HISTORY OF O'BRIEN COUNTY
HOMESTEADS AND FREE LANDS.
SQUATTER LANDS LITIGATION OVER THE OVERLAPPING LANDS.
long-drawn-out contest, or series of contests, over the overlapping
lands in O'Brien
county commenced with the "squatter" in 1882 and did
not end until
1910, and even yet, for several years, some of the fragments
appear in the courts. It has included several score of forcible entry
and detainer suits, before justices of the peace, for possession, probably
eight hundred suits and litigations in the district court of the county,
larger and test suits in the district and circuit courts of the
United States, probably forty of same being before the circuit court, and
half that number before the circuit court of
appeals at St. Paul and St. Louis,
perhaps about ten before the supreme court of the United States. In
addition to this,
every tract in eighties or quarter sections has been before
the land court of the United States land office at Des Moines, comprising
two hundred and
fifty separate hearings, with rehearings and intermediate
items, with large numbers appealed to the general land office, and quite a
hearings had before the secretary of the interior. There have
special acts of Congress directed specifically to the lands in
county, and the matter has engaged the attention of the Legislatures of the state of Iowa in about a dozen acts and amendments. It is
every county that will receive a special proclamation by the President
of the United States, but such was the case in the proclamation of President
Grover Cleveland in 1896 in opening up these Sioux City lands to homestead
entry. The questions involved several governors and attorney-generals of
Iowa. Probably one hundred and fifty attorneys have been engaged on one
side or the other in the multitude of items in
litigation. Even such men as
the celebrated Judge William Lawrence and Gen. Benjamin F. Butler have
given it their attention. The board of supervisors of O'Brien county for
twenty-five years have at almost every session had some tangled question
relating to taxes, either with the railroads or with the squatters. Squatters'
86O'BRIEN AND OSCEOLA COUNTIES, IOWA.
litigants were continuous for twenty years, organized to keep up
investigation and action from their standpoint.
It involved two divisions of lands. That known as the
Chicago, Milwaukee & St. Paul Railroad Company, or, as we shall for brevity call them,
the Milwaukee lands, involved forty-one thousand six hundred and eighty seven and
fifty-two hundredths acres, and which were patented to that road
by the United States on September 27, 1886. The second division, composed of twenty-one thousand one hundred and seventy-nine and eighty-five
hundredths acres in O'Brien
county and eight hundred acres in Dickinson
county, were originally granted to the Sioux City & St. Paul Company on
May 12, 1864, but which they failed to earn, as we shall see herein. The
claims of this latter road form the basis of the contentions we will recite in
this chapter. The real questions involved were finally submitted to and
by the supreme court of the United States on October 21, 1895,
in favor of the
squatters and the President's proclamation opened the same
entry, as preferred entrymen under the act of Congress of
May 14, 1880, which act provided that whoever took actual bona fide possession of
any vacant tract of public land, whether surveyed or unsurveyed,
in good faith intention to make same a home, should have the first thirty
days' right after proclamation by the President of the United States that
same was subject to entry, to file his application and proofs of possession.
In fact, the matter has been one of the biggest single items of public interest
ever in the
county, and forms the basis or reason for devoting a lengthy
chapter in giving its details.
The first half of the
fight included both the Milwaukee and Sioux City
lands. The whole trouble and
litigation grew out of the crude and inconsistent acts of Congress in making its grant of lands to aid railroads in their
construction in the newer countries or sections where the traffic of railroads
would not collect a paying revenue to run and manage a road.
GRANTING ACT OF CONGRESS.
Congress of the United States, on May 12, 1864, passed an act for
grant of lands to the state of Iowa, in alternate sections of land, to aid
in the construction of railroads, namely, granting one hundred sections, or
sixty-four thousand acres, for each section of ten miles of a fully
equipped railroad built.
grant applied to both the Chicago, Milwaukee & St. Paul Railroad
Company and the Sioux City & St. Paul Railroad. Each of these roads was
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 87
by the name of the construction company building same, but to
avoid confusion we will speak of them by their later names. The grant, in
result, provided that the Milwaukee company should be built from McGregor, Iowa, west and form a junction with the Sioux City road in O'Brien
county, or, as it later developed, at Sheldon, Iowa.
These lands were to be selected in alternate sections, by the odd numbers, under certain conditions within the ten-mile limits, and under certain
other conditions within twenty miles of the respective lines of road. Thus
it may be seen that in the very grant itself the subject of friction was laid
and at once became a bone of contention between the two roads. This
question arises at each point of forty miles square wherever two great roads
cross, receiving such a grant, but as two roads can only cross once, and as
grants were made only to long through lines, there are but few such
cases, and it fell to the lot of O'Brien county to be inflicted for twenty-five
years with the litigations of such an overlap of lands, hence called "overlapping lands."
FIRST FIGHT BETWEEN THE TWO RAILROADS.
legal contest occurred between the two railroads to determine
what those overlapping interests caused by this grant meant. This was
brought on by a suit in equity brought in the United States circuit court at
City, Iowa, in 1884 by the Chicago, Milwaukee & St. Paul Railroad
as plaintiff against the Sioux City & St. Paul Railroad Company, and Elias
F. Drake and Alexander H. Rice as Trustees (later Mr. Rice
Amherst H. Wilder was named in his
place), and who were holders of said
lands as trustees to secure two million
eight hundred thousand dollars in the
bonds of said road, to raise funds to build same. John H. Gear, Governor of
Iowa, and J. K. Powers, Register of the State Land Office for Iowa, defendants.
many legal questions involved relating to the relative rights
of the lands within the ten-mile and twenty-mile limits. In brief, the court
dealt with the matter on
equity principles as in partition of lands, solving
it out in sundry classes according to those rights, but, in result, giving to
each road its
particular sections or parts thereof in sole ownership. This
finally submitted to Judge Love, October 7. 1886, and decided as
above. A referee or master in
chancery was appointed by the court to make
partition. This he did and his report of same was confirmed and
decree rendered December 18, 1886. This decree will be found recorded in
the office of the countv recorder. But this decision only decided the matters
88 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
between the roads themselves. It did not and could not decide whether or
not the roads had in fact earned the lands under the
THE MILWAUKEE RAILROAD LAND.
