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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 Raccoon 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 Raccoon 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 graut, and all lying above the Raccoon Forks, are as follows: By Secretary Stewart, Oct. 30, 1851
81,707.93 acres. March 10, 1852..
.143,908.37 By Secretary McLellan, Dec. 17, 1853..
33,142.43 Dec. 30, 1853..
.271,572.24 acres. The Commissioners and Register of the Des Moines River Improvement, in their report to the Governor, November 30, 1852, estimate 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 the 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 indebiedness 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 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 that it was limited to the Raccoon Fork. Appeal was made to the Secretary of the Interior, and by him the matter was referrred to the Attorney General, who decided that the grant extended to the northern boundary of the State; the State relinquished its claim to the 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 Raccoon Fork. The last certificate of the General Land Office bears date December 30, 1853.
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 land. 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 day 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 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 Raccoon 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, Crotton, 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 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.
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 185960, 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 improperly 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 che alternate sections (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 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, 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, 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, Sept. 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 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 Assembly sought, by wise and appropriate legislation, to protect the integrity of titles derived from the State. Especially was it the determination to protect the actual settlers, who had paid their money and made improvements pr or 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, 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 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 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 ten 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 interests 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, Ă. 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 uncancelled under the act of 1860. But before any were issued, on the 27th of August, 1864, the Des Moines Navigation and 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 plaintiffs' 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.