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,

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1853, by the Superintendent of Public Instruction, who authorized John Tolman, 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 Racoon 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 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 individual purchasers 3,194.28 acres as school lands, and their titles were, of course killed. For their relief, an act, approved 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 applications 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 certain 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, to 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, February 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 plaintiff's petition, denying that the company had any right to or title in the lands. Mr. Harvey's successor, Mr. C. C. Carpenter, 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.

VII.—— 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

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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 was 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 applications 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 Commissioner of the General Land Office held that it was only a qualified confirmation, 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 numbered 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 relation to these swamp lands.

IX. —— THE RAILROAD 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

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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 completed 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 preemption had attached to any portion of said land, the State was authorized to select a quantity equal there to, 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 nay 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 each 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 provided 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 & Missouri River Railroad Company, which accepted them.

    By act, approved April 7, 1862, the Dubuque & Sioux City Railroad Company 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

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limits. Section 4 of the act clearly defines the authority of the State in disposing 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 be 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 character contemplated" by the terms of the act making the grant, and "intended to 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 River R. R. ...........287,095.34 acres.
Mississippi & Missouri River R. R. ..........774,674,36   "
Cedar Rapids & Missouri River R. R. .........775,454.19   "
Dubuque & Sioux City R. R. ................1,226,558.32   "

   A portion of these had been selected as swamp lands by the State, under the act of August 3, 1854, could not be turned over to the railroads unless the claims of the State to them as swamp was first rejected. It was not possible to determine from the records of the State Land Office 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 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 necessary 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 Railroad Company, was not entirely satisfied with this construction. Its managers thought that 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 official 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, and aggregate of 231,073.14 acres. These were the only

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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 certified by the Governor as being correct copies of the lists received by the State from the United States General Land Office. These subsequent lists embraced lands that had been claimed by the State under the Swamp Land Grant.

    It was urged against the claim of the Companies that the effect of the act of the Legislature was simply to substitute them for the State as parties to the grant. 1st. That the lands were granted to the State to be held in trust for the accomplishment of a specific purpose, and therefore the State could not part with the title until that purpose should have been accomplished. 2d. That it was not the intention of the act of July 14, 1856, to deprive the State of the control of the lands, but on the contrary that she should retain supervision of them and the right to withdraw all rights and powers and resume the title conditionally conferred by that act upon the companies in the event of their failure to complete their part of the contract. 3d. That the certified lists from the General Land Office vested the title in the State only by virtue of the act of Congress approved August 3, 1854. The State Land Office held that the proper construction of the act of July 14, 1856, when accepted by the companies, was that it became a conditional contract that might ripen into a positive sale of the lands as from time to time the work should progress, and as the State thereby became authorized by the express terms of the grant to sell them.

    This appears to have been the correct construction of the act, but by a subsequent act of Congress, approved June 2, 1864, amending the act of 1856, the terms of the grant were changed, and numerous controversies arose between the companies and the State.

    The ostensible purpose of this additional act was to allow the Davenport & Council Bluffs Railroad "to modify or change the location of the uncompleted portion of its line," to run through the town of Newton, Jasper County, or as nearly as practicable to that point. The original grant had been made to the State to aid in the construction of railroads within its limits and not to the companies, but Congress, in 1864, appears to have been utterly ignorant of what had been done under the act of 1856, or, if not, to have utterly disregarded it. The State had accepted the original grant. The Secretary of the Interior had already certified to the State all the lands intended to be included in the grant within fifteen miles of the lines of the several railroads. It will be remembered that Section 4, of the act of May 15, 1856, specifies the manner of sale of these lands from time to time as work on the railroads should progress, and also provided that "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." Having vested the title to these lands in trust, in the State of Iowa, it is plain that until the expiration of the ten years there could be no reversion, and the State, not the United States, must control them until the grant should expire by limitation. The United States authorities could not rightfully require the SEcretary of the Interior to certify directly to the companies any portion of the lands already certified to the State. And yet Congress, by its act of June 2, 1864, provided that whenever the Davenport & Council Bluffs Railroad Company should file in the General Land Office at Washington a map definitely showing such new location, the Secretary of the Interior should cause to be certified and conveyed to said Company, from time to time, as the road progressed, out of any of the lands belonging to the United States, not sold, reserved, or

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otherwise disposed of, or to which a pre-emption claim or right of homestead had not attached, and on which a bona fide settlement and improvement had not been made under color of title derived from the United States or from the State of Iowa, within six miles of such newly located line, an amount of land per mile equal to that originally authorized to be granted to aid in the construction of said road by the act to which this was an amendment.

    The term "out of any lands belonging to the United States, not sold, reserved or otherwise disposed of, etc.," would seem to indicate that Congress did intend to grant lands already granted, but when it declared that the Company should have an amount per mile equal to that originally authorized to be granted, it is plain that the framers of the bill were ignorant of the real terms of the original grant, or that they designed that the United States should resume the title it had already parted with two years before the lands could revert to the United States under the original act, which was not repealed.

    A similar change was made in relation to the Cedar Rapids & Missouri Railroad, and dictated the conveyance of lands in a similar manner.

    Like provision was made for the Dubuque & Sioux City Railroad, and the Company was permitted to change the location of its line between Fort Dodge and Sioux City, so as to secure the best route between those points; but this change of location was not to impair the right to the land granted in the original act, nor did it change the location of those lands.

