2 *1203 *1214 *1225*119In harmony with what was supposed to bo the construction of the supreme court of the United States in Railroad Co. v. Smith, 9 Wall. 95 (19 L. Ed. 599), this court has hitherto held that the swamp land act of congress approved September 28, 1850, operated as a grant in praesenti to the respective states of swampy and overflowed lands, and passed title ex proprio vigore. Railroad Co. v. Brown, 40 Iowa, 335; Page County v. Burlington & M. R. Co., 40 Iowa, 520; Snell v. Railway Co., 78 Iowa, 88; Emigrant Co. v. Fuller, 83 Iowa, 599; Hays v. McCormick, 83 Iowa, 89; Young v. Hanson, 95 Iowa, 717. This view seems to have been somewhat confirmed by Wright v. Roseberry, 121 U. S. 488 (7 Sup. Ct. Rep. 985, 30 L. Ed. 1039), wherein like decisions in several states are referred to. But in Chandler v. Mining Co., 149 U. S. 79 (13 Sup. Ct. Rep. 798, 37 L. Ed. 657), the previous'opinions of that court are reviewed and explained, and the conclusion reached that “the plaintiff in error could not properly establish by oral evidence that the land in dispute was swamp land, for the purpose of contradicting and invalidating the department’s [interior] certification hereof to the state, and the latter’s patent to the canal company.” The question was next before that court in McCormick v. Hayes, 159 U. S. 332 (16 Sup. Ct. Rep. 43, 40 L. Ed. 176), involv*120ing' this identical grant for railroad purposes; and it was said that “upon the authority of former adjudications, as well1 as upon principle, it must be held that parol evidence is inadmissible to show, in opposition to the concurrent' action of the federal and state officers having authority in the premises, that these lands were in fact, at the date of the act of 1850, swamp and overflowed grounds which should have heen embraced by Linn county in its selection of land of that character, and withheld from the state as land's granted expressly in aid of railroad construction within its limits.” Again, in Rogers Locomotive Mach. Works v. American Emigrant Co., 164 U. S. 559 (17 Sup. Ct. Rep. 188, 41 L. Ed. 552), appealed from this court, the decisions Were exhaustively reviewed, and that court, speaking through IVIr. Justice Harlan, said: “The emigrant company lays much stress upon that clause of the railroad act of 1856 exempting from its operation all lands previously granted by the United States for any purpose. And upon this foundation it rests the contention that no lands embraced by the swamp act of 1850 could, under any circumstances, be withdrawn from its operation, and certified to the state under the railroad act of 1856. This contention assumes that the lands in controversy were, within the meaning of the act of 1850, swamp and overflowed lands. But that fact was to be determined in the first instance -by the secretary of the interior. It belonged to him, primarily, to identify all lands that were to go to the state under the act of 1850. When he made such identification — then and not before — the stale was entitled to a patent, and on such patent the fee-simplo title vested in the state. The state’s title was at the outsei an inchoate one, and did not become perfect, as of the date of the act, until a patent was issued. But it is equally clear that when the secretary of the interior certified, in 1858, that the lands in controversy inured to the state under the railroad act of 1856, he, in effect, decided that they were not embraced by the swamp *121land act of 1850. * * * The state was entitled to the lands either under the act of 1850 or under- that of 1856. It was open to it, before accepting the lands under the railroad act, t'o insist that they be passed, under the act of 1850, as swamp and overflowed lands. No such claim was made. The state — the party primarily interested, and with whom the land department directly dealt: — accepted the lands under the act of 1856, and therefore not as inuring to it as swamp and overflowed lands, within the meaning of the act of 1850, -and, as just stated, has never repudiated its action of 1858, nor sought to have reopened' the question necessarily involved in the action of the secretary when he certified the lands to the state under the act of 1856. It would seem that, upon every principle of justice^ the action of the secretary of the interior in certifying these lands to the state under the act of 1856 should not be disturbed. The fact that his certification was made subject ho any valid interfering rights which may exist to any of the tracts’ embraced in his certificate does not affect this conclusion. That reservation could