The Kimball graphic. (Kimball, Brule County, Dakota [S.D.]) 1883-1905, 1883-11-02
DAKOTA NEWS NOTES.
IMPORTANT HOMESTEAD DECISION

Interest to The n n hwest-A faiiroao
company and u Settler
Ion Against ths Settler.
WASHINGTON, Special Telegram, Oct. u
, The secretary of the interior to-day rendered q
very important decision in the case OF the
Southern Minnesota Railway Extension COM
pauy against Augustus Kaufman, on appeal by
the company from a decision of tho commission
Of the general land office. The case directly
| involved the title to the northwest quarter
of Sec. II, township l04, range ~.
| Worthington, Mimi, but indirectly involved
| the title to u million acres or more In tha'
| State and many millions moro con-
tanned in various railroad land grants. The
| commissioner permitted kaufman to make q
! homestead entry of his tract, The secretary
reversed the commissioners ruling. Every
| Minnesota railroad and other land grant iail-
road companies are intensely iuteres ed IN the
principles involved in the secretary's decision.
| The decision ~reci,es:
The land described is within the ten-mile or
| primary limit Of the grant of July 4, 1856 I'd
! Stat. 81, making an additional grant OF lands to
the said State to aid in the construction, OF rail-
roads therein. The grant was accepted By the
State Feb. 25, 1867, at which time II became
effective. May ~, 1865 J. A. Hovey made
homestead entry l776 OF the trac. in question.
WHICH renamed lU'aCL uuili may 1917 nhoiI
it was cancelled. kaufman settled upon the land
In October, 1867, and siuce then has lived upon
and cultivated the same. HIS improvements
thereon are valued at 800. In June. ls12, he
| applied to enter the land as il homestead and paid
SIS for fees and commissions The local officers
informed him that they would send him a receip,
as soon as Hovey's entry was canceled. Some
! months after paying such fees, not receiving the
receipt. he wrote to yonr office, and in reply was
/ informed that the lard had been awarded TO the
said company. On March 4. 1876, the tract was
| certified to the State of Minnesota for the
benefit Of the railroad above named. You hold
thai the certlicltion was erroneous, because
Hovey's entry excepted the land from the operation
of the grant, and that, since the land must be CON
veyed by patent, it is still under the control of The
land Department., and direct that kantner be nj.
lowed to make complete. final homestead proof,
The case thus presents for my consideration
IMPORTANT QUESTIONS:
First-Nas q pateut necessary tor the purpose OF
resting tide, or did the title, by virtue Of the
! grant and the act of certlficaton, pass to the State
for the use of the said company?
Second-Ihe ianIS havin. been awarded TO the
COMPANY and certified to the State in 1876, should
! your office, when the facts disclosed by the record,
now proceed 10 make another adjudication and Ills
The language of the grant before cited is that OF
a present grant: Thar there be, and is hereby
granted to the State of Minnesota" The genera
rule undoubtedly is that title to the pubic lands OF
the United States shall pass by patent. Probably
the most MAJ ked exception to that rule is tina, of q
consressionai grant n pTssent. In WI.
COX vs.. jackson VS. .Pet. DlOj Inc
court says: I'VE think it unnecessary tc
no into u detailed examination of the various acts
of congress-, TOR the purpose of showing what We
outsider to bs true in regard TO tho public lands,
hat, with the exception OF n few cases, nothing
but q patent passes as a perfect and consumnate
title. One class of cases to be excepted il
where al act of congress grants land,
as is sometimes done in the words OF
the present grant" When the language
imports a present grant it is well settled that the
title passes by the act and attaches 10 the grant
aud such title becomes complete and perfect wnet
precision and identity are given to tho particular
tract by selection or location OF the land. Although
the gran. is Il present One, it is undoubtedly com.
petent for congress To put q limitation upou the
title. and direct at what lime aud in what manner
it should vest. 1t becomes necessary, therefore,, t.
examine the acts relating to the grant i,
question. for the purpose of ascertainini
the operation of the words Of present grant
Sec. 4 Of the act of July /, 1866, provides THAI
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 %secreiar,
OF the interior that any section of ten consecutive
miles OF said read is competed in
as a frst-class railroad, then the secretar,
of the interior shall issue to the State patents TO
all the lands in the alternate sections or parts o
sections designated by odd numbers. sj,uatet
within twenty miles of the roal SO completed an,
lying coterminous to the said completed section o
ten miles, and not exceeding 100 sections for I'll,
OeAeuL VI u TudI uAVlNR COnDl6teu.
