The Saline County journal. [volume] (Salina, Kan.) 1871-1893, 1878-08-08

sold by said Company at tho date he
filed his application therefor - pre-
emptor. Considering him to be quail
fed rs . pre-emptor, and the lands at
that time to have been unsold By tho
said Company, tho question il presented,
whether, under the last clause of said
3rd section, his application should have
been received, and, If full compliance
with the pre-emption law, including pay
ment for the tracts, were shown, . pat
ent therefor should issue to him by the
United States.
Nearly all of the grants made by the
United States to aid in the construction
of railroads, and for other works of in
ternal improvements have had annexed
to them conditions, some of which are
conditions precedent and other condl-
tons subsequent, which conditions arc
found in the grant. 1t cannot be de-
MED that Congress had the right to make
grant to said Company absolute and
unconditional, but in order to secure the
objects for which this grant was made,
conditions were annexed.
The company had the right to accept
or reject the grant with the conditions
therein made, but having accepted it, it
is now estopped to deny their force and
effect.
One Of these conditions and the one
under which the applicant now claims
the right to enter q portion OF the land
granted to said Company is, that "all
such lands so granted By this section,
which shall not be sold or disposed of
by said Company within three years Of.
ter the entire road shall have been com.
pIeted, shall be subject to settlement and
presumption like other lands, at price
not exceeding one dollar and twenty. five
cents per acre, to be paid to said Com
pany."
The object of including this condition
in the grant is apparent. Referring to
the objects to be attained by this pro.
vision, the Supreme Court, in the case
Of the Railroad Company vs. Prescott
Q6 Wall. p--.) said alt is wisely pro-
vided, that these lands shall not BE- used
by the Company as q monopoly of in
definite duration. The policy of the
Government has been for years to en-
courage settlement on the public lands
by the pioneers of emigration, and to
this end it has passed many laws tor
their benefit. This policy not only ia
vors the actual settler, but it Is to the in.
terest of those who, by purchase, own
adjacent lands, that all Of it shall be
open to settlement and cultivation.
Looking to this policy, and to the very
large quantity Of lands granted by this
statute to q single corporation, Congress
declared, that il the Company did not
sell those lands within time limited by
the act they shall then, 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 government lands and
at the Same price. Any one who has
ever lived in community where large
bodies Of land are withheld from use or
occupation, or from sale except at ex-
horbitant prices. will recognize tho value
of this provision. 1t is made for tho
public good, as we'll as for the actual set.
tic. To permit these lands to pass un.
der title derived from the state for
taxes would certainly defeat this intent
Of Congress. 1t makes no difference in
the force Of the principal, that the
money paid by the settler goes to the
Company, tho lands which tho Act Of
Congress declares shall DO open to pre-.
emption and sale are withdra I'm from
presumption and sale by tax title and
possession under it, and it is no answer
to say that the Company which might
have paid the largo taxes gets the price
paid by the settler.
In q subsequent decision (Railroad
Company vs.. McShame, 23:Wall. p. 46l),
tho Supreme Court, while holding that
the grounds above set forth were unten-
able and not sufficient reason on which
to deny tho right of the state to tax the
lands, if the company had in other re-
spects fully complied with the law (and
in that respect overriding its decision in
the case above cited) said: "The road
was completed and accepted by the
President in May, 1869, and those lands
have been subject to such presumption
since three years from that date. it this
right can be exercised by the settler with.
out further Legislation by Congress or
action by the Interior Department. We
do not now propose TO decide whether
any such legislation or other action is
necessary, or whether any ono, having
the proper qualification has the right TO
settle on these lands, and rendering to
the Company the dollar and q quarter
per acre, enforce his demand for q title.
1t is not known that any such attempt
has been made, or ever will be, or that
Congress or the Department has taken
or intends to take any steps to invite, or
aid the exercise of this right. It would
seem that, if it exists,it would not be de-
feated by the issue of the patont to the
Company and it may, therefore remain
the underlined and uncertain right
vested in no particular person or per-
sons, which it now is, for an indefinite
period of time"
While it is true that neither OF said
decisions clearly and distinctly define
the right of the Government 10 the dis.
posal OF said lands, still they clearly in
dictate the opinion Of the Court that such
right exists and whether it be consid-
cred that the estate granted is condi-
tional estate, or an estate with \ condi-
tional Limitation, in either case am Of
the opinion that IT must be held that the
condition runs with the grant and ia in