This allotment of lands to the Milwaukee road was in fact
by the state of Iowa under the patent on September 27, 1886, and
its record found in book
23. page 436, of deed records of the county. The
question of its title to these lands never got into the large courts seriously,
though Dr. H. M. Hamblin in part raised the question at one time, as did
the lands of the Sioux
City Company. The question of its title and the
issuance of its
patents was solved largely in the general land office at Washington. This company sold all this large allotment of forty-one thousand
six hundred and
eighty-seven and fifty-two hundredths acres to the Western
Company, of which E. McMurtree was one of its officers and chief
manager so far as its activities in this county were concerned. This company had many years of contentions with the squatters in evictions, as below
shown, and Mr. McMurtree became for ten
years a well known and fighting
character in the
county and its courts, and in his dealings in inducing many
of them to
purchase and in evicting by writs those who refused to purchase.
In result, its titles were maintained.
COMMENCEMENT OF REAL SQUATTER POSSESSION.
squatting on lands applied to the lands of both roads. Credit
given to the discovery of the real squatter idea to Dr. Howard M.
Hamblin, who came to O'Brien county in 1881 and purchased school lands in
Highland township, settling in Primghar. He proceeded at once as a
squatter on the northeast quarter of section 1, in Dale township, being now
a part of Derby & Rowan's addition to Primghar, and erected a residence on
what is now Main street. We
say residence, but in fact it was a squatter's
shanty, though of the better variety. Doctor Hamblin came as a real settler
and farmed for many
years his lands in Highland township. He had been
an office holder in Washington and there got hold of this squatter idea.
He was a
very sanguine man, set positively in his idea, which amounted
almost to a
hobby, though not quite sufficiently practical to get down to the
legal questions involved, which all saw later must govern. He never
got down to the real fact that the two roads were not on the same footing,
one, the Milwaukee road, having already, in 1878, completed its road to
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 89
per the grant, while the Sioux City road had only built to Le
Mars, Iowa, which was finally fatal to its proofs relating to the earning of
its lands. His
fight was much a mass fight against all railroads. It had been
true that both roads had
dilly-dallied in building, waiting as long as they
dared, and building only when they had to, not in reality fulfilling the real
intent of Congress to aid railroads in building across the then barren prairie
to induce settlers to come in. Indeed the roads waited for the settler himself. This
provided the argument for prejudice against the railroad. Many
squatters accepted this fiery argument against the railroad as the law,
losing sight of the fact that the courts and departments, and even the supreme
court of the United States, on cold principles of law, must and did finally
decide. Doctor Hamblin
proceeded too much in moral efforts with members of Congress and the Legislature for new proceedings and enactments.
evidently overlooked the fact that even Congress by new enactment could
away a single right that either road had acquired under the grant
by building. The roads had acquired vested rights and must have their day
in court, and the courts only could decide the questions finally.
Doctor Hamblin, however, was a very active and persistent man and
kept the roads, as well as the squatters, sitting up and taking notice. He was
sincere and dealt with the
squatter candidly from his viewpoint. He proceeded to advertise in sundry Scandinavian, Dane, German and American
papers, that there were large tracts of homestead land subject to entry in
county. He talked to the writer as county auditor, through whom
purchased his school lands, on this squatter subject as early as 1880, and
wanted him to
go into the matter. This was discussed in the county, at first
faintly, but did not reach a stampede or influx of squatters until February
AN EXCITED CROWD.
On that date the writer arrived home from a
trip and found the whole
public square around the court house, and every hitching post in town, lined
with teams, buggies, wagons and saddle horses in hundreds. The motley
crowd thus called
together were much excited over these homestead lands.
People came during the next several days and weeks from everywhere, real
homesteaders of the bona fide class, land speculators, promoters, young men
not even twenty-one years of age, even ladies, attorneys, bankers, business
wealthy people. Many foreigners came in response to the advertisements in the
papers and with small idea of what it all meant. An entry
90 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
may be made before a clerk of courts, provided they are more
than one hundred and
fifty miles from the land office which in this case they
fact, together with getting actual possession, brought the crowd.
The clerk could not make out
papers fast enough. The writer was besieged
for advice and to draw
papers. He gave to all the same advice as did most
attorneys, namely, that he would draw the papers, but that the whole
question or questions were yet unsolved and that they must take their
chances on results.
POSSESSION NINE POINTS OF THE LAW.
The act of
Congress of May 14, 1880, has already been referred to,
giving to every person first, in possession of such government lands with
intent, the first thirty days' right to enter it as a homestead. This
quick work necessary to get possession and to make a bona fide showing of a home and house and to be actually in possession. Much of it would
have been humorous had it not been so serious.
Thus far and for six
years this excitement applied itself to the lands of
both roads, neither Doctor Hamblin, who assumed the leadership, nor the
squatters in their choice of location making any difference as to which lands
they jumped or took possession of.
THE OLDER SETTLERS BECOME A FACTOR.
being the odd numbered sections, and the still older homesteaders of
1870-71-72 having homesteaded the even numbered sections,
many of them for one reason and another had either broken up a few acres,
or broke around some
haystack to protect them, or broke up a strip in front
premises as a protection against prairie fires, or built some cattle
corral or shed, sheep shed, granary or secondary building across the roads
from their homes, on some part of these railroad lands. Many of these
people or their grown-up-sons at once saw the point of possession, and many
families or a member at once
put in a bed or a cot, stove and cupboard and
were housekeeping within a few hours. Old stoves were at a premium.
