The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-07-24
PRE-EMP7ION CLAIMS.
Rights of Settlers on UnSold Lands Of
the Kansas Pacific.
APPEAL OF NELSON DUDYMOTT.
Decision of Secretary Schulz in Favor
OF the Pre-Emptor.
TO LOCAL AGENTS.

INSTRUCTIONS IO LUCAL AGENTS.
wAsHISGroS, July 20, 1873.
Secretary schurz has addressed the following letter
TO the Commissioner Of the General Land Office
DEPARTMENT INTERIOR,
wAsHiSGroN, July 23. 1878.
SIR have considered inc appeal OF Nelson Dudy.
mott by his attorney, n. Mulin, from your decision
OF October H. 1877 approving the action OF the local
officers in rejecting the application of said Duaymott
TO o u decaratory statement upon the N Q N. E. 4,
Lot No.. ana s. W. OF N. F.. 4 OF section Z,
town II s., range E., Saiua Land district, Kansas
for the reason that the LAND applied Tor is
within the limits OF the grant to the Kansas Pacific
Railroad Company. Mr. Dudymott claims tho right
to presmpt SAID tract OF land under the provisions
OF an act Of Congress approved September 4. 1s41,
and the last clause OF The third section Of act Of
Congress approved July l, 1862 The assigned
in your decision for approving the action OF the local
officers stated as olows:-
On February 81, 1873, This ofnce in letter to the
Register and Receiver ut Cheyenne. Wyoming rerri-
iory IN the matter OF an application By Henry Garta
natti t. enter certain lands under the proviso in
question, said:-
lin my letter TO you Of the 2lst of June last
stated that the hra section OF the act Of July 1862
III statutes, 1927 provides that the lands tnuring
10 SAID company within the granted limits which shall
remain undsposed OF BY said comp Nv at the exDra-
tion Of three years from the final compietoo Of lhs
shah be sold by said company settlers oy pre-
emption at 81 20 per acre.
l will state in addition that the law does not
provide for the enforcement Of said provIso BY this
oice. and should this Office attempt 10 dispose of the
lands in question ali moneys received accordance
with existing laws Will have TO DC turned into the
United states Treasury, and II would require special
Of Congress 10 withdraw the same ana pay TO Inc
railroad com any Nor are tho usual fees allowed 10
the district land officers IN acting pre-emptlon
provided tor III Inc act In my opinion, there
fore, said proviso Is o condition running with the
grant and entirely beyond the jurisdiction Of this
Office. accordingly approve your action In rejecting
Mr. GartdnattIS application.
You further state that, appeal having taken
from the above decision, the acting Secretary OF the
Interior Mr. Cowan, on September l5 1873, approved
the OF the application for other
psaring in the case but declined 10 pass upon the
question raised under the provisions OF the third
tion until 1t Is presented 10 case where its decision
becomes necessary. For the reasons stated
in the decision Of my predecessor herein quoted and
in the absence Of any decision by the courts the
department to the contrary, decide that the
OF the disposition OF lands 10 the condition Of the
tracts involved In The application In hand ia not
within she jurisdiction or control Of this ONCE.
GROUNDS OF THE APPEAL
From this decision Mr.. Dudymott filed An appeal,
alleging among others the following sxceptions:-
Fyrs-Because section three OF The act Of Congress
OF July !, ls62 which gave alternate sections oil land
on each side Of the soad TO the Kansas Paei6c Rail-
read Company, formerly the Leavenworth, Puwnes
and Western Railroad Company contained a pr0vi-
that any OF these lands not sold by said company
within three years alter the nna completion Of the
smption laws At 81 % per acre. the money 70 be paid
to the company.
Second-Because said railroad accepted by the
government complete 10 tho later part Ut the year
1872, nsarly i've years ago, and therefore The land
usold by said company, aud should have been
Tor nearly two years past open 70 presumption settle
menG
The ,hmd section Of the act, making grant to aid
In the Of the road OF which the Kansas
Pacific Railroad is the successor, reads folIows
SEC g. And be II further enacted, That there be and
B hereby granted 10 the said company iof the purpose
telesru phi lioe, and TO secure safe aud speedy
OF the mails, troops aud munitions OF
ton Of pu bic designated by numbers TO the
amount oil I'VE alternate sections per mile each
sds OF sa,d ,,m,, The line thereof ana
Of said road not Sold reserved or Otherwise dis
smpuon homestead claim may dot have attached
time tho line oil said road 10 dennitsly fixed.
rrov'ded tina. an mne, ., m, ,auas small Us excepted
shall contain timber. the timber thereon Is
hereby granted 10 SAID company. And all
such lands SO granted by this section. which
shall not be sold or disposed Of by said company
within thros years after he entire road shall nave
been completed shaii 90 subject to settlemsns aud
prcemption, ike other lanes, at price not exceed
ing 81 rs per acre. TO. be pad TO SAID company az
Statutes, page 1897
STATEMENT CASE
BY act OF Congress approved July 2, 1864, said
grant was Increased 10 ten per mile on each
side Of said road, and the limits within which tho
same were TO be selected ~ twenty miles on
each side thereof 10 Statutes, page $50,
ton A. THIS road was completed within the
time limited In tho grant ana the last
section thereof accepted by tho President
October 49, 1872. The proofs submitted do not snow.
conclusivey that Mr. Dudymott Is qualned
prsempor docs IL satisfactorily appear that the
tracts described In his dcclaratory statement have
u.
a qualified pre.emptor, ana has presented afldsvits
showing that said tracts had been sold by said
company at tho date no died his application
therefor pre-emptor. Considering him to be quail
fled as pre-emptor and the lands at that time to
have been unsod by said company, the question is
presented whether undcr the last clause OF said third
section mis- application should have been received,
and u full compliance with the prescription law, In
ciuding payment tor the tracts shown, patent
therefor should issue to him by tue United States
and In the construction Of raiiroals ana for
other works Of internal Improvement have annexed
precedent ana o,nsrs conditions subsequcnI such
conditions are found In this grant IL cannot DO do
med that Congress had the right 70 make srant to
order TO secure the objscts for which the grant
WAS made condit,ons were annexed Tho com.
peny had the right to accept reject the
grant wuh the conditions therein made, but
having ace..ed Il u IS now sstopved TO deny ,ncir
and eject One OF these ondtIons. aud the
under whicn The applicant clam the right to
portion OF the iani granted to the
that IAN such ands so granted by this secon which
shall be disposed Of by company within three
years after the entire road shall been compsted
snail be subject 10 settlement pre.emption IKE
other land price not exceeding 81 rs per acre to
be paid 10 sucn compsny." The object OF including
this condition In me grant ~ apparent
DECISIONS IN POINT.
Referring to the objects be attained by this pro-
vision. the supreme Court IN the case Of tue Railway
Company vs. Prescott (0 Wallace, D. e,0e7l said -
at Is wisely provided that these lands snail not be
used W the company az monopoly OF indefinite dura
tion All not ant INA oosn for
years TO encouragement settlement pubic |
lands by the pioneers OF emigration, anu to this snd
has passed many laws Tor their benefit TINS pol |
icy only iavors the actual settler, but ~ |
is TO the interest OF those who, BY purchase
jacent lands that all Of shall be open 10 settlement
and cultivation. Looking to this policy, and to
very large quantity Of lands granted by this statute
w single corporation, Congress dsca that u ths
company did sell these Iands within q time Inn
,,cd - II. .ce tbsv shoud th.r -,,ncc. ,r.es..