Young v. Charnquist

• Decision Date: 20 May 1901
• Citation: 86 N.W. 205,114 Iowa 116
• Parties: JAMES C. YOUNG, Appellant, v. NELS CHARNQUIST
• Court: Iowa Supreme Court

86 N.W. 205

114 Iowa 116

JAMES C. YOUNG, Appellant, v. NELS CHARNQUIST

Supreme Court of Iowa, Des Moines

May 20, 1901

Appeal from Webster District Court.--HON. S. M. WEAVER, Judge.

THE northeast 1/4 of northeast 1/4 of section 35, in township 87 north, of range 29 west, of fifth P. M. is claimed by plaintiff under act of congress approved May 15, 1856, known as the "Railroad Land Grant," accepted by the state, and transferred by it to the Dubuque & Pacific Railroad Company, and subsequently by it to the Dubuque & Sioux City Railroad Company. The road was completed through Webster county in 1869, and this land is within the indemnity, not the place, limits--that is, more than 6 miles from the line of definite location, and within 15 miles therefrom--and was not selected until August, 1878, being then included in a supplemental list. The clerks of the railroad division of the land department on October 26, 1891 certified to the commissioner of the land office that it with other tracts, were "vacant, unappropriated lands and subject to selection under the grant," and this was approved by the chief of the division. Also the chief of the swamp-land division certified that the "foregoing list of selections has been compared with swamp-land records of this office, and found to be free from conflict therewith." On the same day the commissioner made certification to the state for the railroad company, and this was approved by the acting secretary of the interior November 14, 1891. The railroad conveyed its interest in the land by quitclaim deed February 19, 1892, to William Ragan, and the latter executed a warranty deed to plaintiff March 2d following. The defendant, on the other hand, claims title under what is known as the "Swamp Land Act," approved September 28, 1850; the various acts of the general assembly of Iowa granting swamp and overflowed lands to the respective counties wherein situated; conveyance by Webster county to John F. Duncombe December 24, 1860; from Duncombe by quitclaim deed to Ringland; and by warranty deed from the latter to S. H. Kerfoot September 6, 1861. It appears that Kerfoot paid the taxes up to 1874. It was sold for the taxes of 1879 and a tax deed executed by the treasurer to Rhomberg April 10, 1885, and recorded the following day. The notice of the expiration of the period of redemption, as published in October, 1884, was addressed to E. C. Litchfield, though the land appeared on the tax lists to have been assessed in 1884 to S. H. Kerfoot. Rhomberg conveyed to the defendant by quitclaim deed, in consideration of $ 150, July 8, 1887. It is conceded that the defendant purchased in good faith, on the supposition that the land was subject to taxation. He fenced it the same year, erected a stable in 1888, a granary in 1890, and has since constructed sheds, dug wells, set out shade trees and shrubbery, and dug a ditch--in all, expending nearly $ 500 in improvements; also paid the taxes since his purchase. This action to quiet title in plaintiff was begun April 30, 1898. Like relief was sought by defendant, and by the court decreed. The plaintiff appeals.

Reversed.

Wesley, Martin and Wright & Nugent for appellant.

Maurice O'Conner and Frank Farrell for appellee.

OPINION

LADD, J.

