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The 1878 History of Benton County, Iowa
pages 204-218
PUBLIC LANDS

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

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 500,000 acres of public land for internal improvements; to each State admitted 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 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 3rd, 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 Boards 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 made 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.

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:

                                                             Acres
In the Iowa City Land District, Feb. 26, 1849............20,150.49
In the Fairfield Land District, Oct. 17, 1849.............9,685.20
In the Iowa City Land District, Jan. 28, 1850............ 2,571.81
In the Fairfield Land District, Sept. 10, 1850............3,198.20
In the Dubuque Land District, May 19, 1852...............10,552.24
                                                         ---------
              Total......................................45,957.94

These lands were certified to the State November 19, 1959. The University lands are placed bylaw 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 45,928 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 for 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 any 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 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 is 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, entitled "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 22nd 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 Raccoon 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 23rd 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 Raccoon 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 Raccoon 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 form sale until Congress could have an opportunity to pas 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 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 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 grant, 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............12,813.51   "
                                               ----------
         Total.................................271,572.24 acres

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 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 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 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 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 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 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 as 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 3rd 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, 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 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 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 3rd 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 the 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, 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 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 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, 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 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 al 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 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.

VIII – Swamp Land Grant

By an act of Congress, approved March 28, 1852, 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 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 December 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 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 except 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 ahs 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 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 alternative 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 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 ha 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 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 a 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 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 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 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 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 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 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 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, an aggregate of 231,073.14 acres. These were the only 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. 2nd – 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. 3rd – 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 liens 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 form time to tome 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 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 form 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 form the liabilities and conditions accompanying this grant, nor acquire perfect title in any other manner than the same would have been acquired by the original grantee."

Still further, the Burlington & Missouri River Railroad 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 found 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, every 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.

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 the purpose, for the benefit of the institution. On the 23rd of March, by joint resolution, the Legislature asked the consent of Congress 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 of 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 240,000.96 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   "

By act of the General Assembly, approved March 29, 1864, entitled, "An act authorizing the Trustees of the Iowa 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.


Transcribed, 2006, by Tierney Ratti.



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