The Dickinson press., 1883-10-27
IMPORTANT HoMEsrEAp DEc1s1oN

Interest to the Railroad
mPan and q Settler Involved-Decis-
ion Against the Settler.
WASHINGTON, Special Telegram, OCT 22.-
The secretary of the interior to-day rendered q
very important decision in the case of the
Southern Minnesota Railway Extension COM
pany against Augustus Kaufman, on appeal by
the company from a decision OF the commission
OF the general land Office. The case directly
involved the title to the northwest quarter
Of Sec. IL, township 1O4, range %.
Worthington, Mimi, but indirectly involved
the title to q million acres or more in that
STATE and many millions more elsewhere con-
tanned in various railroad land grants. The
commissioner permitted kaufman to make a
homestead entry of his tract The secretary
reversed the commissioners ruling. Every
Minnesota railroad and other land grant rail-
road companies are intensely int res ed in the
principles involved in the secre,ary's decision.
The decision %recites:
The land described is within the ten.mile or
primary ~ limit OF the grant of July 4, 1866 III
Stat. go, making an additional grant OF lands to
roads Sst tber Sia.e e Tb asd a IN the construction Of rail-
State Feb. rs, 1867, at which time it became
SSa o%a,sesd MAY MAY = III 1884 9. j. a: Hovey mads
which remained intact until May 81. 1875. when,
It was cancelled. kaufman settled upon the gIa and
III yc.0Uel, .so|. anc since then has lived upon
thereon are valued at 800. In june, 1872. he e
apniled to enter the land as a homestead and paid
SIS for fees and commissions. The local offcers
informed hin that they would send him a recent
as soon as Hovey's entry was Cancelled. Some
months after paying such fees, not receiving the
i ;seelpas,. ne CIV, wrote to your office. and in reply was
said company. On March &, 1876, the tract was
certified 70 the State of Minnesota for the
benefit OF the railroad above named. You hold
G08t the C6fE0CatlOA Waa rrop.ar,, I,,....
Hovey's entry excepted the land from the operation
of the grant, and that, since the land must be con-
land department., and direct that Kaufner be al
lowed to make complete. final homestead proof.
Inc case thus presents for my consideration
TW IMPORTANT QUEsTIoNs:
Flrst-Was q patent necessary for the purpose of
vestlng title, or did the title. by virtue Of the
grant and the act of certifcation, pass to the State
for the use of the said company?
Second-The lands having been awarded tn tha
company and certified to the State in 1876. shonIi
your office. when the facts disclosed by the record.
position of the land2
The language Of the grant before cited is that of
a present grant: That there be-, and is hereby
rule undoubtedly is that title to the public lands If
the United States shall pass by patent. Probably
me most marked exception to that rule is that Of a
e99sf VS.. Jackson ssanf II as PRESENT. st' 5l e W "
court says: I've think it unnecessary 't 10
60 into a detailed examination of the various acts
~ s"0 pAtpooo IL SuOWluK Wn4t we
outsider TO % trus IN regard to tho public lands,
hat. with the exception of a few cases, nothing
PIT a patent passes as a perfect and
where an act of congress grants land,
as is sometimes done in the words Of
inS present e npssen grant, spsnt f. y When hen, the language
title passes by the act and attaches TO the grant.
and such title becomes complete and perfect when
precision and identity are given to the particular
tract ny selection or location of the land. Although
the grant Is a present one, it is undoubtedly COM
n PETE III for congress to put a Limitation upon the
it should vest. 1t becomes necessary, therefore, to
examine the acts relating to the grant in
a gha,hen tb Tor the purpose Of ascertaining
Sec. 4 Of the act of July i, 1866, provides sThat
the lands hereby granted shall be disposed Of by
In the manner following. namely: When the gov
ernor Of the said State shall certify to the secretary
OF the interior that any section of ten consecutive
good. substantial and workmanIise manner an
as q frst-class railroad, then the secretary
OF f the interior shall issue to the State patents for
all the lands IN the alternate sections or parts of
sections designated by odd numbers, situated
within twenty miles Of the roai so completed and
lying to the said completed section Of
zen mics. ana not exceeding 100 sections for the
benefit OF the road having completed.
h TEN CONSECUTIVE MILES,
es aloresald. When the government of the said
consecutive miles shall have been completed az
aforesaid. Then the secretary of the interior shall
alike number: and when certificates of the COM.
pletion of additional sections Of ten consecutive
5ims sa TIN sine said mad. road q, are stor. tsGP
additional sections OF lands shall be patented "a
aforesaid. until the said roads are completed, when
the whole OF the lands hereby granted shall be
pana ted. to the s, state for the uses aforesaid and
completed within ten years from the acceptance of
ms grant the said lands hereby granted aud not
as expressing the opinion that t''s't the
title would not in any instance pass by a congress
provide for the issuing of patents. Such a provisS
ION. which. would have the effect to place in the
aands OF the grantee evidence by patent of title.
tention Of congress- to pass the title by the actitself.
On the 18th day of July. 1866 congress passed a
t9rther Act relating to lands granted to the
NJ ~; Stat. 97).. Sec. 3 of that act provides
That all lands heretofore granted to the Territory
and State Of Minnesota to aid in the construction
OF railroads shall be certified to The said State by
the secretary of the interior. from time to time,
whenever any OF the said road shall be definitely
State IN aua the aua'' ne msn a'sp0sea and Of 6 Snd the said tba
act granting the same as modified BY the PROVISIONS "sSs Is
any act as conflicts with The provisions Of tie act
is hereby repealed" This act contains no proyis-
1ons rsl '.nas t to the Issuing Of patents for the
6AAa AuaNo ouG pIOtluGS Ill IN6 SeCFet0rV OF
interior shall certify to the Slate the lands granted.
The former act contains no for certifying
the lands to the State. When it is
that the certificatiou of lands by the secretary Of
the interior to the grantee has long been recognized
as a mode OF conveyance, and that such certificates
have been regarded and treated as a Sufficient con-
Veyance and transfer of title, "a fact which was
wen known to congress), it can hardly be doubted
that 1t was the Intention of that body to substitute
that mode of transfer in place of conveyance by
patent as provided in the act of July 4.
CERTIFYING AND pATENTTNG
IN secretary then dwel1s at considerable
length upon the difference between certifying
and patenting, and continues:
The act of Aug. 3, 1854 no Stat. 346, Sec.
2,449: r. 81. provided tina: in all cases where
lands have been, or shall hereafter be, granted by
any Law. of congress to any one Of the States or
Territories, and where the said law does not convey
the fee simple title of such lands which have been.
OF may hereafter be, certified by the commissioner
OF the general land office under the seal of the said
once, either as originals or comics of the originals,
or records, shall be regarded as conveying the fee
simple OF all the lands embraced in such lists
that are OF the character contemplated by such
&C. OF congress and intended to be granted thereby"
Sucn was the general law applicableto grants to
states OF the character of grants under considera.
tlon, when July Is, 1866, congress amended the
act re!atlngt to lands granted to the State of Minne-
OF the amendment. the provision for patents
and providing for only certifying the lands. When
We apply to such amendment. as we must, the gen.
era, law existing at the time applicable thereto. we
in complete harmony, and taken to-
gether they make the title complete bv
TIE mode of certifying the lands
I deem it only necessary 10 say that, it having been
and adjuiicated by the department "a
loug ago as 1876 that the land in question passed
to tst the J. STATE BY virtue Of the grant. and it having
coed to make another adiuJicar ion and d;s,,.,;sm