Grant v. Hemphill

• Decision Date: 26 May 1894
• Citation: 59 N.W. 263,92 Iowa 218
• Parties: ELIZABETH GRANT et al., Appellants, v. LEROY HEMPHILL et al
• Court: Iowa Supreme Court

59 N.W. 263

92 Iowa 218

ELIZABETH GRANT et al., Appellants, v. LEROY HEMPHILL et al

Supreme Court of Iowa, Des Moines

May 26, 1894

Appeal from Palo Alto District Court.--HON. LOT THOMAS, Judge

THIS is a suit in equity, by which the plaintiffs claim title to, and possession of, certain land, and they demand that said title and possession be quieted as against the defendants. A writ of injunction was invoked and granted, by which the defendants were restrained from taking the possession of the land in dispute. The district court entered a decree dismissing the plaintiffs' petition, and they appeal. The Chicago, Milwaukee & St. Paul Railway Company intervened in the action, claiming to be the owner of the land, as part of its government land grant, and the petition of intervention was dismissed. The intervener appeals. Affirmed.

AFFIRMED.

Soper Allen & Morling for plaintiff appellants.

Geo. E Clarke for intervener appellant.

J. W Cory for appellees.

OPINION

ROTHROCK, J.

I.

A number of motions were filed with the submission of the case. They are motions to strike out parts of appellees' abstract, and to tax costs against appellees, and to strike an argument in reply, and a motion by appellees to strike the intervener's argument from the files because not filed in time. These motions are all overruled. They are not well taken. The appellees' abstract was not unnecessary, and, so far as it is an abstract of additional evidence, it is sustained by the transcript of the evidence. The question is also presented, in argument, by appellees, that the record of the evidence is not complete, so as to authorize a trial anew in this court. This position does not appear to us to be sound. Another objection is made to the effect that the issues presented should have been tried as a law action, and that the wrongs of which the plaintiffs complain are not cognizable in a court of equity. This objection was made in the court below. We do not think this claim is founded on a correct view of the issues presented by the petition. It is a plain action in equity to quiet title, aided by an injunction to protect the plaintiffs' possession pending the suit. Preliminary to a consideration of the merits of the case, it should be stated that the only real party plaintiff is John T. Eaton. James Grant was a party plaintiff, and died before the cause was heard in the district court, and the executors of his last will and testament were substituted as plaintiffs, but they have no real interest in the case.

The land in controversy is the greater part of what is claimed to be section 19, township 97, range 34, in Palo Alto county. This township was surveyed by the United States in the year 1855, and the subdivisions of the township were surveyed in 1857. According to the government maps and plats, all but the west half of the northwest quarter, and two hundred and twenty-one and thirty-six hundredths acres of the section, was designated as under water. The two hundred and twenty-one acres were subdivided into five lots, numbered 1 to 5, inclusive. All of the surveyed land is situated in the northwest part of the section, and embraces the land on the north line a little more than half across the section, and from that point, in a southwest direction, to the south section line,--some eighty rods east of the southwest corner of the section. The land in controversy is that marked on the government plat as under water, and the last line described is what is known as a "meandered line." It appears that the lots 1, 2, 3, 4, and 5 were claimed to be swamp land, and the plaintiff Eaton claims to be the owner thereof by a proper line of conveyances from the government down to James Grant, deceased, and by a contract of purchase from said Grant, dated April 1, 1890, which describes the land purchased as lots 1, 2, 3, 4, and 5 in said section, containing two hundred and twenty-two and thirty-six hundredths acres more or less. It is not claimed by Eaton that there is less than that quantity of land in the five lots, without including any part of the land designated on the government plat as under water. In other words, so far as appears, he has the full complement of land which he purchased within the meandered line. Eaton does not live on any part of the section. Before he made his contract with Grant, he entered on that part now in dispute, without any authority from anyone, and broke up and put some of the land in cultivation. After he made his purchase of the lots, he claimed the whole of the section, because he was the owner of the lots, and they were bounded on the east by the meandered line, and he had the right to the land between the meandered line and the waters of Lost island and Mud or Palo Alto lakes. A large number of witnesses were examined with reference to that part of the section which is platted as under water.

We will not set out the evidence in detail. It appears, from a very decided preponderance of the evidence, that the land in controversy is not now, and probably never was, any part of a lake. It is true that some of the witnesses testify that the inlet of Mud lake extended up into the land. But there is no evidence that at or near the time of the survey, or since there has been any body of water anywhere on the land, upon which to base a meandered line. Some of the land, like all bodies of land in that country, is low, flat, and marsh land, but the evidence shows that a greater part of the land claimed by Eaton is dry, tillable land, and that if it had been surveyed it would not have passed to the state under the swamp-land grant. The defendants conceived the idea that this land did not belong to any riparian owner, but that it was part of the unsurveyed public lands of the United States; and they entered upon it, and erected small houses or shanties, and claimed to be entitled to enter the land as homesteaders. They made application to the district United States land office, and their applications were refused on the ground that the land was unsurveyed. This decision of the local land office was approved by the commissioner of the general land office. The plaintiff founds his action upon these alleged trespasses of the defendants. The evidence does not show that defendants removed any of the plaintiffs' crops, or that any damage was done by them, more than merely nominal. The defendants demanded no affirmative relief, and the dismissal of the plaintiffs' petition left the parties in the same situation they were before the suit was commenced. A great many questions are discussed by counsel, which appear to us not pertinent to either the issues presented, or to the evidence. We...