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U.S. Supreme Court

Buena Vista County v. Iowa Falls & Sioux City R. Co., 112 U.S. 165 (1884)

Buena Vista County v. Iowa Falls and Sioux City Railroad Company

Argued October 31, 1884

Decided November 10, 1884

112 U.S. 165


The right of review of the official acts of the Commissioner of the Land Office conferred upon the Secretary of the Interior by general laws extends to acts of the Commissioner under the Act of March 5, 1872, 17 Stat. 37, directing him to receive and examine selections of swamp lands in Iowa, and allow or disallow the same. chanrobles.com-redchanrobles.com-red

Page 112 U. S. 166

The facts in this case do not estop the defendant in error from objecting to the list of swamp lands in Buena Vista County, which was filed by the agent of the county in the office of the Surveyor General in Iowa in accordance with provisions of a law of that state.

This suit in equity was commenced by the plaintiff in error, who was plaintiff below, in the District Court of Buena Vista County, in the Iowa, for the purpose of establishing its equitable title in fee simple to five hundred and fifty-three forty-acre tracts of land, lying within its limits, and seeking a conveyance of the legal title thereto, held by the defendant.

It was claimed that the lands in question were granted by the Swamp Land Act of September 28, 1850, 9 Stat. 519, to the State of Iowa; all such lands having been granted by the state by an Act passed January 13, 1853, to the counties respectively in which the same were situated.

The bill of complaint further alleged as follows:

"V. That each and every parcel of said lands was of the description specified in said act of Congress at the date of the passage thereof; that afterwards, to-wit, in the year eighteen hundred and fifty-nine, the plaintiff caused a list of said lands to be made in legal subdivisions in all respects in accordance with the requirements of the said act of Congress and the rules and regulations of the General Land Office of the United States; that the said list, with the proper proof thereunto attached, was duly filed in the office of the Secretary of the Iowa on or about the first day of January, 1860, and was thereafter duly recorded in the office of the register of the state land office, and thereafter filed in the office of the Surveyor General of the United States for the State of Iowa, and thereafter, to-wit, in the month of January, 1866, the same was duly filed in the office of the Commissioner of the General Land Office of the United States, where it has ever since remained on file."

"VI. That from time to time, since the filing of said list in said last-mentioned office, the plaintiff has applied to the said Commissioner of the General Land Office to examine and pass upon the sufficiency thereof and to allow the same; that prior to the 7th day of July, 1875, it was wholly unable to

Page 112 U. S. 167

obtain any hearing or decision thereon. That the defendant, by its agents and attorneys, appeared before said Commissioner and resisted said application, and the said refusal to take up and examine said list was wholly by reason of defendant's resistance thereto and its claim to said lands; that upon the day last aforesaid, the said Commissioner decided to allow plaintiff's said list; that defendant appealed from said decision to the Secretary of the Interior, who, upon the 30th day of August, 1876, reversed the decision of said Commissioner, and directed him to take no further proceedings upon plaintiff's application for the examination and allowance of said list."

"VII. Plaintiff further says that upon the 5th day of July, 1871, the Governor of the State of Iowa, without being in any way authorized so to do, issued to the defendant a patent for a part of said lands, which said patent is now of record in the office of the register of the land office of the said state at two hundred and fifty-two of record 'A, Miscellaneous Conveyances;' that on the 10th day of August, of said year, he issued a patent to said defendant for all the remaining lands aforesaid, which is recorded in the book aforesaid at two hundred and eighty-three; that both of said patents are recorded in the office of the recorder of deeds for said County of Buena Vista; that said patents are a cloud upon the title of the plaintiff, and wholly prevent it from making sale of its said lands, and greatly impair the value of its property therein."

The defendant claimed title to the lands in dispute in itself, and denied the plaintiff's equitable title, and the material facts upon which it was based.

The defendant's title was derived through a grant made by an act of Congress, passed May 15, 1856, to the State of Iowa, to aid in the construction of certain railroads, which was accepted by the state and by it granted to a company whose line was located through Buena Vista County, whereby the limits of the grant were determined so as to embrace the lands described in the plaintiff's petition. Thereafter, on February 28, 1858, the same were certified by the Secretary of the Interior to the state as inuring to it under said grant, and were accepted by it and passed by subsequent legislative grants from the chanrobles.com-redchanrobles.com-red

Page 112 U. S. 168

state to the defendant in error, to whom patents for the land were issued in the name of the state by the governor. It is not denied, however, that, if the lands in controversy passed by the swamp land grant of 1850, they were excepted out of the subsequent railroad grant, which is the foundation of the defendant's title.

The terms of the Act of Congress of September 28, 1850, granted to the several states within which they were situated "the whole of those swamp and overflowed lands, made thereby unfit for cultivation, which shall remain unsold at the passage of this act." It was thereby made the duty of the Secretary of the Interior, as soon as practicable after the passage of the act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the governor of the state, and at his request to issue a patent to the state therefor; but

"in making out a list and plat of the land aforesaid, all legal subdivisions, the greater part of which is wet and unfit for cultivation, shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom."

The legal subdivisions contemplated by the law were forty-acre tracts.

The first instructions issued by the Commissioner of the General Land Office, on November 21, 1850, in execution of this act, directed the surveyors general to make out lists of the lands in each state falling within the description of the grant, based upon the notes of surveys in their offices, provided the authorities of the states were willing to adopt them; "if not, and those authorities furnish you satisfactory evidence that any lands are of the character embraced by the grant, you will so report them." Provision was made for surveys to be made to determine the boundaries of the swamp or overflowed lands, where the state authorities concluded to have them made, and it was added, that

"the affidavits of the county surveyor, and other respectable persons, that they understand and have examined the lines, and that the lands bounded by lines thus examined, and particularly designated in the affidavit, are of the character embraced by the law, should be sufficient. The line or boundary of the overflow that renders the land unfit for

Page 112 U. S. 169

regular cultivation may be adopted as that which regulates the grant."