    By the same act, the Mississippi & Missouri Railroad Company was authorized to transfer and assign all or any part of the grant to any other company or person, "if, in the opinion of said Company, the construction of said railroad across the State of Iowa would be thereby sooner and more satisfactorily completed; but such assignee should not in any case be released from the liabilities and conditions accompanying this grant, nor acquire perfect title in any other manner than the same would have ben acquired by the original grantee."

    Still further, the Burlington & Missouri Railroad Company was not forgotten, and was, by the same act, empowered to receive an amount of land per mile equal to that mentioned in the original act, and if that could not be fund within the limits of six miles from the line of said road, then such selection might be made along such line within twenty miles thereof out of any public lands belonging to the United States, not sold, reserved or otherwise disposed of, or to which a pre-emption claim or right of homestead had not attached.

    Those acts of Congress, which evidently originated in the "lobby," occasioned much controversy and trouble. The Department of the Interior, however, recognizing the fact that when the Secretary had certified the lands to the State, under the act of 1856, that act divested the United States of title, under the vesting act of August, 1854, refused to review its action, and also refused to order any and all investigations for establishing adverse claims (except in pre-emption) cases, on the ground that the United States had parted with the title, and, therefore, could exercise no control over the land.

    May 12, 1864, before the passage of the amendatory act above described, Congress granted to the State of Iowa, to aid in the construction of a railroad from McGregor to Sioux City, and for the benefit of the McGregor Western Railroad Company, ever alternate section of land, designated by odd numbers for ten sections in width on each side of the proposed road, reserving the right to substitute other lands whenever it was found that the grant infringed upon pre-empted lands, or on lands that had been reserved or disposed of for any other purpose. In such cases, the Secretary of the Interior was instructed to select, in lieu, lands belonging to the United States lying nearest to the limits specified.

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X.—— AGRICULTURAL COLLEGE AND FARM LANDS.

    An Agricultural College and Model Farm was established by act of the General Assembly, approved March 22, 1858. By the eleventh section of the act, the proceeds of the five-section grant made for the purpose of aiding in the erection of public buildings was appropriated, subject to the approval of Congress, together with all lands that Congress might thereafter grant to the State for that purpose, for the benefit of the institution. On the 23d of March, by joint resolution, the Legislature asked the consent of Congress to to the proposed transfer. By act approved July 11, 1862, Congress removed the restrictions imposed in the "five-section grant," and authorized the General Assembly to make such disposition of the lands as should be deemed best for the interests of the State. By these several acts, the five sections of land in Jasper County certified to the State to aid in the erection of public buildings under the act March 3, 1845, entitled "An act supplemental to the act for the admission of the States of Iowa and Florida into the Union," were fully appropriated for the benefit of the Iowa Agricultural College and Farm. The institution is located in Story County. Seven hundred and twenty-one acres in that and two hundred in Boone County were donated to it by individuals interested in the success of the enterprise.

    By act of Congress approved July 2, 1862, an appropriation was made to each State and Territory of 30,000 acres for each Senator and REpresentative in Congress, to which, by the apportionment under the census of 1860, they were respectively entitled. This grant was made for the purpose of endowing colleges of agriculture and mechanic arts.

    Iowa accepted this grant by an act passed at an extra session of its Legislature, approved September 11, 1862, entitled "An act to accept of the grant, and carry into execution the trust conferred upon the State of Iowa by an act of Congress entitled 'An act granting public lands to the several States and Territories which may provide colleges for the benefit of agriculture and the mechanic arts,' approved July 2, 1862." This act made it the duty of the Governor to appoint an agent to select and locate the lands, and provided that none should be selected that were claimed by any county as swamp lands. The agent was required to make report of his doings to the Governor, who was instructed to submit the list of selections to the Board of Trustees of the Agricultural College for their approval. One thousand dollars were appropriated to carry the law into effect. The State, having two Senators and six Representatives in Congress, was entitled to 240,000 acres of land under this grant, for the purpose of establishing and maintaining an Agricultural College. Peter Melendy, Esq., of Black Hawk County, was appointed to make the selections, and during August, September and December, 1863, located them in the Fort Dodge, Des Moines and Sioux City Land Districts. December 8, 1864, these selections were certified by the Commissioner of the General Land Office, and were approved to the State by the Secretary of the Interior December 13, 1864. The title to these lands was vested in the State in fee simple, and conflicted with no other claims under other grants.

    The agricultural lands were approved to the State as 240,000 acres; but as 35,691.66 acres were located within railroad limits, which were computed at the rate of two acres for one, the actual amount of land approved to the State under this grant was only 204,309.30 acres, located as follows:

In Des Moines Land District ..........6,804.96 acres.
In Sioux City Land District .........59,025.37   "
In Fort Dodge Land District ........138,478.97   "

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    By act of the General Assembly, approved March 29, 1864, entitled, "An act authorizing the Trustees of the State Agricultural College and Farm to sell all lands acquired, granted, donated or appropriated for the benefit of said college, and to make an investment of the proceeds thereof," all these lands were granted to the Agricultural College and Farm, and the Trustees were authorized to take possession, and sell or lease them. They were then, under the control of the Trustees, lands as follows:

Under the act of July 2, 1852 .................204,309.30 acres.
Of the five-section grant .....................  3,200.00   "
Lands donated in Story County .................    721.00   "
Lands donated in Boone County .................    200.00   "
       Total ..................................208,430.30 acres.
                      

    The Trustees opened an office at Fort Dodge, and appointed Hon. G. W. Bassett their agent for the sale of these lands.

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