The Saline County journal. [volume] (Salina, Kan.) 1871-1893, 1878-08-01
THE KANSAS PACIFIC pRE.EMPTIONs.

THE KANSAS PACIFIC PRE.EMPTlONS.
Many inquiries have been made of Us
concerning the opinion of Secretary
Schurz that the lands granted tho Kan
sas Pacific railroad arc subject to pre-
emption. Dudymott, Of Davis county,
took tho case up and it has been hanging
for sometime. Not long ago tho n. Y.
Sun claimed that the matter had been
pigeon-holed by the Secretary. Some
three or four weeks ago denial was
authorized by Mr.. Schurz and on the
heels of this denial the opinion was pub
lished. We have endesvored to obtain
the decision in fall, but find only the fol-
lowing report of it. Whether it will
"stlck" or not we do not pretend to say.
The Trustees of the X. p. have the opin
ion OF Hon. Jerry Black that the lands
are "disposed of" blythe terms of the
mortgage.
The decision says that nearly all of
the grants made by the United States to
aid in the construction Of railroads or
other works of internal improvement,
have had annexed to them conditions,
some OF which are conditions precedent,
and other conditions subsequent. Such
conditions are found in this grant to the
Kansas Pacific. 1t cannot be denied
that Congress had the right to make the
grant to said company absolute and un-
conditional, but, in order to secure the
objects for which the grant was made,
conditions were annexed. The company
had the right to accept or reject the
grant, with the conditions therein made,
but, having accepted it, it is now estop-
ped to deny their force and effect. One
of those conditions, and the one under I,
which the applicant now claims the
right to enter a portion of the land
granted to the company is that call such
lands, so granted by the section, which
shall not be sold or disposed of by said
company three years after the entire
road shall have been completed, shall be
subject to settlement and pre-emption
like other lands, At price not exceed
ing Sl.25 per acre, to be paid to such
company" While it is true that neither
of tho decisions of the Supreme Court
clearly and distinctly define the right of
the government in the disposal OF said
lands, still they clearly indicate the
opinion Of the court that such right ex-
lists and whether it be considered that
the estate granted is conditional estate,
or an estate with conditional liminta-
tion-in either case l am Of opinion that
it must be held that the condition runs
with the grant, and is in effect reser-
walton of a power of sale in tho govern
ment of the lands granted to the COM
pany which remained unsold by it at the
expiration of three years after the en-
tire road was completed, under provis-
ions of the presumption law.
1t is manifest, think, that Congress
did not intend to grant to said company
so large q quantity of land to be held
and sold by it at speculation prices, but,
desiring to give it aid and assistance in
its undertaking at the same time pro-
vided that the actual settler, who was
willing to pay the prices stipulated,
should have the right to settle and make
a home upon any OF the lands so grant
ed, and in order to secure this right TO
settlers, and, at tho same time to secure
to the company an adequate considera-
ton for the lands, reserved the right Of
sale thereof after the road had been COM
pleted for three years.
This view Is not inconsistent with the
object to be attained in making the
grant. That object was to aid corpo-
ration in the construction Of work of
national importance, which contemplate !
cd an expenditure of money beyond the
resources OF private individuals, and .
whether that aid should DO given in
lands which might be sold by tho COM |,
pany to reimburse it tor the expendi-
ture made, or whether government
should sell the land at d stipulated price, !
and pay the proceeds arising therefrom !
to said company were considered i'm 4,
material, both by the company that ac-
cepted the grant with the condition. :
The fact'that said company so under
stood this grant, is made evident by q
circular issued by Its land comm issioner,
dated May II, 1873, inviting purchases
Of its lands, IN which he says, "The
road was accepted by the government as
about SIX months ago. In
three years from that time the road !.
lands will Be subject, We suppose, to the
pre-emption law, but We hope and ex-
pect TO have all our lands sold before
that time arrives. All railroad lands
sold by this company are sold clear of
taxes, with ths assurance of q perfect
title when paid for.
More than tour years having elapsed
since the completion of said road and !
its acceptance by the President at the
time Mr.. Dudymott tslsd his dsclara.ory : :
tor the tracts in question. $
am OF the opinion that his application /.
should have been received by the local :
officers, subject, however, TO the condi-
ton that it be made to appear, before \
final certificate issue to him, that at the :
time his declaratory statement was filed J
for said tract, said company had not '
sold or disposed of tho same.
If the views have expressed in re- :
laton tn the sals and disposal Of said :,
lands are correct, and see no reason to !,
doubt their correctness,th the sale and dis
posal of lands N the condition Of these /,
,.I Al