83 Iowa 162 | Iowa | 1891
I. Defendants deny the allegations of the plaintiffs’ petition, and allege that they entered upon and held possession of the land under a homestead settlement, with the intent to acquire the lands under the homestead laws of the United States, and made application to the proper United States land officers to enter the land as homesteads; that the land officers refused to permit the entry, though, as the defendants allege, the land was subject to the homestead entry; that thereupon the defendants appealed from the decision; and the appeal has not been determined, but is pending before the commissioner of the general land-office; that the defendants’ possession of the land is, and always has been, under their homestead settlement and claim; and that the plaintiffs have no patent or certificate for the land, and hold no legal or equitable title thereto. Other defenses, as another action pending, and a counterclaim for damages accruing by reason of the- wrongful and malicious suing out of an attachment in this case, need not be more particularly mentioned. The issues arising upon the allegations of the answer which we have recited involve the question as to whether the plaintiffs have the right of
II. The plaintiffs’ claim is based upon the act of congress of May 12, 1864, granting lands to the state of Iowa to aid in the construction of railroads therein specified. This statute, so far as its provisions need be considered in this case, is as follows:
“Sec. 1. That there be,, and is hereby, granted to the state of Iowa, for the purpose of aiding in the construction of a railroad from Sioux City, in said state, to the south line of the state of Minnesota, at such point as the said state of Iowa may select, between the Big Sioux and the west fork of the Des Moines river, also to said state, for the use and benefit of the McGregor Western Bailroad Company, for the purpose-of aiding in the construction of a railroad from a point at or near the foot of Main street, South McGregor, in said state, in a westerly direction, by the most practicable route, on or near the forty-third parallel of north latitude, until it shall intersect the said road running from Sioux ’City to the Minnesota state line, in the county of 0 ’Brien, in said state, every alternate section of land designated by odd numbers, for ten sections in width, on each side of said roads; but, in case it shall appear that the United States have, when the lines or routes of said roads are definitely located, sold any section, or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has-attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of the-interior to cause to be selected, for the purpose aforesaid, from the public lands of the United States nearest, to the tiers of .sections above specified,' so much land,.*165 in alternate sections or parts of sections designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved or otherwise appropriated, or to which the right of homestead settlement or pre-emption has attached as aforesaid; which lands thus indicated by odd numbers and sections, by the direction of the secretary of the interior, shall be held by the state of Iowa for the uses and purposes aforesaid ; provided, that the lands so selected shall in no case be located more than twenty miles from the lines of said road: provided, further, that any and all lands heretofore reserved to the United States, by any act of congress, or in any other manner, by competent authority, for the purpose of aiding in any object of internal improvement or other purpose whatever, be', and the same are hereby, reserved and excepted from the operation of this act, except so far as it may be found necessary to locate the routes of said road through such reserved lands, in which case, the right of way shall be granted subject to the approval of the president of the United States.
“See. 3. That the lands hereby granted shall be subject to the disposal of the legislature of Iowa for the purpose aforesaid, and no other.
“Sec. 4. That the lands hereby granted shall be disposed of by said state for the purposes aforesaid only, and in manner following, namely: When the governor of said -state shall certify to the secretary of the interior that any section of ten consecutive miles -of either of said roads is completed in a good, substantial and workmanlike manner, as a first-class railroad, then the secretary of the interior shall issue to the state patents for one hundred sections of land for the benefit of the road having completed the ten consecutive miles as aforesaid. When the governor of said state shall certify that another section of ten consecutive miles shall have been completed as aforesaid, then the secre*166 tary of the interior shall issue patents to said state in like manner, for a like number; and, when certificates of the completion of additional sections of ten consecutive miles of either of said roads are from time to time made as aforesaid, additional sections of lands shall be patented as aforesaid, until said roads, or either of them, are completed, when the whole of the lands hereby granted shall be patented to the state for the uses aforesaid, and none other; provided, that, if the said McGregor Western Railroad Company or assigns shall fail to complete at least twenty miles of its said road during each and every year from the date of its acceptance of the grant provided for in this act, thén the state shall resume said grant, and so dispose of the same as to secure the completion of a road on said line, and upon such terms', within such time as the state may determine; provided, further, that, if the said roads are not completed within ten years from their several acceptance of this grant, the said lands hereby granted, and not patented, shall revert to the state of Iowa for the purpose of securing the completion of the said roads within such time, not to exceed five years, and upon such terms, as the state shall determine; and, provided, further, that said lands shall not in any manner be disposed of or incumbered, except as the same are patented under the provisions of this act; and, should the state fail to complete said roads within five years after the ten years aforesaid, then the said lands undisposed of as aforesaid shall revert to the United States.”
