The Republican. [volume] (Oakland, Md.) 1877-current, 1878-08-17
An Important Land Decision.

SECRETARY SCHURZ has rendered a
decision of great Importance to the Pa
cific Railroad Companies and settlers,
actual or prospective, along their lines.
The charters of these companies con-
tanned provisions that such of the lands
granted them by the Government as
should remain unsold at the end of
three years after the completion of the
road should be subject to entry and
pre-emption under the Homestead laws
at S1.25 per acre, but for several years
the Union Pacific and Kansas Pacific
have made great sales of such lands at
prices ranging from $3.50 to as high as
Sl5 an acre. The Secretary decides
that all such lands may be pre-empted
at 81 5, and thus throws open to set
Element millions of acres along the
lines of these roads. The question
whether settlers who have purchased
at the higher figures can recover from
the companies the excess over S1.25
will, of course, have TO 90 to the courts.
The decision says that nearly all the
grants made by the United States to aid
the construction of railroads, and for
other works of internal Improvements,
have had annexed to them conditions,
some of which are conditions precedent
and others conditions subsequent. Such
conditions are found in this grant 1t
cannot be denied that Congress had a
right to make Il grant to said company
absolute and unconditional, but in order
ito secure the objects for which the
grant was made, conditions We're an
nexed. The company had a right to
accept or reject the grant with the con-
ditions therein made, but, having ac-
cepted it, it is now estoppcd to deny
their force and effect. One of these
conditions, and the one under which
| the applicant now claims right to en-
ter a portion of land granted to the
Kansas Pacific company, is that call
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 a
price not exceeding S1.25 per acre, to
be paid to such company" The Su-
preme Court has decided in a collateral
case that " the road was completed and
accepted by the President in May, 1863,
and those lands have been subject to
such pre-emptiOn since three years
from that date, if this right be eXer-
cised by the settler without further leg
| islation by Congress or action by the
Interior Department" The court said:
90 1t is not known that any such at
tempt had been made or ever will be,
or that Congress or the department has
taken or intends to take any steps to in
vite or aid the exercise of this right.
1t would seem that, if it exists, it would
not be defeated by the issue of the
patent to company, and it may,
therefore, remain the underlined and
uncertain right, vested in no particular
person or persons, which it now is for
an indefinite period of time"
Secretary Schurz says: While it is
true that neither of the decisions of
the Supreme Court distinctly define the
right of the Government in the disposal
of said lands, still they clearly indicate
the opinion that such a right exists, and
whether it be considered that the estate
granted is Il conditional estate or an es-
tate with a conditional limitation, in
either case | am of the opinion that ii
must be held that the condition runs
with the grant and is in effect reser-
walton of Il power of sale in the Govern
mcnt of the lands granted to the COM
pany, which remained unsOld by it at
the expiration of three years after the
entire road was completed under the
provisions of the presumption laws.
This view is not inconsistent with the
object to be attained in making the
grant. That object was to aid a cor
poratiOn in the construction of a work
of national importance, which cOntem-
plated an expenditure of money beyond
the resources of private individuals,
and whether that aid should be given
in lands which might be sold by the
company to reimburse it for the eXpen-
diture made or whether the Govern
ment should sell the land at stipulated
price and pay the proceeds arising
therefrom to said company, were con-
sidered immaterial both by the Govern
ment and the company that accepted
the grant with the condition. The fact
that said company so understood this
grant is made evident by circular is
sued by its Land Commissioner, dated
May y, 1873, inviting the purchase OF
its lands, in which he says: 1.-The road
was accepted by the Government as
complete about six months ago. In
three years from that time the unsold
lands will be subject, we suppose, to
the presumption law, but we hope and
expect to have all our lands sold before
that time arrives. All railroad lands
sold by this company are sold clear OF
taxes, with the assurance of a perfect
title when paid for"
The Secretary says: More than three
years having elapsed since the compile.
ton of said road, and its acceptance by
the President at that time, Mr.. Dudy-
mott filed his declaratory statement fol
the tracts in question. | am of the
opinion that his application should
have been received by the local officers,
subject, however, to the condition that
it be made to appear before the final
certificate issue to him that at the time
his declaratory statement was filed fol
said tract said company had not sold OF
disposed of the same.
The opinion concludes with direc.