United States v. Des Moines Nav Railway
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 approval 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 and conveyed any portion of the lands lying within the limits of this grant the title of which had proved invalid, any lands which shall be certified to said state in lieu thereof by virtue of the provisions of this act shall inure to and be held as a trust fund for the benefit of the person or persons, respectively, whose titles shall have failed as aforesaid.' 12 St. 543.

Long prior to the last three matters noticed the state had taken action in respect to the improvement of the Des Moines river, and had disposed of the lands covered by the grant as it was claimed to be, including those above as well as those below the Raccoon fork. Such action and disposition had been in this way: Some work was done by the state, in the first instance, through its board of public works. Thereafter, and on December 17, 1853, a contract was made with Henry O'Reilly therefor. This was released on June 8, 1854, and on June 9, 1854, a new contract was entered into between the state and the principal defendant herein, the Des Moines Navigation & Railway Company. By its terms, the navigation company was to expend in the improvement not less than $1,300,000, and to receive in pay the lands at $1.25 per acre; the lands to be conveyed from time to time, as $30,000 worth of work was done, in pursuance to the original act of congress.

Under this agreement, the navigation company proceeded to do some work on the improvement. On March 22, 1858, the state of Iowa passed an act, whose recital and first clause are as follows:

'Whereas, the Des Moines Navigation and Railroad Company have heretofore claimed, and do now claim, to have entered into certain contracts with the state of Iowa, by its officers and agents, concerning the improvement of the Des Moines river, in the state of Iowa; and whereas, disagreements and misunderstandings have arisen, and do now exist, between the state of Iowa and said company, and it being conceived to be to the interest of all parties concerned to have said matters, and all matters and things between said company and the state of Iowa, settled and adjusted: Now, therefore, be it resolved by the general assembly of the state of Iowa, that for the purpose of such settlement, and for that purpose only, the following propositions are made by the state to said company: That the said company shall execute to the state of Iowa full releases and discharges of all contracts, agreements, and claims with or against the state, including rights to water-rents which may have heretofore or do now exist, and all claims of all kinds against the state of Iowa, and the lands connected with the Des Moines river improvement, excepting such as are hereby by the state secured to the said company; and also surrender to said state the dredge-boat and its appurtenances, belonging to said improvement; and the state of Iowa shall, by its proper officer, certify and convey to the said company all lands granted by an act of congress approved August 8, 1846, to the then territory of Iowa, to aid in the improvement of the Des Moines river, which have been approved and certified to the state of lowa by the general government, saving and excepting all lands sold or conveyed, or agreed to be sold or conveyed, by the state of Iowa, by its officers and agents, prior to the 23d day of December, 1853, under said grant; and said company, or its assignees, shall have right to all of said lands as herein granted to them as fully as the state of Iowa could have under or by virtue of said grant, or in any manner whatever, with full power to settle all errors, false locations, omissions, or claims in reference to the same, and all pay or compensation therefor by the general government, but at the costs and charges of said company, and the state to hold all the balance of said lands, and all rights, powers, and privileges under and by virtue of said grant, entirely released from any claim by or through said company; and it is understood that among the lands excepted and not granted by the state to said company are 25,487.87 acres lying immediately above Raccoon fork, supposed to have been sold by the general government, but claimed by the state of Iowa.' Revision Iowa 1860, p. 906.

The proposition of settlement made by this act was accepted by the navigation company on April 15, 1858, and the terms of the settlement carried into effect. On April 28, 1858, the governor of the state certified to the president the amount expended in the work, and the amount of land to be conveyed to the navigation company under the settlement. The certificate was in these words:

'Executive Chamber, Iowa, Des Moines, April 28, 1858. To his Excellency James Buchanan, President of the United States: I, Ralph P. Lowe, governor of the state of Iowa, as required by act of congress approved August 8, 1846, 'granting certain lands to the territory of Iowa to aid in the improvement of the navigation of the Des Moines river in said territory,' do hereby certify that there has been expended from time to time prior to the date hereof on the improvement of said river, as the work has progressed, and the money has been required, under certain contracts made by the state of Iowa with the Des Moines Navigation & Railroad Company, the sum of three hundred and thirty-two thousand six hundred and thirty-four 4-100 dollars, ($332,634.04,) and in consideration of said expenditures on said improvement, and in pursuance of the provisions of the act of congress approved as aforesaid, there will be conveyed to said Des Moines Navigation & Railroad Company two hundred and sixty-six thousand one hundred and seven 23-100 acres (266,107 23-100 acres) of the land belonging to said grant, and which have been certified and approved to the state of Iowa under said act for the prosecution of the improvement of said River Des Moines. In testimony whereof I, Ralph P. Lowe, governor of the state of Iowa, have caused the great seal of the state of Iowa to be hereunto affixed, together with my signature. RALPH P. LOWE. [Seal.] By the governor: ELIJAH SELLS, Secretary of State.'

And on the 3d day of May, 1858, the governor conveyed to the navigation company, by 14 deeds, the lands referred to.

On September 28, 1889, the present suit was commenced by the filing of the bill in behalf of the United States, in the circuit court of the United States for the northern district of Iowa, in which bill the complainant prayed that on final hearing a decree might be entered canceling and setting aside the certificate of the United States made by the secretary of the interior, the resolution of settlement passed by the general assembly of the state of Iowa, and the deeds of the governor to the navigation company, made in pursuance of such settlement, and quieting and confirming plaintiff's title to all the lands. To this bill were made parties defendant the navigation company and several individuals holding title to tracts of land by conveyance from it. The navigation company demurred to the bill; the other defendants answered. Proofs were taken under the issues presented by the bill and answer, and on final hearing a decree was entered sustaining the demurrer of the navigation company, and on the merits dismissing the bill. 43 Fed. Rep. 1. From such decree the United States has appealed to this court.

Atty. Gen. Miller and John Y. Stone, for the United States.

[Argument of Counsel from pages 520-527 intentionally omitted]

B. J. Hall, Frank T. Brown, C. H. Gatch, Wm. Connor, and Wm. G. Wilson, for appellees.

Mr. Justice Brewer, after stating the facts in the foregoing language, delivered the opinion of the court. 

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