Hays v. McCormick

• Decision Date: 28 May 1891
• Citation: 49 N.W. 69,83 Iowa 89
• Parties: HAYS v. MCCORMICK.
• Court: Iowa Supreme Court

83 Iowa 89

49 N.W. 69

HAYS

v.MCCORMICK.

Supreme Court of Iowa.

May 28, 1891.

Appeal from district court, Linn county; J. H. PRESTON, Judge.

Action to quiet title to a 40-acre tract of land in Linn county. Decree for plaintiff, and the defendant appealed.E. S. Bailey and N. D. Parkhurst, for appellant.

Davis & Voris, for appellee.

GRANGER, J.

The respective parties trace the origin of their titles to grants of land by the United States, that of plaintiff being to the swamp-land grant act, approved September 28, 1850, as amended; and defendant to the Iowa railroad grant of May 15, 1856, as amended. The claim of the record title of the parties is as follows: That of plaintiff, the act of congress of 1850 granting to the states the swamp and overflowed lands unfit for cultivation within their boundaries; the act of the general assembly of 1853 granting to the counties the swamp and overflowed lands within their limits, which were by the act of congress in 1850 granted to the states; and a conveyance by the county of Linn to him, September 4, 1888. That of the defendant, the Iowa railroad grant of 1856; a certification of the land under the act by the commissioner of the general land-office, December 23, 1858, approved by the secretary of the interior, December 27, 1858, which list was, under chapter 167, Acts 18th Gen. Assem., signed by the governor, and attested by the secretary of state of Iowa, for the Cedar Rapids & Missouri Railroad Company, which company conveyed the land to the Iowa Railroad Land Company, and it to the defendant, October 20, 1885.

1. It is important that we first determine from the evidence in the case a question of fact, as to the actual character of the land September 28, 1850, which is the date of the grant to the states of the swamp lands by congress. No intelligent discussion of the question can be given without quoting a volume of evidence that would be unwarranted, and of no practical use. Our examination of the evidence leads us to the conclusion that at the date of the grant the tract was overflowed land, within the meaning of the act referred to, and the case will be considered with that as an established fact.

2. The land in question is the S. W. 1/4 of N. W. 1/4 of section 19, township 85, range 8 W. A stipulation in the case is as follows: “In order to avoid the introduction of evidence upon the subject hereinafter mentioned, it is stipulated and agreed by and between the parties that the county of Linn, prior to 1875, made selections of swamp lands, as shown by the records of the register of the state land-office, which seclections so made embrace certain tracts in section 19, township 85, range 8, in Linn county, and among them the N. W. 1/4 of N. W. 1/4 and the S. E. 1/4 of the N. W. 1/4 of said above-named section, (the said selections so made, or a copy thereof, are on file in the secretary of state's office in the state of Iowa;) and that the tract in controversy was not included in any such selections; and that, so far as shown by any record of the state or county, the tract in controversy has never been patented to the state, nor by the state to the county.” It is said in argument that the fact that the land has never been selected as swamp land ought to be conclusive proof that it is not, and that a presumption should follow the acts of the officers appointed to make the selections that they did their duty. That such a presumption should obtain to the extent of devolving on the plaintiff the burden of showing that land was actually swamp or overflowed, so as to bring it within the grant, meets with our approval; but that it should obtain to the extent of becoming conclusive as against the actual facts is a rule unsupported, we think, by either reason or authority. That the grant vested the state with the title to such lands as were within the purview of the act is so well established on authority that only a reference to the fact is required. It has been held that the act by its own force operated to pass the title at once. Allison v. Halfacre, 11 Iowa, 450; Railway Co. v. Smith, 9 Wall. 95. The provisions of the act of 1850, providing for the selection of the land, have been held of no greater force than to secure an identification of the lands included in the grant, and that in effect it could not operate as a limitation upon the grant. Railway Co. v. Brown, 40 Iowa, 333. In Railway Co. v. Smith, supra, the principal question in the case was as to the kind of evidence competent to show the character of the lands. By an act of congress land had been granted to aid in the construction of railroads in the state of Missouri, and from the grant lands granted under the act of 1850 were reserved. The case involved the identification of lands under the two acts, and the manner of doing it. To establish the reservation the swampy character of the land was to be shown. The secretary of the interior had neglected or failed to furnish the lists, and the land stood as unselected by any of the ways provided in the act. The case submits this pertinent query: “Must the state lose the land, though clearly swamp land, because that officer has neglected to do this?” The case, after referring to the difficulties under which the secretary of the interior must labor to know the fact from which to properly certify the list, again inquires: “Why should not the same kind of testimony, subjected to cross-examination, be competent when the issue is made in a court of justice to show that they are swamp and overflowed, and so excluded from the grant under which plaintiff claims,--a grant which was also a gratuity?” The following is the conclusion in the case: “The matter to be shown is one of observation and examination; and, whether arising before the secretary, whose duty it was primarily to decide it, or before the court, whose duty it became because the secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose. Any other rule results in this: That, because the secretary of the interior has failed to discharge his duty in certifying these lands to the states, they therefore pass under a grant from which they are...