Autobiography of Charles Clinton Nourse / Prepared for use of Members of the Family

by Charles Clinton Nourse

The next important litigation in which I was engaged during my professional career, of public interest, was my engagement by Roswell S. Burrows, one of the original stockholders of the Des Moines Navigation Company, in suits growing out of his ownership of certain lands belonging to the Des Moines river grants, so-called. I will not undertake in this paper to go into a detailed history of the Des Moines river titles, so-called. Colonel C. H. Gatch some years ago prepared for publication a series of articles that were published in the Annals of Iowa, Volume I, that gives a detailed account and history of the land grant by congress, and the various decisions of the United States land department construing the original grant of 1846, and also the decision of the supreme court of the United States in the numerous cases from time to time decided by that court. I deem this the most correct and just account of this important litigation that has ever been given to the public. Honorable B. F. Gue also published in his History of Iowa what purports to be an account of the various decisions and rulings of the land department and of the actions of the courts with reference to these lands. A part of his history is correct, but in treating of the rights of certain of the settlers he has done great injustice to the stockholders of the Des Moines Navigation Company who furnished the money to the company for the purchase of these lands. The first unwarranted statement contained in Mr. Gue's history is that persons who brought and maintained suits for possession of their lands against certain settlers were mere speculators who had bought a doubtful title to these lands for a song. The contract between the state of Iowa and the Des Moines Navigation Company, whereby that company became interested in certain lands of this grant, was made in 1853, after the state had disposed of the larger part of the lands lying below the Raccoon fork of the Des Moines river, and was made at a time when there was no question as to the right of the state to the lands above the Raccoon fork to the northern boundary of the state. Under this contract the company paid to the state, upon the execution of the agreement, over $60,000 in cash for the purpose of enabling the state to pay the indebtedness that had been incurred by the board of public works up to that time. The contract provided that the company should continue the work under supervision of a state engineer and commissioner, chosen by the state of Iowa, and should advance the money to pay, as the work progressed, a specific amount per cubic foot for stone work, excavation, timbers, and other material furnished in the construction of the locks and dams. Estimates were to be made from time to time by the engineer of the work of the amount expended by the company at the prices named in the contract, and as fast as $30,000 was so expended the company was to receive lands at $1.25 per acre. At the time this contract was made it had been found impossible to sell and dispose of the lands by the state commissioners rapidly enough to get money to pay the contractors who theretofore had been doing the work under contracts with the commissioners. The only difference between the Des Moines Navigation Company and the contractors engaged in this work was that the former now agreed to furnish money in advance to pay off the old unpaid obligations of the commissioners, and agreed to advance money as it was needed and take the lands in gross at $1.25 per acre as fast as each additional $30,000 were advanced and expended on the work. In the summer of 1857 the company made a demand on Mr. Manning, commissioner of the Des Moines River Improvement, to certify to them additional lands on certain estimates made by the engineer, which Mr. Manning refused. They accordingly brought suit against the commissioner asking of the court a writ of mandamus to compel him to certify the lands shown to be due them by the certificate of the engineer. I have already referred to this suit in the former part of this paper. I was employed by Mr. Manning and defended against it upon the ground chiefly that before the company could maintain suit for specific performance it was necessary for them to show that they had in all respects complied with their various contract obligations toward the state. The main provision of the contract that the commissioner claimed had not been complied with related to the progress of the work; that is to say, one-fourth of the entire contemplated improvement between the Raccoon fork of the Des Moines river and the Mississippi river had not been completed. The company, being defeated in this application for mandamus, ceased work upon the improvement, and in the winter of 1858 a settlement was made between the state and the company. This settlement was more especially brought about by those who had organized a railroad company for the purpose of building a railroad from Keokuk up the valley of the Des Moines river. This organization was known as the Keokuk, Fort Des Moines & Minnesota Railroad Company, and they desired a grant from the state of the remaining lands of the grant to aid them in the construction of their railroad. The basis of the settlement between the state and the Des Moines Navigation Company was simply that the company should receive a conveyance from the state for the lands that had been certified to the state under the grant up to that time, and that had not been heretofore disposed of by the state, or certified to the company, amounting to about 37,500 acres, and should pay to the state $20,000 in addition to the money already paid and expended on the improvement, and should surrender and cancel their contract and right to any further lands of the grant. (The terms of this settlement are contained in a joint resolution of the seventh general assembly, found on page 425 of the acts of that session.) At the time of this settlement there was no question by anyone as to the extent of the grant and the validity of the title of the state to the alternate sections five miles on either side of the river up to the northern boundary of the state.

In pursuance of the settlement proposed by the joint resolution which was accepted by the company, Governor Lowe on May 3, 1858, executed fourteen deeds or patents to the Navigation Company, conveying by particular description the lands to which the company was entitled under the resolution of compromise; and on May 18, 1858, a general deed conveying the same and any previously omitted lands by general description.

