THE PUBLIC LANDS

    The grants of public lands made in the State of Iowa, for various purposes, are as follows:

1. The 500,000 Acre Grant.
2. The 16th Section Grant.
3. The Mortgage School Lands.
4. The University Grant.
5. The Saline Grant.
6. The Des Moines River Grant.
7. The Des Moines River School Lands.
8. The Swamp Land Grant.
9. The Railroad Grant.
10. The Agricultural College Grant.

I. THE FIVE HUNDRED THOUSAND ACRE GRANT.

    When the State was admitted into the Union, she became entitled to 500,000 acres of land by virtue of an act of Congress, approved September 4, 1841, which granted to each State therein specified subsequently to the passage of the act, an amount of land which, with the amount that might have been granted to her as a Territory, would amount to 500,000 acres. All these lands were required to be selected within the limits of the State to which they were granted.

    The Constitution of Iowa declares that the proceeds of this grant, together with all lands then granted or to be granted by Congress for the benefit of schools, shall constitute a perpetual fund for the support of schools throughout the State. By an act approved January 15, 1849, the Legislature established

205

a board of School Fund Commissioners, and to that board was confided the selection, care and sale of these lands for the benefit of the School Fund. Until 1855, these Commissioners were subordinate to the Superintendent of Public Instruction, but on the 15th of January of that year, they were clothed with exclusive authority in the management and sale of school lands. The office of School Fund Commissioner was abolished March 23, 1858, and that officer in each county was required to transfer all papers to and make full settlement with the County Judge. By this act, County Judges and Township Trustees were made the agents of the State to control and sell the sixteenth sections; but no further provision was made for the sale of the 500,000 acre grant until April 3d, 1860, when the entire management of the school lands was committed to the Boards of Supervisors of the several counties.

II. THE SIXTEENTH SECTIONS.

    By the provisions of the act of Congress admitting Iowa to the Union, there was granted to the new State the sixteenth section in every township, or where that section had been sold, other lands of like amount for the use of schools. The Constitution of the State provides that the proceeds arising from the sale of these sections shall constitute a part of the permanent School Fund. The control and sale of these lands were vested in the School Fund Commissioners of the several counties until March 23, 1858, when they were transferred to the County Judges and Township Trustees, and were finally placed under the supervision of the County Board of Supervisors in January, 1861.

III. THE MORTGAGE SCHOOL LANDS.

    These do not belong to any of the grants of land proper. They are lands that have been mortgaged to the school fund, and became school lands when bid off by the State by virtue of a law passed in 1862. Under the provisions of the law regulating the management and investment of the permanent school fund, persons desiring loans from that fund are required to secure the payment thereof with interest at ten per cent. per annum, by promissory notes endorsed by two good sureties and by mortgage on unencumbered real estate, which must be situated in the county where the loan is made, and which must be valued by three appraisers. Making these loans and taking the required securities was the duty of the County Auditor, who was required to report to the Board of Supervisors at each meeting thereof, all notes, mortgages and abstracts of title connected with the school fund, for examination.

    When default was made of payment of money so secured by mortgage, and no arrangement made for extension of time as the law provides, the Board of Supervisors were authorized to bring suit and prosecute it with diligence to secure said fund; and in action in favor of the county for the use of the school fund, an injunction may issue without bonds, and in any such action, when service is made by publication, default and judgment may be entered and enforced without bonds. In case of sale of land on execution founded on any such mortgage, the attorney of the board, or other person duly authorized, shall, on behalf of the State or county for the use of said fund, bid such sum as the interests of said fund may require, and if struck off to the State the land shall be held and disposed of as the other lands belonging to the fund. These lands are known as the Mortgage School Lands, and reports of them, including description and amount, are required to be made to the State Land Office.

206

IV. UNIVERSITY LANDS.

    By act of Congress, July 20, 1840, a quantity of land not exceeding two entire townships was reserved in the Territory of Iowa for the use and support of a university within said Territory when it should become a State. This land was to be located in tracts of not less than an entire section, and could be used for no other purpose than that designated in the grant. In an act supplemental to that for the admission of Iowa, March 3, 1845, the grant was renewed, and it was provided that the lands should be used "solely for the purpose of such university, in such manner as the Legislature may prescribe."

