History of Iowa From the Earliest Times to the Beginning of the Twentieth Century/3/13
THE BATTLESHIP IOWA
OF all the various grants of public lands made by Congress to aid works of internal improvement in the several States, probably none has been the subject of so much and long continued litigation as the grant of 1846, to aid in the improvement of the navigation of the Des Moines River. No land grant failed more signally in accomplishing the purpose for which it was made and none inflicted greater wrongs or hardships upon the pioneers who, in good faith, settled upon the public lands. The early history of the grant and the extravagant expectations indulged in by the projectors of the scheme to make the Des Moines River navigable for steamers, has been given in another place.
A summary of the conflicting claims to portions of the lands embraced in the grant and the diverse decisions of government officials and courts in relation thereto, reflects little credit upon these representatives of a great Nation. The grant was made by an act of Congress on the 8th of March, 1846, for the purpose of aiding the Territory of Iowa to improve the navigation of the Des Moines River from its mouth to the Raccoon Fork of said river. The grant embraced each alternate section, on both sides of the river, for a distance of five miles including such lands as had not been otherwise disposed of, the lands to be selected by agents to be appointed by the Governor of the Territory. Iowa became a State on the 28th of December, 1846, and the Legislature in January, 1847, by joint resolution accepted the grant. Jesse Williams and Josiah Bonney were the Commissioners appointed by Governor Briggs to select the lands. The Commissioners selected the odd numbered sections within the limits of the grant and reported to the Governor, on the 17th of December, 1847. The title to the lands thus selected by the terms of the grant, became vested in the State.
The Board of Public Works having charge of the improvement of the navigation of the river, being in doubt as to the extent of the grant, applied to the Commissioner of the General Land Office at Washington to learn how far north the grant extended. On the 23d of January, 1848, the Commissioner replied in these words:
“The State of Iowa 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.”
As the grant was made while Iowa was a Territory, when its northern boundary was many miles farther north than it was when admitted as a State, there was still some doubt as to the extent of the grant. To settle this doubt our members of Congress on the 8th of January, 1848, addressed a letter to the Secretary of the Treasury, who then had jurisdiction over the public lands, to procure an official decision as to the northern limit of the grant. Secretary Robert J. Walker, on the 2d of March, 1849, wrote as follows:
“I am of the opinion that the grant in question extends on both sides of the river from its source to its mouth but not to the lands on the river in the State of Missouri.”
This decision placed the northern limit of the grant much further north than the northern boundary of the State. The Commissioner of the General Land Office, under this ruling, June 1, 1849, directed the local land officers to reserve from sale all the lands included in the grant, according to that construction. The amount of land thus reserved, was estimated to be about 900,000 acres. On the 6th of April, 1850, Thomas Ewing, then Secretary of the Interior, gave his opinion that the grant did not extend above the Raccoon Fork of the Des Moines River. The Iowa members of Congress appealed from this decision of the Secretary, to the President, and cited the former construction placed upon the extent of the grant by Secretary Walker, on March 2d, 1849. The President referred the question to the Attorney-General, Reverdy Johnson, who after careful examination of the subject, gave it as his opinion that “The grant ran the entire length of the river within the then Territory of Iowa,” and that the decision of Secretary Walker could not be legally revoked; that it was a final adjudication and was beyond the control of his successor. This opinion was given on the 19th of July, 1850.
In the early part of 1851, President Taylor died and his successor, President Fillmore, selected a new Cabinet with Mr. Crittenden as Attorney-General. The question as to the extent of the grant was submitted to him. On the 30th of June, 1851, he gave an opinion that the grant did not extend above the Raccoon Fork. Here in a period of less than four years we have the opinions of five eminent lawyers, all high Government officials, three holding that the grant extended throughout the entire limit of the Des Moines River in the Territory of Iowa; and two holding that it did not extend above the Raccoon Fork.
On October 30th, 1851, the Secretary of the Interior, approved a list of 81,707 acres of land lying above the Raccoon Fork and in March, 1852, another list of 143,908 with the following qualifications:
“Subject to any right which may have existed at the time the selections were made known to the Land Office by the agents of the State, it being expressly understood that this approval conveys to the State no title to any tract or tracts which may have been sold or otherwise disposed of prior to the receipt, by the local land officer, of the letter of the Commissioner of the General Land Office, communicating the decision of Secretary Walker, March 2, 1849—to the effect that the grant extended above the Raccoon Fork.”
The State authorities then undertook to make the lower part of the Des Moines River navigable by the construction of a system of locks and dams, selling lands embraced in the grant to meet the expenses.
