CHAPTER XI

DES MOINES RIVER LAND TITLES

The next important litigation in which I was engaged during my

professional career, of public interest, was my engagement by Roswell

S. Burrows, one of the original stockholders of the Des Moines

Navigation Company, in suits growing out of his ownership of certain

lands belonging to the Des Moines river grants, so-called. I will not

undertake in this paper to go into a detailed history of the Des

Moines river titles, so-called. Colonel C. H. Gatch some years ago

prepared for publication a series of articles that were published in

the _Annals of Iowa_, Volume I, that gives a detailed account and

history of the land grant by congress, and the various decisions of

the United States land department construing the original grant of

1846, and also the decision of the supreme court of the United States

in the numerous cases from time to time decided by that court. I deem

this the most correct and just account of this important litigation

that has ever been given to the public. Honorable B. F. Gue also

published in his _History of Iowa_ what purports to be an account of

the various decisions and rulings of the land department and of the

actions of the courts with reference to these lands. A part of his

history is correct, but in treating of the rights of certain of the

settlers he has done great injustice to the stockholders of the Des

Moines Navigation Company who furnished the money to the company for

the purchase of these lands. The first unwarranted statement contained

in Mr. Gue's history is that persons who brought and maintained suits

for possession of their lands against certain settlers were mere

speculators who had bought a doubtful title to these lands for a song.

The contract between the state of Iowa and the Des Moines Navigation

Company, whereby that company became interested in certain lands of

this grant, was made in 1853, after the state had disposed of the

larger part of the lands lying below the Raccoon fork of the Des

Moines river, and was made at a time when there was no question as to

the right of the state to the lands above the Raccoon fork to the

northern boundary of the state. Under this contract the company paid

to the state, upon the execution of the agreement, over $60,000 in

cash for the purpose of enabling the state to pay the indebtedness

that had been incurred by the board of public works up to that time.

The contract provided that the company should continue the work under

supervision of a state engineer and commissioner, chosen by the state

of Iowa, and should advance the money to pay, as the work progressed,

a specific amount per cubic foot for stone work, excavation, timbers,

and other material furnished in the construction of the locks and

dams. Estimates were to be made from time to time by the engineer of

the work of the amount expended by the company at the prices named in

the contract, and as fast as $30,000 was so expended the company was

to receive lands at $1.25 per acre. At the time this contract was made

it had been found impossible to sell and dispose of the lands by the

state commissioners rapidly enough to get money to pay the contractors

who theretofore had been doing the work under contracts with the

commissioners. The only difference between the Des Moines Navigation

Company and the contractors engaged in this work was that the former

now agreed to furnish money in advance to pay off the old unpaid

obligations of the commissioners, and agreed to advance money as it

was needed and take the lands in gross at $1.25 per acre as fast as

each additional $30,000 were advanced and expended on the work. In the

summer of 1857 the company made a demand on Mr. Manning, commissioner

of the Des Moines River Improvement, to certify to them additional

lands on certain estimates made by the engineer, which Mr. Manning

refused. They accordingly brought suit against the commissioner asking

of the court a writ of mandamus to compel him to certify the lands

shown to be due them by the certificate of the engineer. I have

already referred to this suit in the former part of this paper. I was

employed by Mr. Manning and defended against it upon the ground

chiefly that before the company could maintain suit for specific

performance it was necessary for them to show that they had in all

respects complied with their various contract obligations toward the

state. The main provision of the contract that the commissioner

claimed had not been complied with related to the progress of the

work; that is to say, one-fourth of the entire contemplated

improvement between the Raccoon fork of the Des Moines river and the

Mississippi river had not been completed. The company, being defeated

in this application for mandamus, ceased work upon the improvement,

and in the winter of 1858 a settlement was made between the state and

the company. This settlement was more especially brought about by

those who had organized a railroad company for the purpose of building

a railroad from Keokuk up the valley of the Des Moines river. This

organization was known as the Keokuk, Fort Des Moines & Minnesota

Railroad Company, and they desired a grant from the state of the

remaining lands of the grant to aid them in the construction of their

railroad. The basis of the settlement between the state and the Des

Moines Navigation Company was simply that the company should receive a

conveyance from the state for the lands that had been certified to the

state under the grant up to that time, and that had not been

heretofore disposed of by the state, or certified to the company,

amounting to about 37,500 acres, and should pay to the state $20,000

in addition to the money already paid and expended on the improvement,

and should surrender and cancel their contract and right to any

further lands of the grant. (The terms of this settlement are

contained in a joint resolution of the seventh general assembly, found

on page 425 of the acts of that session.) At the time of this

settlement there was no question by anyone as to the extent of the

grant and the validity of the title of the state to the alternate

sections five miles on either side of the river up to the northern

boundary of the state.

