HISTORY OF O'BRIEN COUNTY

CHAPTER V.

HOMESTEADS AND FREE LANDS.

SQUATTER LANDS LITIGATION OVER THE OVERLAPPING LANDS.

The 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 will appear in the courts. It has included several score of forcible entry and detainer suits, before justices of the peace, for possession, probably about eight hundred suits and litigations in the district court of the county, several hundred 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, and 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 number of hearings had before the secretary of the interior. There have been several special acts of Congress directed specifically to the lands in O'Brien 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 not 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.

unions of litigants were continuous for twenty years, organized to keep up united 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 decided 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 to homestead 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.

The Congress of the United States, on May 12, 1864, passed an act for the 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 about sixty-four thousand acres, for each section of ten miles of a fully equipped railroad built.
This 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

first known 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 these 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.

The first 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 Sioux 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 resigned and 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.
There were 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 suit was 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 the actual 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 grant.

THE MILWAUKEE RAILROAD LAND.

This allotment of lands to the Milwaukee road was in fact patented to that road 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 Land 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.

The real squatting on lands applied to the lands of both roads. Credit must be 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 real 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

Sheldon as 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. He evidently overlooked the fact that even Congress by new enactment could not take 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 O'Brien county. He talked to the writer as county auditor, through whom he 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 22, 1884.

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 men and 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.

for homestead 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 were. This 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 other attorneys, namely, that he would draw the papers, but that the whole law 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 bona fide intent, the first thirty days' right to enter it as a homestead. This made 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.

These lands 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 of their 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 main substantial buildings, even buildings that it would materially damage to so remove. These new comers at once saw that they had to get quickly into possession.

O'BRIEN AND OSCEOLA COUNTIES, IOWA. 91

SQUATTERS' SHANTIES.

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 had 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 sudden 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 forcible entry and detainer suits for possession before justices of the peace were brought to put one another off. The writer participated in many of them as attorney. Many odd and amusing scenes took place.

NOT A CRIME DIDN'T STEAL THE LUMBER.

I will 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, on the 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 established his 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 western wild prairies was a new experience.

PRETEXTS OF POSSESSION.

The 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 failing.

A "HOME" IN A BIG DRY GOODS BOX.

One man 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

First‐I have 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.
Second‐On March 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. This was 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

hundred dollars 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. The Sioux City road had in the meantime anticipated the matter by selling and 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 other 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 to be 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 the years and wearing out the squatters, who were blessed with none too much money.
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.

The fact gradually dawned on the public and the members of the squatters' union that it would require the courts to really settle matters. About the 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 on March 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 bring suit.
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 trustees. This 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, and by Joy, Hudson, Call & Joy, of Sioux City. The railroad was represented by sundry able attorneys.
The 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

in fact, built in 1872 only from the state line to Le Mars, Iowa, a distance of 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 each or 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 and 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 trust deed 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 hundred and seventy-nine and eighty-five hundredths acres in O'Brien county and eight hundred acres in Dickinson county were open to homestead entry.

MILWAUKEE LANDS AGAIN.

The 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 writs of 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.

EPHRAIM McMURTREE.

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 ofttimes excited squatter. The very fact that their cause seemed waning seemed to cause many irritations. He proceeded to appraise the lands in tracts of 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 chance to buy, with a time limit which seemed reasonable, and giving him a first chance gave it an attitude of fairness. Each squatter who purchased and gave up, of course ended that much of the fight and gradually those buying dropped out of the squatters' union.

EVICTIONS.

On 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 O'Brien 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 been 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 poor landed country, but stern law, giving the railroads what the courts had decreed to be their rights.
Some of these evictions, though harsh, had their amusing sides. William E. English ("Bill"), a squatter on the northeast quarter of section 21, Center, was 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 evicted.
But 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. They were ready to grasp at anv straw. (7)

98 O'BRIEN AND OSCEOLA COUNTIES. IOWA.

GEN. BENJAMIN F. BUTLER.

One incident occurred which well illustrated the unsettled ideas of title, 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. As 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 squatters who had 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 dollars 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 do.

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 and tedious 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 Sioux 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.
The 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 given.
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 these attorneys who made these conditional contracts, were Judge William Lawrence, of Ohio, a man of national prominence; Joy, Call, Joy & Wright, of Sioux 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; while W.P. 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 during the 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 per day.

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 the 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 the 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 of March 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 number of scrimmages took place between the squatters themselves, and also with the old settlers, in attempts to forcibly move buildings across the road, either to 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 feeling aroused.

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 same some 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 this Milwaukee 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 distance 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 insane 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 excitements for 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 son-in-law 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 had 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 been voted 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 of 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 this man 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 possession.
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 of the 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, and including the whole business career of the writer, and in which the writer 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 details.

KING & STEARNS, ATTORNEYS, AND ROBERT P. JONES, SQUATTER.

This 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 the 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 the 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 the state 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 acted as 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 than 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 litigation.

ROUND-UP TROUBLES.

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 that many of them had signed written agreements covering large sums to various attorneys, which in the aggregate made this item of the long fight another 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 many paid or gave a mortgage on their squatters' homestead thus gained. In many cases the 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 way. There were 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 others.
Other attorneys not present, but in attendance at various of the trials and 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 :

DALE TOWNSHIP.
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).

SUMMIT TOWNSHIP.
William S. Medland (NE. NW. 3).
Frank Woods (SE. NE. 15).

106 O'BRIEN AND OSCEOLA COUNTIES, IOWA.

FRANKLIN TOWNSHIP.
Charles H. Prior (SW. SW. 13, E. SW. 35, E. SE. 35).

BAKER TOWNSHIP.
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).

CARROLL TOWNSHIP.
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).

FLOYD TOWNSHIP.
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)

Osceola County Iowa Genealogy - The IAGenWeb Project