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.