office was instructed to certify to the Company 1,000 acres of
the 50,000 acres reserved for these purposes. Up to 1865,, there had been pre-
sented by the Company, under the provisions of the act of 1858, and allowed,
claims amounting to $109,579.37, about seventy-five per cent, of which had
been settled.



210 HISTORY OF THE STATE OF IOWA.

After the passage of the Act above noticed, the question of the extent of the
original grant was again mooted, and at the December Term of the Supreme Court
of the United States, in 1859-60, a decision was rendered declaring that the
grant did not extend above Raccoon Fork, and that all certificates of land above
the Fork had been issued without authority of law and were, therefore, void
(see 23 How., 66).

The State of Iowa had disposed of a large amount of land without authority,
according to this decision, and appeal was made to Congress for relief, which
was granted on the 3d day of March, 1861, in a joint resolution relinquishing
to the State all the title which the United States then still retained in the tracts
of land along the Des Moines River above Raccoon Fork, that had been im-
properly certified to the State by the Department of the Interior, and which is
now held by bona fide purchasers under the State of Iowa.

In confirmation of this relinquishment, by act approved July 12, 1862,
Congress enacted :

That the grant of lands to the then 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 seo-
tiona (designated by odd numbers) lying within five miles of said river, between the Raccoon
Fork and the northern boundary of said State ; such lands are to be held and applied in accord-
ance with the 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, Fori Des Moines
& 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 the said lands shall have been sold
or otherwise disposed of by the United States before the passage of this act, except those released
by the United States to the grantees of the State of Iowa, under joint resolution of March 3,
1861, the Secretary of the Interior is hereby directed to set apart an equal amount of lands within
said State to be certified in lieu thereof; Provided, that if the State shall have sold and conveyed
any portion of the lands lying within the limits of the 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, respect-
ively, whose titles shall have failed as aforesaid.

The grant of lands by the above act of Congress was accepted by a joint
resolution of the General Assembly, September 11, 1862, in extra session. On
the same day, the Governor was authorized to appoint one or more Commis-
sioners to select the lands in accordance with the grant. These Commissioners
were instructed to report their selections to the Registrar of the State Land
Office. The lands so selected were to be held for the purposes of the grant, and
were not to be disposed of until further legislation should be had. D. W. Kil-
burne, of Lee County, was appointed Commissioner, and, on the 25th day of
April, 1864, the General Land Officer authorized the selection of 300,000 acres
from the vacant public lands as a part of the grant of July 12, 1862, and the
selections were made in the Fort Dodge and Sioux City Land Districts.

Many difficulties, controversies and conflicts, in relation to claims and titles,
grew out of this grant, and these difficulties were enhanced by the uncertainty
of its limits until the act of Congress of July, 1862. But the General Assem-
bly sought, by wise and appropriate legislation, to protect the integrity of titles
derived from the State. Especially was the determination to protect the actual
settlers, who had paid their money and made improvements prior to the final
settlement of the limits of the grant by Congress.

VII. — THE DES MOINES RIVER SCHOOL LANDS.

These lands constituted a part of the 500,000 acre grant made by Congress
in 1841; including 28,378.46 acres in Webster County, selected by the Agent of
the State under that grant, and approved by the Commissioner of the General
Land Office February 20, 1851. They were ordered into the market June 6,



HISTORY OF THE STATE OF IOWA. 211

1853, by the Sui3erintendent of Public Instruction, who authorized John Tol-
man, School Fund Commissioner for Webster County, to sell them as school
lands. Subsequently, when the act of 1846 was construed to extend the Des
Moines River grant above Raccoon Fork, it was held that the odd numbered
sections of these lands within five miles of the river were appropriated by that
act, and on the 30th day of December, 1853, 12,813.51 acres were set apart
and approved to the State by the Secretary of the Interior, as a part of the
Des Moines River grant. January 6, 1854, the Commissioner of the General
Land Office transmitted to the Superintendent of Public Instruction a certified ~
copy of the lists of these lands, indorsed by the Secretary of the Interior.
Prior to this action of the Department, however, Mr. Tolman had sold to indi-
vidual purchasers 3,194.28 aci-es as school lands, and their titles were, of course,
killed. For their relief, an act, aiDproved April 2, 1860, provided that, upon
application and proper showing, these purchasers should be entitled to draw
from the State Treasury the amount they had paid, with 10 per cent, interest,
on the contract to purchase made with Mr. Tolman. Under this act, five appli-
cations were made prior to 1864, and the applicants received, in the aggregate,
$949.53.

