The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1878-08-02
SEQ. SOHURZ'S LAND GRANT
RULING.

RULING.
It Contains a Proviso which Gives the
Railroad Company Big Chance.
The most notable land grant de-
sion which has been made by any
secretary of the interior is probably
that rendered last week by Secreta-
ry Schurz, to the effect that the land
granted to the Kansas Pacific rail-
road and now unsold is open to pre-
emption at the rate of $1.25 per
acre. The history of the case is
given as follows;
In August, 1877, Mr.. Nelson Du-
dymott, qualified citizen, made
application to file a presumption
claim to a tract of land in Davis
county, Kansas. The register of
the land Office at Salina rejected the
claim on the ground that the tract
was in a section granted to the Kan
sas Pacific railway. An appeal was
taken to the commissioner of the
General Land Office, who decided
that he had neither Jurisdiction nor
control. There were sixty days in
which to appeal still further to Sec
Tetsry Schurz. Mr.. Dudymott APP
pealed October 28,lS77, and on the
18th of December was notified to
file his argument. lie did SO, re-
citing section of the act of 1862,
and in January, 1878, forwarded his
argument, with evidence showing
khok tho land otSll haI1 IL he
company for sale, at the price of $6
an acre, when the law made it SUBJ
ject to presumption at $1.25. On
the 25th ult, after a thorough con-
sideration of the question, Secretary
Schurz announced his decision that
the lands granted by the act of 1862
to the PACING roads are and have
been subject to presumption at $l.25,
if remaining unsold by the compa-
ny for three years after the compile
ton of the roads.
In support of his decision Secre-
tary Schurz quotes from the COM
pany itself as corrobborating his
views. He says the fact that said
company 80 understood this grant
is made evident by circular issued
by it's land commissioner, dated
May 18th, 1873. inviting pur chase of
its lands, IN which he says:
''The road was accepted by the
government as complete about six
months ago. In three years from
that time the unsold lands will be
subject, we suppose, to the pre-emp-
ton law, but we hope and expect to
have all our lands sold before that
time arrives. All railroad lands
sold by this company are sold clear
of taxes, with assurances of perfect
title when paid for"
The Secretary also refers to the
fact that the Supreme Court of the
United States has virtually taken
similar ground with himself and
that above stated by the land COM
missioner of the road. When the
question of the right of the States
to tax these land grants was raised
in 1868, the U. S. Supreme Cnurt
held that they could not be SO taxed,
because the grant was conditional ;
and even the issuing of patent
does not deprive the government of
the right to dispose of those lands
by presumption and entry, when the
act reserved such a right with ref
erence to land remaining unsold
three years after the completion of
the road to which it was granted.
Emphasizing why the State could not
sell the railroad land for taxes it
said:
Another important and declared
purpose of Congress would be
equally defeated by the title thus
acquired under the tax sale if it were
valid. 1t is wisely provided that
these lands shall not be used by the
company as 8 monopoly of indefi-
mite duration. The policy of the
government has been for years to
encourage settlement on the public
lands of tho pioneers of emigration.
Looking to this policy
and the very large quantity of lands
granted by this statute to a single
corporation, Congress declared that
If the company did not sell those
lands within q time limited by the
act they should, without further
action of the company or Congress,
be open to the actual settler under
the same laws which govern the
right of presumption on govern
ment lands, and at the same price.
| Any one who has ever lived in q
community where large bodies of
land are withheld from use or &C.
cupation, or from sale except at ex-
orbitant prices, will recognize the
value of this provision. 1t is made
for the public good as we'll as for
that of the actual settler.
The concluding part, however, of
Secretary Schurz's ruling makes
the whole ruling of doubtful utility
to the people who desire to pre-
empt the lands in question. He
says:
ssMore than four years had elaps-
ed since the completion of said road
and its acceptance by tie President
ut the time Mr.. Dudymott filed his
Ideclsratory statement for the tracts
in question. I am of opinion that
his application should have been re-
ceived by local officers, subject,
however, to the condition that it be
made to appear before final certi-
ficate is issued to him, that at the
time his declaratory statement was
fled for said tract, said company
had not sold or disposed Of the
same"
II this means that the company
had, after its three years. exclusive
Ownership and right 10 sell had ex-