I. F. & S. C. R. Co. v. Plymouth Co. , 40 Iowa 609 ( 1875 )

Day, J.

This case in its material facts does not differ from the cases of the same plaintiff against Cherokee county, December Term, 1873, and the same plaintiff against Wood-bury county, 38 Iowa, 498. The patent of the Governor to plaintiff, for the lands in controversy, is dated July 5th, 1871.

There is an entire absence of proof that any fraud was practiced upon the Governor, to conceal the condition of the road, or to prevent the issue of a patent.

The proof shows that the Governor patented the lands, as soon as he became satisfied that plaintiff was entitled to them under the law.

In his deposition Governor Samuel Merrill says: “ I think I patented to the Iowa Palls & Sioux City. R. R. Co., the lands to which they were entitled, as soon as they had complied with the law, and I had made a division of the lands of the grant as required by law, between the compani.es, and as soon as the question relative to the applicability of chapter 153, of the Acts of 1862, had been settled to my satisfaction by the opinions of the Attorney General.”

A letter of the Governor’s private secretary, to the treasurer of Woodbury county, dated November 21st, 1870, offered in evidence by defendant, says: “ The Governor directs me to state that he stands ready to patent the lands for the forty miles eastward from Sioux City, as soon as the companies interested in the line from Dubuque to Sionx City shall have complied with the requirements of the law * •* * * * . The law Avhose requirements now stand in the way of the patenting of the lands is chapter 153, of the Acts of the Ninth General Assembly, which provides for the relinquishment-by the company of all claim for swamp lands, school lands and Des Moines River lands.”

On the 18th day of November, 1870, three days prior to the writing of the above communication, the Attorney General advised the executive department that chapter 153, laws Ninth General Assembly, providing that the Dubuque and Sioux City Railroad Company should not be entitled to receive any certificate for lands on the line of its road, until it executed a release of all swamp and overflowed lands and certain other lands, was still in force, and applicable to the present plaintiff. It is clear, from the whole testimony in the case, that the patents were not withheld on account of any concealment or fraudulent practice of plaintiff, but, amongst other things, because of the failure of plaintiff to comply with the provisions of the above statute. It was not until the 6th of March, 1871, that the Attorney General reviewed the grounds of his former opinion, and advised the executive that the provisions of the above chapter were not applicable to plaintiff. The uncertainty as to the requirements of the law, and the necessity of' making a division of the. lands of the grant, between the companies entitled to respective portions thereof, caused the delay in the issuance of the patents. The plaintiff is not responsible for either of these causes, nor for their consequences. Following the two cases above mentioned, the judgment of the court, holding the lands in question taxable for the year 1871, is

REVERSED.