THE TEN CONSECUTIVE MILES,
as aforesaid. When the government of the sal
State shall certify that one other section of the te;
consecutive miles shall have been completed a
aforesaid. Then the secretary Of the interior shal
issue patents to the said State in like manner TO
a like number: and when certificates of the com
Dl ;, of additional sections of ten cousecutiv
time to time made as aforesaid
additional sections OF lands shall be patented a
aforesaid, until the said roads are completed, whel
the whole OF the lands hereby granted shall b
patented to the State for the uses aforesaid an,
none other: provided that if said roads are nc
completed within ten years from the acceptance O
this grant the said lands hereby granted and no
do not mean to be understoo
az expressing the opinion that III
title would no! in any instance pass by a congress
aonal grant in praserti. although the act nigh
non, which would have the effect to place in tb,
hands of the grantee evidence by patent OF title
would not necessarily be inconsistent with the in.
On the 18th day of July. 1856 congress passed
further Act relating to lands granted to the
state Of Minnesota to aid In constructing railroads
"Iha, all lands heretofore granted TO the Territor,
'nd State of Minnesota TO aid in the construction
0: railroads shall be certified to the said State b,
he secretary of the Interior. from time to time
Tbenever any of the said road shall be deirite,,
located. and shall be disposed OF by The sal,
state IN the manner and upon III,
condition provided in the part,oula
Of the act" Sec. 5 provides THAT so much O
any act as conflicts with he provisions Of tho ac
is hereby repealed" This act contains no provis
ions relating to the issuing of patents for III,
granted lands, hut provides tina. tho secretary a
interior shall certify TO the State the lands granted
The former act contains no provisions for ~ceriifyin
the lands to the State When tits rem4inberp
chat 'hs ceriiiicatiou of lands by the secretary g
the interior to the grantee has long been recognize
as a mode OF conveyance, and that such certificate
have baen regarded aud treated as a sufficient con
yeyance and transfer of title. IA fact which wa
well known to copEress). it can hardly be ,,oubte
that 1t was the Intention Of tina: body to substjtu,
mat lnods OF transfer in place of conveyance b
patent as provided IN the act of July i.
CERTIFYING AND PATENTING.
The secretary then dwells at considcrabl
length upon the difference between c%ertifyip
and patenting, and continues:
The act of Aug. 3, 1854 90 Stat. 346 Se,
2,449. II. 81. provided that in all cases wher
lands have been. or shall hereafter be, granted b
any law OF congress to any one of the States {
Territories. and where the said law does not conye
the fee simple title of such lands which have beer
or may hereafter be, certified BY The commissions
Of the general land Office under the seal of the sal
ounce, ol,her as originals or comics of the original
or records, shall be regarded as conveying the IL
simple OF all the lands embraced in sach lis,
that are of the character contemplated nv snc
act OF congress and intended to be granted thereby,
Such was the general law applicable to grants I
States OF the character of grants under considers
ton, when july Is. 1866, congress amended III
act relating to LANDS granted to the State of Mime
sofa in the manner before stated; leaving or
OF the amendment the provision for nnIeut
and providing for only certifying tho lands. Whe
we apply to such amendment. as we must. tho GER
eral law existing at the time applicable thereto. "
find that such general law and the a%mendment' n, \"
in complete harmony, and iaEen ~
Qether they make the title comnlete Il
The mode or certify Ing the ana
Upon the second proposition presented by this cas-
l deem it only necessary to say that, it having bee
determined and adjudicated by the depar,nent
ioug ago as SIG that the land III question passe
| been SO certified, the department cannot now nr1
coed to make another adjudication and disnosi,io
Of the land, even If tho naked title did NJ
pass by the act of ceriiication. II
fraud in certifying the said land to the Stat
Such certification was in accordance with hi. d,
! cisaon and rnlii- then r7oraiiiag III your office n,
this department. Gases so adiudicated cannot
IeunGnnn AND annth nr d,Suns,.loI ~