
    Chicago, Milwaukee & St. Paul R’y Co., v. V. C. Hemenway et al., Appellants.
    
      1 Taxation: railroad grant lands: Unpatented. Act Congress, May 12th, 1864, granted lands to Iowa to aid in construction oí a railroad. Acts 20th General Assembly, chapter 28, provides that lands granted by the general government to any railroad, or to the state, and by it granted to any railroad, shall be subject to taxation after the year when earned. Held, that lands within the indemnity limits of the grant, on selection and confirmation by the secretary of the interior, were subject to tax, though not patented.
    1 8 Same. The lands were taxable under Acts 20th General Assembly, chapter 28, notwithstanding there had been no patent, and the equitable title was in the railroad and the legal in the government.
    2 Tax deed: As evidence. Code, section 1444, provides that a tax deed shall be evidence that the property was subject to the tax. Held, that a tax deed within a grant to a railroad was evidence of an earning of the lands.
    5 Act of congress construed. Act Congress May 12, 1864, granted land to the state of Iowa to aid in construction of a railroad. Section 4 provided that, whenever the governor certified the completion of 10 miles of road, patents should be issued, and provided that the lands should not be disposed of nor incumbered save as the same were patented. Acts 20th General Assembly, chapter 28, provided that lands granted by the general government to a railroad, or to tlie state for a railroad, should be subject to taxation when earned. Held, that the act of congress did not mean that the lands could not be patented, but merely prohibited any disposition inconsistent with the grant.
    1 Not contrary to act admitting Iowa. The taxation was not contrary to the ordinance admitting Iowa to the Union.
    
      Appeal from Dickinson District Court. — Hon. W. B. Quarton, Judge.
    Friday, October 17, 1902.
    Decree quieting title as prayed. Defendants appeal.
    
      —Reversed.
    
