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

THE PACIFIC RAILROAD LANDS.
Ovinlon OF Secretary Schurz that the Pacific
Railroad Lands arc open to pre-.
enptien ut S1.2S per Acre.
Dudvmott W. the Kansas Pacific Rail-
road Company.
Held that all lands Of said company
not sold or disposed of within three
years from the date of the completion of
the road are subject to presumption at
s1.25 per acre.
DEPARTMENT OF INTERIOR.
Washington, D. c., July 23rd. 1878.
Sir:-I haveconsider the appeal OF
Nelson Dudymott, by his attorney, NJ.
Mullins, ESQ, from your decision of Octo-
Der 18th, 1877, approving the action OF
the local officers in rejecting the sppli.
cation of said Dudymott to file declar-
atory statement, upon the n. ! Of n. +,
/ Lot No. and 8. w. }ofN. E. I, sec. I,
T. IL s. r. E., Salina Land District,
Kansas, for the reason that the land ap-
piled for is within the limits of the grant
to the Kansas Pacific Railroad Com
pany.
Mr.. Dudymott claims the right to pre-.
empt said tract of land under the pro-
visions of an Act of Congress approved
September 4th, l841, and the last clause
of the 3rd, section of an Act of Congress
approved July l, 1862.
The reasons assigned in your decision
for approving the action of tho local Of
.<nNod M Eolln-o.
"On February 81, 1873, this Office in
. letter to tho Register and Receiver at
Cheyenne, Wyoming Territory, in the
matter of an application by Henry Gar
!anatti to enter certain lands under the
proviso in question, said: In nv let.
ter to you of the 2lst of June last
stated that the 3rd. sec.
ton of the act of July l, 1862, provides
that the lands inuring to said company
with in tho granted limits, which shall
remain undisposed of by said company
al the expiration of three years from the
final completion Of the road, shall be
sold by said company to settlers by pre-
emptiOn at $l.25 per acre. l will now
state in addition, that the law does not
provide for the enforcement of said pro-
viso by this Office, ana should this office
attempt to dispose of the land in ques-
ton all moneys 80 received, in accor-
dance with ex listing laws, would have to
DO turned in the United States Treasury,
and 1t would require Q special Act OF
Congress to withdraw the same and pay
it to the Railroad Company.
oil 40
the district land officers in acting on pre-.
emption cases provided for in the act
In M opinion, therefore, said proviso
is condition running with the grant,
and entirely beyond the jurisdiction OF
this Office. l accordingly approve your
action in rejecting Mr.. Garlantti's up.
plicatiou' -"
You further state, that, can appeal
having been taken from the above de-
cis:on, the Acting Secretary of tho In
terror Mr.. 3Cowan, on September Is,
1873, affirmed9 the rejection Of the ap-
plication for other reasons appearing in
the case, but declined to pass upon the
question raised under the provisions OF
the 3rd section, until it is presented in q
case where its decision becomes neces-
sary = 80 For tho reasons stated
in the decision of my predecessor, here
in quoted, and IN the absence of any de-
cisiOn by tho courts or the Department
to the contrary, l decide that the matter
Of the disposition of lands in the condi-
ton OF tho tracts involved in tho appli-
cation on hand, is not within the juris.
d:o&:o- ~. oo~&,ol ocs h,s nASooO
From this decision MIR. Dudymott, by
bis attorney, filed an appeal alleging
among others, the following exceptions,
viz:
"First: Because section of the act
OF Congress Of July l, 1862, which gave
alternate sections of land on each side
of the road to the Kansas Pacific Rail-
road Company, formerly the Leaven-
worth, Pawnee and Western Railroad
Company, contained . provision that
any OF these lands not sold by said COM
pany within three years after the final
completion of the road, should be sold
to actual settlers under the pre- emption
laws at LIS per acre, the money to be
paid to the Company.
"Second: Because said railroad was
accepted by tho Government as complete
in the latter part of the year 1872, or
nearly five years ago, and, therefore, the
land above described being q part of
said grant, and still unsold by said com.
pany is now, and should have been for
nearly two years past open to pre-emp-
ton settlement"
The Bird section OF the act making the
grant to aid in the construction Of the
road of which the Kansas Pacific Rail.
road Company is the successor reads as
follows:
'Section 3: And be it further enacted,
that there be, and hereby is granted to
the said Company for the purpose Of
aiding in the construction Of said rail.
road and telegraph line, and to secure
the safe and speedy transportation OF
the mails, troops, and munitions Of var,
and public stores, thereon, every alter
nate section Of public lands designated
by odd numbers, to the amount Of Eve
alternate sections per mile on each side
of said railroad on the line thereof and
within the limits OF ten miles on each
side of said road, not sold, reserved, or
otherwise disposed of by the U. s.,
and to which pre-emption or home
stead claim may not have attached nj
the time the line Of said road is ds6n-
itely fixed, Pforided: That ali mineral