The state, by an act of the general assembly (Acts of 1886, ch. 134), accepted the grant made by congress in the foregoing enactment, subject to the condition therein, and conferred the land granted to the Sioux City & St. Paul Railroad Company, subject to the conditions and restrictions of the grant, and the terms provided in the act relating to the character of the road to be constructed, and other matters, which need not
The Sioux City & St. Paul Railway Company entered into a contract to convey the lands involved in the action, which are a part of the lands granted under the federal and state statutes referred to above. The defendant insists that this contract covers a part only of the land, and, to show that it covers all, the plaintiffs filed an amended abstract, which the defendants deny. "We need not consume time, with this controversy, as it becomes wholly unimportant in the view we take of the case. By a statute of the state (Acts of 1882, ch. 107,) the lands and the rights thereto, covered by the grants in question, so far as they have not been earned by a compliance with the terms of the grant, are reserved and declared to be as absolutely vested in the
III. The questions for determination in this suit involve the right and title of the railroad company to the land under the grants and acts of the federal and state governments, without regard to the fact of the non-performance of the terms of the grant, — the failure to earn the land by the company. Counsel for the
We do not presents the quotation from. counsel's argument as the correct rule of law applicable to the case. Indeed, we think it is incorrect, but its error need not be pointed out, for, as we shall show, the -evidence fads to establish that the railroad company holds, or ever held, any valid and subsisting interest in the lands, legal or equitable, either with or without the right of present possession. The first section of the •act of congress of May 12, 1864, above quoted, grants the land in question to the state “for the use and benefit of the railroad company for the purpose of aiding in the construction of a railroad,” the route of which is specified in the act. Section 3 provides “that the lands hereby granted shall be subject to disposal by the legislature of Iowa for the purpose aforesaid, and •no other.” The fourth section imposes restrictions upon the disposal of the lands, to the effect that the lands shall be patented to the state as the work of building the railroad progresses, thus conveying specified quantities of land when given distances of the railroad should be built. It provides that, in case of a •failure to complete the road as prescribed in the act, the state shall resume the grant, and dispose of the
It does not clearly appear from the abstract in the case, if at all, when the Sioux City & St. Paul Railway Company accepted the grant made by the federal and state statutes herein quoted and referred to; but counsel for the plaintiffs, in their argument, submitted in both this cause and in Ayers v. Kolstrom, involving the-same questions as in this case, state that the acceptance was September 20, 1866. It will be observed that,, under section 4 of the act of congress of May 12, 1864, if the railroad should not be completed in fifteen years-from that date, the grant' reverts, under the provision of the act, to the United States. This section gives ten-years to the. railroad company to complete the road, and provides that, upon the failure of the company to build it in that time, the lands not patented shall revert to the state, and, if the state fail to complete the road within five years thereafter, the lands undisposed of shall revert to the United States. The railroad not. having been completed September 20, 1881, the lands,, not patented or otherwise disposed of, reverted to the United States. The state, in order to effectuate the conditions of the grant, default in the performance whereof terminated the grant, resumed the right to the land conferred upon the railroad company by chapter 107, Acts of 1882, and by chapter 71, Acts of 1884, reconveyed the lands to the United States, but the lands in question in this suit, being in O’Brien county, are excepted from the operation of the last statute by the provision therein.
Y. We do not determine that the plaintiff or the railroad company are not entitled to lands which were reserved by the state, and not certified or conveyed to the United States. The evidence before us fails to •show that -the lands in question are a part of such lands. Other questions, so ably argued by counsel, need not be discussed, as the points we determine are •decisive of the ease.
The judgment of the district court is reversed.