CHAPTER XI.

Land grants in which Polk county was interested-Des Moines river improvement-Leonard Brown's recollection of early men and things.

THE original purpose of the general government in its liberal and magnificent land grants for school purposes and purposes of internal improvement, was a wise and truly magnificient one. The people were thereby to be benefited, and that to a most deserving class of people; those who had braved the dangers and endured the hardships of frontier life, and by their sacrifices made the settlement of the Far West, not only possible but actual. Such was the purpose of the government, but instead of proving a blessing it has proved a curse to the people, and in the end none but powerful corporations have reaped any benefit. In tracing out the history of these land grants and the difficulties and misunderstandings growing out of them, in which the people of this section have performed a leading part, it is our purpose to neither court the favor of the powerful nor appeal to the prejudices of the weak. Facts and those copied chiefly from official records and decisions, will compose the material of this chapter, while our own words will only be used by way of amplification or explanation.

There have been altogether ten different land grants which have been made in the State of Iowa. Some of these grants affect and interest the people of the whole State equally and the same, while other grants affected the settlers of Polk county peculiarly and had a special bearing upon the progress and development of the county. First was the five hundred thous and acre grant. This grant was made to Iowa in common with similar grants to other States, and by the provisions of the first State constitution was set aside as a perpetual fund for the support of schools throughout the State.

Second-The sixteenth section grant whereby the sixteenth section in every township in the State was set aside for school purposes.

Third--Mortgage school lands. These lands do not strictly belong to any particular grant, but became school lands by being bid off by the State. Fourth-The university grant. This grant consisted of two townships of land for the use of the university in the Territory of Iowa.

Fifth-The saline lands. This grant consisted of forty-six thousand one hundred and one acres and fifty-three one hundredths acres, and the proceeds of the sale of the same were set apart in the first place for the founding of a State lunatic asylum, but afterward the fund was added to the university fund.

Sixth-The Des Moines river grant. By this grant the State came into possession of a strip of land five miles in width on each side of the Des Moines river, to be used in making the river navigable for steamboats.

Seventh-The Des Moines river school lands. This grant consisted of some twenty-eight thousand acres in Webster and Hamilton counties, the proceeds from the sale of which became a part of the permanent school fund.

Eighth-The swamp lands. By this grant the State came into the possession of all the swamp lands.

Ninth-The railroad grant. By this grant the State came into possession of a large quantity of lands which were donated to certain corporations in aid of several lines of railroads.

Tenth-The agricultural college grant. By this grant each State in the Union received for the purpose of founding an agricultaral college, a quantity of lands equal to thirty thousand acres for each senator and representative in Congress. Out of this fund was founded the college at

Ames.

Having thus merely alluded to the different grants it is now our purpose to speak more fully of those grants in which Polk county has more particularly been interested, viz: Des Moines river grants and the swamp land grant.

At the time Iowa was a Territory, organized under the act of June 12, 1838. (5 Stat. 235.) On the eighth of August, 1846, Congress passed the act making the Des Moines river grant, the material parts of which are as follows:

"AN ACT granting certain lands to the Territory of Iowa to aid in the improvement of the navigation of the Des Moines river in said Territory.

"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 Racoon 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 improvements 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 sale shall progress as the proceeds thereof shall be expended, and the fact of such expenditure shall be certified as aforesaid.

"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."

On the 17th of October, 1846, the Commissioner of the General Land Office requested the Governor of the Territory to appoint an agent to select the land under the river grant, at the same time intimating that the grant only extended from the Missouri line to the Raccoon Fork of the Des Moines river. On the 17th of December, a few days before the admission of the State, the territorial authorities designated the odd-numbered sections as the lands selected under the grant.

The State accepted the grant in form by joint resolution of the General Assembly, approved January 9, 1847. On the 24th of February following

the State created a "Board of Public Works," to whom were committed the work, construction and management of the river improvement and the care, control, sale, disposal and management of the lands granted the State by the act of 1846. This board was organized September 22, 1847, and on the 17th of February, 1848, the Commissioner of the General Land Office, in an official communication to the Secretary of the board, gave it as the opinion of his office that the grant extended throughout the whole length of the river within the limits of the State.