    
      L. F. Francis for appellant.
    
      Ceo. F. Clark for appellee.
   Ladd, O. J. —

2 3 4 5 The legal title to the 40 acres of land in controversy remained in the United States until the patent was issued to the state of Iowa, September 21, 1893, and in the state until conveyed to the plaintiff, November 15, 1895, under the provisions of chapter 21 of the Acts of the 17th General Assembly. The right to it was ac"quired under the act of congress entitled “An act for a grant of lands to the state of Iowa, in alternate sections, to aid in the construction of a railroad in said state,” approved May 12, 1864. See copy in Bowne v. Bilsland, 83 Iowa, 162. The plaintiff so far completed its line of road as to earn the land under the grant of congress and the various acts of the state legislature in 1878. The record does not show the cause of the delay in issuing the patent. In 1884 the general assembly enacted that: “All lands lying within the state of Iowa, which have been heretofore granted or may be hereafter granted to any railroad company or corporation by the general government or by the general government to the state of Iowa, and by the state granted to any such railroad company or corporation, shall be subject to assessment and taxation within the counties wherein situated from ■ and after the year the same may be earned, to the same extent as though patents had been issued to, and the title of record was in such railroad companies or corporations.” Chapter 28, Acts 20th General Assembly. By virtue of this act the 40 was assessed each year from 1889 to 1895, inclusive, and the ordinary taxes levied thereon. A tax deed for two acres was executed January 10, 1895, to the Farmers’ Loan & Trust Company, on a sale for the taxes of 1890, and February 8, 1896, a tax deed was issued to Y. C. Hemenway for the remaining 88 acres on sale for taxes of 1890 and the following year. The county also claims the right to collect the taxes of other years mentioned. Prior to the enactment of the statute quoted, the land was not taxable. McGregor & M. Railroad Co. v. Brown, 39 Iowa, 655. But it obviates the holding in the cited case, and also Iowa Falls & S. C. R. Co. v. Woodbury Co., 38 Iowa, 498, that extrinsic proof may not be received, in the absence of a charge of fraud, to show that the lands were earned at an earlier date than the governor’s patent, by providing that “parol evidence shall be admissible to prove when said lands were earned.” Section 2, c. 28, Acts 20th General Assembly. In Sioux City & St. P. R. Co. v. Osceola County, 43 Iowa, 318, the court held that, as the transfer of title depended upon legislative action under chapter 134 of the Acts of the 11th General Assembly, without which the land did not become the property of the company, it was not taxable. See, also, case of same title in 50 Iowa, 177, where the court also decided that, prior to the execution of a certificate by the governor under chapter 34 of the Acts of the 15th General Assembly, the land might not be taxed. The statute quoted meets the objections raised in these cases by providing that the lands granted shall bear their portion of the tax burden “from and after the year the same are earned.” While the 40 in controversy is in what is known as the “indemnity limit” (that is, more than 10 and less than 20‘ miles from the line of definite location), and could only be claimed by the company in lieu of lands otherwise disposed of within the place limit (that is, within 10 miles of such line), yet upon selection, duly confirmed by the secretary of interior, the right of the company thereto attached as definitely as to that within the place limit upon the location of the road and filing of proper maps with the secretary. Upon the completion of the road it was earned within the meaning of the statute, and the company was entitled to it under the provisions of the acts of congress and those of the state legislature. The record does not show when this 40 acres was selected, but, as the tax deed is presumptive evidence “that the real property conveyed was subject to taxation for the year or years stated in the deed,” we must assume that it was in fact selected prior to the assessment and levy of the taxes. See section 897, Code 1873; section 1444, Code; McNamara v. Estes, 22 Iowa, 256; Brownell v. Bank, 63 Iowa, 757; Hunt v. Gray, 76 Iowa, 274; Barrett v. Kevane, 100 Iowa, 656. The company then had the equitable title to the 40 acres when assessed and taxes levied. That it was taxable notwithstanding the naked legal title remained in the general government is settled by the opinion of the supreme court of the United States in Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496 (10 Sup. Ct. Rep. 341, 33 L. Ed. 687), and of this state in Stockdale v. Treasurer, 12 Iowa, 536. The latter case also disposes of appellee’s contention that the taxation was contrary to the provisions of the ordinance admitting Iowa into the Union. It was not the property of the United States, but of the railroad company, at the time. Unless, then, the state was prohibited by the act of congress from levying any tax on the land before being patented, the deeds must be upheld. Section 4 of that act prescribes the method, of procuring the patent of the land granted from the government, which was, in substance, that whenever the governor certified that the company had constructed 10 miles of road, as required, the secretary should issue patents for 100 sections of land for the benefit of the company. Annexed to this and some other matters in this clause: “And, provided further that said lands shall not in any manner be disposed of or incumbered, except as the same are patented under the provisions of this act.” The object of this proviso was to prevent the state from diverting the land from the purposes of the grant. The act not only did not prohibit it from disposing or incumbering in aid of the design of congress, but in fact contemplated such disposition before any patent should issue. The land was to be earned by the construction of sections of road each of 10 miles in length, as a condition precedent to the secretary issuing patents to the state. It is very evident, then, that “except as the same are patented” cannot be construed to mean “until same are patented.” Nor can this clause be said to refer to patents by the state, as the manner of passing title by it is not referred to in the act. By section 3 the grant is “subject to the disposal of the legislature for the purpose aforesaid, and no other.” That purpose was attained by the completion of the improvement contemplated, — the construction of a great highway of travel and commerce across the then unsettled portions of the state. When this had been accomplished in compliance with the conditions imposed, the lands granted had been disposed of precisely as stipulated in the act of congress; that is, in such manner as to entitle the state to patents for all the granted land for the benefit of the railroad company. The proviso had no operation beyond the disposition by the state. It simply exacted that the state could not part with the land save in the manner and on the conditions essential to enable it to obtain patents; not that it could not dispose of or incumber until patents had issued. The conclusion follows, then, that this clause furnished no impediment to the taxation of land earned under the grant, and of which the railroad company had been the equitable owner for many years. — Reversed.  