The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-07-24

while holding that the grounds above forth were
and not sufficient reassns TO deny the
right OF the State to tax the lands II the company
had in other respects fully complied with the law
land that respect ovsrruing Its decision in the
srhs road was com pletsd and accepted by the Pres
ident In May, 1862 asd these lands have been suoJect
- suen since nsss years rem ,ns ds;
further legislation BY Congress or action ny the N
terror Department We do not now propose 10 decide
whether SUCH legislation or other action neces
sary, Or whether my having the proper quanca-
lion has right to settle on these lands
per acre, enforce his demand for TITLE. 1t is not
known that any such attempt has been made or ever
will Ds, or that Congress or inc department has taken
or ntenos to Ike any steps invite aid the
ercse OF this right II would seem hat II II exists
II would not be defeated by the issue OF the patent 70
nned uncertain right vested In NO particular per.
or persons which II now Is for an Indefinite period
oil time"
PURPOSE OF THE GOVERNMENT
While II is true that neither OF SAID decisions clearly
the disposal OF said land, sl they clearly Indicate the
opinion Of the Court that such right exists, and
whether It be considered that the estate granted IS
cor ditona estate or an estate with conditional lin
itaton, IN either ease l am OF the opinion That
IL must DO held that the condition runs with
the grant and Is In effect reservation
OF power OF sale in the government
OF the lands granted the company which remained
unsod by 10 at exp OF three years after the
entire was completed tho provision OF The
Presumption law. IL is manifest, think, that Con-
crsss did not intend TO grant 10 said company large
quanuty Of land to be neld aud sold by II At specu
aton prlces but desiring 10 give 1t aid and assistance
in its Undertaking at tue same time provided that
the price stipulated, should have the right TO
settle and mako home any o! tue lands
granted and IN order to secure this Right 10 the set
tier and at the same time 10 the company
q1ate consideration Tor lands reserved right
OF sale alter the road had been completed Tor
three years This is not in isenL with the
object TO be attained IN making the grant. That OBJ
ject was 10 and corporation in the construction Of
work Of national mporiancs which contemplated an
expenditure oil money beyond me resources OF private
individuals, and whether that AID should be given in
iand winch might be sold ny the company TO rem.
burss for expenditure nude, or whether the govern
meut should soil the land at u stipulated price and
pay the proceeds arising therefron TO said company
we're considered i'm Ierial both by the government
and the company that accepted The grant with the
condition The tact that sad company so understood
tins grant ID made evd0nt ov circular issued by It's
land commissioner, GATED May H. 1873, inviting pur
chase OF ITS lands, 10 whI:h he says:--
'sThe road was accepted by the government CON-
plete about SIX months ago. In three years from
that time the unsold lands viii be subject, sup
poet TO have all lands sold before that time
rves. All railroad lands sold by this company are
sold clear Of taxcs, with assurance OF perfect TILE
when paid tor
More than three years having elapsed since the
plson o! sad road AM its acceptance by tho Pres
idepi ut the time MIR. Dudy mott led his declaratory
statement for the tracts IN question, am OF opinion
that his application should have been received by the
local officers subject however, to the conii''on that
him that at the time his doclaraiory statement was
ned Tor said tract said company mai not sold or dis
In your decision it Is hold that tho matter OF tho
disposition OF lands on the condition OF the tract IN
voved IN the application IN napd is not within the
jurisdiction or control OF this Office Ii the views
have expressed In rotation the sale and lsposal
OF SAID lands are correc-and see no reason TO doubt
tneir correcness-ths sale and disposal oil lands IN
tho condition OF thoyo applied or as unsold at that
time by said compane Is clearly within The ju risdc
ton OF your ONCE, h9 other lands.
TERMS THE GRANT.
