76 Iowa 691 | Iowa | 1888
— The outstanding title purchased by the plaintiff was derived under the act of congress approved May 15, 1856, granting lands in aid of the construction of railroads in the state of Iowa. The material question to be determined is whether this or a title under the swamp-land grant is the superior title. In considering such question it is not deemed necessary to state with particularity the state and congressional legislation on the subject, for the reason that it is well known, and the effect thereof understood, and at this day cannot be a subject of doubt. To maintain the issue on his part, the plaintiff introduced in evidence a certificate of the commissioner of the general land-office, dated February 18, 1879, showing the land in controversy to be free from conflict, and that it had inured to the Dubuque & Sioux City Railroad Company, under the act of congress of May 15, 1856, and acts amendatory thereto. The defendant introduced evidence showing that prior to such certification the land in controversy had been selected and listed as swamp land, and treated as such by the state and county authorities; but such list was not verified by any one. The surveyor general, however, on the twentieth day of February, 1857, certified that said list “ had been compared with the field-: notes, plats and other evidences on file in this office,
The material question is whether the foregoing record evidence shows prima facie that the land was of a swampy character at the time the swamp-land grant was enacted by congress. We think it does. We are finable to see any material difference between it and the evidence in Page County v. Burlington & M. R. Ry. Co., 40 Iowa, 520. The only difference in substance is that in this case the swamp-land list, introduced in evidence, is not verified by any one, but the certificate of the surveyor general shows that affidavits were attached thereto. But it is said his certificate ' is not sufficient evidence of such fact, and that he had no authority to so certify and determine ; but we think he had. But, conceding otherwise, it sufficiently appears that there was on file in the office of the commissioner a claim that the land in question was swamp. Such claim was regarded as prima facie sufficient; and the railroad company was required to contest such claim, and show that the land was not of the character contemplated by the act of congress making the swamp-land grant. The fact that the land in the same section, township and range had been certified to the railroad company as earned, and the land in controversy omitted, creates at least a presumption that it was then claimed by proper evidence then on file under the swamp-land grant. This is more reasonable than to suppose it was omitted by mistake, when the railroad company was afterwards required to contest the swamp-land claim, which, as a matter of course, must be based on record evidence in the office of the commissioner. Especially is this true when it must be presumed the surveyor general did his duty, and forwarded the list certified by him to the commissioner. We have no knowledge of the evidence before the commissioner when he decided that the land was not of the character contemplated by the act of congress, and such decision cannot be regarded as concluding the defendant, or those under whom she claims, for the reason that they were given, and had, the right of