In pursuance of the settlement proposed by the joint resolution which

was accepted by the company, Governor Lowe on May 3, 1858, executed

fourteen deeds or patents to the Navigation Company, conveying by

particular description the lands to which the company was entitled

under the resolution of compromise; and on May 18, 1858, a general deed

conveying the same and any previously omitted lands by general

description.

Another disturbing element in regard to the title to the lands arose

under the grant of congress made in 1856 to the state of Iowa, to aid

in the construction of certain lines of railroad crossing the state and

having their initial point at the Mississippi river, and crossing the

Des Moines river at various points between the Raccoon fork and the

northern boundary of the state. These railroad companies raised the

question as to the validity of the title of the Des Moines Navigation

Company to the lands they had purchased from the state north of the

Raccoon fork of the river. The Dubuque & Sioux City Railroad Company

brought suit, or rather induced Litchfield to bring suit against them

for lands lying within the line of their grant under act of 1856, or

rather that would have been within their grant if not reserved from its

operation or that had not been granted for the improvement of the Des

Moines river. This suit was adroitly managed on the part of the

railroad company so as to avoid testing any question of its title, and

contained a stipulation that the company was in possession of the land

under their grant and the court was only called upon to decide the

extent of the grant under the act of 1846 to the state for the

improvement of the river, and the supreme court of the United States

decided that the act of 1846 did not grant to the state for the

improvement of the river any lands north of the Raccoon fork. This

decision was made at the December term, 1859, and is found reported in

23 Howard, S.C.U.S., page 66. The act of 1856, making the grant to the

state for the purpose of aiding in the construction of these railroads,

in express terms reserved from the operation of the grant any lands

that had been theretofore reserved by any competent authority under any

other grant of congress. The announcement of this decision created

considerable excitement in the Des Moines valley, and the river lands

above the Raccoon fork that had theretofore been deeded by the state to

the Des Moines Navigation Company and had been by that company divided

among its stockholders in consideration of the moneys that they had

advanced to the company, and had been paid by the company to the state

as before stated, were considered the lawful prey of every adventurer

who could induce the local land offices to allow them to locate a land

warrant upon any of these lands.

Another class of persons, however, were deeply interested in the

question of this title. Prior to the contract made with the Des Moines

Navigation Company the state of Iowa had sold some fifty thousand acres

or more of these lands located above the Raccoon fork of the river, and

many of these lands were occupied by actual settlers who had made

improvements thereon and had paid the state valuable considerations for

their title. To avoid the hardships that must otherwise have resulted

from the decision of the supreme court, congress on March 2, 1861,

passed the following joint resolution: "Resolved, that all the title

which the United States still retain in the tracts of land along the

Des Moines river, above the mouth of the Raccoon fork thereof, which

have been certified to said state improperly by the department of the

interior as a part of the grant by act of congress approved August 8,

1846, and which are now held by bona fide purchasers under the state of

Iowa, be, and the same is hereby relinquished to the state of Iowa."

The congress of the United States further on the 12th of July, 1862,

passed an act in express terms extending the grant to the northern

boundary of the state, and providing that such lands "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."

At the December term, 1866, the supreme court of the United States, in

the case of Samuel Wolcott vs. The Des Moines Navigation Company,

reported in 5 Wallace, page 681, made a further decision confirming the

title of the Des Moines Navigation Company under the acts of congress

of 1861-2, to the lands that had been deeded to them by the state of

Iowa as before recited, and further deciding that the lands within the

five mile limits of the Des Moines river had been reserved by competent

authority for this work of internal improvement at the time of the

passage of the railroad grant of 1856.