By an act approved April 7, 1862, the Governor was forbidden to issue to
the Dubuque & Sioux City Railroad Company any certificate of the completion
of any part of said road, or any conveyance of lands, until the company should
execute and file, in the State Land Office, a release of its claim — first, to cer-
tain swamp lands ; second, to the Des Moines River Lands sold by Tolman ;
third, to certain other river lands. That act provided that " the said company
shall transfer their interest in those tracts of land in Webster and Hamilton
Counties heretofore sold by John Tolman, School Fund Commissioner, to the
Register of the State Land Office in trust, io enable said Register to carry out
and perform said contracts in all cases when he is called upon by the parties
interested to do so, before the 1st day of January, A. D. 1864.

The company filed its release to the Tolman lands, in the Land Office, Feb-
ruary 27, 1864, at the same time entered its protest that it had no claim upon
them, never had pretended to have, and had never sought to claim them. The
Register of the State Land Office, under the advice of the Attorney General,
decided that patents would be issued to the Tolman purchasers in all cases
where contracts had been made prior to December 23, 1853, and remaining
uncanceled under the act of 1860. But before any were issued, on the 27th of
August, 1864, the Des Moines Navigation & Railroad Company commenced a
suit in chancery, in the District Court of Polk County, to enjoin the issue of
such patents. On the 30th of August, an ex parte injunction was issued. In
January, 1868, Mr. J. A. Harvey, Register of the Land Office, filed in the
court an elaborate answer to plaintiifs' petition, denying that the company had
any right to or title in the lands. Mr. Harvey's successor, Mr. C. C. Carpen-
ter, filed a still more exhaustive answer February 10, 1868. August 3, 1868,
the District Court dissolved the injunction. The company appealed to the
Supreme Court, where the decision of the lower court was affirmed in December,
1869.

VIII. SWAMP LAND GRANT.

By an act of Congress, approved March 28, 1850, to enable Arkansas and
other States to reclaim swampy lands within their limits, granted all the swamp
and overflowed lands remaining unsold within their respective limits to the
several States. Although the total amount claimed by Iowa under this act



212 HISTORY OF THE STATE OF IOWA.

does not exceed 4,000,000 acres, it has, like the Des Moines River and some
of the land grants, cost the State considerable trouble and expense, and required
a deal of legislation. The State expended large sums of money in making the
selections, securing proofs, etc., but the General Government appeared to be
laboring under the impression that Iowa was not acting in good faith ; that she
had selected a large amount of lands under the swamp land grant, transferred
her interest to counties, and counties to private speculators, and the General
Land Office permitted contests as to the character of the lands already selected
by the Agents of the State as "swamp lands." Congress, by joint resolution
Dec. 18, 1856, and by act March 3, 1857, saved the State from the fatal result
of this ruinous policy. Many of these lands were selected in 1854 and 1855,
immediately after several remarkably wet seasons, and it was but natural that
some portions of the selections would not appear swampy after a few dry seasons.
Some time after these first selections were made, persons desired to enter
parcels of the so-called swamp lands and offering to prove them to be dry. In
such cases the General Land Office ordered hearing before the local land officers,
and if they decided the land to be dry, it was permitted to be entered and the
claim of the State rejected. Speculators took advantage of this. Affidavits
were bought of irresponsible and reckless men, who, for a few dollars, would
confidently testify to the character of lands they never saw. These applica-
tions multiplied until they covered 3,000,000 acres. It was necessary that
Congress should confirm all these selections to the State, that this gigantic
scheme of fraud and plunder might be stopped. The act of Congress of
March 3, 1857, was designed to accomplish this purpose. But the Commis-
sioner of the General Land Office held that it was only a qualified confirma-
tion, and under this construction sought to sustain the action of the Department
in rejecting the claim of the State, and certifying them under act of May 15,
1856, under which the railroad companies claimed all swamp land in odd num-
bered sections within the limits of their respective roads. This action led to
serious complications. When the railroad grant was made, it was not intended
nor was it understood that it included any of the swamp lands. These were
already disposed of by previous grant. Nor did the companies expect to
receive any of them, but under the decisions of the Department adverse to the
State the way was opened, and they were not slow to enter their claims. March
4, 1862, the Attorney General of the State submitted to the General Assembly
an opinion that the railroad companies were not entitled even to contest the
right of the State to these lands, under the swamp land grant. A letter from
the Acting Commissioner of the General Land Office expressed the same
opinion, and the General Assembly by joint resolution, approved April 7, 1862,
expressly repudiated the acts of the railroad companies, and disclaimed any
intention to claim these lands under any other than the act of Congress of
Sept. 28, 1850. A great deal of legislation has been found necessary in rela-
tion to these swamp lands.

