ARGUED AND DETERMINED
UNITEUSTATES 'IJ. DES ;MOINES RIVER NAV.
, (Ctrcutt Court, N. D. Iowa. C. D. June 12,1890.)
PUBLIO LANDS-GRANTS TO STATE-RIGHTS Oll' GRANTEES OF STATE.
Where the United States grants lands to a state to aid in improving a river, and the state grants the lands covered by the grant to a corporation on condition that it will carry out such improvements, and afterwards, on the corporation's failure tQ !lOmplete the impr()vements, by act of legislature, releases it from .the contract and confirms the grant, congress will be presumed to have notice of such 'act; and a subsequent resolution of congress, relinquishing to the state certain land which had. been erroneously certified by the secretary of the interior as in, eluded in the original grant to the state, will inure t.() the benefit of the corporation, as the state'sgrant6e.
. In Equity. Bill for cancellation of certain conveyances by the secretary of the interior, the governor, of Iowa, and for the quieting of the title of the United Siates to certain realty in Iowa. Submitted on behalf of the Des Moines River Navigation & Railroad Company on demurrer, and as to the other defendants on the pleadings arid proofs. John Y; Stone, Asst. Dist. Atty., D. O. Oha8e, and W. S. Clark, for complainant. Benton J. Hall and Gatch, Connor M Weaver, for defendants. SHIRAS, J. In order that the purpose and scope of the bill filed in this cause by the United States may be fairly understood, it becomes necessary to give an outline of the legislation, national and state, affecting what are commonly known'as the" Des Moines River Lands," together with the departmental action based thereon, and the construction given thereto in the decisions rendered by the supreme court of the United Siates in the many cases arising out of the conflicting claims made to the lands in questIon. By an act approved August 8, 1846, the congress <lithe United States "granted to the 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 apProp,!:iated) 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 United The remaining of the secretary ofJhetrea!,!uryof sections of the act provide for the method of disposmg of the lands as the work of improvement should pPQgreSS, declaring the river to be a public highway for the use of the government of the United States free from. apy toll or other' charge upon the property of the'Ynited States, that the lands should not be sold for a price lower than the minimum price of other public lands. Immediately after its admission as a state, Iowa, through its general assembly, accepted the grant for the purposes named, and, through commissioners appointed for that purpose, selected the odd-numbered sections as, descriptive of th,e moiety coming to the state, which was' approved by the 'secretary of the treasury, the offlpers ,of the local were instructed to reserve the odd-rltln-jbered' sectionsfroIn 'the mouth of the Des Moines to the Raccoon fork thereof, thegrallt being held to terminate at the latter point. Subsequently, in1849, the then secretary onhe treasury changed the. ruling thli,ftbe grant: did not extend above the Raccoon fork, and held that itex.'tended the entire length ofthe ri"er;jlOd hence the local la,nd-officers on the l'St day of June, 1849, instructed to withhold from sale all tll-e land situated in the odd-numbered sections within five miles of the Des Moines river above the Raccoon For the purpose of carrying on the work contemplated in this grant, to-wit, the improvement of the navigation of the Des Moines river, the state of Iowa created aboard of 'publio, works, ,under whose control some was made in::the erection,of Qams upon the river, and in clearing obstructions out! of the channel. In: 1851 the:board of public works was abolished, and the management oLthe improvement; was intrusted to a commissioner and register. In 1853 a contract .was imade with Henry O'Reiley by the commissioner and register, for;the carrying on by him of the work proposed to be done, which contract was by him released, under date of June: 8,1854, in fl'j.vor of the Des 140inea River Navigation & Railroad Company, a corporation organized on the 6th day of May, 1854, with an authorized c}tl'ital the pripcipal9Qject .andbusinessof the Qo.rporatl,on of.the na\Tigation Githe Des Moines river by" ,of Jpeks, and <:lll-na)s" the of witho ,Qr 011 thEl9th day of J uo,e, 1854, compll-ny the inchaJIg6 ofsa,idellterpriae.under of. ,state,. entered in.Lor a OOI;ltract whereby.the. QOmpllny bound' "to. mak\'l ,finisp.,the ;De% MQine& ' river improvement :frOin the. Mississippi river to Raccoon fork, on said Des the;flame to: ,()r ipefore tpe, 4ayof July I and furUlar, agreed to, pay all the dePtll reason olthe work already done' to"'flf,c:ls, thE(irnprqyernent pi the navigation of saili rivel1,' provided the i amount thereof should not exceed 660,000, and in cpns!<leration. thereof
RIV1J:R NAV. &: R. CO.
