Northern tribune. [volume] (Cheboygan, Mich.) 1875-1885, 1878-11-16
HOMESTEAD VS.. RAILROAD.
An Important Case tn the Osce-
Ola Circuit.
Rights of Railroads as Against
IIOmesteaders-The Latter Ahead
SO Far-Tha Facts of the Case.
Detroit Post and Tribune.

Detroit Post and Tribune.
At the recent term of the 0 ,ceola Cir
cult very important case, involving the
conflicting rights of the holnesteaders
and railroads, was decided. 1t was that
of Samuel II. Gordon VS., the Flint and
Pere Marquette Railway Company.
Decming it of sufficient interest and i'm
portance, we have been at the trouble of
securing a statement of the facts of the
case. the leading points raised, and pre-
sent them herewith
in 1868 Gordon entered a homestead
in Osceola county, under the United
States homestead act. Went in:o posses
| sion, and, except as disturbed by the
railway company, has since continued in
uninterrupted, actual occupancy. In 1874
patent was issued to him for the entire
tract entered, without reservation or con-
dition...
In 1870 the Flint and Pere Marquette
Railway Company located its new line
across this land within few rods OF tie
house iE which Gordon was then living
with his family, and across his fenced
fields, AMI shortly after CONSTRUCTED its
road upon this line without Gordon's
consent. The railway comphny cl.imed
right of way across the land under an
act of Congress, approved August 4, 1852.
granting right OF way across, and depot
sites upon, tue public lands, to all plank,
rail and macadamized roads chartered
within 10 years, upon. certain conditions.
One of these conditions was that no Sc
Election OF right of way or of depot sites
should become operative until the rail-
way company should have surveyed It's
line and filed plat thereof in the Gener-
al Land Office, and ano:hcr was that
none of tI.e provisions OF tue act should
apply TO amy Lands but such rs were held
for privlte entry and sale.
The conditions as to survey and plat
the railway company does not claim to
have complied with until long after Cor
don'S entry, by its survey i'm 1870, and
filing plat thereof in 1872. 1t does
claim that, Notwithstanding Gorlon's
homestead entry in 1868, the land re-
mained public land subject to the grant.
In 1877 Gordon brought al action for
damages. just as this ease WAS to be
brought on tor trial the railway compa-
ny flied Aiil in c.iancery TO restrain the
further prosccut Oh of the action, and to
establish its title to the right of way.
Upon an er parte argument, a temporary
iniunctionwas obtair.ed which afterwards.
upon full argument by Mr. Geo. X.
Newcomb OIL behalf of Gordon and " m.
l.. Webber tor the railway company, was
dissolved by Judge Wheeler. By this
bill in chancery the railway company
claims right of way not only under this
act OF Aig. 4, 1852, but also by force of
an implied grant elaimtd TO exist in the
k,nd grant act of June 3, 1856, and by
virtue of grant of right of way across
the public lands to all highways. found
in section 2477 of the Revised Statutes
of the United States.
All these grants are claimed to support
the later entry of the railway company
on the land as against MIR. GordOn's prior
homestead entry. because the acts ante
date his entry, because, as it is claimed,
the Homestead Law gives the settlers 10
vested rights, greet or small, in the lands
they enter, and also because, as Is ale red
the railway company could not other,
wise acquire the right of way, inasmuch
us The legal title remained in the United
Stat e,. and therefore could lot be acquir-
ell by condemnation. and so if the rail-
way company could not take the right
Of way under some one or Other OF these
acts of Congress, the progress Of a grcat
public work which the General Govern
ment had sought TO foster would be alb
solutely and. hopelessly stopped and
barrel by the Insignificant rights of 4
poor mOssoack.
The controversy, therefore. involves
the important question as to whether a
homestead settler under the United
States lIOmese cad act, while complying
in good faith and i'm every particular
with the terms imposed upon him by thai
act, acquires before patent any right,
whatever as against railway company
claiming under an entry OF later date
as ell as several other important qncs
tions as to the construction Of Congres
siona. grams.
The trial CT the law case, a sharp con
test of three days. between Nj. NJ. New
comte. with whom we're associated
Messrs. BcardsIey Il Judkins, of Hersey
for the plaintiff. and Hon. VIM. 5. Web.
Der, general solicitor for the railway
company, and Oscar F. Wincr, Esq, o
East Saginaw, resulted in a verdict fol
| the plaintiff, The judge holding against
the railway company on al these q e,
tions. and ch;r ring tie jury that Cor
don hal a per ect title to the Ian +,
a. ainsttle whole worl from the date o
his hon te; d cntry.