state authorities were required to select them and report through the surveyor general to the general land office the lands selected. For the better and more certain compliance with the act of Congress the state granted the lands to the counties in which they lie, and the counties, in most cases, appointed agents to make the selection, and the selections were made at the expense of the county, amounting to the sum of $2,000, in many instances, averaging about $1,000 to each county, making the entire expense amount to $100,000. All this expense was incurred under the direction of the commissioner of the general land office, and the form of report and required affidavits were duly returned to the surveyor general's office and by him certified to be overflowed or swamp lands, returned as such to the commissioner of the general land office. The list returned for the counties in the Council Bluffs land district were examined and approved, and orders were issued to the land office to enter the lands contained in the list upon the tract books and plats of the office, and to withdraw them from sale. This was done about the 23d day of September, 1854.

In May, 1856, Congress made a grant of land to the state to aid in the construction of certain railroads.* At the same session an act was passed approving and confirming the selections of swamp lands, and virtually declaring by that act that the swamp lands selected before the passage of the act making a grant to aid in the construction of railroads, were to remain undisturbed, and no portion of them could by any construction be included in the railroad grant. But notwithstanding these selections were made in conformity with instructions from the general land office, and by his order entered upon the tract books and plats of the Council Bluffs land office, and notwithstanding that they were approved and confirmed by an act of Congress, the commissioner decided that patents should only be issued to the state for such even numbered sections within fifteen miles of any of the land grant railroad lines, as were shown to be overflowed or swamp lands by the plats and field notes, made by the government surveyor, and that those even numbered sections selected and not shown to be overflowed or swamp lands should be patented to the railroad companies.

Such a decision was regarded as a gross usurpation of authority, and a violation of the act of September 28, 1850. If the lands selected were overflowed or swamp lands, they became absolutely the property of the state the day the act was approved. That they were such is proved in the very manner the commissioner required the proof to be made, and having required this kind of testimony to be produced, and having approved the selections upon this testimony, he could not, in justice to the counties, fall back on the field notes of the government surveyor. If *For the act of Congress and that of the General Assembly, see supra.

the patents were to issue only for such lands as were shown to be overflowed or swamp lands by the field notes of the government surveyor, why were the counties required at a great expense to go through the farce of making selections? The broad ground is taken that the selections having been made in accordance with the requirements of the commissioner of the general land office, and having been approved by the surveyor general, and marked upon the plats and entered upon the tract books, and withdrawn from market by order of the commissioner before the passage of the act granting lands to aid in the construction of railroads, that the right of the state, and through it the right of the counties to all the lands selected became vested in the counties, and the act making the grant for railroad purposes could not reach any of the lands selected before its passage. If in fact the two grants may be considered as covering the same land, the rights of the two will depend upon the facts in the case, which become the subjects of judicial investigation and decision. The law grants all the swamp and overflowed lands to the state-the state has transferred them to the counties, and the counties have sold them to individuals, and have expended the proceeds of the sale in draining the lands, thus carrying out the intention of congress in making the grant. Under all the circumstances, it was the duty of the executive officer to issue the patents for all the lands selected under the swamp-land act, and if the railroad companies had any right to any portion of them, their right could be determined by the judicial tribunals of the country.

It has too long been the practice of executive officers to assume the prerogative of deciding the legal rights of parties, which should have been decided by the courts, and in this case if the commissioner could not legally cause patents to be issued to the state for all the swamp lands selected before the passage of the railroad grant, he could have had patents issued for those about which there was no dispute, and leave the rights of the parties to the balance to be determined by a judicial decision; but by his determination to cause patents for a portion of the lands selected to be issued to the railroad company, he threw obstacles in the way of adjusting the rights of the counties, and to some extent forestalled the action of the courts thereon.

