court of the state of Iowa, seeking re- | in its title as against the plaintiff. By versal of its judgment affirming the decree an amended reply the plaintiff reiterated of the district court of Woodbury county, that for more than ten years prior to the quieting the land title of Claude F. Blumer, commencement of the suit, plaintiff and his defendant in error, as against the Iowa immediate grantor had been in open, noRailroad Land Company, plaintiff in error. torious, continuous, and adverse possession 129 Iowa, 32, 105 N. W. 342. The record of the premises under a claim of right and discloses that Blumer brought his action color of title, and that plaintiff was then by a petition in equity under the Iowa Code, in possession of the same. claiming to be owner in fee simple of 40 The lands in question are within the place acres of land in Woodbury county, Iowa, limits of the grant to the state of Iowa being the N. E. 1/4 of the N. E. 14 of sec- by the act of May 15, 1856. 11 Stat. at tion 1, township 89 north, range 46 west, L. chap. 28. By the act of the legislature containing about 40 acres; averring that of Iowa, passed July 14, 1856, the lands the plaintiff and his immediate grantor had were granted to the Dubuque & Pacific Railbeen in open, notorious, continuous, and ad- road Company. The map of definite location verse possession for more than ten years of the line of the road was filed in the office under a claim of title, and that the plain- of the Commissioner of the General Land tiff was then in the possession of the same; Office of the United States on October 11, and that defendant made some claim to the 1856, and accepted on October 13, 1856. said estate, and prayed that he be quieted The legislature of Iowa, on April 7, 1868, in his title, and that defendant be estopped passed a statute (Iowa Laws 1868, chap. from setting up any claim adverse to his 124, pp. 164–167) designating the Iowa Falls own.

& Sioux City Railroad Company (grantor Defendant answered and set up general of the plaintiff in error) to construct and denials and that the defendant was the complete the uncompleted portion of the owner of the premises by virtue of an act road west of Iowa Falls. Sec. 1 of the of Congress of May 15, 1856 [11 Stat. at act legalized and confirmed the contract beL. 9, chap. 28), making a grant of lands tween the Dubuque & Sioux City Railroad to the state of Iowa in alternate sections Company and the Iowa Falls & Sioux City in aid of the construction of certain rail- Railroad Company “transferring so much ways in that state, whereby the lands were of the Dubuque & Sioux City (successor of granted to the state of Iowa in trust for the the Dubuque & Pacific] Railroad as remains railway companies; that the act and trust to be constructed, together with the franwere duly accepted by the state of Iowa, by chises, right of way, depot grounds, and act of its legislature, approved July 14, 1856; other appurtenances of said road to be that thereafter, by the act of April 7, 1968, completed, also transferring all right and of the same state legislature, the Iowa Falls title of the said Dubuque & Sioux City & Sioux City Railroad Company was desig- Railroad Company to so much of the lands nated to construct and complete the por- granted by Congress to aid in the construction of the railroad west of Iowa Falls, tion of said road as shall appertain to, or and the state granted, on conditions con- be legally applicable to the construction of, tained in said act, the unearned por- the uncompleted part of the Dubuque & tions of said lands west of Iowa Falls to Sioux City Railroad, as aforesaid, except the said Iowa Falls & Sioux City Railroad as to the lands hereinafter granted to the Company, and that all the terms of the Dubuque, Bellevue, & Sabula Railroad Comact had been complied with, and that the pany.” Sec. 4 of that act provides “that same were rightfully subject to the certifi- so much of land grant as is applicable to cation and conveyance to the said railway the uncompleted portion of the road aforecompany, which was the grantor of the said, west of Iowa Falls .. is hereby defendant.

conferred upon the said Iowa Falls & Sioux A reply and amendment were filed, and City Railroad Company, subject to the also a supplemental answer setting forth terms and conditions of the act of Congress that the lands, on the 24th of January, granting the said lands, dated the 15th 1903, since the former answer in the case, day of May, A. D. 1856, and the act amend

, had been duly certified to the state of Iowa atory thereto and the act of Congress passed in trust for the Iowa Falls & Sioux City the present session" (subject to certain conRailroad Company, and had been subse- ditions as to the time and manner of conquently patented to the railroad company struction). by the governor of the state on February The railroad company complied with this 2, 1903, and that all the rights and title act as to the completion of the road, hav. of the railway company had been succeeded ing done so by January 1, 1872, also comto by the defendant, the Iowa Railroad plying with the act of Congress of March Land Company, and prayed to be quieted 12, 1868 (15 Stat. at L. 38, chap. 16), re

.

quiring the completion of the road by that, president, dated July 28, 1891, in which he date. The tract of land in controversy was asked that we 'take such steps as will reagain selected and designated by the Iowa sult in the tract in question being certified Falls & Sioux City Railroad Company, on to the state for our benefit.' June 19, 1884, and on April 24, 1885, as “Thereafter, by personal application by lands to which the company was entitled myself and other members of my firm, efunder said land grants, and said last- fort was made to secure the due certificanamed selection was accepted by the regis- tion of the land under the grant, resulting ter and receiver, and certified to the Com- in a promise from the proper officials of the missioner of the General Land Office at General Land Office, given on or about Washington, May 13, 1885.

