Wolcott v. Des Moines Company

• Decision Date: 01 December 1866
• Citation: 72 U.S. 681,5 Wall. 681,18 L.Ed. 689
• Parties: WOLCOTT v. DES MOINES COMPANY
• Court: U.S. Supreme Court

72 U.S. 681

18 L.Ed. 689

5 Wall. 681

WOLCOTT v. DES MOINES COMPANY.

December Term, 1866

ERROR to the Circuit Court for the Southern District of New York.

In August, 1846, Congress granted to the then Territory, and now State, 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, in a strip five miles in width on each side of said river.'

The Des Moines River, to assist the improvement of whose navigation this grant was made, rises in the very north part of the State, somewhat to the west of the middle line of the northern boundary. Flowing to the southeast, it traverses the entire commonwealth of Iowa, and falls into the Mississippi in the southeast corner of the State. [See the sketch on p. 682.]

Somewhere near the middle of the State, at Des Moines City, it receives, as a tributary, a stream called the Raccoon Fork. It thus happens that about one half the river is above the point where this Fork enters, and one half below. Each half traverses, of course, a region of great extent and value.

The phraseology of the above-quoted grant of Congress as the result proved, contained the germs of a controversy; the point in issue being, whether Congress meant to grant to the State land on the Des Moines River above the point where the Raccoon Fork enters, as well as the land below this point, or whether it meant to grant only land below. On the one hand, the grant was for the purpose of improving the navigation of the river 'from its mouth TO the Raccoon Fork.' On the other, the grant was of one equal moiety, &c., 'on each side of the said river.'

In August, 1859, the Des Moines Navigation Company, to which the State had conveyed the land in May, 1858, conveyed to one Wolcott a half section of one of the alternate sections, within five miles of the river, &c., above the Fork, and warranted the title.

Soon afterwards this court decided, in another case, that, on a true construction of the grant of the 8th of August, 1846, above mentioned, it did not include land above the point where the Raccoon Fork entered.

Wolcott now sued the Navigation Company for breach of covenant, alleging, in his declaration, that the title to the tract sold by the company to him had failed. This allegation the company denied; setting up that whatever might be the conclusion on a construction of the mere act of original grant (8th August, 1844), this case rested on another basis, to wit, on the basis of a great variety of action by different departments of the government having authority in the matter, and on acts of Congress subsequent to that of the grant.

This great variety of action, and the other acts of Congress, will be found below, in the preliminary part of the opinion of this court.

The court below thought that the title had not failed; and whether it had or not, was now the question here.

Mr. Gilbert, for the plaintiff in error; Messrs. Litchfield and Tracy, for the defendant in error; Messrs. Trumbull, Cook, and Smith, for parties allowed to intervene.

Mr. Justice NELSON delivered the opinion of the court.

The defendants conveyed by deed-poll to the plaintiff, on the 1st August, 1859, the east half of section 17, township 88, range 27, situate in Webster County, State of Iowa, containing three hundred and twenty acres, for the consideration of $3040, and warranted the title. It is charged in the declaration that the title has failed, which is denied on the part of the defendants. This presents the main issue in the case.

On the 8th August, 1846, Congress passed an act by which they granted to the Territory of Iowa, for the purpose of aid in the improvement of the navigation of the Des Moines River, from its mouth to the Raccoon Fork, in said Territory, an equal moiety, in alternate sections, of the public lands in a strip of five miles in width on each side of said river, to be selected within said Territory by an agent of the governor, subject to the approval of the Secretary of the Treasury of the United States.

The second section provided that the lands so granted should not be sold or conveyed by the Territory, nor by any State to be formed out of it, except as the improvements progressed; that is, sales might be made so as to produce the sum of thirty thousand dollars, and then cease, until the governor or State, as the case might be, should certify the fact to the President of the United States that one half of this sum had been expended on said improvements, when sales again might be made of the remaining lands sufficient to replace this amount; and the sales were thus to progress as the proceeds were expended, and the expenditure so certified to the President. Agents were appointed by the governor, who selected the sections designated by odd numbers, throughout the whole extent of the grant, which, as claimed, extended from the mouth of the river to the northern boundary of the State.

The lot in question is one of the sections thus selected and approved by the Secretary of the Treasury, and duly certified by the governor of the State to the President, according to the second section of the act, and was sold and conveyed, among other parcels of land, by the State to the defendants. The section of land of which the lot in question is a part was situated above the Raccoon Fork.

Some year and a half after the passage of this act a question arose before the commissioner of the land office whether the grant of the odd sections within the five miles extended above this Fork. He determined that it did, and that it extended throughout the whole line of the river within the limits of Iowa. It appears, however, that he afterwards changed his opinion, and on the 19th June, 1848, a proclamation was issued by the President, countersigned by him, ordering a sale of some of these odd sections, among other lands lying above the Fork, and which was to take place in the following October. On the attention of the Secretary of the Treasury being called to the subject, he, after an examination of the act, determined that, upon a true construction of it, the grant extended above the Raccoon Fork, and directed that the odd section should be reserved from the sale, which was done accordingly, and the State of Iowa duly notified. This was on the 16th June, 1849. On the 6th April, 1850, the Secretary of the Interior, whose department had in the meantime been established, and to which the supervision and control of the General Land Office had been assigned, reversed the previous decision of the Secretary of the Treasury, and determined that the grant did not extend beyond the Raccoon Fork. But he directed that the lands should be reserved from sale which were...