Bourne v. Ragan

• Decision Date: 22 January 1896
• Parties: Z. BOURNE v. WILLIAM RAGAN, Appellant
• Court: Iowa Supreme Court

65 N.W. 826

96 Iowa 566

Z. BOURNE v. WILLIAM RAGAN, Appellant

Supreme Court of Iowa, Des Moines

January 22, 1896

Appeal from Hamilton District Court.--HON. N. B. HYATT, Judge.

This is a suit in equity to quiet the plaintiff's title to forty acres of land in Hamilton county. The defendant answered denying that plaintiff had title to the property, and by way of cross bill he claimed that he was the owner, and he asked that his title be quieted as against the plaintiff. There was a decree for the plaintiff, and defendant appeals.

Affirmed.

Wesley Martin for appellant.

A. N Boeye for appellee.

OPINION

Rothrock, C. J.

I.

The plaintiff claims title to the land under the act of congress known as the "Swamp Land Grant," passed September 28, 1850. The defendant claims the land under what is known as the "Railroad Land Grant," of May 15, 1856. In short, the case presents conflicting claims under the two acts of congress above named, which grants have in many cases been considered by this court as well as the supreme court of the United States. There is no question that the land in controversy in this case is within the limits of the railroad grant, and that it was a part of that grant, unless the claim that it was swamp land can be invoked by the plaintiff in support of his claim of title. It is contended by appellant that the land was not swamp land in 1850, when that grant was made. The plaintiff assumed the burden of proving that it was then such land as passed by this grant. A number of witnesses were examined on this question of fact, and their testimony shows beyond any reasonable doubt that it was swamp land. It is true none of these witnesses claimed to have seen the land in 1850. But a number of them knew it for many years. One testified that he had knowledge of it for thirty years, and others testified to its swampy character at times so far remote as to show that when the country was in a state of nature, and before the prairie sod in that part of the state was broken up, and the country was sparsely settled, the land was nearly all swamp. It is true that none of these witnesses knew this land in the year 1850, but their testimony relates to a time when it is fair to presume that the condition of the land was practically the same as it was when the swamp land grant was enacted. This finding is strongly supported by the fact that the evidence shows that now, after the country has been improved, the land is of a swampy character, and that no more than ten or twelve acres is suitable for cultivation. There is no evidence in conflict with that above considered, except the testimony of the defendant, who saw the land in 1892 as he "rode past it in a buggy and noted it from the roadway." This question in the case requires no further consideration.

II. It appears that on April 12, 1883, the board of supervisors of Hamilton county conveyed the land in controversy to A. O. Cragewick for the sum of three hundred dollars, which was paid into the county treasury. The deed contained a covenant of general warranty of the title. The purchaser took immediate possession of the land, and broke up above twelve acres of sod, which was all that was susceptible of cultivation. He afterwards died, and his heirs sold and conveyed the land to the plaintiff, who has continued to use the same for such purposes as it was adapted to up to this time, and the plaintiff and his grantors have since the year 1883 paid the taxes on the land. It does not appear that there was at any time any selection of the land as swamp land, and there is no evidence of any affirmative acts of the county in the assertion of a swamp land claim to the land except the fact that the county conveyed it to Cragewick. It will be observed, however, that the deed was not a mere quitclaim. It was in the form of an assertion of absolute title; and the consideration was not nominal, being at the rate of seven dollars and fifty cents an acre. Some question is made by the defendant to the effect that the deed executed by the board of supervisors is void for the reason that the board was not authorized by law to sell the land. We do not think this question is a material one in this controversy. In the view we take of the case, the defendant is in no position to profit by any want of power in the board to convey the land. In our opinion, the defendant has no title or valid claim to the land, and so long as the county and its taxpayers are content with the acts of the board, the defendant cannot be heard to question the conveyance.

III. The defendant claims that the land was properly selected as belonging to the Dubuque & Sioux City Railroad Company under the grant of 1856. The selection of this land was filed in the local land office in December, 1877, and on the fourteenth day of November, 1891, the list was approved by the secretary of the interior. It does not appear that there was any contest in regard to this selection and the approval thereof. After the selection was approved and certified, and on the nineteenth day of February, 1892, the railroad company executed a quitclaim deed to the defendant for the land. This suit was commenced on the twenty-eighth day of April in the same year. The controlling question in the case is whether the plaintiff had such an interest in the land as to entitle him to prove by parol that the title passed to the state and county under the swamp land grant and the subsequent acts of the legislature of this state. If we were to follow the case of Hays v. McCormick, 83 Iowa 89 (49 N.W. 69), and other cases determined by this court before and after that case was decided, there would be no question that the decree of the district court should be affirmed. In the cited case, and others, we have held that as the swamp land grant was a grant in praesenti, no formal conveyance was required to vest the title to the lands in the grantees, and that the act of the general assembly of 18...