Improvised chimneys were built in old sheds, all to make up a bona fide
appearance. A few even proceeded, so excited were they, to move their
buildings, even buildings that it would materially damage
to so remove. These new comers at once saw that
they had to get quickly
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 91
As one can see, in this excitement little shacks jumped up over night
all over these lands, and resulted, in many cases, in two and three men getting
possession the same day, and often on getting up in the morning to find
themselves "jumped," as it was called by some enterprising squatter who
during the night built or pulled on a shanty on the other end of his land.
One load of lumber in
many cases built a "home," often at a cost of about
fifteen dollars. In the later
litigation on the Sioux City lands, these first
possessions became in fact very material.
JUMPING BECAME A BUSINESS.
"Jumping" brought on many contentions. Indeed, in many cases,
where two men jumped on in the night, and on different parts of a quarter
section of land, it became difficult to tell or prove who was first. Others
openly jumped the other man and took his chances. The older settlers of
1870-72 who already had shacks on these lands, claimed they had possession
all the time for all those
years. This brought on physical combats, and even
burnings of each others' buildings and openly moving each other's shacks
off. It happened in many instances, for even a number of years, that two
men, fully knowing the facts, would put double crops in on top of each other,
and often of different
grains. This brought on litigations and proceedings
to keep the peace. Farming with a revolver was often indulged in. Many
entry and detainer suits for possession before justices of the peace
were brought to put one another off. The writer participated in many of
attorney. Many odd and amusing scenes took place.
NOT A CRIME DIDN'T STEAL THE LUMBER.
give one actual incident to illustrate. One dapper little attorney
came hurriedly from Chicago, on hearing of the excitement, dressed as if
out of a band box. He was on the ground early and proved much of a
scrapper. He hauled two separate loads of lumber on two separate tracts,
theory that he would at least succeed on one of them. He got one
load hauled on the southwest
quarter of section 29, in Center township, where
Bert Foskett had broke
up and farmed a little strip for several years, adjoining his father's farm. Bert heard of it and in the night proceeded to
run the lumber
up into the attic of the school house on the land. The Chi-
92 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
cago attorney in the morning was minus his lumber, or at least could not find
it. He had Bert arrested for
stealing the lumber. The writer defended
on the ground that there was no intention to appropriate his property, simply
to hide it
temporarily, which was the true fact, hence no theft, and that
theory at least was sustained. In the meantime during the two days occupied with this suit Bert had built a counter building of fair proportions and
possession. It being Milwaukee land, he later bought it and
got title. The little attorney who had come out from Chicago with quite a
flourish of law, after spending about one hundred and fifty dollars, as he told
me, went home in
disgust, but with the idea that "teaching the natives" on
prairies was a new experience.
PRETEXTS OF POSSESSION.
1872 settlers, who had been for twelve years in the habit of cutting
hay and grazing their stock on these odd numbered sections of land, sought
all kinds of
pretexts for claiming possession, some winning out and some
A "HOME" IN A BIG DRY GOODS BOX.
got so excited that he hustled out with a big dry goods box and
actually slept in it for three nights, until he could get something substantial
on the ground, and in his case he actually won out.
TWO INCONSITANT STATUES
already referred to the act of Congress of May 14, 1880,
giving, in effect, the squatter first in possession, with bona fide intentions to
make the land a home, the first thirty days' right to enter same when declared
to be opened for homestead entry. This was the statute under which the
squatters made their fight.
3, 1887. Congress passed a very extensive act relating to public lands, but among its provisions was a clause providing that
any purchaser of land from a railroad, bona fide in good faith, whether
earned or unearned, shall have the first thirty days' right to purchase the
land from the
government at the regular government price of two and fifty
hundredths dollars or four hundred dollars
per quarter section of land.
evidently passed in the interest of the railroads. In result, it
enabled the railroad to sell and
get the full value of the land less this four
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 93
per quarter section, and this, too, whether it had built the
road or not.
Here, however, the courts, as well as the squatters and railroads and
contract holders from the railroads, found two diametrically inconsistent
statutes, each giving the first right to two necessarily opposing men. In each
case the phrase "bona fide" or good faith entered as a requirement, and this
opened up much contending evidence of eye witnesses in the later hearings.
City road had in the meantime anticipated the matter by selling
issuing contracts for a large part of this twenty-one thousand one hundred and
seventy-nine and fifty-two hundredths acres allotted, but not earned.
Then, when it saw that a real contest was on in earnest, proceeded to sell all
unsold balance in one
drag-net contract to one Gotleib Schwartz, evidently
to make one last
clean-up. Then later, by assignments from him to various
parties it was sought to press before the courts this contract and these
assignments as bona fide purchases, but this man Schwartz having been shown
virtually acting for the road, the courts after long litigation held them
frauds. Some residents of the
county even helped to carry out this scheme.
LAND OFFICE TRIALS AT DES MOINES.
These two claimants, the squatter homesteader and the holder of one
of these railroad land contracts, brought on a direct contest for each tract.
This, in real result, necessitated two litigations. The hearings or trials
before the land office or land court at Des Moines did not end the contest,
not even when
appealed to Washington. This for the reason that the land
office is not what is known in law as a court of record, simply an administrative department. As was decided by the courts, the parties, squatters and
contract holders, had not had their day in court. Hence after that was all
over, each two men on a tract, squatter and contractor, had a right to and
did bring his further action to try anew the same questions they had already
spent much money in hearings before the land office. All this was occupying
years and wearing out the squatters, who were blessed with none too
In the meantime Governors William Larrabee and Horace Boies and the
Legislature of Iowa and Congress had repeated urgings from many angles
to issue governor's deeds or patents from the state, and to enact statutes,
which if effective, would arbitrarily end matters. With all these conflicting
laws and facts, it took a long time for the idea to become well settled in
the minds of the
many parties in interest, that neither governors nor legis-
94 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
latures were courts, and could not take away vested rights under grants of
Congress, or even to determine them, whatever they were. Herein evidently
Doctor Hamblin erred.
