Merrill v. Tobin

• Decision Date: 24 January 1887
• Citation: 30 F. 738
• Parties: MERRILL v. TOBIN.
• Court: U.S. District Court — Northern District of Iowa

30 F. 738

MERRILL v. TOBIN.

United States Circuit Court, N.D. Iowa, Central Division.

January 24, 1887

Hubbard Clark & Dawley, for complainant.

T. W Harrison and John F. Duncombe, for defendant.

SHIRAS J.

This case is now before the court upon a rehearing granted on petition of complainant, ^[2] and the questions involved have been very fully argued by counsel. The subject of controversy is the ownership of the N.E. 1/4 of section 28, township 95, range 32 W., situated in Palo Alto county, Iowa. Complainant's title is evidenced by a patent from the United States, issued November 2, 1863, based upon an entry made in the preceding July. Defendant's title is based upon the swamp-land grant of 1850, the evidence showing that, in 1860, these lands, with others, were duly selected by the agents of the state of Iowa, as swamp and overflowed lands, and the selection forwarded to the surveyor general's office, and on the twenty-seventh day of March, 1860, the surveyor general forwarded to the land-office at Fort Dodge a duly-certified list of swamp lands, including those in dispute; and, in obedience to the general instructions previously issued by the commissioner of the general land-office, each 40-acre tract included in this list was marked 'Swp.,' meaning swamp land, upon the township map in the land office at Fort Dodge, the object of this marking being to show that these lands were withdrawn from sale or entry. This selection and entry of these lands has never been canceled or set aside; nor does it appear that any contest thereof has been had before the land department or secretary of the interior. The lands granted to the state of Iowa by the swamp-land act were, by the state, granted to the counties in which they were situated, and on December 29 1860, Palo Alto county deeded the lands in dispute, with others, to John M. Stockdale, of whom defendant purchased the same, the deed from Stockdale and wife to defendant being dated July 23, 1861. These deeds were both properly recorded in the records of Palo Alto county.

In August, 1883, the complainant filed the present bill, setting forth that he is the absolute owner in fee of the lands; that the same were not swamp or overflowed lands, within the meaning of the act of 1850, and the selection thereof as such was a fraud; that the same had been set aside and annulled, etc.

Upon the former hearing the court held that the land was overflowed land, within the meaning of the act of 1850; but without determining whether, in this proceeding, defendant could, upon the allegations of his cross-bill, have the patent to complainant set aside, a decree for defendant was ordered, on the ground that complainant was barred by the statute of limitations. Counsel for complainant now insist that the lands are not shown to be swamp lands, within the meaning of the act of congress of 1850. The act includes two kinds of land, swamp, and overflowed. If, by reason of either swamp or overflow, the land is rendered unfit for cultivation, it comes within the purview of the act. What is the evidence on the question?

James Hickley testifies that he has known the land since 1857. 'It is low bottom land, subject to overflow from the Des Moines river; have seen it overflowed from two to six feet deep. It lies in the corner of a big bend of the river, so that the water, when it overflows, passes over it. There is not to exceed ten acres that could be plowed on the whole half section; and the greater part of each 40-acre tract is subject to overflow from the Des Moines river, so that it can't be cultivated.' John M. Heffley testifies that 'the north half of section 28, 95, 32, is wet, overflowed land from the Des Moines river, and there is not to exceed ten or twelve acres on the whole half section of dry land; and that is in little strips, here and there. It overflows from one to ten feet of water. I have seen it last from early spring to July and August. The natural growth on said bottom is coarse bottom hay.'

Thomas Kirby testifies 'that the north half of section 28 is overflowed land, and unfit for cultivation. All of it is liable to overflow, and most of it every year. One year I cut hay on the highest part of it, and lost if from overflow. If it did not overflow it would be so wet from the Des Moines river that it could not be cultivated. It generally overflows in the spring, and then the water goes down, so we cut hay in July, August, or September. It could not be cultivated in any crops of grain. ' Mulroney, Laughlin, Mahan, Booth, Tobin, and Shea all testified to the same facts.

Complainant does not introduce any testimony whatever to contradict the statements of these witnesses. The uncontradicted evidence, then, shows beyond question that, from 1857 to the present time, this land has been and is low bottom land, liable to overflow, sometimes once and sometimes oftener each year, and in some seasons it has been covered from early spring until August; and some years it has been so completely overflowed that not even a crop of wild hay could be saved from it, and that at no time since 1857 could the land, or any part, be cultivated for the raising of any kind of grain, corn, or the like thereon. No other conclusion can be possibly reached, under the evidence, than that the land is 'overflowed,' within the meaning of the term as used in the act of congress of 1850.

It was therefore rightfully selected by the state of Iowa, through the agency of the county, as part of the swamp lands to which the state was entitled; and when thus selected, and the list filed with the surveyor general, and by him approved and certified to the United States land-office at Fort Dodge, by whom the same was marked on the township map as swamp land, and therefore withdrawn from entry or sale, it would seem that, until such selection had been canceled or set aside in some proper manner, the land could not be legally entered by any one else. Whether the rights of the defendant under the title derived through the state from the swamp-land act were not sufficient in equity to overcome the title asserted by complainant was not discussed or decided in the original opinion, the decision being placed upon the conclusion arrived at on the plea of the statute of limitations. On behalf of complainant, it is now urged that the evidence fails to show that the defendant had such actual and open possession of the realty as is necessary to render available the plea of the statute, and in support of this view counsel have cited many extracts from a large number of cases.

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