In December, 1853, the State through its officers, let a contract to one Henry O’Reiley of New York to continue the river improvement and to complete the entire work in four years from the 1st of July, 1854, for which he was to receive all of the unsold lands, the tolls, water rents, and all other profits arising from the work for a period of forty years. The State was discouraged with the vast undertaking and was only too glad to have the impracticable scheme transferred to other parties. It was becoming evident to careful observers that the coming means of inland transportation was to be by railroads instead of rivers and canals. Railroad construction had progressed far enough in the East to clearly demonstrate the fact that it must, in the near future, supersede all kinds of artificial slack-water navigation. Canals were too expensive and navigable streams too few to supply inland districts with sufficient means of transportation when the great West should become settled and seek the world’s markets for a vast surplus of food products. Already lines of railroad were being projected over the prairies and through the forests of Ohio, Michigan and Indiana and it was evident that the almost unlimited inland trade and travel in the not distant future must depend largely upon railroads instead of river and canal transportation. The numerous attempts to render small rivers navigable by a system of dams and locks, to secure a sufficient depth of slack water for steamboat navigation for a considerable portion of the year, had usually proved impracticable. Floods from melting snows, the breaking up of ice and the shifting sands, had destroyed the dams or filled up the locks and channels; drouths left insufficient water supply for the late summer and early fall months; while the ice of the long winters closed navigation at a time when a greater part of the agricultural products sought market. On the other hand railroads could be constructed to reach every portion of the country; trains could be depended upon to run every day in the year; the transportation was rapid and reliable and it was only a question of time and money when they would extend to every part of the country which produced enough to pay a reasonable interest on the capital required to build and equip a road. These were the chief considerations which, in 1853, influenced the State to abandon an impracticable scheme and convey the unused portion of the great land grant to private parties who were willing to undertake to complete the work to the Raccoon Fork. As soon as O’Reiley had secured his contract with the State, he returned to New York and proceeded to organize the “Des Moines Navigation and Railroad Company” which became incorporated under the laws of Iowa on the 9th of May, 1854. On the 9th of June, at the request of O’Reiley, his contract with the State was cancelled and one precisely the same was made between the State and the company which he had organized.
In May, 1856, Congress granted to Iowa public lands to aid in the construction of four trunk lines of railroad across the State from the Mississippi to the Missouri rivers. This grant was made subject to the following proviso:
“That any and all lands heretofore reserved to the United States, by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatever, be and the same are hereby reserved, to the United States from the operations of this act.”
On the 5th of May, the day this act became a law, the Commissioner of the General Land Office directed the officers of the local land offices in Iowa, to withhold the lands covered by this grant from sale or location until further orders.
The question of the extent of the Des Moines River grant now became of vital interest to the various parties to whom the several grants were to inure and application was again made to the Secretary of the Interior to settle the conflicting decisions as to the northern limits of the Des Moines River grant. The Secretary referred the matter to the Attorney-General, Cabel Cushing, who on the 29th of May, 1856, gave his official opinion as follows:
“I have come to the conclusion to advise you to stand on the last decision, by Secretary Stuart, which gives the State the lands along the course of the Des Moines, up to the northern boundary of the State.”
Up to this time the State had been claiming the lands on each side of the river to the northern limits of the Territory, which was much further north than the northern line of the State as it was admitted into the Union. Thus the matter stood when the Seventh General Assembly took steps to terminate the contract with the Navigation Company, on the ground that it had failed to prosecute the work in good faith in accordance with the contract.
A joint resolution was passed proposing terms of settlement with the Company and instructing the Governor to enjoin the Company, in case of its failure to accept the terms of the settlement proposed, from proceeding further with the improvement of the Des Moines River. The president of the Company had brought mandamus proceedings to compel the transfer to the Company of 89,000 additional acres of land, but the Supreme Court denied the writ for the following reasons:
“I. That the Company had failed to complete one-fourth of the work each year, as required by the contract.
“II. That the Company had failed to show a readiness or willingness to perform such work as required by the contract.
“III. Because from the petition and record, it was doubtful whether any amount was due the Company.”
The Legislature at this session passed an act making a grant of the lands conveyed to the Des Moines
Navigation Company, to the Keokuk, Des Moines and
Minnesota Railroad Company, to aid in the construction
of a railroad from the city of Keokuk up and along the
valley of the Des Moines River by way of the city of Des
Moines and thence to the northern line of the State. On
the 15th of April, 1858, the Navigation Company accepted
the terms of the settlement proposed by the State and the
plan of making the Des Moines River navigable was finally
abandoned.
The plan of improvement contemplated the erection of fifty-seven dams and locks between Keokuk and Des Moines. Two only of the fifty-seven, had been completed; one was nearly finished, and some work and materials had been supplied for five or six more at the time the work was abandoned. The State had expended a large amount of money derived from the sale of lands before turning the work over to the Des Moines Navigation Company. That Company proceeded with the work until it had expended $332,634 and when the settlement was made with the State, April 15, 1858, the Company had received 226,107 acres of land. The remainder of the lands, embraced in the grant lying north of the Raccoon Fork, were on the 3d of May, 1858, certified to the Navigation Company in final settlement. The Company then began to sell the lands wherever purchasers could be found.