Another disturbing element in regard to the title to the lands arose under the grant of congress made in 1856 to the state of Iowa, to aid in the construction of certain lines of railroad crossing the state and having their initial point at the Mississippi river, and crossing the Des Moines river at various points between the Raccoon fork and the northern boundary of the state. These railroad companies raised the question as to the validity of the title of the Des Moines Navigation Company to the lands they had purchased from the state north of the Raccoon fork of the river. The Dubuque & Sioux City Railroad Company brought suit, or rather induced Litchfield to bring suit against them for lands lying within the line of their grant under act of 1856, or rather that would have been within their grant if not reserved from its operation or that had not been granted for the improvement of the Des Moines river. This suit was adroitly managed on the part of the railroad company so as to avoid testing any question of its title, and contained a stipulation that the company was in possession of the land under their grant and the court was only called upon to decide the extent of the grant under the act of 1846 to the state for the improvement of the river, and the supreme court of the United States decided that the act of 1846 did not grant to the state for the improvement of the river any lands north of the Raccoon fork. This decision was made at the December term, 1859, and is found reported in 23 Howard, S.C.U.S., page 66. The act of 1856, making the grant to the state for the purpose of aiding in the construction of these railroads, in express terms reserved from the operation of the grant any lands that had been theretofore reserved by any competent authority under any other grant of congress. The announcement of this decision created considerable excitement in the Des Moines valley, and the river lands above the Raccoon fork that had theretofore been deeded by the state to the Des Moines Navigation Company and had been by that company divided among its stockholders in consideration of the moneys that they had advanced to the company, and had been paid by the company to the state as before stated, were considered the lawful prey of every adventurer who could induce the local land offices to allow them to locate a land warrant upon any of these lands.

Another class of persons, however, were deeply interested in the question of this title. Prior to the contract made with the Des Moines Navigation Company the state of Iowa had sold some fifty thousand acres or more of these lands located above the Raccoon fork of the river, and many of these lands were occupied by actual settlers who had made improvements thereon and had paid the state valuable considerations for their title. To avoid the hardships that must otherwise have resulted from the decision of the supreme court, congress on March 2, 1861, passed the following joint resolution: "Resolved, that all the title which the United States still retain in the tracts of land along the Des Moines river, above the mouth of the Raccoon fork thereof, which have been certified to said state improperly by the department of the interior as a part of the grant by act of congress approved August 8, 1846, and which are now held by bona fide purchasers under the state of Iowa, be, and the same is hereby relinquished to the state of Iowa."

The congress of the United States further on the 12th of July, 1862, passed an act in express terms extending the grant to the northern boundary of the state, and providing that such lands "be held and applied in accordance with the provisions of the original grant, except that the consent of congress is hereby given to the application of a portion thereof to aid in the construction of the Keokuk, Fort Des Moines & Minnesota Railroad, in accordance with the provisions of the act of the general assembly of the state of Iowa, approved March 22, 1858."

At the December term, 1866, the supreme court of the United States, in the case of Samuel Wolcott vs. The Des Moines Navigation Company, reported in 5 Wallace, page 681, made a further decision confirming the title of the Des Moines Navigation Company under the acts of congress of 1861-2, to the lands that had been deeded to them by the state of Iowa as before recited, and further deciding that the lands within the five mile limits of the Des Moines river had been reserved by competent authority for this work of internal improvement at the time of the passage of the railroad grant of 1856.

Mr. Gue in his history of Iowa unfortunately attempts to disparage the title of the stockholders of the Des Moines Navigation Company by stating they were mere speculators who had purchased an impaired title, and were therefore entitled to no consideration. On the contrary, the men who received these deeds directly from the Des Moines Navigation Company were stockholders who had advanced their money in payment of their stock, which money had been paid over by that company directly to the state.

Soon after the decision of the supreme court in the Litchfield case in 1859, a suit was brought in the circuit court of the United States for the southern district of Iowa, asking an injunction against the local United States land officers at Fort Dodge and at Des Moines, to prevent them from receiving and recognizing any location or purchase of these reserved lands. The reservation of the land affected not only the lands within the railroad grant, but affected the right of any person to locate upon or purchase these lands from the United States, as they were not lands subject to settlement or entry. Justice Miller heard this application for an injunction, and an argument was filed by the authorities in Washington claiming that the proper officers of the land department had the sole authority to determine the question as to whether or not these lands were subject to location and entry, and that the question of the effect of such location and entry could only be decided by the courts, after entries were made and patents granted; that if the lands were not legally subject to entry as to any person claiming them, the action of the land officers would be void, and a court, if called upon by the owner, could cancel any patent or other evidence of title illegally issued. Justice Miller, after the full argument of the case, sustained this view of the case and held that the only remedy for parties claiming these lands under the act of 1846, and the subsequent act of 1861-2, was to apply to the court for the cancellation of any titles wrongfully issued by the land department or by the President. In accordance with this view of the case a number of suits were brought by the grantees of the Des Moines Navigation Company, who received their titles from the company in consideration of the moneys they had advanced as stockholders, and the supreme court of the United States, upon appeal to that court, cancelled a number of entries and patents that had been wrongfully issued. An attempt was made to make a distinction between the Des Moines Navigation Company and individuals who had purchased the lands from the state of Iowa, and settled thereon.

