The Saline County journal. [volume] (Salina, Kan.) 1871-1893, 1878-08-15
Hon. Jeremiah 3. Baden Kansas Pacific
Pre.emption.

Hon. jeremiah 8. Nack-en Kansas Pacific
Pre-enptisa.
1 have examined carefully the papers
submitted to me by Mr.. Carr, President
of the Kansas Pacific Railway Company,
viz: Mr.. Cars statement and ques-
tons, the mortgage Of juno, 1869, July,
1870, and August 1871, respectively, and
the acts Of Congress in relation to tho
grant of public lands.
The questions presented by Mr..
Carr are:
First. What was the date on which
the entire road was completed in accord
ance with law, the date on which afida.
Wit was made by the president Of the
company, or the date on which the Gov
eminent acceptedit - . completed road ?
If on date of Affidavit, which one?
Second. Do the several mortgages or
either of them constitute such . sale or
disposal OF the lands Is would exempt
them from sale or presumption at 81 .25
per acre Congress granted . large
body of lands for the one express pur-
pose Of building this railway. The pri-
mary purpose Of this grant ~as that the
lands should be used in the way most
likely to promote the end which Con-
gress had in view, namely: the con-
structi0n of the road. But lest the lands
might not be 80 used on the one hand,
Or prove excessive on the other, it was
enacted that "all such lands so granted
by this section which shall not be sold
or disposed Of BY said company within
three years after the entire road shall
have been completed shall be subject to
settlement and presumption like other
lands, at . price not exceeding $l.25 per
acre, to DO paid to the company" In
other words, if at the end of three years
after the object Of Congress shall have
been accomplished, there shall remain q
surplus of land, the company shall not
hold it for speculation, but shall sell it
for the same price and on the same
terms rs public lands. In this case
there is no surplus. All the land grant
cd has been sold or mortgaged, but all
the land mortgaged has not been sold
by the trustees. Is this unsoId mort
gagged land open to presumption and set
Element at the price fixed in the scty
Certainly not. The mortgage was alb
necessary to build the railroad.
Without it the lands would have been
of no use whatever. 1t was according
ly expressly authorized by law, was
made in good faith by the company land
accepted by the purchasers as their on
~ security. But if the lands or any of
them are by operation of law released
from the mortgage, the bondholders are
deprived of the security upon which
they advanced their money-the very
money that built the road and thus did
the thing for which the grant was made.
1t is nothing to the purpose to say that
the lands are now worthmore than they
were at the beginning, or that they are
worth more than enough to meet the
bonds. The bondholders are entitled
to the improved security and the com
pany to the surplus. They made the
venture in furtherance of public enter
prise when the property was compare
lively worthless. Their means have
built the highway through it.and caused
the appreciation of value. 1t it is taken
and sold to pre-emptors, they lose not
only the increase of value which they
have produced, but the land itself.
If the bondholders had been told by
Congress in plain words that when the
lands became valuable by tho compile
ton Of the road, their lien would cease
to be lien, they would have kept their
money in their pockets, and Congress
would have been compelled to appro-
pirate money directly from the treasury
Or leave the road unbuilt. But do the
words of the act OF Congress, when
.aken IN their strongest sense against
he company, authorize third party to
come in and take these lands after they
nave been mortgaged, and so defeat the
tights vested in the company and it's
BY the grant and the mortgage?
What is the contingency upon which the
light Of q pre- emptor depends to take
quarter section Of this land upon pay
nent to the company of one dollar and
cents per acre.
fit be not sold or disposed OF within
hree years after completion of the road,
hen the pre-empior may come in. But
has been sold or disposed of within
he time limitod. A mortgage is, legal
y speaking, q sale, alienation OF the
# the mortgaged premises, and 10 only
listinguishable from o sale in the pop
liar sense by the reservation of the
right TO buy it back, to
AYE . reconveyance upon payment OF
ho mortgage debt. In other words, it
8 conveyance OF the title coupled with
quIty OF redemption. These mortgages
invest the title in trustees upon certain
erms expressed therein. l am clear I
hat if tho act of Congress had required ,
he lands to be sold within three years
hese deeds of trust would have been o
But the act says they are
afe II sold or disposed Of. 4
Surely it will never be contended that
roperty is not disposed Of when it is