After twelve years of work and the expenditure of a great amount of money derived from land sales, no part of the river had been made navigable, excepting for small steamers during the seasons of high water. The magnificent land grant had been disposed of without any benefit whatever to the State, or to its citizens. But in the meantime, while the officers of the General Government were promulgating different opinions and decisions as to the extent of the grant, the lands of the upper Des Moines valley were in the market, being sold to settlers by the Government which conveyed them by the highest and best title it could give.
In March, 1859, United States Attorney-General Black gave the opinion officially, in response to a request of the Secretary of the Interior, that the grant of lands did not extend above the Raccoon Fork. The old River Company still claimed the lands above the Raccoon Fork and E. C. Litchfield, a member of that Company, brought suit to procure a decision of the United States Supreme Court to settle the disputed northern limits of the grant of 1846. The Supreme Court rendered a unanimous decision at its December term, 1859, that the grant of 1846, was limited to the lands south of the Raccoon Fork and that the selection of lands under that grant north of that point was unauthorized and passed no title to Litchfield or the Des Moines Navigation Company from whom he purchased.
Thus after a long controversy and conflicting rulings of the Land Department the highest Court of the Nation had unanimously decided that no public land north of the Raccoon Fork of the Des Moines River was ever granted for the improvement of that river to the State and consequently could never have been legally certified or sold to that Company or its grantees. Consequently the lands still belonged to the Government or the people who had acquired title to them by entry or preëmption.
After the early decisions of the Land Department to the effect that the grant of 1846 did not extend above the Raccoon Fork, hundreds of settlers made preëmption or entered lands in Polk, Boone, Hamilton and Webster counties within the five miles limit of the Des Moines River. The Government officials accepted payment for the lands and the United States conveyed title to them. The grant of 1856 to aid in the construction of four lines of railroad across the State from east to west, embraced every alternate section of public land, designated by odd numbers, for six sections in width on each side of the roads. It was further provided that if any of the public lands had been sold, or preëmpted by settlers within the six miles limits on each side “then the nearest public lands within the distance of fifteen miles from said roads shall be appropriated to make good the amount of land intended to be granted to the State for the construction of the four lines of railroad.” The agents of the State proceeded under this act to select the land embraced in these grants, and as it had been decided by the officers of the Land Department of the General Government that the grant to aid in the improvement of the navigation of the Des Moines River did not extend above the Raccoon Fork, the public lands within five miles of the Des Moines River were selected under the grant of 1856. Two powerful corporations were deeply interested in having this decision circumvented and, as their claims had been declared void, the Des Moines Valley Railroad Company and the old Navigation Company now organized a powerful lobby to secure an empire of valuable lands to which they had neither title nor an equitable claim. Strange as it will appear to the present generation, they succeeded in a scheme that not only nullified in effect the late equitable decision of the Supreme Court but also ejected the settlers on Government lands who held their homes by the highest and hast title the Nation could give to its citizens.
On the 3d of November, 1860, the Secretary of the Interior notified Governor Kirkwood that the land which had been in dispute in the upper Des Moines valley, by virtue of conflicting opinions of Government officials, could now be preëmpted or entered and that such settlers would receive from the Government valid titles for the lands thus entered, preëmpted or settled upon.
On the 2d of March, 1861, in order to avoid the hardships that might arise from the late decision of the Supreme Court as to the extent of the original land grant, Congress passed the following joint resolution:
“Resolved, That all the title which the United States still retains in the tracts of land along the Des Moines River, above the Raccoon Fork thereof, which has 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.”
On the 10th of April, 1862, Cabel B. Smith, then Secretary of the Interior, states officially.
“That the lands above the Raccoon Fork were improperly certified as a portion of the grant of 1846, and that such of these lands as are embraced in the railroad grant of 1856, are to be disposed of according to the terms of that grant, without regard to the fact of their having been certified under the act of 1846. After satisfying the demands of the act of 1856, so much of the residue of the lands north of the mouth of the Raccoon River, as were certified under the supposed grant of 1846, and which the State of Iowa has sold to bona fide purchasers prior to March 2, 1861, will also be certified to the State of Iowa. The act of March 15th, 1856, granting lands for railroad purposes excepts such lands as the right of preëmption have attached thereto. This last grant is made because it affects the case of Crilly and many others, claiming preëmptions on said lands.”