IX. THE EAILROAD GRANT.

One of the most important grants of public lands to Iowa for purposes of
internal improvement was that known as the "Railroad Grant," by act of
Congress approved May 15, 1856. This act granted to the State of Iowa, for
the purpose of aiding in the construction of railroads from Burlington, on the
Mississippi River, to a point on the Missouri River, near the mouth of Platte
River ; from the city of Davenport, via Iowa City and Fort Des Moines to



HISTORY OF THE STATE OF IOWA. 213

Council Bluffs ; from Lyons City northwesterly to a point of intersection with
the main line of the Iowa Central Air Line Railroad, near Maquoketa ; thence
on said main line, running as near as practicable to the Forty-second Parallel ;
across the said State of Iowa to the Missouri River ; from the city of Dubuque
to a point on the Missouri River, near Sioux City, with a branch from the
mouth of the Tete des Morts, to the nearest point on said road, to be com-
pleted as soon as the main road is completed to that point, every alternate section
of land, designated by odd numbers, for six sections in width on each side of
said roads. It was also provided that if it should appear, when the lines of those
roads were definitely fixed, that the United States had sold, or right of pre-
emption had attached to any portion of said land, the State was authorized to
select a quantity equal thereto, in alternate sections, or parts of sections, within
fifteen miles of the lines so located. The lands remaining to the United States
within six miles on each side of said roads were not to be sold for less than the
double minimum price of the public lands when sold, nor were any of said lands
to become subject to private entry until they had been first offered at public
sale at the increased price.

Section 4 of the act provided that the lands granted to said State shall be
disposed of by said State only in the manner following, that is to say : that a
quantity of land not exceeding one hundred and twenty sections for each of said
roads, and included within a continuous length of twenty miles of each of said
roads, may be sold ; and when the Governor of said State shall certify to the
Secretary of the Interior that any twenty continuous miles of any of said roads
is completed, then another quantity of land hereby granted, not to exceed one
hundred and twenty sections for each of said roads having twenty continuous
miles completed as aforesaid, and included within a continuous length of twenty
miles of each of such roads, may be sold; and so from time to time until said
roads are completed, and if any of said roads are not completed within ten
years, no further sale shall be made, and the lands unsold shall revert to the
United States."

At a special session of the General Assembly of Iowa, by act approved July
14, 1856, the grant was accepted and the lands were granted by the State to
the several railroad companies named, provided that the lines of their respective
roads should be definitely fixed and located before April 1, 1857 ; and pro-
vided further, that if either of said companies should fail to have seventy-five
miles of road completed and equipped by the 1st day of December, 1859, and
its entire road completed by December 1, 1865, it should be competent for the
State of Iowa to resume all rights to lands remaining undisposed of by the
company so failing.

The railroad companies, with the single exception of the Iowa Central Air
Line, accepted the several grants in accordance with the provisions of the above
act, located their respective roads and selected their lands. The grant to the
Iowa Central was again granted to the Cedar Rapids & ]\Iissouri River Railroad
Company, which accepted them.

By act, approved April 7, 1862, the Dubuque & Sioux City Railroad Com-
pany was required to execute a release to the State of certain swamp and school
lands, included within the limits of its grant, in compensation for an extension
of the time fixed for the completion of its road.