October 1, 1891, that the tract would be In December, 1858, the lands were listed included in a patent which was then about for the benefit of the Dubuque & Pacific to be prepared. (since Iowa Falls & Sioux City) grant un- “The duty of certifying the tract rested der the act of May 15, 1856, but afterwards, with the proper officials of the General Land on February 21, 1859, the tract was in Office, and was in fact a mere clerical duty. cluded in a selection of the state of Iowa No rule required the filing of an application under the swamp land grant. Under the in writing for the certification of lands emorder of the Secretary of the Interior the braced in a pending selection, and the praclands were stricken from the certified list tice of my firm in such matters was to with a view of determining the claim of urge, by personal request, the proper of

' the state under the swamp land grant, ficials of the General Land Office to take which claim was finally rejected on Febru. up such lists and prepare the necessary ary 16, 1878.

certificate for the action of the CommissionThe lands were certified pending the suit, er and Secretary. This was what was done January 20, 1903, and on February 2, 1903, with respect to the tract in question here; the lands were patented by the governor of and our requests in the matter resulted in Iowa to the Iowa Falls & Sioux City Rail. the promise that the land would be included road Company.

in a patent, such as set out in my firm's On October 2, 1883, John Carraher (prede letter of that date, to P. E. Hall, president, cessor in title of the defendant in error) Exhibit 'C. In the multitude of business made application to the local land office at transacted by my firm in the years sucDes Moines, Iowa, to enter the lands under ceeding the action referred to, it is imposthe timber culture act (20 Stat, at L. 113, sible for me to recollect the details of this chap. 190). His application was rejected particular matter, nor do I recollect the and Carraher appealed. The rejection was circumstances under which the promise rebecause of conflict with the railroad grant. ferred to in said letter was given, but that On December 3, 1883, the Commissioner af- it was made to me or to some member of firmed this action. Carraher appealed to my firm, as a result of urgent requests for the Secretary of the Interior. Afterwards, proper action, is certain, or the said letter June 17, 1891, the Secretary approved the of my firm, of October 1, 1891, Exhibit 'C' decisions and rejected the claim of Carraher. would not have been written. It was the Pending his appeal, on May 31, 1888, Car- practice of my firm, in all matters in our raher made another timber culture entry hands, from time to time to call them up (No. 607). When the Secretary's decision by personal application, with a view to seof June 17, 1891, finally rejecting the first curing action. When the certification finalapplication of Carraher, was promulgated ly issued, on January 22, 1903, it was in by the Commissioner (July 11, 1891), it response to a personal and urgent request was also directed that the second timber from my firm. culture entry (of May 31, 1888) be can- “I know of no delay whatever caused by celed on the ground that it had been al- either the Iowa Railroad Land Company or lowed without authority.

its predecessors in interest, or by any of The delay in certifying the lands after its agents or attorneys, and certainly none the final decision against Carraher is thus by myself or my firm in securing the final accounted for by Mr. Samuel S. Burdett, issuance of title by the United States to at one time Commissioner of the General the tract of land in question. The delay in Land Office, and attorney for the plaintiff certifying the said land, after the Secrein error from June, 1888.

tary's action of June 17, 1891, was wholly “On July 15, 1891, my firm advised the due to the want of action by the General Iowa Railroad Land Company of the Com- Land Office, the company and its agents missioner's action of July 11, 1891, in which having performed every duty in timely

, the Carraher entry had been canceled, and manner required by the rules of the Dereceived in reply the letter thereto attached partment. and marked 'Exhibit B' from P. E. Hall, "The first cause of delay in final certification of said tract under the aforesaid | United States and vested in the state oi railroad grant of May 15, 1856, was the Iowa on October 13, 1856, when the map oi selection by the state of Iowa, under the definite location was lodged in the General swamp land grant of 1850, which was filed Land Office, and the right of the company February 21, 1859, and embraced said tract, then attached. Sioux City & I. F. Town which selection was not finally disposed of Lot & Land Co. v. Griffey, 143 U. S. 32, by the Land Department until 1878.