To show the intent of Congress in passing this joint resolution it is necessary to turn to the explanations made in the report of the committee on public lands in the House of Representatives, by the chairman of that committee when he reported the resolution as follows:
In the Thirty-sixth Congress on the 2d of February, 1861, Mr. Trimble said in explanation of the purpose of the resolution:
“In 1846 Congress made a grant of land to the State of Iowa to aid in the improvement of the navigation of the Des Moines River. The Secretary of the Interior certified to the State some 400,000 acres of land above the mouth of the Raccoon Fork of that river. It has been decided by the Supreme Court of the United States that those lands were improperly certified. A subsequent grant made by Congress to the State of Iowa for railroad purposes, covers the whole of these 400,000 acres, with the exception of about 1,000 acres. These lands, therefore, do not revert to the United States in consequence of that decision but are still to be retained by the State for railroad purposes. The lands have been sold to actual settlers, who have paid their money for them. They are now occupied and there are three or four towns built upon them. There are, to my certain knowledge, lands among them worth from $50 to $60 per acre. The settlers want their titles confirmed. The State sold and patented these lands to the present occupants; and all that this resolution asks is that their titles be confirmed.”
With this explanation, which was undoubtedly honest and made in good faith, the House passed the resolution without opposition, never for a moment supposing that it was to inure to the benefit of the members of the old Des Moines Navigation Company who had purchased of that corporation and who were not settlers, but eastern speculators, thus attempting to secure a good title to lands be-longing to the Government and to actual settlers who held titles direct from the Government. When the resolution went to the Senate, Mr. Harlan of Iowa, in explanation of its purpose said:
“They propose nothing more than a relinquishment of the title held by the United States in the lands which have been certified by the Secretary of the Interior under the Des Moines River grant, and afterwards sold bona fide purchasers.”
Senator Grimes made a similar statement and added: “My own individual opinion is that the grant did not extend above the Raccoon Fork.”
Mr. Polk proposed to amend the resolution so that it should release the lands only sold to actual settlers and should exclude speculators from the benefit. He said:
“There is no claim in the law or equity against the United States for granting this land; but I am willing that the United States shall relinquish the title where an actual settler has bought the land and gone on it; but I am not willing to do that favor to persons who have bought as speculators.”
During the course of the debate, Senator Johnson, who was chairman of the Senate committee on public lands, said that this resolution never could have obtained the sanction of that committee, as it was an attempt to create a title to an immense tract of land where no title had ever been granted to the claimants. He further said that a majority of the committee believed the whole proposition was wrong and that no part of the resolution ought to be passed.
The entire debate on the resolution shows that the intent of Congress was first to protect the actual settlers upon these lands and then permit the remainder of the grant to be used by the State to make good the titles given by sale of lands, by the State, to purchasers and settlers and to quiet the titles.
On the 7th of April, 1862, the General Assembly of Iowa passed a joint resolution requesting Congress to grant or confirm to the State all of the odd numbered sections known as river lands to the north line of the State to be used in paying the just claims assumed by the State against the Des Moines River improvement and in building a railroad along said river.
In compliance with this resolution Congress passed the following act which was approved on the 12th of July, 1862:
“That the grant of lands to the then Territory of Iowa, for the improvement of the Des Moines River, made by Act of August 8th, 1846, is hereby extended 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 the 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, Des Moines and Minnesota Railroad, in accordance with the provisions of the act of the General Assembly of Iowa, approved March 22, 1858. 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 2d, 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 lands lying within the limits of this grant, the title of which has proved invalid, any lands which shall be certified to the 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 whose titles shall have failed as aforesaid.”
The amount of lands including this additional grant, embraced in the Des Moines River grant, lying within five miles of the Des Moines River from the Raccoon Fork acres, and among the most valuable lands in the State, embracing coal, gypsum and the best timber lands in Iowa.
This was known as the indemnity grant and under it D. W. Kilbourne, one of the officials of the Keokuk, Des Moines and Minnesota Railroad Company, was made the agent of the State to select these indemnity lands, amounting to 297,603 acres.
The old Navigation Company and its grantees now came before the Commissioner of the General Land Office, after having received its full share of the indemnity, and claimed the lands held by the settlers, preëmpted or purchased from the Government.
The Commissioner informed this Company on the 29th of June, 1867:
“That it is not understood upon what ground a claim upon the Des Moines River grant can now be set up to the tracts covered by actual settlement by preëmption, when in the final settlement of the grant, allowance for the benefit of said improvement claim has been fully given in other lands by way of indemnity and accepted by the State accordingly. Your request, therefore, that all preëmption claims to the lands within the limits indicated be rejected unless they had their inception prior to the original grant of August 8, 1846, is hereby declined.”
In March, 1868, the State of Iowa granted to the Des Moines Valley Railroad Company 297,000 acres of these indemnity lands.