United States v. Des Moines Nav Ry

• Citation: 12 S.Ct. 308,142 U.S. 510,35 L.Ed. 1099
• Parties: UNITED STATES v. DES MOINES NAV. & RY. Co. et al
• Decision Date: 11 January 1892
• Court: United States Supreme Court

142 U.S. 510

12 S.Ct. 308

35 L.Ed. 1099

UNITED STATES v. DES MOINES NAV. & RY. Co. et al.

January 11, 1892.

Action by the United States against the Des Moines Navigation & Railway Company and others to set aside certain conveyances of public lands, etc. Plaintiff appeals from a decree sustaining defendants' demurrer to plaintiff's bill and dismissing the bill. Affirmed.

STATEMENT BY MR. JUSTICE BREWER.

On August 8, 1846, an act was passed by the congress of the United States granting certain lands to the then territory of Iowa, to aid in the improvement of the navigation of the Des Moines river, 9 St. 77. The first section defined the extent of the grant, and is in these words:

'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that there be, and hereby is, granted to the territory of Iowa, for the purpose of aiding said territory to improve the navigation of the Des Moines river from its mouth to the Raccoon fork (so-called) in said territory, one equal moiety, in alternate sections of the public lands (remaining unsold, and not otherwise disposed of, incumbered, or appropriated) in a strip five miles in width on each side of said river; to be selected within said territory by an agent or agents to be appointed by the governor thereof, subject to the approval of the secretary of the treasury of the United States.'

On January 9, 1847, (the territory in the mean time having become a state,) its first general assembly passed a joint resolution accepting this grant. A question soon arose as to its extent. The northern limit of the improvement was the Raccoon fork; and the contention on one side was that the grant extended no further than the improvement, and on the other, that, there being no limitation in the granting clause, it included lands on either side of the river up to its source, or at least to the northern boundary of the state.

This question was submitted at various times to the general executive officers of the United States having charge of the land department, with the result that conflicting opinions were given by them thereon. On February 23, 1848, Richard M. Young, the commissioner of the general land-office, by letter addressed to the state authorities, ruled that 'the state is entitled to the alternate sections within five miles of the Des Moines river, throughout the whole extent of that river, within the limits of Iowa.'

On March 2, 1849, Robert J. Walker, secretary of the treasury, to whose department at that time the control of the administration of public lands belonged, replying to a communication from the representatives of the state of Iowa in congress, sustained the ruling of the commissioner of the general land-office. In his letter he says: 'I concur with you in the views contained in your communication, and am of the opinion that the grant in question extends, as therein stated, on both sides of the river, from its source to its mouth but not to lands on the river in the state of Missouri. I have transmitted your communication and accompanying papers, with a copy of this letter, to the commissioner of the general land-office.'

On June 1, 1849, notice was issued from the general land-office to the registers and receivers of the local land-offices to reserve from sale all the odd-numbered sections within five miles of the river up to the northern limits of the state, and lists were directed to be prepared of the sales and locations within those limits already made, with a view of certifying the remainder to the state. After these lists had been completed, but before any further action was taken, the department of the interior was created by congress, and the administration of public lands transferred to that department; and on April 6, 1850, Thomas Ewing, the secretary of the interior, ruled that the Raccoon fork was the limit of the grant. His ruling is contained in a letter of that date to the commissioner of the general land-office, as follows:

'Sir: Having considered the question submitted to me connected with the claim of the state of Iowa to select, under the act of August 8, 1846, lands for the improvement of the Des Moines river, I am clearly of the opinion that you cannot recognize the grant as extended above the Raccoon fork without the aid of an explanatory act of congress. It is clear, to my mind, from the language of the act of August 8, 1846, itself, that it was not the intent of the act to extend it further.'

He, however, added this further direction:

'As congress is now in session, and may take action on the subject, it will be proper, in my opinion, to postpone any immediate steps for bringing into market the lands embraced in the state's selections.'

