The New York herald., 1878-08-26
WASHINGTON.
FROM CUR REGULAR CORRESPONDENT.


WASHINGTON August 25, 1878.
SECRETARY scHURz's DECISION CONCERNING
RAILROAD LANDS NOT soLD-ALL SUCH
LANDS NOT OPEN TO ENTRY.
The decision made by Secretary schurz ON the 23d
ofIast july concerning the application Nelson Dudy
mott TO be allowed TO make pre-cmp.on ding upon
lands In Kansss within the limits OF the grant
to the Kansas Pacific Railway, has been misunder-
stood by some Western people, who have got the i'm
preston from the language OF tho decision oil tho
Secretary OF the Interior that all pubic LANDS owned
by railroads which unsold at the expiration OF
three years from the completion OF the road open
to entry NJ 81 rs The exact wording
OF the decision might mis!ead those who
are not familiar with Congressional legislation
the subject, and the Secretary did not expect
interested parties would misconstrue tho intent Of
this decision. 1t relates exclusively TO railroads
which have received monsy aid from the government
grant OF lands large as to be substitute for
the money aid. Thus, under this decision, The lands
OF the Northern Pacific Railroad viii eventually be.
subject to general preemption II the law under
which the grant made should stand unrepeaed
while the unsold lands OF the Union Pacific Central
Pacific, Kansas Pacific Denver Pacific and Sioux City
railroads are already embraced within the scope Of
this celebrated decision. These all the roads
which the Interior Department now understands TO
como within the provisions OF the law On the other
hand there are q number oi railroads to whom grants
OF land we're made by state legislation, the same hav
ing been donated by the government to encourage
local aud State improvements and OF these tho Illinois
Central and tho st. Louis Iron Mountain and South
ern Railroad, in Arkansas (iormery the Cairo and
FultoD) are illustrations. Now the decision OF the
Secretary II read IN part, would give tho idea clearly
that a unsold lands along lne line Of these roads
could be pre-empted at 81 25 an acre; but when
amined q whole there Is not ground Tor making
such mistake. Tho paragraph which has furnished
the erroneous Wow is iolows:-
By the terms Of the grant by which SAID lands, or
the proceeds which shall from the sale thereof,
Injured TO said company, t Is provided that lands
mainng unsoid at the expiration OF three yours from
tho time when inc entire road peted. shall be
subject to ssttlemsut aud pre-empton like other
lands, at a price not exceeding 81 25 per acre; III
other words that said lands shall the public
domain Tor sale and disposal for said company under
the presumption laws OF the United States. And
whether II be considered that said lands public
lands In general or special sense cannot in my
opinion affect the jurisdiction Of your oiioe making
sale and disposal OF the same
BY tho terms Of the grant by which lands were
donated to the Union, Central, Kansas and Denver
Pacific and tho Sioux City railroads. government
made the accepting party, and the date OF CON-
pleton and acceptance 10 a matter Of official record
Three years from said dates the Secretary maintains
under the explicit provisions Of the Of Congress-
that all Of their uusod lands, even II thcy
by mortgage TO secure moneys borrowed In the
construction OF the roads, subject to
Tho Commissioner OF the Land Ofice rejected tho
claim under which this decision was made on the
ground that the law does not provide for the enforce
ment OF the limitation proviso by the Land Oase,
and that the application Of Mr.. Dudymott was en-
tirely beyond the Jurisdiction OF this Office Tho
Land Commissioner further maintained that either
judicill or Congressional action was necessary
Tor the government TO reposssss lands
the title to which had become wholly divsstsd
by the failure Of companies to fulfil the terms OF their
grants He held this, not his opinion, bat as law
explicitly sci forth In a decision OF sne Untted
States Supreme Court. Secretary Schurx. on tho
Other hand, thought the provisions Of the were
as plain as words could mako them. and that there
concurrent testimony OF tho correctness OF his
view. Therefore, when Il was intsrpossd that tho
unsoid lands might have mortgsged, the Secre.
tary still held that the provisions OF the granting
the lands must have been understood by the mort.
gagscs, and the company could only mortgage such
interest In the land possessed. The Secretary to
test his ruling, ordered that the company make a
statement showing whether said lands had been sold
by At the tmc Mr. Dudy mott made his application,
and gave tho company thirty days In which TO mako
answer This until the latter part OF this
month; but It Is understood that all the companies
Will refuse recognize the correctness OF Secretary
Schurz,s ruling