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legal subdivisions, the greater part of which is 'wet and unfit for cultivation,' shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it should be excluded therefrom." 9 Stat. 519.

The legislature of Iowa, by an act passed February 5, 1851, authorized the commissioner of the state land office to take steps necessary to secure to the State the lands granted by the above act. To that end, the commissioner, having reason to believe there were any tracts of swamp land within the State not reported as such by the United States surveyor, sufficient to justify a more particular examination, was to direct the county surveyor of any county in which the lands were located "to make the examination and provide the proofs necessary to secure such lands to the State, a list of which shall be returned to the land commissioner or the authority acting in that capacity, verified by affidavit," etc. Laws of Iowa, 1850, 1851, p. 169, c. 69.

By a subsequent statute of Iowa, passed January 13, 1853, the swamp and overflowed lands granted to the State by the act of 1850 were granted "to the counties respectively in which the same may lie, or be situated, for the purpose of constructing the necessary levees and drains, to reclaim the same and the balance of said lands, if any there be after the same are reclaimed as aforesaid, shall be applied to the building of roads and bridges, when necessary, through or across said lands, and if not needed for this purpose, to be expended in building roads and bridges within the county." The same act provided that "whenever it shall appear that any of the lands granted to the State by the aforesaid act of Congress, shall have been sold by the United States since the passage of that act, it shall be lawful for the said counties to convey said lands to the purchasers thereof." It also provided that in all the counties where the county surveyor had made no examination and report of the swamp lands within his county, in compliance with the instructions from the governor, the county court should appoint some competent person, who should proceed "to examine said lands, and make due report, and plats, upon which the topography of the

Statement of. the Case.

country shall be carefully noted, and the places where drains or levees ought to be made, marked on the said plats, to the county courts respectively, which courts shall transmit to the proper officers, lists of all said swamp 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, shall be recorded in a well-bound book provided for that purpose, and filed among the records of the county court." Laws of Iowa, 1852, p. 29, c. 12.

By an act passed January 25, 1855, the governor of Iowa was authorized and empowered to draw from the Treasury of the United States all moneys arising from the disposition of the swamp lands of Iowa by the government of the United States. The same act provided: "3. That the Governor is hereby authorized to adopt such measures as to him may seem expedient, to provide for the selection of the swamp lands of this State, and to secure to the State the title to the same, and also for the selection in the name of the State, [of] other lands, in lieu of such swamp lands as may have been or may hereafter be entered with warrants: Provided, That the provisions of this act shall not be construed to apply to any swamp lands which have already been selected by any organized county of this State under the provisions of any previous law: And provided further, That this act shall not be construed to impair the rights of the counties of this State to any swamp lands within said counties under the provisions of any law in force in relation to the same, and that the selections made by the organized counties shall be reported by the Governor to the authorities at Washington." Laws of Iowa, 1854-1856, p. 261, c. 138; Iowa Revision, 1860, p. 154, c. 47, art. 4.

By another act also passed January 25, 1855, amendatory of the act of January 13, 1853, it was provided: "§ 1. That no swamp or overflowed lands granted to the State, and situate in the present unorganized counties, shall be sold or disposed of till the title to said lands shall be perfected in the State, whereupon the titles to said lands shall be transferred to the said counties where they are situated: Provided, That

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said counties shall refund to the State the expenses incurred in selecting said lands, under the provisions of an act of the General Assembly, authorizing the Governor to cause said lands to be surveyed and selected, with ten per cent interest thereon. Each county to refund its proportional amount of said expenses." Laws of Iowa, 1854-1856, p. 173, c. 110; Iowa Revision, 1860, p. 154, c. 47, art. 5.

It appears that in 1856 the county court of Calhoun County appointed Charles Amy to select and survey the swamp lands in that county, in accordance with the provisions of the above act of January 13, 1853.

