E. M. Davis and Geo. G. Wright, for plaintiff in error.
S. Shellabarger, J. M. Wilson, and T. M. Stuart, for defendant in error.
WAITE, C. J.
This is a suit in equity brought by Adams county, Iowa, the plaintiff in error, on the twenty-third of December, 1869, against the Burlington & Missouri River Railroad Company, in a state court of Iowa, to quiet its title to 66 40-acre lots of land. The county asserts title under the swamp-land act of September 28, 1850, (9 St. 519, c. 84,) and the railroad company under the Iowa land-grant act of May 15, 1856, (11 St. 9, c. 28.) The company, in its answer, denied the title of the county, on the ground that the lands were not swamp lands within the meaning of the swamp-land act, and took issue on every material averment of fact in the bill to support a title under that act. It then set up its own title under the land-grant act. The petition averred a selection of the lands in dispute, as swamp lands, by Walter Trippett, county surveyor of the county, under the authority of the secretary of the interior and commissioner of the general land-office, as well as the governor and legislature of Iowa, and the report thereof, in due form, to the commissioner of the general land-office, on the thirtieth of September, 1854. On account of this selection and report, it was claimed that the right of the state to a patent for the lands selected was perfected by the act of March 3, 1857, c. 117, (11 St. 251.) The railroad company filed an answer in the nature of a cross-bill asking for affirmative relief on the following facts: 'Petitioner further states that on the twenty-fifth day of October, 1861, the claim or right of said plaintiff to said lands under and by virtue of said pretended selection of said Trippett was submitted to the commissioner of the general land-office for final adjudication, and defendant appeared before said commissioner and resisted the claims of said plaintiff to said lands, and asserted its rights thereto as lands granted to the state of Iowa for railroad purposes, and said commissioner, after full and careful examination of plaintiff's claim, rejected the same as fraudulent and unfounded, and afterwards, on the twenty-fifth of October, 1862, said commissioner certified and conveyed said lands to the state of Iowa for railroad purposes, under and in pursuance of act of congress of date of May 15, 1856, * * * and that on the ___ day of ___ the said state certified and conveyed the same to defendant in pursuance of the said act of the legislature of the said state of date of ___, 1856. * * * Defendant here avers the fact to be that the said plaintiff, well knowing that her claims to said lands were fraudulent and unfounded, did, upon the said decision of the said commissioner against her, voluntarily abandon all claim, right, or interest in said lands, and has, since the date of such decision, and up to the time of the commencement of this suit, recognized and treated defendant as the owner of said lands; that the said county of Adams, since the twenty-fifth day of October, 1861, has, by numerous and repeated acts, not only abandoned all claims to said lands, but has recognized, treated, and acknowledged the same to belong to defendant; that since the date of said decision said county has regularly each year (up to and including the year 1871) listed and assessed said lands as the land of the defendant, and has, since the date aforesaid, regularly levied and collected taxes thereon from defendant. That the taxes thus levied and collected on said lands from defendant since the twenty-fifth day of October, 1861, would, with the legal interest thereon, amount to about ten thousand dollars.
