40 Iowa 333 | Iowa | 1875
The plaintiff claims title to the land in controversy under the act of Congress of May 15, 1856, granting certain lands to the State of Iowa to aid in the construction
I. The question thus presented for our consideration involves the construction of the statutes of Congress just mentioned.
The act of September 28, 1850, granted to the State all “ swamp and overflowed lands, made thereby unfit for cultivation” which remained unsold at the time. It was made the duty of the Secretary of the Interior to make out a list and plats of the lands and transmit the same to the Governor of the State, and “ at the request of the Governor, cause a patent to be issued to the State therefor; and on that patent the fee simple to said lands shall vest in the State, * * * * subject to the disposal of the legislature thereof.”
We are now to inquire whether this act, in the absence of the list and patent provided for, transferred the title to the
It is a well recognized rule that a legislative grant of lands' will pass the title to the grantee without a patent or formal .conveyance. See Courtright v. The C. R. & M. R. R. Co., 35 Iowa, 386, and authorities cited.
The evidence shows that the land in suit was not included in the list of swamp lands approved finally by the Secretary
In some way it appeared on the proper books of the Eegis-ter of the Land office as swamp land, and was so certified by him. The county recognized it as swamp land, and in 1855 it was pre-empted and payment made upon its purchase by one under whom defendants claim title. In the same year the purchaser from the county occupied it, and it has since been improved, cultivated and occupied continuously under the title derived fr-om the county.
It can hardty be admitted that tbe acts of mere executive officers will defeat a grant by tbe Government, when they are charged with no higher duty than that of identifying the subject of the grant. As we have seen, the title of tbe land vested in the State by the act of Congress. The subject of the grant was in existence, and the Secretary of the Interior. was charged with no other duty affecting the land than to make a list thereof and cause a patent therefor to be issued to the State. His acts did not bring the land within the grant.; they simply identified the lands listed and patented as being within it. Now, if through mistake of this officer, or of others charged with the duty of imparting to him information upon the subject, he or they fail to report the lands after they have been determined and selected as those that are included in the grant, certainly such mistake cannot defeat the grant. Courts of equity, (and this case is brought within their rules by the equitable answer,) will relieve defendants from the consequences of this mistake.
But it is held by the United States Supreme Court that, under this grant, in the absence of a patent, selection and list,
The grant of land to the railroad under which plaintiff claims title, was subsequent to the swamp land grant, and of course cannot divest rights conferred by the prior enactment. By its terms, however, nothing of this kind is attempted, for it contains an express reservation limiting its operation to lands not disposed of by prior legislation.
In our opinion the judgment of the District Court is correct; it is, therefore,
AFFIRMED.