Boynton v. Miller, 22 Iowa 579

Boynton v. Miller

22 Iowa 579 | Iowa | 1867

Cole, J.

The plaintiff claims title to the land in controversy, under a grant from Clinton county, and that Clinton county acquired title thereto by virtue of' the swamp land grant by the United States government to the State, and by the State to the county. The defendants claim the same land as riparian proprietors, by virtue of their ownership of the lands adjoining the running slough, or water-course, and which are bounded according to the government survey and plat, upon the slough or water-course. It is conceded that the land claimed by the plaintiff, was never surveyed or platted by the government. It is not necessary for us to determine whether the defendants are the owners of the land in controversy, by reason of their ownership of the lots bounded upon the slough, nor whether the case made is, as to their rights, within the rule laid down by this court in MoMama<-a *582v. Carmichael (3 Iowa, 1), or within, the case of Kraut v. Crawford (18 Iowa, 519); nor the further question discussed by counsel, whether these cases are in conflict. The plaintiff has the burden of establishing his case. He must first show a title to the real estate he claims, before the defendants are called upon to show their right.

Swamp land grant: unsurveyed portions do not pass. It will be remembered that the land in controversy has never been surveyed or platted by the government; aor ^as ^ ever been Patente(l by it to any The plaintiff claims title, under the gwamp jan¿ grailt, by the act of Congress of September 28, 1850. 9 II. S. Stat. at Large, 519. He claims that this act passed the title im presentí to the lands granted by it. This position may be correct, and, yet, not establish the plaintiff’s right. The question still remains, whether the lands claimed by plaintiff are within the act. That act grants all legal subdivisions, the greater part of which is wet and unfit for cultivation, etc. This land, having never been surveyed, is, of course, not a “legal subdivision” and, therefore, not as yet .within the terms of the grant. There can be no reasonable question, however, that the grant would carry land not surveyed at the date of its passage, but which upon subsequent survey into “legal subdivisions,” should be found to be within the terms of the grant. This survey, under the act, is an essential prerequisite to the passage of the title from the government; until this is done, it is not within the terms of the grant, nor _ can it be ascertained whether the greater part of any legal subdivision thereof is wet and unfit for cultivation, so as to entitle the county to it as swamp land. Again, the government may have intended to pass the several parts of the land in controversy to the, several purchasers of the different lots in front of which the same are situated, either as appurtenant or as proper riparian privileges. Unless the *583government shall first elect, by its acts, to claim the land, or assert some right thereto, it is not competent for any corporation or person to do so.

In other words, the plaintiff, in order to establish his title to the land, must deduce the same from the United States. The act of Congress of September 28, 1850, does not, of itself, prove the grant to the State or county, unless the proof shows the land to have been surveyed into legal subdivisions. For the reason that the plaintiff has not shown himself entitled to the land, he cannot maintain this action. The judgment of the District. Court is

Affirmed.