IN error to the Supreme Court of Iowa.
Fremont County, Iowa, filed a bill in one of the State courts of Iowa against the Burlington and Missouri River Railroad Company, to quiet the title to twelve thousand seven hundred and fifty-four acres of land, or thereabouts, situate in the said county, which the company claimed as belonging to it. Both parties set up title under grants by acts of Congress: Fremont County, under what is known as 'the swamp-land grant' to the State of Iowa, September 28th, 1850; the railroad company, under a grant to the State for aid in the construction of railroads, May 15th, 1856.
The title of Fremont County, the complainant, was as follows:
By the 1st section of the act of September, 1850, it is provided 'that to enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby granted to said State.'
Section 2d provides 'that it shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the governor of the State; and, at the request of said governor, cause a patent to be issued to the State therefor; and on that patent the fee simple to said land shall vest in the said State, subject to the disposal of the legislature thereof: provided, however, that the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.
'Section 3d. That in making out a list and plats of the land aforesaid all 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 shall be excluded therefrom.
'Section 4th. That the provisions of this act be extended to, and their benefits be conferred upon, each of the other States of the Union in which such swamp and overflowed lands, known and designated as aforesaid, may be situated.'
Under this last section the State of Iowa became entitled to the benefit of this act. After its passage the only important steps to be taken to perfect the title in the State were the ascertainment and designation of the several subdivisions which fell within the description of swamp lands as defined in the third section. This duty was cast upon the Secretary of the Interior as the head of the land department.
On the 21st November, after the passage of the act, the commissioner of the land office issued instructions to the surveyor-general of the State to make a selection of these subdivisions, and report the same to the department; and also to transmit copies to the local land offices. This duty was performed in accordance with the instructions. The first list was returned and filed in the general land office September 20th, 1854, and in the local office October 23d, 1854. The second and remaining list was returned and filed in the general land office January 21st, 1857, and in the local office January 23d, 1857. These two lists contain the whole of the lands in controversy. On the filing of the lists in the local office the register was directed to make a note of the subdivisions in his tract-book, and to withdraw them from the market, which was done accordingly.
In this connection it may be proper to refer to the act of March 2d, 1855, which is 'An act for the relief of purchasers and locators of swamp and overflowed lands.' It provides, in substance, that patents shall be issued to purchasers or locators who had made entries of the public lands claimed as swamp lands prior to the issue of patents to the States under the second section of the swamp-land grant of 1850, and providing for an indemnity to the States. Conflicts had arisen between these purchasers and locators, on the one side, and the States claiming the land under the swamp-land grants. As these lands were not withdrawn from sale till the filing of the lists in the local and office, they were supposed to be open to entry or location, and a portion of them had been thus appropriated. On the other hand, the States claimed that the grant to them by the act of Congress was a grant in presenti and vested the title immediately. Such had been the opinion expressed by the land commissioner, and also by the Attorney-General.