Mr. Gue in his history of Iowa unfortunately attempts to disparage the

title of the stockholders of the Des Moines Navigation Company by

stating they were mere speculators who had purchased an impaired title,

and were therefore entitled to no consideration. On the contrary, the

men who received these deeds directly from the Des Moines Navigation

Company were stockholders who had advanced their money in payment of

their stock, which money had been paid over by that company directly to

the state.

Soon after the decision of the supreme court in the Litchfield case in

1859, a suit was brought in the circuit court of the United States for

the southern district of Iowa, asking an injunction against the local

United States land officers at Fort Dodge and at Des Moines, to prevent

them from receiving and recognizing any location or purchase of these

reserved lands. The reservation of the land affected not only the lands

within the railroad grant, but affected the right of any person to

locate upon or purchase these lands from the United States, as they

were not lands subject to settlement or entry. Justice Miller heard

this application for an injunction, and an argument was filed by the

authorities in Washington claiming that the proper officers of the land

department had the sole authority to determine the question as to

whether or not these lands were subject to location and entry, and that

the question of the effect of such location and entry could only be

decided by the courts, after entries were made and patents granted;

that if the lands were not legally subject to entry as to any person

claiming them, the action of the land officers would be void, and a

court, if called upon by the owner, could cancel any patent or other

evidence of title illegally issued. Justice Miller, after the full

argument of the case, sustained this view of the case and held that the

only remedy for parties claiming these lands under the act of 1846, and

the subsequent act of 1861-2, was to apply to the court for the

cancellation of any titles wrongfully issued by the land department or

by the President. In accordance with this view of the case a number of

suits were brought by the grantees of the Des Moines Navigation

Company, who received their titles from the company in consideration of

the moneys they had advanced as stockholders, and the supreme court of

the United States, upon appeal to that court, cancelled a number of

entries and patents that had been wrongfully issued. An attempt was

made to make a distinction between the Des Moines Navigation Company

and individuals who had purchased the lands from the state of Iowa, and

settled thereon.

Mr. Gue in his history of Iowa claims that the act of congress of 1861

was only intended for the protection of those purchasers from the state

who had actually settled upon their lands and made improvements

thereon, and that congress in using the words "bona fide purchasers

from the state of Iowa" did not include in those words citizens or

residents of the state of New York who had bought their lands in good

faith from the state of Iowa. The supreme court of the United States in

the very purpose of its organization was intended by the constitution

to organize a judicial body or tribunal before which all citizens of

the United States should be equal before the law, without regard to the

state in which they had their residence or location. There was no

question about the fact that the Des Moines Navigation Company was a

bona fide purchaser of these lands. At the time that they paid their

money and took a conveyance from the state of Iowa, the stockholders of

that company honestly believed they were getting a good and perfect

title and were paying out their money for same in the utmost good

faith. The statement of Mr. Gue in his history before referred to, that

the persons who received deeds for these lands from the Des Moines

Navigation Company were mere speculators, purchasing for a song a

doubtful and disputed title, is wholly without foundation and fact, and

the denunciation of the supreme court of the United States because the

court made no distinction between bona fide purchasers because of their

location or residence, very greatly mars the reliability and

impartiality that ought to have been characteristic of this history of

Iowa. Mr. Gue was a resident of Fort Dodge, where for years the

atmosphere of that locality was permeated by the passion of men who had

been disappointed in their attempt to secure a title to lands that they

all knew before and at the time of the location and attempted entry on

the same, had already been sold for a valuable consideration by the

state of Iowa. The opinion of the supreme court, delivered by Justice

Miller in the case of Williams vs. Baker, reported in 17 Wallace, 144,

contains an accurate and clear exposition of this entire controversy,

which fortunately was settled by the supreme court of the United

States, and to which they have continuously and consistently adhered.