A MASTER STROKE.
gradually dawned on the public and the members of the squatters' union that it would
require the courts to really settle matters. About
year 1887, a petition of squatters and other citizens of the county (indeed
all wanted the vexed
litigations ended) was directed to Congress asking the
enactment of a statute or resolution authorizing the secretary of the interior,
through the attorney-general of the United States and the department of
justice, to institute a suit in the name of the United States as plaintiff and
against the Sioux City road, praying the court for a decree quieting the title
against the road, and re-establishing it in the United States, and declaring
the same, in result, open to homestead rights. Congress passed such an act
3, 1887, known as 24 Statute 556, chapter 376, which provided
for an adjustment of land grants of unearned lands, along many lines of
difficulty, and ordering the secretary of the interior, under the proper facts
shown, to make demand of the road for a relinquishment of its rights, and
on his certificate of
authority to make it the duty of the attorney-general to
This suit was first
brought in the circuit court of the United States in
an action entitled. The United States, plaintiff, against The Sioux City &
St. Paul Railroad Company, and Elias F. Drake and Amherst H. Wilder as
great suit was finally decided, after appeal, by the supreme
court of the United States. This decision was handed down October 21,
1895, and the decree in full may be found in the 43 Federal Reporter, page
617 and forward. The decree and opinion by Justice Harlan is also recorded
in full on the records of O'Brien
county in Miscellaneous Book "B," pages
307 to 330. It was decided in favor of the United States. The attorney general's office was assisted by E. C. Hughes, attorney, of Spencer, Iowa,
by Joy, Hudson, Call & Joy, of Sioux City. The railroad was represented by sundry able attorneys.
subject developed the following conclusions: That the Sioux City
road had not earned its lands. That the
grants in the act of Congress of
May 12, 1864, had provided that this road should receive one hundred sections for each
completed ten miles of well built road, and that said road
should be built from the state line of Minnesota to Sioux
City, Iowa, which
the court finds to be
eighty-three and fifty-two hundredths miles. That it.
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 95
fact, built in 1872 only from the state line to Le Mars, Iowa, a distance
fifty-six and thirteen hundredths miles. That it had built and was only
entitled to an allotment of lands for five completed sections of ten miles
each. That had it completed the road to Sioux City as per the grant it would
have been entitled to the fraction over the completed sections, but that having
only built as far as Le Mars it was not entitled to allotment for the fraction
of the six and thirteen hundredths miles. That said road had leased the
franchises and road bed and
right to use same, and that it had so used and
run its trains over the track and road bed of the Illinois Central Railroad
Company from Le Mars to Sioux City. That such leasing and use of a road
was not a "building of a road," as contemplated by the land grant of May
12, 1864, and that it was only entitled allotments for five completed sections
of ten miles each, for, on July 26, 1872. it had built two sections of ten miles
twenty miles, on August 10, 1872, ten miles, and on February t.
1873, it had built twenty miles more, or five completed sections. The court
further found that it had
already received patents for more land than it in
fact had earned; that it had received
eighty-seven thousand eight hundred
seventy and twenty-one hundredths acres more than it had earned. It
was therefore decreed that the Sioux
City road was forever barred and
estopped from claiming any right or title to any such lands, and that the
securing the railroad bonds of two million eight hundred thousand
dollars, and held by Elias F. Drake and Amherst H. Wilder as trustees, was
cancelled so far as said lands were concerned. The decree in full of about
twelve thousand words is an exhaustive review of all the facts and is a discussion of the details and law questions leading up to the above conclusions.
This decision and suit was the master stroke of the whole long-drawn-out
fight or series of litigations. It followed that the twenty-one thousand one
seventy-nine and eighty-five hundredths acres in O'Brien county
eight hundred acres in Dickinson county were open to homestead entry.
MILWAUKEE LANDS AGAIN.
squatters in the first instance occupied all the Milwaukee lands,
commencing in the main, as did the squatting on the Sioux City lands, on
February 22, 1884, though in a measure it commenced as early as 1882 and
continued until evictions were procured commencing January 3, 1887, under
possession issued by the district court of the state for O'Brien
county. The first squatters' union was organized by the squatters on the
lands of both roads, with Dr. Howard M. Hamblin as organizer. It soon
96 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
became evident, however, that the leading questions in the two divisions of
lands would involve two
quite different set of questions. There soon also
dawned on the minds of the
people generally the fact that the Sioux City
road had not earned its land, while the Milwaukee road had earned all the
lands in the county allotted to it, and hence there was but little show for the
squatters on the Milwaukee lands, but that the Sioux City lands would be
opened to homestead.
In 1886 the Milwaukee road sent on an Englishman named Ephraim
McMurtree as its
representative to look after and sell these lands and deal
with the Milwaukee
squatters. He was well fitted from the road's standpoint, being a capable, well poised man, with good judgment, a good judge
of law and business, and, above all, kept his temper in dealing with the
squatter. The very fact that their cause seemed waning
seemed to cause
many irritations. He proceeded to appraise the lands in
eighties and quarters of from ten to fourteen dollars per acre, and
put them on the market at their appraised prices, giving the squatter the first
buy, with a time limit which seemed reasonable, and giving him
a first chance
gave it an attitude of fairness. Each squatter who purchased
gave up, of course ended that much of the fight and gradually those buying dropped out of the squatters' union.