36 L. ed. 64, 12 Sup. Ct. Rep. 362. “The next cause of delay was the appeal Under the decisions made by this court of John Carraher from the decision of the in Deseret Salt Co. v. Tarpey, 142 U. S. 241, Commissioner of the General Land Office, 35 L. ed. 999, 12 Sup. Ct. Rep. 158, and dated December 3, 1883, to make entry of Toltec Ranch Co. v. Cook, 191 U. S. 532, 48 said tract under the provision of the timber L. ed. 291, 24 Sup. Ct. Rep. 166, notwithculture law. Delay was next caused by the standing the patent had not been issued, loss of Carraher's application papers in the the railway company, grantor of the plainGeneral Land Office, which is mentioned in tiff in error, having succeeded to the right the letter of the Commissioner to Mr. Van and title of the original company, and comDeventer, dated September 6, 1887, Doc. No. plied with all the terms and conditions of 1, of this deposition, and that of the Com- the grant, as required in the legislation of missioner to Geo. W. Wakefield, Esq., Doc. Congress and the acts of the Iowa legisNo. 4, of this deposition. The next cause lature after the acceptance of the grant of delay appears to have grown out of the by the state, was in a position and clothed contention made in behalf of Carraher in with the requisite title in order to transmit support of his appeal, that the railroad the same to another who might have regrant had been fully satisfied, and that covered possession of the lands, and it could this tract was not needed to fill up the itself have brought an action in ejectment quota of lands due under the grant. This to oust one holding adverse possession made necessary the adjustment of the grant thereof, and, being clothed with these rights, which took place on April 9, 1891, as al- was in such position that the statute of ready detailed.

limitations would run against it in favor “Thereafter the Secretary disposed of of one who occupied the premises by adCarraher's appeal on June 17, 1891. The verse possession under color of title. This delay in certifying the land under grant was distinctly decided in the Toltec Ranch which subsequently ensued, occurred in the Company Case, wherein it was held that General Land Office. As to the causes of the statute of limitations would run against this last delay, I have no certain knowl- | the railroad company, thus situated toward edge, but I can state it as a fact, that be the lands, although the patent had not is. tween the date of the Secretary's final de sued. cision on the Carraher application, down to It is sought to withdraw this case from a very recent date, the railroad division of the application of the doctrine of Deseret the General Land Office has been overbur- Salt Co. v. Tarpey, and Toltec Ranch Co. dened with work consequent upon the duty v. Cook. It is argued that § 4 of the act of adjusting all of the railroad land grants of May, 1856, provided that if the roads made by Congress in aid of railroads, which were not completed in ten years the unwas cast upon the Land Department by sold lands should revert to the United the provisions of the act of March 3, 1887 States; that on March 10, 1868, the state (24 Stat. at L. 556, chap. 376, U. S. Comp. of Iowa resumed the grant of lands as Stat. 1901, p. 1595). For the most of the made to the original grantees; that by act time during that period the force of clerks of June 2, 1864, Congress provided in § 8: in that division was insufficient to promptly “That no lands hereby granted shall be perform the necessary labor attendant up certified to either of said companies until on such adjustments and the conveyance of the governor of the state of Iowa shall lands under the grants. The delay in cer- certify to the Secretary of the Interior that tifying the tract in question may have been the said company has completed, ready for due to these conditions.”

the rolling stock, within one year from the

first day of July next, a section of not Messrs. Charles A. Clark and William G. less than twenty miles from the present Clark for plaintiff in error.

terminus of the completed portion of said Messrs. Constant R. Marks and Henry C. railroad, and in each year thereafter an Gardiner for defendant in error.

additional section of twenty miles; but the

number of sections per mile originally auMr. Justice Day delivered the opinion of thorized shall be certified to each company, the court:

upon proof, as aforesaid, of the completion The original grant of May, 1856, was of the aditional sections of the road as in præsenti. The title passed from the aforesaid; and upon the failure of either

company to complete either section as afore- , receipt was issued to him. This receiver's said, to be annually built, the portion of receipt was dated May 31, 1888, and is as the land remaining uncertified shall become follows: subject to the control and disposition of the

Application No. 607. legislature of the state of Iowa, to aid in Receiver's Receipt No. 607. the completion of such road.” [13 Stat. at Receiver's Office, Des Moines, Iowa; L. 98, chap. 103.]

May 31st, 1888. And it is argued that the effect of this Received of John Carraher the sum of section was to hold the legal title until Nine Dollars cents, being the amount the railways were built and completed, as of fee and compensation of register and therein specified, and that the Iowa Falls & receiver for the entry of northeast of Sioux City Railroad Company never took N. E. quarter of section 1, in township 89 the legal title to the lands in controversy of range 46, under the 1st section of the until certified under § 8 of the act of 1864, act of Congress approved June 14th, 1878, which, it is alleged, was not until January entitled "An Act to Amend an Act Entitled 20, 1903, followed by the governor's patent an Act to Encourage the Growth of Timber of February 2, 1903.

on the Western Prairies." But when the grant is in præsenti, and $9.00.