Long after the diversion of the remaining lands of this grant to the

Keokuk, Fort Des Moines & Minnesota Railroad Company, the Iowa

Homestead Company, grantee of the Dubuque & Sioux City Railroad Company

brought suit for a portion of these lands embraced in the river grant

above the Raccoon fork, and attempted to disturb the title. In the

meantime the Keokuk, Fort Des Moines & Minnesota Railroad Company had

mortgaged these lands for the purpose of continuing their road from Des

Moines to Fort Dodge. On the foreclosure of this mortgage these

remaining lands were sold to a company known as the Des Moines & Fort

Dodge Railroad Company, organized for the purpose of owning and

operating that portion of the old Des Moines Valley road that had been

constructed between Des Moines and Fort Dodge. On the foreclosure of

this mortgage I had represented Martin Flynn and a number of the other

contractors, for whom I had filed a mechanics' lien for work done and

material furnished in the construction of the road north of Gowrie. I

succeeded in obtaining a provision in the decree of foreclosure making

these liens paramount to that of the mortgage, and when the road was

purchased by the new organization called the Des Moines & Fort Dodge

Railroad Company they were compelled to pay off Flynn and these other

lien holders in order to secure their title. This new railroad

organization elected Mr. Charles Whitehead, an attorney of New York

City, its president, and I received from Mr. Whitehead a telegram

asking if I could be retained as general attorney of their road. I

replied that upon the receipt of a draft for five hundred dollars I

would accept of the same as a general retainer. One object, I think,

that the company had in desiring my services was to secure some one

familiar with the question of the title of these Des Moines river lands

that the new organization had bought in connection with this other part

of the road.

The last contest over the title was the case of the Iowa Homestead

Company claiming the title under the railroad grant of 1856. It was the

case of the Iowa Homestead vs. The Des Moines & Fort Dodge Railroad

Company, reported in 17 Wallace, 84. Mr. Gue, in his history of Iowa,

makes a special point as to the hardship visited on one of the settlers

by the name of Crilley. I was attorney for Mr. Burrows in that case.

Mr. Crilley first attempted to locate a warrant upon a tract of land

near Fort Dodge prior to the decision of the supreme court of the

United States in the Striker case. He was refused permission to make

any such location or entry and was distinctly informed by the local

land officers that the lands belonged to the Des Moines river grant.

After the decision in the Striker case in 1859 and after the settlement

between the state of Iowa and the Des Moines Navigation Company and the

payment of the last $20,000 of the consideration, and after the

execution of the deeds and patents by the state to the Des Moines

Navigation Company, Crilley succeeded in inducing the local land

officers to allow his location, and ultimately obtained a patent

through their influence, signed by the President. The circuit court of

the United States declared his patent void and decreed cancellation of

the same. He took his appeal to the supreme court at Washington and

that court affirmed the decree. The judges of the circuit court at Des

Moines permitted Mr. Crilley, by his attorney, then to file a claim for

his improvements under the occupying claimant law of Iowa.

Commissioners were appointed and his improvements were valued at a very

liberal amount, far in excess of their real value or cost. Mr. Burrows

paid the money into court and Crilley received the same, but after he

received pay for his improvements he still refused to vacate the land.

A writ was issued to dispossess him, and upon the service of the writ

by the United States marshal, Mr. Crilley presented a loaded revolver

to the deputy marshal and threatened his life. The marshal thereupon

returned to Des Moines and secured authority to arrest Mr. Crilley,

which he did, and Mr. Crilley was actually detained in prison for

several weeks and until he agreed peaceably to surrender possession of

the land. This is the whole story of the inhumanity out of which Mr.

Gue's history of Iowa makes a case of such extreme cruelty and

hardship.

That this controversy over the title of the Des Moines river grant was

a most unfortunate one, both for those who purchased the lands from the

state and those who attempted to purchase them from the general

government after the state had sold them, there can be no question. It

was also very detrimental to the settlement of that part of the state.

The squatters or settlers made very indifferent improvements and very

indifferent cultivation of the land, and seldom if ever paid any taxes.

After the title of the Des Moines Navigation Company and its

stockholders and grantees had become fully settled, the counties where

these lands were located levied taxes upon the same, and suits were

brought against the Des Moines Navigation Company and its grantees. The

supreme court of Iowa held that from the date of the joint resolution

of 1861 the title to these lands inured to and became perfect in those

who had purchased and taken their deeds from the Des Moines Navigation

Company, and held them liable for the taxes that had been assessed from

the date of that joint resolution of 1861.

I continued to act as attorney for the Des Moines & Fort Dodge Railroad

Company for about ten years. I was not, however, employed upon a

salary, but only after my general retainer charged that company from

time to time for services actually rendered, and charged them as I did

any other client.

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