    Under this grant there were set apart and approved by the Secretary of the Treasury, for the use of the State, the following Lands:

    These lands were certified to the State November 19, 1859. The University lands are placed by law under the control and management of the Board of Trustees of the Iowa State University. Prior to 1865, there had been selected and located under 282 patents, 22, 892 acres in sixteen counties, and 23,036 acres unpatented, making a total of 40,928 acres.

V. — SALINE LANDS.

    By act of Congress, approved March 3, 1845, the State of Iowa was granted the use of the salt springs within her limits, not exceeding twelve. By a subsequent act, approved May 27, 1852, Congress granted the springs to the State in fee simple, together with six sections of land contiguous to each, to be disposed of as the Legislature might direct. In 1861, the proceeds of these lands then to be sold were constituted a fund founding and supporting a lunatic asylum, but no sales were made. In 1856, the proceeds of the saline lands were appropriated to the Insane Asylum, repealed in 1858. In 1860, the saline lands and funds were made a part of the permanent fund of the State University. These lands were located in Appanoose, Davis, Decatur, Lucas, Monroe, Van Buren and Wayne Counties.

VI. — THE DES MOINES RIVER GRANT.

    By act of Congress, approved August 8, 1846, a grant of land was made for the improvement of the navigation of Des Moines River, as follows:

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That there be, and hereby is, granted to said Territory of Iowa, for the purpose of aiding said Territory to improve the navigation of the Des Moines River from its mouth to the Raccoon Fork (so called) in said Territory, one equal moiety, in alternate sections, of the public lands (remaining unsold and not otherwise disposed of, incumbered 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 an State to be formed out of the same, except as said improvement 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 expended upon said improvements, when the said Territory or

207

State may sell and convey a quantity of the residue of said lands sufficient to replace the amount expended, and thus the sales shall progress as the proceeds thereof shall be expended, and the fact of such expenditure shall be certified as aforesaid.

    SEC. 3. And be it further enacted, That the said River Des Moines shall be and forever remain a public highway for the use of the Government of the United States, free from any toll or other charge whatever, for any property of the United States or persons in their service passing through or along the same: Provided always, That it shall not be competent for the said Territory or future State of Iowa to dispose of said lands, or any of them, at a price lower than, for the time being, shall be the minimum price of other public lands.

    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." Approved AUG. 8, 1846.

    By joint resolution of the General Assembly of Iowa, approved January 9, 1847, the grant was accepted for the purpose specified. By another act, approved February 24, 1847, entit[l]ed "An act creating the Board of Public Works, and providing for the improvement of the Des Moines River," the Legislature provided for a Board consisting of a President, Secretary and Treasurer, to be elected by the people. This Board was elected August 2, 1847, and was organized on the 22d of September following. The same act defined the nature of the improvement to be made, and provided that the work should be paid for from the funds to be derived from the sale of lands to be sold by the Board.

    Agents appointed by the Governor selected the sections designated by "odd numbers" throughout the whole extent of the grant, and this selection was approved by the Secretary of the Treasury. But there was a conflict of opinion as to the extent of the grant. It was held by some that it extended from the mouth of the Des Moines only to the Racoon Forks; others held, as the agents to make selection evidently did, that it extended from the mouth to the head waters of the river. Richard M. Young, Commissioner of the General Land Office, on the 23d of February, 1848, construed the grant to mean that "the State is entitled to the alternate sections within five miles of the Des Moines River, throughout the whole extent of that river within the limits of Iowa." Under this construction, the alternate sections above the Raccoon Forks would, of course, belong to the State; but on the 19th of June, 1848, some of these lands were, by proclamation, thrown into market. On the 18th of September, the Board of Public Works filed a remonstrance with the Commissioner of the General Land Office. The Board also sent in a protest to the State Land Office, at which the sale was ordered to take place. On the 8th of January, 1849, the Senators and Representatives in Congress from Iowa also protested against the sale, in a communication to Hon. Robert J. Walker, Secretary of the Treasury, to which the Secretary replied, concurring in the opinion that the grant extended the whole length of the Des Moines River in Iowa.