M. V. McHenry, Receiver. nothing remains to be done for the admin- Indorsed: State of Iowa, Woodbury istration of the grant in the Land Depart-county, filed for record this 9th day of Dec., ment, and the conditions of the grant have 1891, at 2 o'clock P. M., and recorded in been complied with and the grant fully book 40, Lands, page 162, C. A. DeMun, earned, as in this case, notwithstanding the Recorder. P. Shontz, Deputy. want of final certification and the issue of the patent, the railroad company had such It was inclosed to Carraher in a letter, title as would enable it to maintain eject- of which the following is a copy: ment against one wrongfully on the lands, and title by prescription would run against it in favor of one in adverse possession un

Sioux City. Iowa, June 2, 1888.

Mr. John Carraher, der color of title. Deseret Salt Co. v. Tar

My Dear Sir:pey, and Toltec Ranch Co. v. Cook, supra.

I have the pleasure of handing you here· Applying and giving weight to the deci

with your timber culture entry receiver's sions thus recently rendered in this court,

14 we think the debatable proposition in the receipt No. 607 for N. E. 14 of N. E. 44, 1,

89, 46. case concerns not the title of the railway company, or its right to have maintained

Respectfully,

Geo. W. Wakefield. an action to recover the premises, but involves the right of Carraher, and the de

P. S. You can take possession and proceed fendant in error as his successor, to claim to comply with the timber culture laws. the title to the premises by adverse possession.

After this receiver's receipt and letter, We think the record discloses that for Carraher went into possession in the man. more than ten years required by the Iowa ner we have already stated and held it unstatute to ripen such title, Carraher was til 1901, when, shortly before his death, he in possession of the premises. He had conveyed the premises to the defendant in planted a large number of trees; caused error. The contention is that this possesthe lands to be cultivated; had raised sion could not have been in good faith, with crops; had rented the lands to others, and any expectation of obtaining title from the was understood to be claiming the owner-government at the conclusion of the eight ship. The answer of plaintiff in error to years required by law in which to earn it; this claim of title is that Carraher was not that Carraher knew that his first applicain possession of the premises claiming title tion under the timber culture act had been in good faith.

rejected, and afterwards that decision was The record shows that in 1883, by an affirmed on appeal in 1891, and that he entry under the timber culture act, Car-could not have continued in the occupation raher claimed this 40-acre tract. As we of the premises in good faith under claim have seen in the statement preceding this of title. opinion, his application was rejected by the The record shows that when the Secre. register of the General Land Office, whose tary of the Interior (July 11, 1891) affirmed decision was affirmed by the Commissioner the decision against Carraher's first timber and ultimately by the Secretary of the In- culture entry, the Commissioner, in advising terior. Pending his appeal, Carraher made the register and receiver at Des Moines by a second application for the lands to the letter of July 13, 1891, of that decision, register of the land office, and a receiver's added: “It appears that on May 31, 1888,

more than three years after the rejection closes, made no objection to Carraher plantof his application, and while his case was ing and cultivating the trees required by pending before the Secretary of the Interior the act of Congress to perfect his title unon appeal, your office allowed Carraher to der the second application. His possession make timber culture entry 607 of the land. was certainly open, notorious, continuous, The action was without authority and the and adverse, and, unless he was acting in entry has this day been canceled.” It does bad faith, was such as would ripen into not appear that Carraher was notified that full title as against the railway company, this entry 607 had been canceled, nor was it failing to assert its rights within the he ever called upon to appear in reference period of the statute of limitation. While, to the same, and the letter of the Commis- until the time had run required by the sioner discloses that the register of the land timber culture act, Carraher would have office at Des Moines should not have al- been in no position to claim title as against lowed the entry to be made, and that it the government, he was occupying a hostile was summarily canceled without notice or attitude toward the railway company, and, hearing. Carraher had been advised by the while recognizing title in the United States, letter from his counsel, who had become a he expected to acquire title from it, had exjudge of a court in Iowa, that he might cluded all others from the use and occupatake possession and proceed to comply with tion of the land, and held under no other the timber culture law. As far as the title. The supreme court of Iowa has held record shows, he heard nothing further from that, under such circumstances, the statute his entry, knew nothing of its summary of limitations of Iowa would run in his cancelation, and no attempt was made to favor as against the railroad company, and disturb his possession of the premises. we find no reason to disturb that conclusion.

The supreme court of Iowa held that And for more than ten years that company there was nothing in these facts to show was in such position under its grant that that Carraher was not acting in good faith, it might have maintained an action in ejectand with the belief that he would acquire ment and asserted its title to the premises title under the last entry under the timber as against Carraher. culture act, and we are not prepared to We find no error in the judgment of the disturb this holding.

Supreme Court of Iowa and it will be afAfter 1891, as we have seen, the railway firmed. company was in position to have ousted him from the premises and asserted its Mr. Justice Brewer concurs in the judge superior title and right. It did not attempt ment. to do this, and, so far as the record dis