Omaha daily bee., 1888-12-10

| Railroad company should be allowed TO ap
| propriate the lands bodily without rendering
| any services to the state or union in the man
ner provided for in the act of lS46
| I'm all the litigation which has arisen re-
| gardiup this question the issue whether or
| not the Des Moines Navigation and Railroad
company has ever complied with the act
| granting the lands has NOT been
| tried, litigatcd, or even put in
issue. The settlers have in every
case had Judgment rendered against
| them on the technicaity have named. The
| hrSt leading case tried was that known as the
\ Wolcott case, which was madc-up case on
| the part Of the Des Moines Navigation and
| Railroad company and in which the success
| tul party paid the costs, as appears on rec
| ord. There has never been any serious
| denial Chat this was made-up case, and ii is
well Sn own, by those who are familiar with
| it, that such was the fact. 1t served, how
| ever, as a basis upon which all the subse-
| quent decisions were made regarding this
| land. Under the law, as it stands now, the
! settlers were never permitted to raise in
issue the question of whether or not the Des
Moines Navigation and Railroad company
had compiled with its obligations TO the gov
ernment under the grant of 1916.
This principle applies as well TO other
questions, and did in the Bell telephone case.
The Drawbaugh claimants were not al
lowed, for instance, to show that there had
been malfcasance and bad faith on the part
OF Bell in procuring his original patent, The
government in this case does not allow citi-
zens and outside parties to litigate such ques-
tions as peculiarly affect itself. Therefore it
was that settlers were Obliged to seek relief
for it all by the bills which have been intro
duCed in congress during the past SIX or eight
years, and in which it is only provided that
the settlers shall have the benefit
of raising such questions rs the
United States by its attorney general
may raise, or that, in other words
the attorney general himself shall appear on
behalf of the United States and raise the
rlpsl pf
Des Moinos river has been improved and
whether the lands have been earned as con-
tempiated in the original act. The act itself
does not seek the payment OF dollar out OF
the treasury but only that the settlers may
have the benefit of the grants which the
United States may inquire into, and litigate
and If it is found that the lands have not
been earned 1t is provided in the bill that
they shall be declared public lands, in which
case the settlers who now occupy them would
have the first right to clam them.
mo action that the settlers could bring,
unalded by legislation which is now sought,
would enable them to inquire into this fact,
and raise this issue of whether the act had
been complied with No equitable defense
by the Dcs Moncs Navigation and Railroad
company of its position has ever been made
TO my knowledge, nor can there be in my
Judgment either under the lelusIve plea that
it may yet sometime improve the river and
comply with its contract, or relying on the
technicality before named, that the settlers |
are tresspassers because of the technical !
failure to proclaim them as public lands after |
they have once been Withdrawn, |
",rhis company expects to apply to its own |
use this vast tract of the public domain, the |
richest and most valuable in the northwest. |
Most of the lands adjoining the Des Moines |
river are undcraid with valuable coal de |
posits, and the best quality of the lands |
readily sell at 500 an acre. Many of the |
settlers have raised their children and grand |
children upon these lands. They have the
patents of the government in their pockets,
and the government has the settlers money
in its treasury. This same Des Moines
Navigation company and its grantees are
said to have taken over S1OO,OOO worth OF
coal out of the 100 acres of land owned by |
Mr.. Collins, in Webster county; that is, that
would be his royalty alone upon the coal so
taken if Ire had been paid the market rate.
81 should say here however, that after the !
decision III the 23d Howard that the grant
did not extend above the RaccoOn Forks, the
DeS MoineS Navigation and Railroad com |
pany set about securing legislation from con-
gresS looking to the entent OF the grant to the
north line OF the state of Iowa. BY an act of
congress passed in 1862, this original grant of
1916 was extended so to include the alter
nate sections within five miles of the Des
Moines river on each side to within five miles
of the northern boundary of the state of
Iowa. But it was expressly provided i'll the
should be held and applied in accordance
with the provisions of the original grant of
1916, so that the company was still left with
its status 'uualtered, both as regards the
original grant and the grant of 1862. 1t sim
ply secured several hundred thousand acres
more land but was held to the same detail |
and particularly of performance as to the
Des Moines river as by the act of
1916 During this entire controversy
the state of Iowa so long as it had control |
of the improvement, was not charged with |
caches 1t was only after the act of 1862 |
had been passed, extending the grant, that
the peculiar tactics of the Des Moines Navi-
CATION and Railroad company were brought |
to light. The company badgered the officers
of the state government and legislature |
until what was known as the Harvey settle.
ment was made, and the governor of the
state decided over to the Des Moines Naviga- |
in the lands. BY this conveyance no title |
passed TO these lands given by the grant, |
but the state simply conveyed its right to
simply earn the land under the title, or its |
equity to earn them. 1t would have been |
impossible for the state to have conveyed |
any title for two reasons: First, because it
was u conditional grant, in which the land |
could only be secured as fast as it was
earned, and second, because of section of
article IL of the constitution of Iowa. This !
provision of the constitution prevented the
general assembly from conveying any public
ands which had been taken or granted
actual settlers had located, without
The consent of such occupants, not |
10 exceed 100 acres TO each. This constitu- |
-iOnal provision alone would have been u
inal and complete OAR even if the provision
which required the earning of the lands as
last as they were patented had not been, ana | ,
/ is an important fact in the history of these |
ands, at this time, that no patents have ever |
1cen issued TO the Dei Moncs Navigation |
md Railroad company for the lands in dis
)ute, and in any abstract of title that they |
nay make to any purchaser they are obliged
% rely upon the void grant which they have |
never fulfilled or complied with. This water |
way was to be made navigable for the |
benefit Of the public Government property |
vas to be transported over it on terms pro- ,
Iided in the act, and it was in no way differ
mt from the grant made to Il railroad. There
s not Il railroad in this country receiving a ;
and grant that has not had it forfeited
where the ROAD has not been built, and very | ,
many OF them have been forfeited when the
'oads were completed, simply because they
we're not finished within the time named in
,he acts making the grant, and does the Des
Noines Navigation and Railroad company oc-
upy any better or higher plane:
"All the rights they have secured to these
disputed lands they have secured after
he state had relnquished its claims They
lave taken action TO evict large numbers of
settlers Just at the opening OF winter, and in
fnif Ctntn /