Chi., Rock Island & Pac. R.R. Co. v. Grinnell

• Decision Date: 14 June 1879
• Citation: 1 N.W. 712,51 Iowa 476
• Court: Iowa Supreme Court
• Parties: THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO., APPELLEE, v. GEORGE W. GRINNELL, APPELLANT.

51 Iowa 476

1 N.W. 712

THE CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO., APPELLEE,

v.GEORGE W. GRINNELL, APPELLANT.

Supreme Court of Iowa.

Filed June 14, 1879.

Appeal from Shelby circuit court.

Action at law to recover the possession of a quarter section of land situated in Shelby County. There was a verdict and judgment for plaintiff; defendant appeals. The facts of the case fully appear in the opinion.Sapp, Lyman & Ament, for appellant.

Thcmas F. Withrow, Wright, Gatch & Wright, for appellee.

BECK, C. J.

--I. The leading questions of law involved in this case are important and not without difficulty in their solution, and one of them, at least, has never before been passed upon by the courts. The case has been argued before us by counsel on both sides with great ability, and with that thoroughnessand clearness which manifest extensive research and complete familiarity with the law and the facts involved in the case. It is, indeed, the good fortune of this court to have so important a case presented in this thorough and able manner. Many questions are discussed by counsel, which, in the view we take of the case, are unimportant. They will not, therefore, be considered in this opinion.

II. The cause was submitted to the jury upon an instruction directing them to return a verdict for plaintiff, on the ground that the evidence showed the title of the land in controversy to be in plaintiff. Many errors are assigned relating to rulings upon the admission of testimony, etc. These objections relate to the very right of plaintiff to recover and assail its title to the land. Counsel for defendant do not discuss their assignment of errors point by point, but more correctly consider the case upon the facts disclosed in the record, and thereon maintain that plaintiff has failed to establish title to the land. We will discuss the case in the same manner. The controlling facts of the case, which it becomes necessary to consider, are as follows: The land in controversy is claimed by plaintiff under a grant made by congress to the state to aid in building a railroad from Davenport to Council Bluffs, and a grant made by the state to the corporation, under which plaintiff claims for the purpose of carrying out the object of the congressional grant. The issues of the case require us to determine whether the land in controversy is covered by these grants, and whether the title passed thereby and by assurances executed under the grants. The congressional grant was by the act of May 15, 1856. The parts of this act which we are called upon to interpret are as follows:

“Sec. 1. That there be, and is hereby granted to the State of Iowa, for the purpose of aiding in the construction of railroads” (four roads are named, among others the railroad from Davenport to Council Bluffs), “every alternate section of land designated by odd numbers, for six sections in width on each side of said roads. But in case it shall appear that the United States have, when the lines or routes of said roads are definitely fixed, sold any sections or any parts thereof, granted as aforesaid, or the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents to be appointed by the governor of said state, to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of pre-emption have attached as aforesaid, which lands, thus selected in lieu of those sold and to which pre-emption rights have attached, as aforesaid, together with the sections and parts of sections, and odd numbers, as aforesaid, and appropriated as aforesaid, shall be held by the State of Iowa for the use and purpose aforesaid; provided, that the land to be so located shall in no case be further than fifteen miles from the line of said roads, and selected for and on account of said roads severally, shall be exclusively applied in the construction of that road, for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatever; and provided further, that any and all lands heretofore reserved to the United States, by an act of congress, or in any other manner by competent authority, for the purpose of aiding in any objects of internal improvements, or for any other purpose whatever, be, and the same are hereby reserved from the operations of this act, except so far as it may be found necessary to locate the routes of said railroads through said lands, in which case the right of way, only, shall be granted, subject to the approval of the president of the United States.”

“Sec. 3. And be it further enacted, That the said lands hereby granted to the said state shall be subject to the disposal of the legislature thereof, for the purpose aforesaid, and no other; and the said railroads shall be and remain public highways, for the use of the government of the United States, free from all toll or other charge upon the transportation of any property or troops of the United States.

Sec. 4. And be it further enacted, That the lands hereby granted to said state shall be disposed of by said state only in the manner following, that is to say: that a quantity of land not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold, and when the governor of said state shall certify to the secretary of the interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for each of said roads having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles of each of said roads, may be sold; and so from time to time until said roads are completed; and if any of said roads are not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States.”

The state, by the act of July 14th, 1856, accepted the grant of congress and re-granted and conferred the lands appropriated to aid in building a railroad from Davenport to Council Bluffs to and upon the Mississippi & Missouri Railroad Company. We may have occasion hereafter to refer to the provision of this act, and of an act supplementary thereto, approved January 28, 1857. The Mississippi & Missouri Railroad Company filed in the General Land Office at Washington, on the 11th day of September, 1856, a map showing the proposed line of its road. A supplemental and corrected map was filed April 1st, 1857, showing substantially the same route as the original or first map, and correcting certain defects therein. On the 4th day of September, 1856, Bernhart Henn, under authority and as agent of the Mississippi & Missouri Railroad Company, selected the unsold lands in the sections and parts of sections designated by odd numbers between the six and fifteen mile limits of the road, to make up the deficiency of the grant caused by sales and pre-emptions. The commissioner of the general land office was advised of the selection by a letter of Mr. Henn. The lands enuring under this grant were certified to the state by the commissioner of the general land office, December 27, 1858. The railroad was completed from Davenport to Kellogg, a distance of one hundred and thirty miles, in 1864, upon the route as indicated in the maps above mentioned. By act of congress approved June 2, 1864, the Mississippi & Missouri Railroad Company was authorized to “modify and change the location of the uncompleted portion of its line as shown by the map thereof, * * * * * * so as to secure a better and more expeditious line for connection with the Iowa branch of the Union Pacific railroad.”

The second section of the act is as follows:

“Sec. 2. And be it further enacted, That whenever such new location shall have been established, the said railroad company shall file in the general land office at Washington, a map definitely showing such new location; and the secretary of the interior shall cause to be certified and conveyed to said company from time to time, as the road progresses, out of any public lands now belonging to the United States, not sold, reserved, or otherwise disposed of, or to which a pre-emption claim or right of homestead settlement has not attached, and on which a bona fide settlement and improvement has not been made under color of title...