Bv the terms OF The grants by which said lands or
the proceeds which shall arse iron the sale thereof
I'M IN Huid m hat iuud
naming unsold at tue expiration OF three years
from the time when tho entire road was completed
ike other lands al price not exceed
Ing 81 rs per acre. In other words, That
Domain Ior sale sna Tor SAID COMPANY unaer
the presumption laws OF the United Suites. And
whether DO considered that said lands public
lands In general or special sense cannot, IN my
opiniou Affect the jurisdiction OF your office in max
ing sale and disposal Of the same Al the time this
grant made tho provisions OF the pre-emption
law we'll understood, and IN so far the
act provided that the lands granted shall
be SeS 70 ss IN 1@ ,ba,
intended that tho same rules and regulations should
DO adopted In regard 10 the disposal and sale OF SAID
lands adopted by your Office In the sale OF pub
lie lands under the presumption laws While It may
be further legislation In relation tho sale
OF SAID lands might have been advisable, still do
think " TO have been abso utey necessary except
to provide Tor the manner IN which the proceeds
gests that these lands are covered by mortgage
cutsd by said company TO secure money borrowed IN
The construction Of us road II this DO true am
able TO perceive that such mortgage any obstacle
the disposal Of said lands III accordance with
sns n Ss saS.
as II possessed, and the mortgages must
be considered to have taksn> the mortgage
with iull knowledge OF the right OF The company TO
make the same Aside from these considerations
however the provision In the mortgage which auth
re sths company TO cell and disposo OF the lands
granted make Conveyance thereof to Purchasers.
which shall release the Lght OF the mort
gagees tue particular tract WILL In the same manner
protect the prc-emptor VINO purchases OF the govern
msnt, which has authority to sell the lands and pay
tho proceeds arising from sales to the company
INSTRUCTIONS TO LOCAL OFFICERS.
The local officers OF spch vi aud districts in
which lands inurng said company by virtue
grant are suuated should be- instructed TO receive
hlinRs conditonaIly Tor such lands, tracts
ceeding quarter section, by quii1ed presmptors
and. on receipt Of such dsclaratory statement to call
upon the company Tor u statement showing whether
the lands applied Tor have been sold by II, and not
sold then The declaratory statements should be allowed
subject TO the applicants showing iuIl compliance
Win the Pre-empuon law. Ii the company ncglects
refuses to ssh such to local officers
within thirty days alter service OF such noce that
they should be instructed TO order n hearing, II
so requested by the applicant to determine whetncr
such tract or tracts are SUBJECT to such fling giving
nolice OF the time and place when aud wncre such
hearing will DO held In some newspaper published aud
circulated IN the county where the lands situated
notiiying SAID company and any aud all Dcrsons II
such there 10, claiming title 10 said tracts under
10 appear At the time and place mentioned to show
cause why said deciratory statements should no, be
CURED TO show that he Is actual settler the land
applied Tor, qualified pre-empsor, and that tae
records OF The county where deeds aud conveyances
recorded do not show that said tracts have
been sold NJ the date Of the hling OF his deciaraory
statement anu tho company or It's grantee 10 show
whether said tracts appned for have Dcen sofa Uy H.
II the company or the grantee TAIL or refuse 10 appear
and offer any testimony The ning snouli be allowed
unasr tue rule that where the subject matter OF
negative avcrmcnt lies peculiarly within the kpo~-
edge OF the otncr party the avernent taken as true
unless disprcvrd ny that party" Il Grcenieai on
Evidence, paragraph 49,
On making returns OF the moneys arising from tho
sale OF said lands, the local officers should TO m
structed 20 Keep separate account OF the lands sold
and tho moneys received therefor on account OF said
company in order that the same may be passed to rs
credit la this Case inasmucL does not sstisiac-
torily appear whathsr tho lands applied Tor had been
sold by the company al the time Alr. Duuymou n,cd
his dccnratJry statement you win Instruct tue local
officers TO call upon said COMPANY tor statement
showing whether said lands had ocen sold Wy II at
that time, IL II refuse or neglect to IurDisn such
statement within thirty days alter the service OF
said notice that tney order hearing to determine
that TACT undor tue rule ABOVE SGT forth. For the
reason stated your decision Is reversed, aud The