This was after the passage by Congress of the railroad act of May 15, 1856, granting lands to the State of Iowa to aid in the construction of certain railroads in that State. 11 Stat. p. 9, c. 28. By that act there was granted to Iowa, to aid in the construction of railroads, among them a railroad from Dubuque to Sioux City, with a branch, every alternate section of land, designated by odd numbers, for six sections in width on each side of the respective roads named by Congress. If it appeared at the time the route of a road was definitely fixed that the United States had sold any of the sections or parts of sections granted, or that the right of preemption had attached to the same, then the State, "subject to the approval of the Secretary of the Interior," was entitled to select other lands nearest to the sections granted to supply the deficiency. But, it was declared, "That any and all lands heretofore reserved to the United States, by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States."

The above act of May 15, 1856, with its provisions and restrictions, was accepted by the State by an act approved July 14, 1856, and the lands, interests, rights, powers and privileges

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granted by Congress, so far as they related to the proposed road from Dubuque to Sioux City, were granted and trans ferred to the Dubuque and Pacific Railroad Company, to aid in the construction of its railroad and branch, subject to the conditions, and incumbrances prescribed by Congress. These lands were transferred to the railroad company upon the express condition that, if it did not complete and equip a given number of miles of its road within a named time, and its entire line, on or before such certain date, then the State might resume all rights to the lands so granted and remaining undisposed of by the company. Iowa Revision, 1860, p. 215, c. 55,

art. 2.

By a supplementary act, passed January 28, 1857, the companies obtaining the benefits of the act of Congress of 1856, and of the act of the Iowa legislature of July 14, 1856, were authorized to make such disposition, by mortgage or deed of trust, of the lands granted by the act of 1855, as might be deemed proper to secure construction bonds necessary for the completion of their roads; such mortgage or deed of trust to be a binding and valid lien upon all the property mentioned therein, including rolling stock, and the purchasers, under a trustee's sale or foreclosure of mortgage, to have and enjoy all the rights of a purchaser on execution sale. Iowa Revision, 1860, p. 222, c. 55, art. 5.

It was stipulated by the parties that the lands in controversy "are within the limits of the railroad grant of May 15, 1856, to aid in building a railroad from Dubuque to Sioux City, and were earned by the building of said road if they were subject to said grant; and that the various defendants hold by apt and sufficient conveyance all the title and interest in said lands which passed under and by said grant, if any title or interest did pass thereunder or thereby." This, of course, implies that the railroad company performed all the conditions prescribed, in reference to these lands, either by the act of Congress of May 15, 1856, or by the acts of the Iowa legislature.

It appears in evidence that the lands in controversy and other lands were certified to the State by the General Land Office of the United States, under date of December 25, 1858,

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as lands within the six-mile or place limits defined by the act of Congress of May 15, 1856, “being the vacant and unappropri ated lands in the alternate sections designated by odd numbers, for six sections in width on each side of the Dubuque and Pacific Railroad and branch within the State of Iowa." The lists of those tracts were first submitted by the Commissioner of the General Land Office "for the approval of the Secretary of the Interior, in accordance with the requirements of the said act of May 15, 1856, subject to all its conditions and to any valid interfering rights which may exist to any of the tracts embraced in the foregoing list." The certificate of December 25, 1858, was endorsed by the Secretary of the Interior, "Approved, subject to the conditions and rights above mentioned."

It was further stipulated, in this case, that "all of the lands in controversy were selected by duly authorized and appointed agents of Calhoun County as swamp lands under the act of Congress, September 28, 1850, and reported the same to the county court of Calhoun County September 30, 1858.”

On the 27th of March, 1860, the surveyor general for the State of Iowa certified that the lists of lands that had been selected by the county surveyors or state locating agents as swamp lands had been carefully compared with field notes, plats and other evidence on file in his office, and, "by the affidavits of said county surveyors or state locating agents, it appears that the greater part of each smallest legal subdivision of the lands embraced in said list is swampy or subject to such overflow as to render the same unfit for cultivation, and is therefore of the character contemplated by the act of 28th of September, 1850." The list was endorsed in the General Land Office, "Received with the surveyor general's letter of March 27, 1860."

The list of the lands selected in the manner above stated by the agent of Calhoun County, together with a letter from the Commissioner of the General Land Office, dated February 12, 1874 (this date is erroneously stated in the record to be 1884), was received at the local land office at Des Moines, Iowa, on the 18th day of February, 1874.