The lists were to be made out on forms prescribed for that purpose, and transmitted to the department, the lands selected reserved from sale, and the selections, when approved by the Secretary of the Interior, were directed to be entered by the register as granted to the state.

The State of Iowa adopted the alternative of making its own designations of lands claimed by it as corresponding to the description of the grant, and passed at different times, laws directing by whom they should be made. A statute of 1853 required a full and complete return of the examination and survey of the swamp and overflowed lands, when completed by the county surveyor, or other person appointed for that purpose, to be forwarded to the Secretary of State, whose duty it was to report the same to the Surveyor General.

A subsequent statute, passed January 25, 1855, authorized the governor to adopt such measures as to him might seem expedient to provide for the selection of the swamp lands of the state, and to secure the title thereto. The governor accordingly issued circulars, one in 1855 and one in 1858, to the county judge of the several counties, requesting the selection to be made in his county by the county surveyor or other agent, the lists thereof to be forwarded to the Surveyor General, or to the Secretary of State of Iowa, to be by him forwarded to the proper department for recognition and approval. The Act of January 13, 1853, was carried into the Revised Statutes of the State of 1860, as follows:

"SECTION 927. In all those counties where the county surveyor has made no examinations and reports of the swamp lands within his county, in compliance with the instructions from the governor, the county court shall at the next regular term thereof, after the taking effect of this act, appoint some competent person, who shall, as soon as may be thereafter, after having been duly sworn for that purpose, proceed to examine said lands and make due report and plats, upon which the topography of the country shall be carefully noted, and the places where drains or levees ought to be made marked on said plats, to the county courts, respectively, which courts shall

Page 112 U. S. 170

transmit to the proper officers lists of all said swamp lands in each of the counties, in order to procure the proper recognition of the same on the part of the United States, which lists, after an acknowledgment of the same by the general government, shall be recorded in a well bound book provided for that purpose, and filed among the records of the county court."

On the trial of the cause, in the District Court of Buena Vista County, the plaintiff offered in evidence a paper claimed to be a certified copy of plaintiff's list of swamp land selections and accompanying proofs. It was headed, "A list of the swamp and overflowed lands situated in the County of Buena Vista and State of Iowa." Then followed a list containing a description, among others, of all the lands described in the plaintiff's original petition or complaint. To this were annexed affidavits by George S. Ringland, W. H. Hait, and Zachariah Tucker, stating that, having been appointed by the County Judge of Buena Vista County to select the swamp and overflowed lands in said county,

"do solemnly swear that we understand and have examined the lines bounding each of the tracts of land particularly designated in the foregoing list, and we do further solemnly swear that the greater part of each and every forty-acre tract or smallest legal subdivision therein named is swamp and overflowed land, and of the character embraced in the Act of Congress approved the 28th day of September, 1850."

And then appeared the following:



"Black Hawk County"

"I, J. W. Tucker, late County Judge of Buena Vista County in the State of Iowa, do solemnly swear that George S. Ringland, Zachariah Tucker, and W. H. Hait were duly appointed by me, while County Judge of said County of said Buena Vista, as agents to select the swamp and overflowed lands in Buena Vista County, aforesaid, and that the agents aforesaid are reliable and responsible men, and I do further swear that the within is the original report of said agents, and that the correctness of the report has been sworn to by the said agents, as will more fully appear by the affidavits hereto attached; the

Page 112 U. S. 171

reason that I do not certify said report is that since employing said agents, I have removed from said County of Buena Vista to the County of Black Hawk in said state, so help me God."


"Sworn to and subscribed before me this twenty-sixth day of December, A.D. 1859. Witness, J. B. Severance, Clerk of the District Court of Black Hawk County, Iowa, and the seal of said court affixed, this twenty-sixth day of December, A.D. 1859, in said county and state."

"[L.S.] _____ _____"


"I hereby certify that the foregoing report of the swamp land selections in Buena Vista County is recorded in this office in Book B, pages one hundred and ninety-three to two hundred and twenty-eight, inclusive."

"J. B. MILLER, Register"

The introduction of this paper as evidence was objected to by the defendant below on the several grounds that the persons appearing to have made the selections had not been appointed by the county court of Buena Vista County; that there were no plats accompanying it; that there was no evidence of the appointment of the persons claiming to have examined the lands; that the affidavit of J. W. Tucker is not verified, and is not competent evidence of the facts it recites; that it is not shown the said selections were ever filed in the proper offices, or were ever approved by any officer of the State of Iowa or of the United States.

The paper, however, notwithstanding these objections, was received in evidence; but no other proof was offered by the plaintiff that the lands in controversy were in fact swamp or overflowed lands, so as to be unfit for cultivation within the description of the act of Congress of September 28, 1850 at the date of its passage. The district court rendered a judgment in favor of the plaintiffs, and the whole case, upon the evidence, reduced to writing and embodied in the record, was taken by appeal to the supreme court of the state.

That court reversed the judgment of the district court, on chanrobles.com-redchanrobles.com-red

Page 112 U. S. 172

the ground that the list of lands on which it was based was improperly admitted in evidence, and rendered a judgment in favor of the defendant, dismissing the plaintiff's petition.

To reverse that judgment the writ of error is prosecuted.


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