Application was made to the president to reverse this ruling. The question was referred by the president to the attorney general, and, on July 19, 1850, Reverdy Johnson, the then attorney general, advised the president that he concurred with the views of the secretary of the treasury, and dissented from those of the secretary of the interior holding that the grant extended to the northern limits of the state.

Before any action was taken on this opinion President Taylor died, and a new administration succeeded; and on June 30, 1851, the then attorney general, John J. Crittenden, in response to inquiry, gave it as his opinion, differing from his predecessor, that the grant terminated at the Raccoon fork. The secretary of the interior concurred in the opinion of the attorney general, but at the same time continued the reservation of the lands from market made by his predecessor; and afterwards, believing that the question of title was one for the decision of the courts, approved the selection made by the state up to the northern limits, without prejudice to the rights of other parties. His letter of instructions to the commissioner of the general land-office, of date October 29, 1851, was in these words:

'Department of the Interior, Washington, October 29, 1851. Sir: I herewith return all the papers in the Des Moines case, which were recalled from your office about the first of the present month. I have reconsidered and carefully reviewed my decision of the 26th of July last, and, in doing so, find that no decision which I can make will be final, as the question involved partakes more of a judicial than an executive character, which must ultimately be determined by the judicial tribunals of the country; and, although my own opinion on the true construction of the grant is unchanged, yet, in view of the great conflict of opinion among the executive officers of the government, and also in view of the opinions of several eminent jurists which have been presented to me in favor of the construction contended for by the state, I am willing to recognize the claim of the state, and to approve the selections, without prejudice to the rights, if any there be, of other parties, thus leaving the question as to the proper construction of the statute entirely open to the action of the judiciary. You will please, therefore, as soon as may be practicable, submit for my ap- proval such lists as may have been prepared, and proceed to report for like approval lists of the alternate sections claimed by the state of Iowa, above the Raccoon fork as far as the surveys have progressed, or may hereafter be completed and returned. Very respectfully, etc., A. H. H. STUART, Secretary. The Commissioner of the General Land-Office.'

And the lists, having been made out, were by the secretary approved in the qualified way indicated in the letter, and thereafter transmitted to he state authorities and to the local land-offices.

Subsequently, and at its December term, 1859, the question as to the extent of the grant came before this court, and in the case of Railroad Co. v. Litchfield, 23 How. 66, it was held that the Raccoon fork was the northern limit of the grant, and that the state took no title to lands above that fork. After this decision, and on March 2, 1861, a joint resolution passed congress in these words:

'Resolved by the senate and house of representatives of the United States of America in congress assembled, that all the title which the United States still retain in the tracts of land along the Des Moines river and above the mouth of the Raccoon fork thereof in the state of Iowa which have been certified to said state improperly by the department of the interior as part of the grant by act of congress approved August 8, 1846, and which is now held by bona fide purchasers under the state of Iowa, be, and the same is hereby, relinquished to the state of Iowa.' 12 State. 251.

And on July 12, 1862, the following act:

'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that the grant of lands to the then territory of Iowa, for the improvement of the Des Moines river, made by the act of August 8, 1846, is hereby extended so as to include the alternate sections (designated by odd numbers) lying within five miles of said river, between the Raccoon fork and the northern boundary of said state. Such lands are to be held and applied in accordance with the provisions of the original grant, except that the consent of congress is hereby given to the application of a portion thereof to aid in the construction of the Keokuk, Fort Des Moines and Minnesota Railroad, in accordance with the provisions of the act of the general assembly of the state of Iowa, approved March 22, 1858. And if any of said lands shall have been sold or otherwise disposed of by the United States before the passage of this act, excepting those released by the United States to the grantees of the state of Iowa under the joint resolution of March 2, 1861, the secretary of the interior is hereby directed to set apart an equal amount of lands within said state to be certified in lieu thereof: provided, that, if the said state shall have sold...