January 3, 1887, and up to August, 1887, Mr. McMurtree filed one
hundred and seventeen suits for eviction
against the squatters and their
families. They embraced suits in said court numbered consecutively from
1586 to 1701 and number 1878 and numbers 1914 to 1916. Irrespective of
legal questions involved, evictions of families, putting them out of possession
by the strong arm of the law, turning them out literally into the road, as in
these cases out from under the roofs that covered their
heads, involving women and children, even the infirm, from the houses which from their
standpoint was home, has in it the elements of pity and distress.
William C. Green, or Clark Green as he was known, was the sheriff of
county to whom the writs were directed, and who as such made
the actual evictions. In fact
they were the most pitiful and wholesale set
of transactions ever in the
county. Probably from the standpoint of the
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 97
road it was the
only thing it could do. as the squatters would not remove
until compelled. The courts had decided that the road was right in its
premises. The squatters on these lands, though wrong in their judgment,
went into it under enthusiasm.
In the literal evictions it would well
compare with the historic
evictions of Ireland. They were all poor people, or they would not have
seeking homesteads. The bankers and promoters who first came on
soon found that there was nothing in it for them. No matter who was
wrong or right, in most cases they were poor people with large families, who
had actually occupied and farmed more or less of the land for sundry years.
It was a hard
position in which to place a sheriff, whose votes he would
necessarily seek at the next election. He accepted the situation as a legal
duty and carried it out. The sheriff in fact took along with him four others,
sworn in as deputies, and not only the families were turned out into the
roads, but the buildings in many cases actually hauled by the sheriff off the
land. In the case of Dr. Howard M. Hamblin, who fought his matter so
persistently, his buildings were torn to pieces and scattered up and down the
road, to which the writer was an eye witness. Quite a good many finally
purchased, but many remained gritty. The county will probably never again
witness a wholesale set of evictions. It was not a case of a
country, but stern law, giving the railroads what the courts had decreed to
Some of these evictions, though harsh, had their amusing sides. William E.
English ("Bill"), a squatter on the northeast quarter of section 21,
game. He wouldn't be put out. His family and old mother
joined in the melee. Every time the sheriff went there, some member of the
family went to bed sick. All hands were convinced, it was even openlv
boasted by "Bill" himself, that it was feigned. He was much of a scrapper
and contended, in effect, that any fight was justifiable against a railroad.
It took the sheriff most of the summer with the four
deputies before he was
practically none of the suits, even for eviction, ever got beyond the
district court. It seemed
by this time to be generally admitted and
acquiesced in by all having even a superficial knowledge of the law as applied, that the Milwaukee lands really had no serious questions in it. The
fight, with many of them, finally simmered down to an effort to secure better
terms in a purchase or a little delay, to see if something might turn up.
ready to grasp at anv straw.
98 O'BRIEN AND OSCEOLA COUNTIES. IOWA.
GEN. BENJAMIN F. BUTLER.
One incident occurred which well illustrated the unsettled ideas of
involving no less a personage than the famous Gen. Benjamin F. Butler, the
great attorney and famous Union general during the Civil War.
George W. Schee and J.L.E. Peck, the writer, ran the Primghar State
Bank from 1886 to
1890. It had been definitely agreed between a bunch of
some fifteen Milwaukee
squatters that the bank would loan to each five hundred dollars to make their first
payments. This number of fifteen had decided to
give up. Some one of the leaders in a sort of desperation had telegraphed to General Butler asking him if he could be engaged. General
Butler was not at home. A clerk of his
telegraphed him, and he in turn
telegraphed to Primghar that he would accept a retainer. He had not even
a statement of the facts before him. He
simply would accept a retainer.
any one can see, this telegram meant nothing. That day a large squatters' union was held
by the Milwaukee road squatters. That telegram was
read amid intense enthusiasm. Even this number of fifteen
given up, on the strength of this slim straw joined the crowd in the
enthusiasm. The crowd threw
up their hats and came to the bank with the
exulting news that General Butler had given an opinion. Many other such
waverings took place. It ended those loans for six months or more. Indeed, it is almost grimly humorous that even from that time on in 1887 many
of the Sioux
City squatters spent more per acre in expense fighting for their
lands than the Milwaukee road
got for their lands, namely ten to fourteen
per acre. It all simply illustrates what grit, egged on by enthusiasm,
and, as the squatters and many others thought, a wrong by the railroads, will
THE 1872 HOMESTEADERS NOT AT FIRST FAVORABLE TO THE SQUATTER.
Many, or most of, the early 1870-1880 settlers, the writer included, in
the first instance sided with the railroad for two reasons. First, a railroad
title immediately made the land subject to taxation and the county needed the
taxes. If it all went to homestead it would
go from five to eight years
before it would be
proved up upon and become taxable. Secondly, the older
1872 homesteaders had had free hay and cattle range on these odd numbered
sections for so
long that they did not welcome a cutting off of this asset.
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 99
SIOUX CITY LAND SQUATTERS AGAIN.
The writer has termed the decision of the
supreme court of the United
States of October
21, 1895, as the "master stroke" of the Sioux City land
squatters. And so it was. However, it was but the beginning of their long
right. The patenting to the Milwaukee road of their lands reduced the number of the
squatters union to one-third of its prior numbers,
though it seemed settled in every body's mind that in the main question the
City land squatters would be sustained.
The blunder of
Congress in its act of March 3, 1887, lay in the giving to
any person holding a contract from the railroad a preferred right to purchase
same. This in result
brought on an equivalent of an expensive litigation
before the United States land court, only to find, when finished, that the contractor could again raise the question before a court of record.
proclamation of President Grover Cleveland and attendant notices
were published in February, 1896, in the Sheldon Eagle at Sheldon, Iowa,
and each holder of a railroad contract filed his contest as
per the notice
The United States land court was
presided over by Hon. Edward B.