It was this very issuing of patents to the railroad companies that led to the institution of the suit by the county against the B. & M. R. R. Co. This case involves conflicting claims by the respective parties to the same lands* under separate congressional grants. The plaintiff's petition alleged that the plaintiff is the owner of the lands in controversy by virtue of the act of congress of September 28, 1850, known as the "swamp land grant," and the act of the general assembly of the state of Iowa, of June

*For a list of the lands in controversy the reader is referred to the original notice on a subsequent page.

13, 1853, disposing of the swamp lands within the state to the several counties therein, and the act of congress, of March 3, 1857, confirming the swamp land selections previously made; that the defendant was unlawfully interfering with the plaintiff's title to those bonds, and disturbing plaintiff in the use, possession, and enjoyment of the same, and asserting and claiming title thereto under color of some subsequent and subordinate grant unknown to plaintiff. The petition continues:

"And that relying in good faith upon her right thereto by virtue of said acts, she had made divers contracts of sale to various individuals, but that she has not conveyed the same but retains and still holds the right to said lands vested in her by the acts aforesaid.

To this petition* the defendants filed an answer denying all averments to plaintiff's petition, except that plaintiff claimed to own the lands in controversy, and admitting that defendant claimed to own the same by virtue of the act of Congress of the fifteenth of May, 1856, in plaintiff's bill referred to, and certain acts of the Legislature of the State of Iowa, and averring that by virtue of the act of Congress dated May 15, 1856, there was granted to the State of Iowa, for the purpose of aiding in the construction of certain railroads in said act named and described, certain lands of the United States, and that the General Assembly of the State of Iowa, by an act to accept the same and carry into execution the trust conferred upon her by the act of May 15, 1856, granted to the defendant so much and all of the lands, interests, rights, powers and privileges as were or might be granted or conferred by said act to aid in the construction of said railroad, in like trust, and to aid in the construction of said railroad, and avers that the lands in complainant's bill and exhibit described, were and are a part of the lands so granted by said acts of Congress and Iowa Legislature to the State, and to the defendant to aid in the construction of said railroad, and have been and are listed and set off and certified and approved to this defendant, on and under date of the respective exhibits hereto annexed by the proper authority of the United States, which said lists and certificates confer legal title to said lands on the defendant, and by virtue of which defendant makes and claims title thereto, "wherefore the defendant denies the right of complainant to said lands, and says that this defendant has the better legal and equitable title thereto, and further assuming, defendant says, that the railroad and the line and route thereof was actually surveyed and marked out on the ground as the permanent route, through said Mills county, on and between the ninth and fifteenth days of October, 1857, by the route and line designated and laid down on the plat thereof, and which said railroad line was, on the twenty-fourth of March, 1857, formerly adopted by said railroad company as the permanent line of said railroad through Mills county, and that said adoption, when so made, related back to the times of the said actual survey and making of the different sections indicated by the flags on the line of said road, at certain times, naming them, and prays to be dismissed with judgment for costs."

Upon such bill and answer, when the case came up for a hearing in the district court of Mills county, for the April term, 1866, the following decree was rendered:

MILLS COUNTY, Iowa,

VS.

THE B. & M. R. R. R. Co.

Now, at this time, this cause coming on to be heard, and the court having heard and examined the allegations of the parties, the evidence submitted, and the agreements of counsel, and being fully advised in the premises, find the facts stated in the petition and amended *Particular attention is called to the portions in small type.

petition herein to be true, and that the plaintiff is entitled to the relief therein prayed for. It is therefore ordered, adjudged and decreed by the court that the lands in fee simple to the lands described in plaintiff's amended petition, and every part and parcel thereof is legally vested in the plaintiff, Mills county, Iowa, and it is adjudged and decreed by the court that the said plaintiff is the owner in fee simple of said lands, and is entitled to the uninterrupted control, use and enjoyment of the same, and it is further adjudged and decreed that the claim of the defendant, to wit: the B. & M. R. R. R. Co., to said land and to each and every parcel thereof is illegal, null and void; and it is further adjudged that the defendant pay the cost of this suit, taxed at $47.15, and that execution issue therefor. Read, approved and signed April 17, 1866.

