# McCormick v. Hayes

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United States Supreme Court
159 U.S. 332
McCormick v. Hayes
This writ of error brings up a judgment of the supreme court of Iowa, which affirmed a judgment of the district court of Linn county, in that state, declaring the defendant in error, who was the plaintiff in the suit, to be the owner of the S. W. 1/4 of the N. W. 1/4 of section 19, township 85, range 8 W. of the fifth P. M. 49 N. W. 69.
It is assigned as error that the judgment of the state court deprived the defendant of rights secured to him under the laws of the United States.
The plaintiff, Hayes, claimed title under the swamp land act of congress of September 28, 1850 (9 Stat. 519, c. 84); the defendant, under an act of congress approved May 15, 1856, and the acts amendatory thereof, granting lands to the state of Iowa in aid of the construction of certain railroads (11 Stat. 9, c. 28).
The question of title cannot be fully understood without examining various enactments (federal and state) under which the parties respectively claim the lands in dispute, as well as some of the decisions of this court. We are the more disposed to enter upon this examination because of the statement by counsel in argument that many cases in the supreme court of the state depend, in whole or in part, on the determination of the questions involved in this suit.
By the swamp land act of 1850, congress granted to Arkansas, to enable it to construct the necessary levees and drains for reclaiming the swamp and overflowed lands within that state, the whole of such lands made 'unfit thereby for cultivation.' Section 1. The act made it the duty of the secretary of the interior to make out, as soon as practicable after its passage, an accurate list and plats of those lands, and transmit it to the governor of the state, and, at the request of the latter, to cause a patent to be issued to the state therefor. 'On that patent,' the act declared, 'the fee simple to said lands shall vest in the said state of Arkansas, subject to the disposal of the legislature thereof.' Section 2. The required list and plats, it was provided, should include all legal subdivisions, the greater part of which were wet and unfit for cultivation, and exclude each subdivision the greater part of which was not of that character. Section 3. The provisions of the act were extended to and their benefits conferred upon each state in which swamp and overflowed lands were situated. Section 4.
The legislature of Iowa authorized the commissioner of the state land office to provide the proofs necessary to secure those lands to the state. Laws Iowa, 1850-51, p. 169, c. 69.
By a subsequent statute of the state, approved January 13, 1853, all the swamp and overflowed lands granted to Iowa were granted to the counties respectively in which they were situated, for the purpose of constructing the necessary levees and drains for reclaiming the same. If it appeared that any of such lands had been sold by the United States after the passage of the act of 1850, the counties in which they lay were authorized to convey to the purchaser; the county court taking from the purchaser an assignment of all his rights in the premises, with authority to receive from the United States the purchase money. Where a county surveyor had made no examination and report of swamp lands within his county, in compliance with instructions from the governor, the county court was directed to appoint a competent person with authority to examine such lands, and make reports and plats to the county court, which should transmit lists of the lands in each of the counties, 'in order to procure the proper recognition of the same on the part of the United States, which lists, after an acknowledgment of the same by the general government,' were to be recorded. Laws Iowa 1852-53, p. 29, c. 13, §§ 1-3.
A subsequent act, approved January 25, 1855, authorized the governor to draw all moneys due or that might become due to the state, arising from any disposition of its swamp lands by the government of the United States, to provide for the selection of the swamp lands of the state, and to secure the title to the same, and also for the selection, in the name of the state, of other lands in lieu of such as had been or might thereafter be entered with warrants; the selections made by organized counties to be reported by the governor to the authorities at Washington. Laws Iowa 1854-55, p. 261, c. 138.
Such was the legislation-so far as it need be noticed-at the time congress, by an act approved May 15, 1856, granted to Iowa, to aid in the construction of certain lines of railroad in that state, every alternate section of land, designated by odd numbers, for six sections in width on each side of said roads, with liberty to the state to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections or parts of sections, as should be equal to such lands as the United States and sold or otherwise appropriated, or to which the rights of pre-emption had attached at the time the lines or routes of the respective roads were definitely fixed; the land so located to be in no case further than 15 miles from the lines of the roads. But the act expressly exempted from its operation, and reserved to the United States, any and all lands theretofore reserved by any act of congress, or in any manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, except so far as it was found necessary to locate the routes of the railroads through such reserved lands, in which case the right of way only was granted, subject to the approval of the president of the United States. 11 Stat. 9, c. 28.
The next enactment in point of time was the act of congress approved March 3, 1857 (11 Stat. 251, c. 117), providing that the selection of swamp and overflowed lands granted to the several states by the swamp land act and by the act of March 2, 1849, giving aid to the state of Louisiana in draining the swamp lands within its limits, and theretofore reported to the commissioner of the general land office, so far as such lands remained vacant and unappropriated and were not interfered with by an actual settlement under any existing law of the United States, 'be and the same are hereby confirmed, and shall be approved and patented to the said several states, in conformity with the provisions of the act aforesaid, as soon as may be practicable after the passage of this law.'
