Adams Company v. Burlington & Missouri River Railroad Company

E. M. Davis and ''Geo. G. Wright'', for plaintiff in error.

S. Shellabarger, J. M. Wilson, and T. M. Stuart, for defendant in error.

WAITE, C. J.

This is a suit in equity brought by Adams county, Iowa, the plaintiff in error, on the twenty-third of December, 1869, against the Burlington & Missouri River Railroad Company, in a state court of Iowa, to quiet its title to 66 40-acre lots of land. The county asserts title under the swamp-land act of September 28, 1850, (9 St. 519, c. 84,) and the railroad company under the Iowa land-grant act of May 15, 1856, (11 St. 9, c. 28.) The company, in its answer, denied the title of the county, on the ground that the lands were not swamp lands within the meaning of the swamp-land act, and took issue on every material averment of fact in the bill to support a title under that act. It then set up its own title under the land-grant act. The petition averred a selection of the lands in dispute, as swamp lands, by Walter Trippett, county surveyor of the county, under the authority of the secretary of the interior and commissioner of the general land-office, as well as the governor and legislature of Iowa, and the report thereof, in due form, to the commissioner of the general land-office, on the thirtieth of September, 1854. On account of this selection and report, it was claimed that the right of the state to a patent for the lands selected was perfected by the act of March 3, 1857, c. 117, (11 St. 251.) The railroad company filed an answer in the nature of a cross-bill asking for affirmative relief on the following facts: 'Petitioner further states that on the twenty-fifth day of October, 1861, the claim or right of said plaintiff to said lands under and by virtue of said pretended selection of said Trippett was submitted to the commissioner of the general land-office for final adjudication, and defendant appeared before said commissioner and resisted the claims of said plaintiff to said lands, and asserted its rights thereto as lands granted to the state of Iowa for railroad purposes, and said commissioner, after full and careful examination of plaintiff's claim, rejected the same as fraudulent and unfounded, and afterwards, on the twenty-fifth of October, 1862, said commissioner certified and conveyed said lands to the state of Iowa for railroad purposes, under and in pursuance of act of congress of date of May 15, 1856, * * * and that on the ___ day of ___ the said state certified and conveyed the same to defendant in pursuance of the said act of the legislature of the said state of date of ___, 1856. * * * Defendant here avers the fact to be that the said plaintiff, well knowing that her claims to said lands were fraudulent and unfounded, did, upon the said decision of the said commissioner against her, voluntarily abandon all claim, right, or interest in said lands, and has, since the date of such decision, and up to the time of the commencement of this suit, recognized and treated defendant as the owner of said lands; that the said county of Adams, since the twenty-fifth day of October, 1861, has, by numerous and repeated acts, not only abandoned all claims to said lands, but has recognized, treated, and acknowledged the same to belong to defendant; that since the date of said decision said county has regularly each year (up to and including the year 1871) listed and assessed said lands as the land of the defendant, and has, since the date aforesaid, regularly levied and collected taxes thereon from defendant. That the taxes thus levied and collected on said lands from defendant since the twenty-fifth day of October, 1861, would, with the legal interest thereon, amount to about ten thousand dollars. That prior to the twenty-fifth of October, 1861, the county had assumed to contract portions of said land to certain individuals under the pre-emption laws, and some of said pre-emptors had taken possession of said land, and made valuable improvements thereon, but that plaintiffs, after that date, ceased to take any further notice or control of said land, or attempt in any manner to fulfill their said agreement with said pre-emptors; and, relying upon their title to said lands, and having every reason to believe, from the acts and conduct of the plaintiff, that she had acquiesced in the decision of said commissioner, and abandoned all claim to said lands, defendant contracted with said preemptors, and with the knowledge of the plaintiff, and without any objections being made by said plaintiff, defendant sold and conveyed by warranty deed parcels of said land aforesaid, and defendant afterwards, and before the commencement mencement of this suit, sold and conveyed by warranty deed these portions of said land to different persons, many of whom are now, and for the last six years have been, in the actual possession of the same, and have made valuable improvements thereon. That on the seventeenth day of June, 1869, the said plaintiff, for the purpose of inducing defendant to bring said lands into market, made and entered into a written contract, whereby she expressly recognized defendant's ownership of said lands, and agreed, in consideration of defendant's bringing said lands into market, and selling the same to settlers, to remit a portion of the taxes that she had levied thereon, and defendant then and there paid to said county the sum of ten thousand dollars as taxes on certain lands, including the land in controversy.'

The prayer was 'that plaintiff's bill may be dismissed, and that defendant have and obtain a decree and judgment quieting their title to said lands, and for costs of this case;' and, if the title of the defendant was not sustained, that there might be a judgment in favor of the defendant and against the county for the taxes that have been paid on the land. Under these pleadings testimony was taken, and the cause heard in the court of original jurisdiction, where, on the eighth of May, 1878, a decree was rendered dismissing the plaintiff's bill, and 'finding that the allegations of defendant's cross-bill are true, and that the defendant is entitled to the relief prayed for; that the lands in controversy * * * were duly certified to the defendant as land inuring to it, as alleged in the cross-bill; that the defendant became thereby the legal owner of said lands, as alleged in the cross-bill; and that plaintiff has, since 1862, recognized and treated said defendant as the owner of said land, as alleged in said cross-bill; and plaintiff is now, by such acts and conduct, estopped from claiming the same or denying the defendant's title thereto.' Upon this finding the decree established the title of the company and quieted it as against the claim of the county. From this decree an appeal was taken to the supreme court of the state, where, on the twenty-fourth of October, 1879, it was affirmed. Thereupon the county presented to the chief justice of the supreme court a petition for the allowance of a writ of error to this court. In this petition it was stated that 'in the pleadings, record, judgment, and decree * * * there was drawn in question the rights' of the county under the swamp-land act and the act of March 3, 1857, as well as the construction of the acts making the railroad grant, and that the decision was against the right claimed by the county. In his certificate of the allowance of the writ the chief justice stated that he found from the record that the 'facts stated in the petition are true.'