New-York tribune., 1878-07-24
WEDNESDAY,, JULY "a, 1878.
A LAND GRANT DECISION.

| HE DECLARES THAT KANSAS SETTLER WHO Al
TEMPTED To PRE-EMPT A FARM ON THE KANSAS
PAcIFTc's LAND HAD RIGHT TO DO So
| WASHINGTON, July 23.--The Secretary OF
the Interior has rendered decision regard TO the az
peal of Nelson Dudymott who attempted to file preemp
ton claim to land In the Salna Land District In Kansas
and whose application was rejected bY the local officers
The land applied within the limits OF the land grant
OF the Kansas Pacific Railroad Company, and was
claimed to be open to settlement under the law OF July
l. 1862 which says that land granted to railroad not
sold within three years after the completion OF the road
shall be open settlement at 81 25 an acre. The ap-
picaton rejected the ground that the law does
not provide for It's enforcement by the Land ONCE
Dudymott appealed, and the finally went to the
Secretary OF the Interior The Secretary says:
This road ltho Kansas Paeiicl was completed within
accented bv The President October 10, 1872 1t
cannot be denied that Congress had the right TO make
grant 10 said company absolute and unconditional but
In order to secure the objects for which tne grant
was made, conditions were annexed Tho COM
With tho conditions therein made but having accepted It,
g Is stopped 20 deny their f"rSe % ana effect me one OF
now claims the right to enter portion OF the land
granted by section which shall not be disposed Of
BY said company within three years after lne entire
Element ana preemptiOn Ike other land at price not
exceeding - % per acre, 70 be paid 70 such company
apparent Referring to the objects 10 be attained by this
proyon the supreme f0gr f " ne case OF IGs % galway ss
II Wisely provided that these lands shah not be used
BY e sS%gan a' be SpSernmcnt M has been for
years To encourage settlement on the pub
% TO 1nS' @ end has passed laws for Rsr SS
EFT This policy not only fay0rs tho actual SETTLER hut
adaeont ands that all OF II snail open TO settlement
ana cultivation Looking to this policy, and 10 tho very
single Corporation. Congress declared that II the
pay did sell these lands within time limited by
Inc act they should then, without further action
of the company Of Congress- be open TO the actual
settler under tue same laws wmch govern the right OF
preGmpOn OF Government nhus anu at tDe same price,
ANY Que who has lived in community where large
from sale except nc exorbtant prices will recognize
tho OF this provision; IL Is nade Tor tho public
10 permit these lands TO pass under title derived from
he state would eertony defeat this intent Of
Die that money paid by the settler company
me lands winch the act OF Congress declares shall be
open 10 pretmptl0n aud salo are Withdrawn from
prrgmpton and sale by tax, title aud possession
under IT, and 1t Is 10 answer to say that the company
pTcS" pliee paid by the settler" IN Subsequent
decision tRailway Company against McshaiDe.
'rho road completed aud accepted by the President
May 1862 and these lands have been subject to sgen
ght exercised by the settlers without further
nartnIent We do not now propose to decide wrether
any slch legislation or other action Is necessary OF
whether any having the proper qualifications
hos the right TO settle these lands and
tendfnng 10 the company the 81 25 per acre,
snfnrce his demand for q title. 10 il not known
maj any such attempt has been made viii be- or
that Congress the department Las taken intends
taIe any stems 10 invite aid the exercise OF this
rgnt IL would tlat IL exists 1t would not be de-
ic;ed by issue OF the patent To the company, aud II
NAV therefore remain the underlined and uacerfan right
vested iu no particular person or persegs which II
is foI an indefinite period OF time"
Willie Il is true that neither OF said decisions clearly
and distinctly defines the right Of the Government 10
tbe isposa OF said land still they clearly indicate the
opinion Of the court tina! such right exists; and
whether 10 be considered that the estate granted IA
conditional estate an estate with conditional lint
'''Tn Il must & be held mat the condition runs with
the grant aud Is IN erct reservation OF power OF sale
wbieh remained sold by IL at the expiration OF three
years the entirc road was completed under thc
visions OF the piGenpon law. Ii II manifest, think.
