Omaha daily bee., 1888-12-10
THE DES MONIES RIVER LAND
How the Navigation and Railroad
Company Acquired the Title.
INJUSTICE TO THE SETTLERS.
The Government Took Their Money
After the Land Had Been With
drawn From Markct-Dc-
q fcated on Technicalities.


spondcnce of The BEE. l-"rho Des MOines
river land grant, about which YOU inquire, "
said Representative Holmes, Of Iowa, to-day,
"has been the source of disluietude in the
state of Iowa for the past thirty years. The
grant was made under an act of congress,
approved August 3, ls46, and provides that
the territory of Iowa and the state into which
it might be organized, should receive every
odd numbered section Of land for five miles
each side of the Dcs Moines river not sold or
otherwise disposed Of, from its mouth TO the
Raccoon Forks, the Raccoon Forks being
where the city of Dcs Moines now stands
This was for the express purpose of making Z
the Des Mones river navigable, and, to
quote the language Of the act, for no other
purpose. The territory was admitted as the
state of Iowa shortly after the passage of the
act, and the state accepted the grant through
a board of commissioners appointed by the
state, and improvements were prosecuted for
time. The first commissioner of the general
land Office called upon the governor of
the state to make his selection of the lands
under the grant. The state in accordance
with the demand of the commissioner Of the
land office, selected 250 acres of land be-
tween the mouth of the Des Moncs river
and the RaCcoOn Forks This selection was
approved by the department AS regards
these lands there is no difficulty with refer
enCc TO the claims by settlers or otherwise.
No more or less lands were claimed
than the lands that the state
itself secured and returned to the
commissioner of the general land Office In
deed. it was nearly three years after the
original grant had been made that the grant
extended beyond the Raccoon Forks.
After n time an organization styling itself
the Des MOines Navigation and Railroad
company, whose members nearly on quite all
lived in the state of New York. appeared
and undertook to get a convey
the grant, proposing on their part to make
the improvements and in every respect com
ply with the original grant to the state. On
the 9th of June, 1854, a contract was made
between this company aud the state of Iowa,
by which the company took the liabilities of
the state and the grant and agreed to per-
form its obligations. IL was provided in the
act thai the land should not be disposed of
by the territory or state formed out of it, eX-
cept as the movement progressed There
was further provision that when $4,000
had been expended on the Improvement of
the river the governor should certify that
TACT to the department at Washington, and
under certain conditions named in the grant
that amount of land should pass to the state
at government prices. The third section
provided that after the river had been made
navlgabe it should be and ever remain a pub
lie highway for the use of the government of
the United States free from any toll or other
charge whatever for any property of the
United States or persons in their service
passing through and along the same.
''This company evidently never intended
to improve the navigation of the river from
the inception of this contract to the present
time 1t tore down mill skes and inflicted
very great damage upon citizens along the
river, and in 1886 refused to push the work
further. The commissioner OF the general
l3nd Office in the same year. therefore, re-
fused to certify any more lands Indeed,
there never had been a single certificate
made by the government as demanded by the
original grant. 1t was only short time be-
fore this grant was made that Fremont and
N1cO!iet surveyed the country through which
the DeS Moines river runs for the first time.
At the time the grant was made the Sacs and
Fox Indians occupied u reservation above
Des Mones. Indeed, the river was not known
as the Des Mones river above Raccoon Forks
at the time it was surveyed by Fire.
mont and Nicollet. which was about the year
1912. Above DeS Mones it was Moingonan,
and the branch was Moingonan Brother. The
Sioux Indians, who occupied the river above
the Fox and Sacs tribes, called it the river of
the Sioux and its name was not thoroughly
settled until after the making of the grant in
1916. The occupation by Indian tribes and
the uncertainty OF the rivers name above
Raccoon Forks to the line pretty clearly de-
mopstrated that the grant was not intended
by the original act to extend above the Rae
coon Forks.
Notwithstanding the company refused to
make further improvements, they continued
to claim all the land which they rightfully |
would have had had the river been made |
nayigable After they made their contract |
with the state they persisted in claiming that |
the grant not only extended to the Raccoon |
Forks, or the city of Des Moines but TO the |
north line of the state. Upon this claim there |
were various rulings by the attorneys gen. |
eral and secretaries of the interior. Attor- |
neys General Johnson, Crittcnden and |
Black all decided against the validity of the |
claim made by the Des Moines Navigation |
and Railroad company, as did also McClel- |
land, then secretary of the interior. Attor- |
ney General Caleb Gushing, to whom it was |
referred, after an exhaustive examination |
also decided against the claim of the COM |
pany as to its extending TO the north line of |
the state. In the case reported in the twenty |
third Howard Omitted States), being the Du-
luth ~ Pacific railroad company against |
Litchfeld, the United States court held, in |
express terms, that the grant did not extend |
above the Raccoon Fork. Meantime, and |
prior TO this decision, the land between the |
Raccoon Fork and the north line of the state |
subject to entry had been withdrawn from
the market by the secretary of the interior |
while the matter was undor discussion
until II should be finally decided. |
Here Is where, the difficulty -, of
the settlers all commenced. They |
went onto the lands after they had |
Element, supposing that they were open to
entry. The land officers of the government
knew no better, or assumed to not know
whether the lands We're withdrawn from
entry. They proceeded to take applications |
for pre-emption and homestead entry long
after the lands had been withdrawn, took
the settlers money, and gave them
patents for their lands. Now, by the laws of
the United States, after public lands have
Dnce been withdrawn from market they can
not again be reopened for sale or entry until
q proclamation or order has been made by
the department of the interior, placing them
upon the market for sale or entry
"In all the litigation which subsequently |
occurred in the United States courts this
question was the basis upon which the de-
,isions were made ana judgments entered
against the settlers. That is, the courts hold
that the settlers were trespassers because the
lands had not been thrown open BY procla-
nation for sale or entry. The Des Monos
Navigation and Railroad company, having
had d colorado right TO earn them, were |
held to stand prior in right. AS a matter of
fact, however, tins company bad no disposl-
Lion or intention of earning them, ana by |
this mere technicallty of the lands being |
and no proclamation having been
made reopening them, the settlers were de-
clared 10 be without standing in the court,
and as having no rights against the Des |
Moines Navigation company. IL must be
borne in mind, however, that during all this
time the government was proiiting by its