In harmony with what was supposed to be the construction of the supreme court of the United States in Railroad Co. v Smith, 9 Wall. 95 (19 L.Ed. 599), this court has hitherto held that the swamp land act of congress approved September 28, 1850, operated as a grant in praesenti to the respective states of swampy and overflowed lands, and passed title ex proprio vigore. Railroad Co. v. Brown, 40 Iowa 333; Page County v. Burlington & M. R. Co., 40 Iowa 520; Snell v. Railway Co., 78 Iowa 88; Emigrant Co. v. Fuller, 83 Iowa 599, 50 N.W. 48; Hays v. McCormick, 83 Iowa 89, 49 N.W. 69; Young v. Hanson, 95 Iowa 717, 64 N.W. 654. This view seems to have been somewhat confirmed by Wright v. Roseberry, 121 U.S. 488 (7 S.Ct. 985, 30 L.Ed. 1039), wherein like decisions in several states are referred to. But in Chandler v. Mining Co., 149 U.S. 79 (13 S.Ct. 798, 37 L.Ed. 657), the previous opinions of that court are reviewed and explained, and the conclusion reached that "the plaintiff in error could not properly establish by oral evidence that the land in dispute was swamp land, for the purpose of contradicting and invalidating the department's [interior] certification hereof to the state, and the latter's patent to the canal company." The question was next before that court in McCormick v. Hayes, 159 U.S. 332 (16 S.Ct. 37, 40 L.Ed. 171), involving this identical grant for railroad purposes; and it was said that "upon the authority of former adjudications, as well as upon principle, it must be held that parol evidence is inadmissible to show, in opposition to the concurrent action of the federal and state officers having authority in the premises, that these lands were in fact, at the date of the act of 1850, swamp and overflowed grounds which should have been embraced by Linn county in its selection of land of that character, and withheld from the state as lands granted expressly in aid of railroad construction within its limits." Again, in Rogers Locomotive Mach. Works v. American Emigrant Co., 164 U.S. 559 (17 S.Ct. 188, 41 L.Ed. 552), appealed from this court, the decisions were exhaustively reviewed, and that court, speaking through Mr. Justice Harlan, said: "The emigrant company lays much stress upon that clause of the railroad act of 1856 exempting from its operation all lands previously granted by the United States for any purpose. And upon this foundation it rests the contention that no lands embraced by the swamp act of 1850 could, under any circumstances, be withdrawn from its operation, and certified to the state under the railroad act of 1856. This contention assumes that the lands in controversy were, within the meaning of the act of 1850, swamp and overflowed lands. But that fact was to be determined in the first instance by the secretary of the interior. It belonged to him, primarily, to identify all lands that were to go to the state under the act of 1850. When he made such identification--then and not before--the state was entitled to a patent, and on such patent the fee-simple title vested in the state. The state's title was at the outset an inchoate one, and did not become perfect, as of the date of the act, until a patent was issued. But it is equally clear that when the secretary of the interior certified, in 1858, that the lands in controversy inured to the state under the railroad act of 1856, he, in effect, decided that they were not embraced by the swamp land act of 1850. * * * The state was entitled to the lands either under the act of 1850 or under that of 1856. It was open to it, before accepting the lands under the railroad act, to insist that they be passed, under the act of 1850, as swamp and overflowed lands. No such claim was made. The state--the party primarily interested, and with whom the land department directly dealt--accepted the lands under the act of 1856, and therefore not as inuring to it as swamp and overflowed lands, within the meaning of the act of 1850, and, as just stated, has never repudiated its action of 1858, nor sought to have reopened the question necessarily involved in the action of the secretary when he certified the lands to the state under the act of 1856. It would seem that, upon every principle of justice, the action of the secretary of the interior in certifying these lands to the state under the act of 1856 should not be disturbed. The fact that his certification was made subject 'to any valid interfering rights which may exist to any of the tracts' embraced in his certificate does not affect this conclusion. That reservation could not have referred to any rights which the state acquired or could have asserted under some other act of congress than that of 1856. Certainly it was not intended by the interior department to certify the lands under the railroad act of 1856, subject to the right of the state, while holding them under that certificate, to claim them under some other and prior act. The action of the department in 1858 was intended to be final, as between the United States and the state, in respect to the lands then certified as railroad lands. If the state considered the lands to be covered by the swamp-land act, its duty was to surrender the certificate issued to it under the railroad act. It could not take them under one act, and while holding them under that act, pass to one of its counties the right to assert an interest in them under another and different act"--and, after declaring the grantees would be in no better situation than the state, concluded: "We are of the opinion that the supreme court of Iowa did not give proper effect to the action of the interior department in 1858. It should have been adjudged that, so far as the lands in controversy are concerned, the plaintiffs, claiming under the county of Calhoun and the state, as well as under the act of 1850, were concluded by the act of the secretary of the interior when he certified such lands as inuring to the state under the railroad act of 1856, and by the act of the state in accepting and retaining the lands under that act. Consequently the suit should have been dismissed for want of equity, with costs to the respective defendants." See also, Brown v. Hitchcock, 173 U.S. 473 (19 S.Ct. 485, 43 L.Ed. 772). The...