that Congress dd not intend to grant TO said
company ,sls e. large oaS sSa quantity qua o .Dss" a9a
iativc prices hut desiring 20 give 10 aid and assist
IN s underaking at ths same Time provided taat
the actual settler who was whbg 10 pay tue price sup
Mated should have the right 10 settle and make home
order any 70 secure n9' hs gsS to the etar daa ana
at the same time secure 10 the company
OF sale thereof after the road had been completed for
Thls view i not inconsistent with the object TO be at
talned IN making the grant; that object was TO
ad corp9raton ~ sne sS9.h CONJUNCTION OF WORK
expenditure Of money beyond The resources Of private
Ind yuuals and whether that AID should be given In
lands which might be sold by the company 20 reimburse
n fnr expenditure made or whether thD Government
shon .c the land at stipulated price aud pay the
proceeds arising tbcrcfrom 10 sad company were CON
sldeacd imulnteria both by the Government and the
company that accepted tue grant with the condition
The fact that said company understood this grant Is
made evident bY cirralar Issued by lis Land Commis
s0nor, dated NAV IL 1873 nNtng purchase oi slands
I'M which lie saw: "Tnc road accepted by the Govern
complete about siN months ago In three years
from that time the unsold lands Will be subject We
suppose TO the pTccmPnon laws but we nope
aTrlyrs All raiload lauds sold by this company
sold rcar OF taxes with ASSURANCE OF perfect title Wien
More than three years having elapsed since the compile
ton oi SAID road and II, acceptance by tue President
at tac timc Mr DuiymUt nlcd hts dcclaratOry state
ment for the tracts In question, | am Of the
opinion that MS rpplratlon shond have bean received
by ao local officers, SUBJECT however 70 the condition
thai Il be made appear bfOgc nnal certificate Issue
10 nm that at The time hs d2clarlory statement was
nlcd said irac said company had not sold or dis
In yonr Gccisicn It Is held that the matter Of the dis
DO stIUu lands iH The condition Of the tract Involved
In tile application IN hand not within the Jurisdiction
control OF ts Office IL the views nave expressed IN
relation the salc aud disposal Of said Lands
aro correct, and 1 SEQ no reason 60 doubt their
correctness sale aud disposal Of lands In the cOnd
lion applied Tor unso!l at lat tiaa 1y said
company are clearly Within tue jurisdiction pi y0ur
by Witch said lands the proceeds which shall
arise from the sar thereof INJURED 10 said company
ton Of three years from The time when the entire rod
was completed shall be subject 10 settlement
and prctmption Ike other lanJs, at price
not exceeding 81 - per acre. In other words
that said lands shall revert to the pubic
the prcCmp0n laws OF the United States. Aud whether
u ne considered tlat sald lihns are paDo anas ~
general or special sense cihOt ia my Ophl0' AFFECT
the Jurisdiction Of your ofce IN making sale ana dispo
Whie il may be ruo that further legislation In rcla
ton TO the sale OF raid lands might have been nh
yiHabc, k 90 not thlik ~ 10 nave bten absolutely
neces sary except provide for tEe In which
proceeds whc shall arise from the sale OF SAID lands
shall he paid to said company.
Counsel the company suggests that these lands
covered by mor gage executed by said company TO
cure money borrowed in tGo construction Ot
its road. II this be true, l am unable 20 per-
ceiye that such MORTGAGE Is any obstacle
10 disposal Of said lands In accordance with thu
provisions OF the granting act fhe company morgaged
interests In tie lands 10 possessed and the
glgees considered have takon the mortgage
full knowledge OF tho right OF che company To make
the came. Aside from these considerations. how
ever, the provision IN the mortgage which au
thorzes tins company 20 sell and dispose
OF tho Lands granted, and make conveyance
thereof purchasers, which shall release
the right OF the mortgages 10 the particular tract WILL