The trust conferred upon Iowa by the act of congress of May 15, 1856, was accepted by the state by an act approved March 26, 1860; and by the latter act so much of the lands, interests, rights, powers, and privileges as were granted by congress in aid of the construction of a railroad from Lyons City northwesterly to a point of intersection with the main line of the Iowa Central Air Line Railroad, near Maquoketa, thence on said main line running as near as practicable to the forty-second parallel across the state to the Missouri river, were granted and conferred upon the Cedar Rapids & Missouri River Railroad Company, an Iowa corporation. Laws Iowa 1860, p. 40, c. 37.
By an act of congress approved March 12, 1860, it was provided that the selection to be made from lands then already surveyed in each of the states under the authority of the swamp land act of 1850 and of the act approved March 2, 1849, to aid Louisiana in draining the swamp lands therein, 'shall be made within two years from the adjournment of the legislature of each state at its next session after the date of this act; and, as to all lands hereafter to be surveyed, within two years from such adjournment, at the next session, after notice by the secretary of the interior to the governor of the state that the surveys have been selected and confirmed.' 12 Stat. 3, c. 5.
At the trial in the district court, the plaintiff introduced witnesses having more or less knowledge of the land in dispute. Their evidence, it is claimed, showed that at and ever since the passage of the act of 1850 this land was, within the meaning of that act, swamp and overflowed land.
The parties stipulated that the land in controversy was 17 miles in a direct line from the Cedar Rapids & Missouri River Railroad (now the Chicago & Northwestern Railroad) as constructed, built, and operated; that the railway was built, constructed, and was being operated on the present line of the latter road, for a distance of about 100 miles west of Cedar Rapids, Iowa, on and prior to the 2d day of June, 1864; and that the assessed value of the land in controversy for each and every year since 1866 to the present time, as returned by the assessor, as shown by his assessment books, is $95.
The N. W. 1/4 of the N. W. 1/4 of section 19, township 85, range 8, was selected as swamp and overflowed land.
The land here in dispute is the S. W. 1/4 of the N. W. 1/4 of the same section, township, and range, and is covered by a quitclaim deed to Hayes, acknowledged September 4, 1888, from the supervisors of Linn county, state of Iowa, the consideration recited being one dollar.
The present suit was commenced within a few days after the making of that deed.
The defendant's witnesses stated facts tending to show that the land in controversy was not and never was swamp or overflowed land.
He introduced in evidence a list of lands, aggregating 1,809 acres, certified as having been granted by congress to Iowa for the Iowa Air Line Railroad, afterwards the Cedar Rapids & Missouri River Railroad. This list designated lands within the six-mile limit, and included the land in controversy, was signed by the commissioner of the general land office December 23, 1858, and approved by the secretary of the interior December 27, 1858.
The defendant read in evidence a list of lands in Linn county, aggregating 668 acres, certified and approved in 1881 to the state by the secretary of the interior, under the act of May 15, 1856, as having inured to the Cedar Rapids & Missouri River Railroad Company. This list included the land in suit, was in the form required by the Iowa statutes, and was signed by the governor and register of the state land office.
He also read in evidence a deed dated March, 1870, from the Cedar Rapids & Missouri River Railroad Company to the Iowa Railroad Land Company, and also a deed to him from the Iowa Railroad Land Company, dated October 30, 1885; both deeds covering the land in dispute.
It appears that the parties made the following stipulation, which was read in evidence by the defendant, to wit: 'In order to avoid the introduction of evidence upon the subject hereinafter mentioned, it is stipulated and agreed by and between the parties: That the county of Linn, prior to 1875, made selections of swamp lands as shown by the records of the register of the state land office, which selections so made embrace certain tracts in section 19, township 85, range 8, in Linn county, and among them the northwest quarter of N. W. quarter and the southeast quarter of the N. W. quarter of said above-named section. The said selections so made, or a copy thereof, are on file in the secretary of state's office in the state of Iowa, and that the tract in controversy [the S. W. 1/4 of the N. W. 1/4 of the same section] was not included in any such selections, and that, so far as shown by any record of the state or county, the tract in controversy has never been patented to the state nor by the state to the county.'
It was also proven by the defendant that the Cedar Rapids & Missouri River Railroad Company and the Iowa Railroad Land Company and himself had annually paid the state, county, and other texes assessed and levied on said land from 1866 to 1888, both inclusive.
Each party objected to the evidence introduced by the other on the ground of incompetency.
This was the case on which the district court gave judgment establishing and quieting the plaintiff's title.
Charles A. Clark, for plaintiff in error.
D. E. Voris, for defendant in error.
Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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