Evans, register of the land office. In the meantime sundry divisions of
squatters employed this and that attorney or firm of attorneys, usually
under a written contract wherein
they agreed to pay one dollar per acre when
title was procured and fifty dollars per year as long as they were maintained
in possession, varying in condition with the sundry attorneys. Sundry of
attorneys who made these conditional contracts, were Judge William
Lawrence, of Ohio, a man of national prominence; Joy, Call, Joy & Wright,
City; John W. Corey, of Spencer, Iowa; King & Stearns, J.L.E.
Peck and O.H. Montzheimer, of Primghar: J.F. Conrad, A.R. Lowry.
Judge George H. Carr, of Des Moines; Ex-Attorney-General Henry O'Conner and others;
Jewett, of St. Paul; W.D. Boies, O.M. Barrett
and Milt H. Allen, of Sheldon; C.A. Babcock, of Sanborn; J.T. Conn, of
Hartley; J.H. Swan and Judge Chase, of Sioux City, appeared for the railroad contract men. This land court was in almost continual session
year 1896 and a large part of 1897. Test cases were agreed upon by the
parties and attorneys, as would most nearly include as many of the contested questions as possible. The case of Olive Manley, plaintiff (squatter)
against Andrew Tow, was, among others, appealed to the general land office
100 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
at Washington and finally to the courts, and perhaps was the most noted
case tried. This court tried about one case
THE SQUATTERS SUSTAINED IN THE MAIN.
During this period of about a year and a halt as these trials proceeded,
from time to time the
register rendered his opinions, in the main sustaining
squatter as against the railroad contract. In some considerable number
of cases, however, the contracts were upheld. But in most of such cases it
was where the contract man was able in the
early local scrimmage to retain
actual possession, and where he was in that position that had he not held
it under the contract, he could have homesteaded it as did the squatter. The
contract man was also sustained in some cases, where that phrase "bona fide,"
which occurs in both statutes, was considered, and in the special case seemed
stronger with the contract holder, this phrase, as we have shown, occurring in both the squatter statute of May 14, 1880, and the railroad statute
3, 1887. Each of those statutes applied to all alike, of course, but
we use the expression, squatter's and railroad's statutes as the public got to
know him. However, in all that litigation there were scores of technical
questions of law and fact, especially of first possession.
ODD INCIDENTS IN SQUATTER MELEES.
Fights and scraps for possession are not always consistent. A goodly
scrimmages took place between the squatters themselves, and also
with the old settlers, in attempts to forcibly move buildings across the road,
get possession or to get somebody else off, and which at times would
bring together quite a crowd. Nobody was ever seriously injured physically,
but one can see the tension of
GLAD HE WAS EVICTED.
It was Mr.
Squatter, Mr. M. D. Finch. He first took possession of a
piece of the Milwaukee land and had got his buildings erected, and lived on
years and until the evictions in January. 1887. He and his
family were among the evicted. As good luck should happen, a good quarter
section of Sioux
City land which had not yet been landed upon cornered to
quarter. Sheriff Clark Green, with his four deputies, came
on with good official Irish eviction ceremonies, to land off and put out this
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 101
good son of Erin, and proceeded to land Mr. Finch, family, buildings and
all over on the other corner. A
goodly crowd had assembled to witness
Sheriff Green hold court, and perhaps take a hand, should need arise. But
the Milwaukee road was on
top and he was officially landed over onto a rich
quarter of Sioux City land that proved out with other squatters' homesteads
a good title and on which he still resides with his family, and the land worth
one hundred and
fifty dollars per acre. When you evict old Ireland, look
out. She is still on hand for home rule at the next session of Parliament,
as was squatter M.D. Finch.
AN INSANE CASE.
The writer, with his family, on one Christmas day, in 1889, was riding
by one squatter's homestead land and house. I mistook the place for another
man I wished to see. His barn was between the house and the road, some
apart. As the barn was passed the thought came to look in the
barn, as perhaps he was there. But all at once here came the squatter from
the house, almost in a frenzy, cursing at the top of his voice, and insisting
that I was "spying round to get a hook of possession on him and get him
off." It was least in my mind. .A few months later he was sent to the
hospital at Cherokee, and is yet there, incurable. It was not the
special incident that drove him insane, as the evidence at the hearing developed, but the severe tension of the three to four years of scrapping in the
possession unbalanced him. It was a sad and true incident.
A HAY STACK POSSESSION.
Another incident I must mention as
coming under my personal attention in which I took a
part. Many squatters came and went, got sick and
quit, it all being experimental. They would often become intensely excited,
especially when crowds assembled. This incident occurred on section 17,
in Highland, in 1885. This six hundred and forty acres was all vacant, and
covered with good prairie grass. Squatters had squatted on each quarter
of it. William
King, one of the old 1872 homesteaders, had cut and stacked
on this section about
sixty tons of hay in sundry stacks on different parts of
the section. These new
squatters feared that this haystack possession might
be construed into a claim of
possession, and they forbade Mr. King to remove the
hay. One day about twenty sympathizing squatters from surrounding sections assembled on this section, and lay down on the tops of
102 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
these hay stacks, in singles, twos and threes, and then sent Mr. King a
notice not to haul
any hay. They did not need the hay, as they had no stock.
It was purely a fear as to possession. Mr. King came to myself and George
W. Schee for advice. Mr. King had a large family of sons and sons-in-law.
We advised him to meet the
question on the same basis of numbers. To
watch for a
day, when they seemed to be absent, and then have each son and
get a team and hay rack, go in a body and load and move the
hay. This seemed so formidable that the squatters let them move the hay.
THE COWS NOT MILKED FOR TWO DAYS.
This incident occurred on this same section
17 in Highland. Mr. King
gone to attend the Sheldon district fair. His cattle, including a large
number of milch
cows, were ranging and grazing on this section. On the
theory that these cattle were trespassing, and under the herd law which had
upon in O'Brien county and passed, squatters took possession
of the whole herd and engaged the cattle corral of the neighbor, and locked
up the cattle and several stood guard to see that he did not get his cattle out.