wag to'be'lind become entitled all moneys due and owing to said imiprovement from all sources; it being further provided : ' "That said party of the second part, on 'their part, herebycovenailts alld with said party of the first part to selland convey to the said party of the first part, in maimer and upol} the terms hereinafter provided; all of the lands donated to the state of Iowa for the the De,S Moines river by a,ct of congress o(AugLJst 8. ,1846, which, the said party of thE! second part had not sold up to the 2:Jd day of December,1853;,for ,whichsajd lands the said party of the first partco\:,enants and agrees, iumanner and form as fixed by this agreement, to pay the sum of thirtel'n hundred thousand dollars." The contl'adt further provided the rates to be allowed for the different kinds of 'work to be done and materials to be furnished in making the proposed improvements, and which, when e;pended, were to' becredited on the sum agreed to be paid for the conveyance of the donated hinds. It was also agreed that the navigation cOmpany should pave the contrbl' and management of the improvement, with the right to collect 'tolls and'water-rents for the use thereof for the period Qf 40 years, at the expiratiof!of which time the works were torevert to the state of Iowa. assembly of the state This contract was based upon the act of the of Iowa passed January 19, 1853; which authorized the commissioner and register of the Des Moines river improvement to sell the lands in question in such manner as would secure the early completion of 'the work; it being further provided in said act that the lands should not be sold fora less sum than $1.25 per acre, nor for less than the aggregate sum of $1,300,000, and that any contracts made should be valid only when signed by the commissioner, countersigned by the register, and approved by the governor. It does not appear that the contract of June 9, 1854, had attached thereto the signature of the governor, or that he did, at the time of the execution of the contract, execute any written evidence of his approval thereof. The navigation company made some progress in the work contracte<,l to be done, but it soon becaIDe evident that the company would fall far short of the completion of the work by the time stipulated in the contract. It would seem that the company had become satisfied that in all probability it would be finally held that the grant of 1846 did not ex· tend above the Raccoon fork, and that, unless the lands above that point could be secured to the company, there would be no profit in the enterprise. Mutual charges of bad faith were indulged in between the state and company officials, not necessary to be particularized. Finally, on the 22d of March, 1858, the general assembly of the state, by joint reSolution, formulated a proposition for settlement, which on the 15th day of April, 1858, was duly accepted by the company. By the terms of this agreement it was provided that the company shouldexecute to the state full releases of all contracts with and claims against the Rtate, inclUding rights to water-rents, and should surrender to the state the dredge-boat belonging to the improvement, arid all material prepared for use in the construction of the improvement in question, and should pay the state the sum of$20,000j and in consideration ,thereofthe state agreed tocertifyand ,(mnvey to the company all lands granted by the act of August
8, '1846, which had been approved and certified to the state by the gensaving and excepting all such lands as had been sold eral or agreed to be sold and conveyed by the state or its officials prior to the 23d day of December, 1853, and especially exceptIng 25,487.87 acres lying immediately above the Raccoon fork, supposed to have been sold by the general governmept, but claimed by the state of Iowa. On May 3, 1858, P.Lowe,the governor of the state, executed to the Des Moines River Nl1yigation & Railroad Company 14 deeds or patents describing in de,taitthe lands claimed under the grant\ and which include the lands involved in the present suit; and on May 18, 1858, executed a further deed or patent, general in its terms, but using in the granting clause the terms in substance found in the agreement of settlement of March 22, 1858. At the December term, 1859, of the ,supreme court of Railroad Co. v. Litchfield, 23. How. of the United States, in the 66, that court decided that the grant of 1846 extended only to the Rac'coon fork, and did notafi'ect the' lands above that, point. In the year 1856, congress, by an a()t approved May 15, 1856, granted to the state of Iowa, to aid in the construction of certain named lines of railway from the Mississippi to the Missouri river, every alternate section, designated by odd nU-\llbers, for six sections, in width on each side of the said roads. One of the proposed lines of railway named in said act was to extend from the city of Dubuque to a point on the Missouri near Sioux City. The Dubuque & Pacific Railroad Company, by grant from the state, beCll.me entitled to the lands appropriated by the act of congress to aid in the construction of the line name4, and, by virtue o( this grant, claimed to be entitled to the odd-numbered sections lying within fiVfl miles of either hank, of the Des Moines river; the contention being that, as the grant of 184Ejdid not exteI;ld ll.bove the Raccoon fork, the lands above that fork were not appropriated, and were therefore covered by the railroad grant., 'fhe supreme court decided adversely to this claim of title under grant, in the Cll.seof ,Wolcottv. DeaMoines Co., 5 WalL. 681, in whiCh it was in effect held that, although the act of 1846 did not covet the'Jands a,bove the Raccoon fork, yet'the action of the depart. ment 'of the lands in reserving these lands from other use or disposal,lu,td effect of so withdrawing or reserving the same, that the railroad lapd,grant of 1856 did not embrace the same; and that they did not pass to the state under that grant. In the unrepol'ted case of Riley v. Welles, at December term, 1869, the supreme court held that these landsl above the Raccoon fork, though not covered by the act of liy:vertheless so reserved by action of the land department 1846\ that they, were not open to pre-emption entry or other purchase, ang hence gave him no title; and this ruling was reaffirmed in the case.ofOrilley v. Burrows, 17 Wall. 167, note. , As .the cOn;tmissioner of the general land-office, the secretary of thlf and the secretary of the interior, and the attorney general ha.d 'Itt different times held different views as to the extent of the act of 1846; and, when the view prevailed that the terp?-ip,a,teCiat t1,leHaccoon tork, officers of theland-departm,:mt