    On the 1st of June, 1849, the Commissioner of the General Land Office directed the Register and Receiver of the Land Office at Iowa City "to withhold from sale all lands situated in the odd numbered sections within five miles on each side of the Des Moines River above the Racoon Forks." March 13, 1850, the Commissioner of the General Land Office submitted to the Secretary of the Interior a list "showing the tracts falling within the limits of the Des Moines River grant, above the RAcoon Forks, etc., under the decision of the Secretary of the Treasury, of March 2, 1849," and on the 6th of April following, Mr. Ewing, then Secretary of the Interior, reversed the decision of Secretary Walker, but ordered the lands to be withheld from sale until Con-

208

gress could have an opportunity to pass an explanatory act. The Iowa authorities appealed from this decision to the President (Taylor), who referred the matter to the Attorney General (Mr. Johnson). On the 19th of July, Mr. Johnson submitted as his opinion, that by the terms of the grant itself, it extended to the very source of the Des Moines, but before his opinion was published President Taylor died. When Mr. Tyler's cabinet was formed, the question was submitted to the new Attorney General (Mr. Crittenden), who, on the 30th of June, 1851, reported that in his opinion the grant did not extend above the Racoon Forks. Mr. Stewart, Secretary of the Interior, concurred with Mr. Crittenden, at first, but subsequently consented to lay the whole subject before the President and Cabinet, who decided in favor of the State.

    October 29, 1851, Mr. Stewart directed the Commissioner of the General Land Office to "submit for his approval such lists as had been prepared, and to proceed to report for like approval lists of the alternate sections claimed by the State of Iowa above the Racoon Forks, as far as the surveys have progressed, or may hereafter be completed and returned." And on the following day, three lists of these lands were prepared in the General Land Office.

    The lands approved and certified to the State of Iowa under this grant, and all lying above the Racoon Forks, are as follows:

    The Commissioners and Register of the Des Moines River Improvement, in their report to the Governor, November 30, 1852, estimates the total amount of lands then available for the work, including those in possession of the State and those to be surveyed and approved, at nearly a million acres. The indebtedness then standing against the fund was about $108,000, and the Commissioners estimated the work to be done would cost about $1,200,000.

    January 19, 1853, the Legislature authorized the Commissioners to sell "any or all lands which have or may hereafter be granted, for not less than $1,300,000."

    On the 24th of January, 1853, the General Assembly provided for the election of a Commissioner by the people, and appointed two Assistant Commissioners, with authority to make a contract, selling the lands of the Improvement for $1,300,000. This new Board made a contract, June 9, 1855, with the Des Moines Navigation & Railroad Company, agreeing to sell all the lands donated 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 improvement of the river, and in paying the indebtedness then due. This contract 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 a 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 that it was limited to

209

the Racoon 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 northern 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 Navigation & Railroad Company, applying the proceeds thereof to the improvement 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 Racoon Fork. The last certificate of the General Land Office bears the date December 30, 1853.

    After June 9, 1854, the Des Moines Navigational & 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 disagreements 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 Company 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 General 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 Racoon 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 Racoon 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 Railroad 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 preserved for these purposes. Up to 1865, there had been presented 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

    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 the 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 Racoon Fork, that had been improperly certified to the State by the Department of the Interior, and which is now held by bona fide purchases 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 sections (designated by odd numbers) lying within five miles of said river, between the Racoon Fork and the northern boundary of said State; such lands are to be held and applied in accordance 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, Fort 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, 18612, the Secretary of the Interior is hereby directed to set apart an equal amount of lands within said State to be certified in lieu therof; 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 therof 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.

    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 Commissioners 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. Kilburne, of Lee County, was appointed Commissioner, and, on the 25th day of April, 1864, the General Land Office 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 Assembly 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.

Return to top

VII. — The Des Moines River School Lands