A careful examination of the act of Congress does not reveal any special
reference to railroad companies. The lands were granted to the State, and the
act evidently contemplate the sale of them by the State, and the appropriation
of the proceeds to aid in the construction of certain lines of railroad within its



214 HISTORY OF THE STATE OF IOWA.

limits. Section 4 of the act clearly defines the authority of the State in dis-
posing of the lands.

Lists "of all the lands embraced by the grant were made, and certified to the
State by the proper authorities. Under an act of Congress approved August 3,
1854, entitled "An act to vest in the several States and Territories the title in
fee of the lands which have been or may he certified to them," these certified lists,
the originals of which are filed in the General Land Office, conveyed to the State
"the fee simple title to all the lands embraced in such lists that are of the char-
acter contemplated " by the terms of the act making the grant, and "intended
to be granted thereby ; but where lands embraced in such lists are not of the
character embraced by such act of Congress, and were not intended to be granted
thereby, said lists, so far as these lands are concerned, shall be perfectly null
and void; and no right, title, claim or interest shall be conveyed thereby."
Those certified lists made under the act of May 15, 1856, were forty-three in
number, viz.: For the Burlington & Missouri River Railroad, nine; for the
Mississippi & Missouri Railroad, 11 ; for the Iowa Central Air Line, thirteen ;
and for the Dubuque & Sioux City Railroad, ten. The lands thus approved to
the State were as follows :

Burlington & Missouri Paver E. E. 287,095.34 acres.

Mississippi & Missouri Eiver R. R-. 774,674,36 "

Cedar Rapids & Missouri River R. E 775,454.39 "

Dubuque & Sioux City R. R 1,226,568.32 "

A portion of these had been selected as swamp lands by the State, under
the act of September 28, 1850, and these, by the terms of the act of August 3,
1854, could not be turned over to the railroads unless the claim of the State to
them as swamp was first rejected. It was not possible to determine from the
records of the State Land Ofiice the extent of the conflicting claims arising under
the two grants, as copies of the swamp land selections in some of the counties
were not filed of record. The Commissioner of the General Land Office, however,
prepared lists of the lands claimed by the State as swamp under act of September
28, 1850, and also claimed by the railroad companies under act of May 15,
1856, amounting to 553,293.33 acres, the claim to which as swamp had been
rejected by the Department. These were consequently certified to the State as
railroad lands. There was no mode other than the act of July, 1856, prescribed
for transferring the title to these lands from the State to the companies. The
courts had decided that, for the purposes of the grant, the lands belonged to the
State, and to her the companies should look for their titles. It was generally
accepted that the act of the Legislature of July, 1856, was all that was neces-
sary to complete the transfer of title. It was assumed that all the rights and
powers conferred upon the State by the act of Congress of May 14, 1856, were
by the act of the General Assembly transferred to the companies ; in other
words, that it was designed to put the companies in the place of the State as the
grantees from Congress — and, therefore, that which perfected the title thereto
to the State perfected the title to the companies by virtue of the act of July,
1856. One of the companies, however, the Burlington & Missouri River Rail-
road Company, was not entirely satisfied with this construction. Its managers
thought tliat some further and specific action of the State authorities in addition
to the act of the Legislature was necessary to complete their title. This induced
Gov. Lowe to attach to the certified lists his ofiicial certificate, under the broad
seal of the State. On the 9th of November, 1859, the Governor thus certified
to them (commencing at the Missouri River) 187,207.44 acres, and December
27th, 43,775.70 acres, an aggregate of 231,073.14 acres. These were the only



HISTORY OP THE STATE OF IOWA. 216

lands under the grant that were certified by the State authorities with any
design of perfecting the title already vested in the company by the act of July,
1856. The lists which were afterward furnished to the company were simply



Online LibraryWestern Historical CoThe history of Jefferson County, Iowa, containing a history of the county, its cities, towns, &c., a biographical directory of citizens, war records of its volunteers in the late rebellion, general and local statistics, portraits of early settlers and prominent men, history of the Northwest, his → online text (page 24 of 75)