On the 19th of June, 1848, without any notice of a revocation of this opinion, a proclamation was issued by the President, putting in market some of the lands above the Raccoon Fork, which would go to the State if the Commissioner was right in the construction he gave the grant. This led to a correspondence on the subject between the proper officers of the State and the United States, which resulted in the promulgation of an official opinion by the Secretary of the Treasury, bearing date March 2, 1849, to the effect that the grant extended from the Missouri line to the source of the river. In consequence of this opinion the Commissioner of the General Land Office, on the first of the following June, directed the Registers and Receivers of the local land offices to withhold from sale all the odd-numbered sections within five miles on each side of the river above the Raccoon Fork.

Afterward, the State authorities called on the Commissioner of the General Land Office for a list of lands above the Raccoon Fork which would fall to the State under this ruling. The list was accordingly made out, and on the 14th of January, 1850, submitted to the Secretary of the Interior for approval-jurisdiction of matters of that kind having been before that transferred by law from the Treasury to the Interior Department. On the 6th of April, the Secretary returned the list to the land office with a letter declining to recognize the grant as extending above the Raccoon Fork without the aid of an explanatory act of Congress, but advised that any immediate steps for bringing the lands into market be postponed in order that Congress might have an opportunity of acting on the matter if it saw fit.

On the 29th of October, 1851, the Secretary of the Interior, after consultation with the President and his Cabinet, and pursuant to a decision there made, wrote the Commissioner of the General Land Office as follows:

"SIR: I herewith return all the papers in the Des Moines case, which were recalled from your office about the first of the present month.

"I have reconsidered and carefully reviewed my decision of the 26th July last, and in doing so find that no decision which I can make will be final, as the question involved partakes more of a judicial than an executive character, which must ultimately be determined by the judicial tribunals of the country, and although my own opinion on the true construction of the grant is unchanged, yet in view of the great conflict of opinion among the executive officers of the government, and also in view of the opinions of several eminent jurists which have been presented to me in favor of the construction contended for by the State, I am willing to recognize the claim of the State, and to approve the selections without prejudice to the rights, if any there be, of other parties, thus leaving the question as to the proper construction of the statute entirely open to the action of the judiciary. You will please, therefore, as soon as may be practicable, submit for my approv al such lists as may have been prepared, and proceed to report for like approval, lists of the alternate sections claimed by the State of Iowa above the

Raccoon Fork, as far as the surveys have progressed or may hereafter be completed and returned."

The lists were made out accordingly. Until the 17th of December, 1853, the State itself, through its board of public works, carried on the work of improving the river, paying the expense from the proceeds of the sales of the lands included in the river grant. A land office had also been established for the sale of these lands. On that day the State entered into a contract with one Henry O'Reilly to complete the work. This contract O'Reilly transferred, with the consent of the State, to the Des Moines Navigation and Railroad Company, a New York corporation, and on the 9th of June, 1854, in consequence of this transfer, a new contract was entered into between the State and the corporation for the purpose of simplifying and more fully explaining the original contracts and agreements. By the new contract the State agreed to convey to the company "all of the lands donated to the State of Iowa for the improvement of the Des Moines river by act of Congress of August 6, 1846, which the said party of the second part" (the State)" had not sold up to the 23d day of December, 1853." This was the date at which it was supposed the sale of lands could be stopped at the State land office after the contract with O'Reilly.

Prior to the contract with O'Reilley the State had, from time to time, disposed of lands belonging to this grant and had applied the proceeds to the improvement of the river, and prior to the making of the contract with the Des Moines Navigation Company, June 9, 1854, the State had sold about 327,000 acres of land, of which amount 58,830 acres were located above the Raccoon Fork.