JAMES G. DAY, Judge.

From this decision of the district court the railroad company appealed to the supreme court of the state of Iowa. There being a case in Fremont county by and between Fremont county, plaintiff, and the same defendant, involving the same indentical issues and questions, the two cases were argued, treated, and decided together.

The decision of the cause was intrusted to Chief Justice Ralph P. Lowe, in the June term of 1867. In giving his opinion he gave a valuable and succinct account of the legislation in the matter, and ably grounded his opinion on the authorities of highest moment in questions of law. His opinion is here given in full, as being not only a full account of the questions at issue, and therefore of great interest to the people of the county, but a discussion of the basis on which the whole legislation relative to the swamp lands rests, and therefore of especial interest to owners of such land in this county.

"The lands in controversy have a legislative history, federal and state, to which it would be well to advert in advance of, and as shedding light upon the questions of priority between the parties.

"They both claim the same lands under distinct grants by congress to the state. The plaintiffs insist that they are swamp and overflowed lands, and they deduce their right to the same through the state, under an act of congress, approved September 28, 1850, entitled 'an act to enable the state of Arkansas and other states to reclaim the swamp lands within their limits.' The first section of this act, without reserve or condition, grants to the states, all the lands of the description therein specified which shall remain unsold at the passage of the same. The second section declares what must be done by the secretary of the interior, and the governors of the states, in order to vest the legal title of these lands in the several

states.

"The third section lays down a rule to be observed in listing or selecting said lands, namely: that 'in 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?

"This act does not point out the particular mode to be followed by the

secretary, in making the required lists and plats, nor how he was to obtain the information, in order to comply with the rule above prescribed by congress. It is manifest, that this information is not supplied by the fieldnotes of the original survey. A summary of objects and data required to be noted by the surveyor will be found stated on pages 716, 717, of Lester's Land Laws. Among them, bearing upon the character of the land, are, first, its general topography, whether level, rolling, broken, or hilly; second, the quality of the soil, whether first, second or third rate; and third, whether the bottom lands were wet or dry, and, if subject to inundations, to state what depth.

"A literal compliance by the surveyor would fall far short of affording the requisite information to enable the secretary to determine whether the greater part of the particular forty acre tract of land was swampy or overflowed, in such a sense, under the act, as to render the same unfit for cultivation. If he did so from the field-notes, without more information, it would simply be conjecture. Congress thought best, in its wisdom, to establish the rule above specified, as a guide to the secretary, not limiting him in the sources of his information to the field-notes of the surveyor, but leaving it to his discretion to make the lists and plats of these lands under that rule in the best way he could. It is proper here to state that some time after the passage of the act, (September 28, 1850) granting swamp lands to the states, some additional objects to the topography were required to be observed and stated in the field-notes of the surveyor, in order to define more clearly the quantity and quality of such land, and to show their distinctive character, whether swampy or otherwise subject to overflow, to an extent that, without artificial means, they would be rendered unfit for cultivation. But this was after the lands in controversy had been surveyed. (Lester's Land Laws.)

"The manner and basis, therefore, upon which the lists and plats should be made, as contemplated by the act, were left open to the judgment of the secretary of the interior.

"In November following the passage of the law, J. Butterfield, the then commissioner of the general land-office, with the sanction, we are to suppose, of the secretary, instructed the surveyor-general of this state, to make out lists of all the lands thus granted to the state under this act, remarking to him that the only reliable data in his possession from which such lists could be made, were the notes of the surveyor on file in his office, and that, if the authorities of the state were willing to accept them as the basis of those lists, he might so regard them. If not, and those authorities furnished him satisfactory evidence that any lands were of the character embraced by the grant, he should so report them; and he states what would be sufficient evidence in the premises, namely, the affidavits of county surveyors and other respectable persons that understood and