Mr. Gue in his history of Iowa claims that the act of congress of 1861 was only intended for the protection of those purchasers from the state who had actually settled upon their lands and made improvements thereon, and that congress in using the words "bona fide purchasers from the state of Iowa" did not include in those words citizens or residents of the state of New York who had bought their lands in good faith from the state of Iowa. The supreme court of the United States in the very purpose of its organization was intended by the constitution to organize a judicial body or tribunal before which all citizens of the United States should be equal before the law, without regard to the state in which they had their residence or location. There was no question about the fact that the Des Moines Navigation Company was a bona fide purchaser of these lands. At the time that they paid their money and took a conveyance from the state of Iowa, the stockholders of that company honestly believed they were getting a good and perfect title and were paying out their money for same in the utmost good faith. The statement of Mr. Gue in his history before referred to, that the persons who received deeds for these lands from the Des Moines Navigation Company were mere speculators, purchasing for a song a doubtful and disputed title, is wholly without foundation and fact, and the denunciation of the supreme court of the United States because the court made no distinction between bona fide purchasers because of their location or residence, very greatly mars the reliability and impartiality that ought to have been characteristic of this history of Iowa. Mr. Gue was a resident of Fort Dodge, where for years the atmosphere of that locality was permeated by the passion of men who had been disappointed in their attempt to secure a title to lands that they all knew before and at the time of the location and attempted entry on the same, had already been sold for a valuable consideration by the state of Iowa. The opinion of the supreme court, delivered by Justice Miller in the case of Williams vs. Baker, reported in 17 Wallace, 144, contains an accurate and clear exposition of this entire controversy, which fortunately was settled by the supreme court of the United States, and to which they have continuously and consistently adhered. Long after the diversion of the remaining lands of this grant to the Keokuk, Fort Des Moines & Minnesota Railroad Company, the Iowa Homestead Company, grantee of the Dubuque & Sioux City Railroad Company brought suit for a portion of these lands embraced in the river grant above the Raccoon fork, and attempted to disturb the title. In the meantime the Keokuk, Fort Des Moines & Minnesota Railroad Company had mortgaged these lands for the purpose of continuing their road from Des Moines to Fort Dodge. On the foreclosure of this mortgage these remaining lands were sold to a company known as the Des Moines & Fort Dodge Railroad Company, organized for the purpose of owning and operating that portion of the old Des Moines Valley road that had been constructed between Des Moines and Fort Dodge. On the foreclosure of this mortgage I had represented Martin Flynn and a number of the other contractors, for whom I had filed a mechanics' lien for work done and material furnished in the construction of the road north of Gowrie. I succeeded in obtaining a provision in the decree of foreclosure making these liens paramount to that of the mortgage, and when the road was purchased by the new organization called the Des Moines & Fort Dodge Railroad Company they were compelled to pay off Flynn and these other lien holders in order to secure their title. This new railroad organization elected Mr. Charles Whitehead, an attorney of New York City, its president, and I received from Mr. Whitehead a telegram asking if I could be retained as general attorney of their road. I replied that upon the receipt of a draft for five hundred dollars I would accept of the same as a general retainer. One object, I think, that the company had in desiring my services was to secure some one familiar with the question of the title of these Des Moines river lands that the new organization had bought in connection with this other part of the road.

The last contest over the title was the case of the Iowa Homestead Company claiming the title under the railroad grant of 1856. It was the case of the Iowa Homestead vs. The Des Moines & Fort Dodge Railroad Company, reported in 17 Wallace, 84. Mr. Gue, in his history of Iowa, makes a special point as to the hardship visited on one of the settlers by the name of Crilley. I was attorney for Mr. Burrows in that case. Mr. Crilley first attempted to locate a warrant upon a tract of land near Fort Dodge prior to the decision of the supreme court of the United States in the Striker case. He was refused permission to make any such location or entry and was distinctly informed by the local land officers that the lands belonged to the Des Moines river grant. After the decision in the Striker case in 1859 and after the settlement between the state of Iowa and the Des Moines Navigation Company and the payment of the last $20,000 of the consideration, and after the execution of the deeds and patents by the state to the Des Moines Navigation Company, Crilley succeeded in inducing the local land officers to allow his location, and ultimately obtained a patent through their influence, signed by the President. The circuit court of the United States declared his patent void and decreed cancellation of the same. He took his appeal to the supreme court at Washington and that court affirmed the decree. The judges of the circuit court at Des Moines permitted Mr. Crilley, by his attorney, then to file a claim for his improvements under the occupying claimant law of Iowa. Commissioners were appointed and his improvements were valued at a very liberal amount, far in excess of their real value or cost. Mr. Burrows paid the money into court and Crilley received the same, but after he received pay for his improvements he still refused to vacate the land. A writ was issued to dispossess him, and upon the service of the writ by the United States marshal, Mr. Crilley presented a loaded revolver to the deputy marshal and threatened his life. The marshal thereupon returned to Des Moines and secured authority to arrest Mr. Crilley, which he did, and Mr. Crilley was actually detained in prison for several weeks and until he agreed peaceably to surrender possession of the land. This is the whole story of the inhumanity out of which Mr. Gue's history of Iowa makes a case of such extreme cruelty and hardship.