Subsequent to June 9, 1854, the Des Moines Navigation Company carried on the work under their 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. These certificates were in the usual form of certificates issued for entries of public land. The first one, dated May 14, 1855, certified 88,853.10 acres; the second, dated May 6, 1858, certified 116,636.54 acres; together, 205,489.64 acres, and all located above the Raccoon Fork, excepting about 50,000

acres.

At length a disagreement and misunderstanding arose between the State and the navigation company and the General Land Office ceased to certify lands under the act of August 8, 1846, and there being no other provision for paying for the improvement, for the purpose of final settlement with the River Navigation Company, the General Assembly, on March 22, 1858, passed the following joint resolution:

"WHEREAS, the Des Moines Navigation & Railroad Company have heretofore claimed and do now claim to have entered into certain contracts with the State of Iowa, by its officers and agents, concerning the improvement of the Des Moines river in the State of Iowa, and, whereas, disagreements and misunderstandings have arisen and do now exist between the State of Iowa and said company, and it being conceded to be the interests of all parties concerned to have said matters and all matters and things between said company and the State of Iowa settled and adjusted; now, therefore,

"Be it resolved by the General Assembly of the State of Iowa, That for the purpose of such settlement, and for that purpose only, the following propositions are made by the State to said company:

"That the said company shall execute to the State of Iowa full releases

and discharges of all contracts and agreements and claims with or against the State, including water-rents, which may hereafter or do now exist, and all claims of all kinds against the State of Iowa and the lands connected with the Des Moines River improvement, excepting such as are hereby secured by the State to the said company, and also surrender to the State the dredgeboat and its appurtenances, belonging to the said improvement; and the State of Iowa shall, by its proper officers, certify and convey to the said company all lands granted by act of Congress, approved August 8, 1846, to the then Territory of Iowa, to aid in the improvement of the Des Moines river of Iowa."

It was further agreed that said River Company convey to the State all materials of every kind and description prepared for or intended for the construction of locks and dams in the said improvement, and that the State should take the existing contracts but no other liabilities except constructing or repairing the works on certain improvements at Keosauqua, Bentonsport, Plymouth and Croton; it was also agreed that the River Company should be discharged from all claims, and was to pay to the State the sum of twenty thousand dollars. It was also provided that certain of the lands not then granted to the company for the improvement of the river be granted to the Keokuk, Des Moines & Minnesota Railroad Company to aid in the construction of a railroad up and along the valley of the Des Moines river, provided, further, that Congress should permit such diversion of the

lands.

This proposition on the part of the State was conditional upon the Navigation Company accepting it within sixty days from the passage of the joint resolution.

The company accepted the proposition, paid the State $20,000 in cash, and conveyed to the State the old dredge-boat referred to in the resolution. On the 3d of May, 1858, the State issued to the company fourteen deeds or patents, conveying to the said company 256,703.64 acres of land, describing the same by section, township and range.

May 18th, same year, the State executed to the company still another conveyance, intended to cover any tracts or parcels which might have been overlooked or omitted in the fourteen deeds previously executed. These fifteen deeds conveyed to the River Company 266,108 acres, of which about 53,367 were below the Raccoon Fork and the balance, 212,741 acres above the Raccoon Fork.

The General Assembly, on the 22d of March, 1858, donated to the Keokuk, Des Moines & Minnesota Railroad Company all the lands, stone, timber and other material turned over to the State by the Navigation Company, excepting the land belonging to said grant sold to said Navigation Company by virtue of a settlement of the old contract. In accepting this donation the Keokuk, Des Moines & Minnesota Railroad Company agreed to assume certain liabilities growing out of original contracts made by the Navigation Company and assumed by the State.

Thus the matter stood, so far as the State and the Navigation Company and the Railroad Company were concerned, till 1861. Some progress was made in constructing the railroad, and the River Company was disposing of its lands. In the meantime private individuals and other corporations had acquired titles to certain lands along the river above the Raccoon Fork, and their titles conflicting with the titles of the River Company and the Railroad Company, the conflict resulted in litigations, and at the Decem