Mr, Schee and I were again called in. It was a rainy season and the lot
deep in mud. We went down. The squatters were firm in their legal opinions. This was the second day and the cows not milked and standing in the
mud. They wanted one hundred and fifty dollars damages. A parley was
held well into the
day. Not an inch from that sum did they move. The
owner of the lot, however had not fully sized the matter up. As a matter
fact, this owner was the only one who was financially good. The others
were safe. As a last
resort, we drew up an original notice and served on
claiming in damages the full value of the cattle. He then woke up.
They parleyed and began to drop in price, by tens of dollars at a time. They
finally got down to two dollars damage. By that time we got gritty and
held out. They were finally released with no damages allowed to the squatters. But after all
they were in reality contending for supremacy of
We have thus
given a very extended account of this long-drawn-out
squatter fight. It lasted practically thirty years, as a decisive public question.
The lands of the Sioux
City Company were in seven different townships and
the Milwaukee lands in a
larger number, all covering large legal questions
and, including both squatters and old settlers, involved over half the citizens
county. We realize that this squatter chapter may be thought too
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 103
long and out of proportion in length for a well-proportioned county history,
but as it has covered three-fourths of the whole
period of the county's years,
including the whole business career of the writer, and in which the
personally participated, it is fully given, the writer concluding that he
will therefor be pardoned at times in using the pronoun I in reciting the
KING & STEARNS, ATTORNEYS, AND ROBERT P. JONES, SQUATTER.
chapter on the squatters should not be closed without special mention of the
very great services performed for and on behalf of the squatters
by the firm of King & Stearns, composed of John T. Stearns, one of the very
oldest settlers in the
county, dating back to about 1875, and John H. King,
of Huron, South Dakota, who put in practically ten years of labor in direct
every-day consultations with the large number of one hundred and twenty five on the Sioux
City lands who finally won out, to say nothing of the still
larger number on the Milwaukee lands and the scores of others who fell by
way for one reason and another. One could not state the matter in connection with them without mentioning the name of Robert P. Jones, who
was constant in and out of season on all occasions. In the land court trials
at Des Moines, covering more than one and one-half years, and at intervals,
from day to day and week to week, he sat through with King & Stearns in
continual advice and in
keeping track of the actual facts in each special case
that should be brought out. He was dubbed at times a part of the court;
being constantly on hand, he had, next to Mr. Stearns, a better knowledge
of the set of facts in each case in hand than
any attorney on either side of
question. It was his part also in the county itself to go from man to
man, squatter to squatter, from "shack to shack," as the expression went,
to dig out the facts. So intense was the zeal in the matter that no item
was considered too small to search out in its finest details. In addition to
the "master stroke" decision in the United States
supreme court, and even
prior to that decision, the Sioux City road, on August 24, 1887, brought a
suit for ejectment against practically all the squatters in separate suits. It
was the case of Robert P. Jones in district court No. 1961 in O'Brien county,
and a second case that against L. Mulligan that were made test cases. It
was first decided in the district court against Mr. Jones, but, on appeal to
supreme court, was reversed and decided in his favor.
104 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
PRESIDENT SQUATTERS UNION.
In a sense. Dr. Howard M. Hamblin acted as sort of leader when the
two set of
squatters were together, but the real squatters' union that finally
organized developed mainly in aid of the Sioux City lands, and was organized in 1886, though the first president as so organized was L.T. Gates, of
Highland, a Milwaukee squatter. During this year of 1886 Robert P. Jones
secretary. The decisions in this year 1886 going against the Milwaukee men, naturally dropped out Mr. Gates, and in 1887, and until the
organization was no longer needed, about 1905. Mr. Jones acted as its president and Daniel Mullin as its
secretary. We must also mention the main
test case of Olive
Manley, squatter, against Andrew Tow, contractor, which
was agreed upon as containing or involving more questions of law and fact
any other in which it won out, which suit was carried on by the union
as such to final decision. This case was
perhaps more quoted than any other
in the whole
We must mention the
round-up relating to the squatters' attorney fees.
Probably the attorney fees of any one set of attorneys employed would
not have seemed to them exorbitant. But
during these long years of excitement and new
questions continually came up, and as each successive attorney
thought he had the legal solution, when they had rounded up they found
many of them had signed written agreements covering large sums to
attorneys, which in the aggregate made this item of the long fight
problem. Some of the attorneys got intermingled with others,
which also added to this
difficulty. They also got tangled, many of them,
with the contracts and their
attorneys. After all was thought over in some
of these latter cases
they found in many instances an additional claim of
from one thousand to fifteen hundred and more dollars, which
gave a mortgage on their squatters' homestead thus gained. In many
squatter actually paid out more per acre than the Milwaukee
squatters paid for the land itself in 1886. namely, from ten to fourteen dollars
per acre. But in final result, they got their land.
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 105
RAILROAD AND SQUATTER ATTORNEYS BANQUETTED.
At the close of the above trials, the Hon. Edward B. Evans, register of
the United States land office,
gave a banquet to both the attorneys of the
railroad or contract
attorneys and squatter attorneys, at his residence at Des
Moines. It was a
pleasant evening spent with Mr. and Mrs. Evans and family, during which many pleasantries and amusing features of the long-drawnout series of contests were discussed with much fun in a social
present, as memory recalls, William D. Boies, Osmond M. Barrett,
John F. Conrad, A.R. Lowry, Judge George H. Carr, John T. Stearns, John
H. King. J.L.E. Peck, W.P. Jewett and Mr. Squatter Robert P. Jones and
attorneys not present, but in attendance at various of the trials
participating therein, were Judge William Lawrence, of Ohio, Joy, Call,
Wright & Joy, Judge Chase and Col. J. H. Swan, of Sioux City. C.A. Babcock, of Sanborn, now Sheldon, J.T. Conn, of Hartley, and others.