not have referred to any rights which the state acquired or could have assorted under some other act of congress than that of 1856. Certainly it was not intended by the interior department to certify the lands under the railroad act of 1856, subject to the right of the state, while holding them under that certificate, to claim them under some other and prior act. The action of the department in 1858 was intended to be final, as between the United States and the state, in respect to the lands then certified as railroad lands. If the state considered the lands to be covered by the swamp-land act, its duty was to surrender the certificate issued to it under the railroad act. It could not take them under one act, and while holding them under that act, pass to one of its counties the right to assert an interest in them under another and different act” — and, after declaring the grantees would be in no better situation than the state, concluded: “We are of *122the opinion that the supreme court of Iowa did not give proper effect to the action of the interior department in 1858. It should have been adjudged that, so far as the lands in controversy are concerned, the plaintiffs, claiming under the county of Calhoun and the state, as well as under the act ■of 1850, were concluded by the act of the secretary of the interior when he certified such lands as inuring to the state under the railroad act of 1856, and by the act of the state in accepting and retaining the lands under that act. Consequently the suit should have been dismissed for want of equity, with costs to the respective defendants.” See also, Brown v. Hitchcock, 173 U. S. 473 (19 Sup. Ct. Rep. 485,. 43 L. Ed. 772). The result of these decisions is that the ruling of the interior department on the issue as to whether the land is of a character such as to bring it within the swamp-land act must be treated as a finality, and that this issue is necessarily involved in certifying lands to the state under the railroad-land grant of 1856. The time within which swamp and overflowed lands are- to be patented to the state is not fixed by the act of 1850, nor is there such limitation in the land grant under consideration. It might then have been passed upon by the interior department as late as 1891, and under the decisions •of the federal court the certification of the 40 acres in controversy to the state for the railroad company, if the result of a proper hearing on due notice, is to be regarded as a determination that it was not within the swamp-land grant, and that decision may not be questioned by parol evidence.
6 *1237*122II. The defendant pleads that he has been in adverse possession for more than 10 years. But up to 1891 the legal title was in the United States, and it is well established that neither the plea of laches nor that of the statute of limitation is of any avail against the general government. U. S. v. Insley, 130 U. S. 263 (9 Sup. Ct. Rep. 485, 32 L. Ed. 968); U. S. v. Dalles Military Road *123Co., 140 U. S. 599 (11 Sup. Ct. Rep. 988, 35 L. Ed. 560). Had this land been in the place limits, a different question would have been presented. As it was beyond six miles from the line of definite location, its selection and certification were necessary to pass any title.
8 III. The jurisdiction of the department of interior to pass on any question relating to the title to this land is challenged on the ground that there is no affirmative showing of notice of the proceedings to the defendant, or those under whom he claims. It is to be said in response to this that the proceedings were pending and the grant in process of adjustment before defendant took possession of the land. The selection was made in 1878, six years before the void tax deed to Bhomberg. The legal title never passed to Kerfoot. He has made no claim to the land since 1874, and is not now complaining. As the state accepted the certificate under the railroad grant, it cannot be heard to object that the tract was not transferred to it under another grant instead, without first tendering back the certificate, or in some way declining to accept tho land thereunder. Rogers Locomotive Mach. Works v. American Emigrant Co., supra. As Bohmberg obtained the tax deed six years, and defendant went into possession under his quitclaim deed nine years, after the selection of the lands by the railroad company, and pending the decision of the department, whatever rights either acquired were subject to the adjustment of the grant of 1856, and the decision as to who was entitled to the lands selected. Neither' then was entitled to notice.