LIST OF SIOUX CITY LAND SOUATTEPS AND RAILROAD CONTRACT MEN.
In view of the fact that we have
given this chapter this lengthy importance and most of them still
living upon their lands thus won in so long a
legal battle, we give the list of Sioux City land squatters and railroad contract
men. as follows :
Margaret A. Thayer (S.E. 11).
Ida Fife Rankin (NE. 15).
Hiram C. Thayer (S. W. 11).
Mary A. Smith ( NW. 15).
Thor T. Naig (S. NE. 11).
George E. Godfrey (SW. 15).
Charles H. Brigham (S. NW. 11).
William Christopher Fife (SE. 15).
Otto Larson (NE. 13).
John Booge (SW. 19).
Edward Olson (NW. 13).
Henry Koch (NW. 19).
Robert P. Jones (SW. 13).
Mons Olson (SW. 5).
James T. Daniels (SE. 13).
Ben Olson (NW. 5).
William S. Medland (NE. NW. 3).
Frank Woods (SE. NE. 15).
106 O'BRIEN AND OSCEOLA COUNTIES, IOWA.
Charles H. Prior (SW. SW. 13, E. SW. 35, E. SE. 35).
Charles Gustafson (NE. 1).
William Egdorf (NW. 1).
John Petterson (SW. 1).
Aleck Petterson(SE. 1).
Eli S. Mooney (NE. 5).
Henry C. Pane (SW. 5).
Unknown (NW. 5).
Fred Beers (N. SE. and SE. SE. 5).
Anton Hoag (SE. NW. & W. NW. 7)
Nicholas Jungers (Part 7).
Sarah Weaver (E. NE. 7).
Enoch Philby (E. NE. 9).
Florence E. Morfitt(W. NE. 9).
Elmira Knepper (SW. 9).
Jonas Ffadene (SW. 9).
Heirs O. M. Barrett (SE. 9).
James W. Lasher (S. NE. 11).
John Akerson (S. NW. 11).
Plenry C. Lane (SW. 11).
Henry C. Lane (SE. 11).
Daniel Behan (NE. 15).
Charles G. Johnson (NW. 15).
Jurgen Renken (SW. 15).
Theodore Goergen (E. NE. 21).
John Ker ( SE. 15).
George and Otto Collenins (NE. 17).
William F. Ankrum (NW. 17).
Alfred Anderson (SW. 17).
Christ Kern (SE. 17).
John Wrood (E. NE. 19).
Henry Runger (E. SE. 19).
Alfred Smith( NE. 21).
Jnrgen Renken (E. NW. 21).
Heirs Jerry W. Griggs (W. NW. 21 )
Charles A. Anderson (SW. 21).
Charles Buck (SE. 21).
Soren Anderson (NE.23).
August Walquist (NW. 23).
Martha An Marsh (SW. 23).
Christine Dixon (SE. 23).
Bernhard Kniese (NE. 27).
Wallace Lasher (NW. 27).
Charles Bartlet and Karl F. Snow (SW. 27).
Christopher Nelson (SE. 27).
Michael Hollis (N. SW. 29).
Thomas Barry (S. NW. 29).
Max Thorman (SE. 29).
Elizabeth Goergen (SE. NW. 31).
Harvey Virgil ( NE. 3).
Heirs Elmer A. Nelson (E. NW. 3).
Edwin McFaiiand (NW. 3).
Melvin D. Finch (SW. 3).
Ellen McCartney (SE. 3).
L. S. Bassett and Eugene Riddell (SW. 5).
Emily Powers (SE. 5).
Theodore Dockendorf (E. SE. and SW. NE. 7).
O'BRIEN AND OSCEOLA COUNTIES, IOWA. 107
Charlotte Atherton (E. NE. 11).
Jacob Shelser (NE. 29).
Edward Mulligan (NW. 29).
James Potter (SW. 29).
William H. Sleeper (SE. 29).
John F. Langenhorst (E. SE. 31)
George McKenna (W. NE. 11).
Carrie Griffith (E. NW. 11).
Elizabeth H. McClellan (W. NW )
George H. Whitmore (SW. 11).
Daniel M. Merwin (N. SE. 11).
James Harkin (S. SE. 11).
William H. Bilsland (NE. 15).
Andrew Harkin (SW. 15).
John Bilsland (NW. 15).
Porter S. McNutt (SE. 15).
James Kelly (NW. 17).
George Mennig (SW. 17).
Henry O. Hurlbut (Part 19).
Dixon A. Harkin (NW. 23).
Henry Boneskonsker (SW. 23),
John A. Harkin (NE. 23).
William M. Smith (SE. 23).
Charles Daugherty (NE. 3).
James Cutsinger (NW. 3).
George W. Patterson (SW. 3).
Florence Sullivan (SE. 3).
Myron H. Damon (SW. NE. and NW. SE. 7).
Philip Ling (NE. NW. 7).
John Beacom (NE. 9).
John J. McGrath (NW. 9).
Bernard F. Treanor (SW. 9).
Thomas Beacom (SE. 9).
John McGrath (NE. 17).
Scott Logan (N. NW. 17).
William R. Davis (S. NW. 17).
John Weir (Part 17).
Michael J. McGrath (SE. 17).
Francis A. Lamb (E. NE. and E. SE.19).
James Burns (E. NE. and E. SE. 25)
William Burns (W. NE. and W. SE. 25)
Thomas Burns (NW. 25).
Timothy Donahue (SW. 25).
Judson W. Bishop (S. 29).
James Griffin (SE. NE. and NE. SE. 30)
Scott M. Ladd (15 acres 31).
Patrick Kelly (SE.33).
(Both the squatter and railroad contract man are given above, both being
engaged in the long contention. The successful ones are given only)
O'Brien County Iowa Genealogy - The IAGenWeb Project