9 *12510 11 *12612 13*123IV. But it is contended that the railroad company has been guilty of laches. Its road was completed through "Webster county in 1869, and it was entitled to this land, if at all, at that time. The excuse made is that before the decision in Wolcott v. Navigation Co., 5 Wall. 681 (18 L. Ed. 689), the company supposed it had acquired all the land earned. But the opinion in that ease *124was filed May 13, 1867, and the selection of these lands was not made until 1878 — eleven years thereafter, and nine years after the completion of the road. Its agent, Kagan, then demanded certification to the state, but a rule of the department required that this be not made within six months after the selection. Again, 'in March, 1879, he urged action, but this was refused until it might be “ascertained whether the said company has not received an excess of indemnity lands under its grant.” The matter was then placed in hands of attorneys at Washington. What they did appears in four letters addressed to Kagan, dated October 31, 1882, April 24, 1883, September 11, 1883, and September 10, 1884, respectively, in which he is assured they had repeatedly pressed the matter upon the attention of the department. In the last it is said, “The clerk making the computation has reached a partial conclusion,” naming it. Kagan again visited the land commissioner in October, 1884, but was informed on June 4th of that year that “nothing could be done until the grant was fully figured over by the aid of a diagram.” Nothing further was attempted until 1887, when, to a formal letter asking for the certification, the commissioner responded: “This office must decline to certify any more lands for the use of the Dubuque & Sioux City Kailroad Company until after a final adjustment of its grant, for the reason that said company has, it is believed, received all,the lands to which it is entitled. The adjustment will be completed as early as practicable.” In response to another inquiry made in September, 1889, he was adkised that the adjustment of the grant had just been submitted to the secretary of the interior “for his consideration and action under the act of congress approved March 3, 1887.” Kagan again visited Washington in October, 1889, when he was advised that the matter “would be taken up in the course of the business of the office”; and again, in the 'spring of 1891, he was promised by the secretary of the interior “that the matter should be soon attended to.” In No*125vember, 1891, certification was made. The only delay unexplained is tliat prior to 1878. But no one was injured by that. Neither Kerfoot, who then claimed the land, nor any one under him, is now complaining. The pretended title under which the defendant claims originated at the tax sale of. 1879. At that time selections had been made by the railroad company. What was done subsequently clears, as we think, that company of any want of diligence. The delays were incident to the transaction of the business in the government offices. The letters of the commissioner in 1884 and 1887 show conclusively that nothing might have been accomplished by greater persistence on the part of the company or its agent. Moreover, it is to be noted that defendant is not in a situation to complain of anything that had occurred prior to the time he obtained the deed from Bhombcrg, in August, 1887. He acquired nothing under that deed. (1) As title had never passed from the government the land was not taxable. (2) If the land were taxable, the tax deed to Bhomberg, his grantor, was invalid because of the failure to give notice to the person in whose name the land was taxed. Heaton v. Knight, 63 Iowa, 686; Id. 65 Iowa, 434; Reed v. Thompson, 56 Iowa, 455; Kessey v. Connell, 68 Iowa, 430. (3) He took possession under a quitclaim deed, and therefore is not entitled to protection against prior equities. Steele v. Bank, 79 Iowa, 339; Wickam v. Henthorn, 91 Iowa, 242. Title was in the government, and the secretary of the interior was then withholding this and other lands,- pending the adjustment of the grant prior to and after the act of congress approved March 3, 1887. Apparently, from that time till certification • of the land to the state matters took their usual course in the department of interior, and nothing the company might have done could have hastened the action of the secretary. There was, then, no laches of which defendant might complain prior to November 14, 1891. This action, however, was not begun un*126til April 30, 1898. But cases were pending in court involving some of the lands included in the supplemental list. See Young v. Hanson, 95 Iowa, 717, in which opinion was filed October 15, 1895, and Bourne v. Ragan, 96 Iowa, 566, opinion filed January 22, 1896. Later that year (December 7, 1896) ’the opinion of the supreme court of the United States in Rogers Locomotive Mach. Works v. American Emigrant Co. was announced. The plaintiff thereupon immediately began negotiations for the adjustment of the adverse claims to this land, and, when these failed;, instituted this suit. Under the circumstances shown, we think the period of the statute of limitations should control, and plaintiff be accorded the right to maintain an action begun within 10 years from the time of acquiring title. We are not to be understood as exonerating the railroad company from guilt of laches, when urged by an owner in a situation to complain. On the contrary, see Bourne v. Ragan, 96 Iowa, 566; Young v. Hanson, 95 Iowa, 717. “Laches” is a relative term, and what we do hold is that the defendant is not in a situation to complain of any delay in the matter of selecting the tract in controversy under the railroad grant and that since then there has not been such procrastination as to justify denial of relief prayed. — Reversed.
AI-generated responses must be verified and are not legal advice.
