The Worthington advance. [volume] (Worthington, Minn.) 1874-1908, 1883-11-01
MINNESOTA NEWS.
IMPORTANT HOMESTEAD DECISION

Secretary Teller Decides . Case OF Great
Interest to tho Northwost-A railroad
Company and Settler Involved-Decls.
Ion Against the Settler.
WASHINGTON, Special Telegram, Oct. %
The secretary Of the interior TO- day rendered 4
very important decision in tie case Of the
Southern Minnesota Railway Extension com.
pany against Augustus kaufman, on appeal By
the company from decision OF the commission
Of the general land Cl1ice. The case directly
involved the title to the northwest quartz,
Of Sec. II, township 1O4, range "a
Worthington, Mimi, but indirectly involved
the title to q million acres Or more In thai
State and many millions more elsewhere con:
tanned In various railroad land grants. The
commissioner permitted Kaufman to make ,
homestead entry of his tract Tho secretary
reversed The commissioners ruling. Every
Minnesota railroad and other land grant rail
road companies are intensely interested in the
principles involved in the secretary's decision.
The decision recites:
Tho land described Is wits..,.n the ten.mile o,
primary limit OF thu grant of July 4, 1866 III
Stat: 30 making an additional grant OF lands tc
roads therein; e. Ihe grant was accepted by the
State Feb 20. 1867. at which time it became
effective; May r. 1864 J.. Hovey made
which remained intact until May ~, 1872, wher
it was cancelled: Kaufman settled upon the land
IN october, 1857, anc since then has lived upor
; and cultivated the His
appled to enter the land as homestead and paid
SIS for fees and commissions. The local officer:
informed him that they would send him recep
as soon as Hovey's entry vrs Cancelled Some
months after paying ouch fees, not receiving the
recsipt. be write to your office. and in reply wal
Informed that the land had been awarded to the
said company. On March 6. 1876, the tract wa.
benefit OF the railroad above named. YOU hole
that the certifcation was erroneous, because
Hoveys entry excepted the land from the operation
OF the grant, anc that since the land must be con.
veyed by patent, it is still under the control of thu
land department, and direct that Kaufner be al.
lowed to make complete. final homestead proet
The case thus presents for my consideration
TWO IMPORTANT QUESTIONS:
Flrst-Was pate"t Necessary for the purpose Of
vesting title, Ct did the tt;e by virtue Of the
grant aud the act Of certcaton, pass to the State
tor the use Of the said company?
Second-The lands having been awarded to the
company and certified to the State in SIG should
your office. when the facts disclosed by the record
now proceed to make another utudieation and dis.
position of tho landS
The language Of the grant before cited is that o.
a present grant: "That there be. and is hereb,
granted to the State of Minnesota" The genera
rule undoubtedly is that title to the public lands O.
the most marked exception to that rule is that of
cox vs. Saws. Jackson :W M. Hs Pet; 5io@ I'll.
Of ha
OF congress. for the purpose c. showing what We
outsider to tie true in regard to too public lands,
has, with the exception CT few cases, nothing
t Gat pa n passes As perfect and
where al act of congress grants land
as Is sometimes done in the words o.
the present grant," When tho Language
imports present. grant it is we'll settled that tie
title passes by the act AID attaches TO the fran mt
aud such title BECOMES complete and perfect wnet
precision and identity are given to the particular
tract by selection or location OF the land. Although
the grant IS present one, it is undoubtedly com
Getent TOR congress to put q limitation upon thu
tile. and direct at what time aud in what manner
1t should vest 1t becomes necessary. therefore, tt
question. for the purpcse Of asc errait
whether there are any provisions restrainiui
tho operation of the words of present grant
Sec Of the act of July 1, 1866. provides "Tha
the lands hereby granted shall be disposed Of b,
the said state for the purpose aforesaid ony, aut
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
aood Substantial anita and work SOhesea manner an
as first-class railroad, then the secretar
OF the interior shall issue to the State patents t.
all the lands in the alternate sestiono or parts
sections designated by odd numbers, situated
within twenty miles Of the roal so completed an,
lying coterminous to the said completed section
ten miles, and not exceeding 100 sections for &h
BENEFIT OF the road having completed.
THE TEN CONSECUTIVE MILES.
as aforesaid. When the government of the sal
bate shall certify that one other section of the te
aforesaid. Then the secretary Of the interior shall
issue patents to the said State in like manner TO
a like number: and when certificates of the com
p!eticn OF additional sections of ten cousecutiy
time to time made as aforesaid
additional sections OF lands shall be patented a
aforesaid, until the said roads are completed, whe,
the whole OF the lands hereby granted shall b
none other; provided that if said roads are no
completed within ter years from tho acceptance Q
this grant the said lands hefeby granted aud no
patented shall revert to the United States
as expressing the opinion that tn
title would not in any instance pass by a congress
slonal grant in present.. although the act nigh
provide 1872 FOR the issuing Of patents Such prov,s
hands OF the grantee evidence by patent of title
would not necessarily be inconsistent with the in
fenton Of to pass the title by the
Lurther Act relating to lands granted to the
State Of Minnesota to aid IN constructing railroads
IA Stat 90, Sec. g. OF that act provides
and State Of Minnesota to aid in the construction
Of railroads shall be certified to the said State b,
the secretary of the interior. from time to time
whenever any Of the said road shall be deanitel.
Condition provided "' in the ug FAITHFULLY ia,
act granting the same as modified by the provisions
is hereby repealed This act contains no proyis.
ions relating to the issuing of patents for the
granted lands, but provides that the secretary Of
interior shall certify to the State the lands granted
The former act contains no provisions for certifying
the lands to the State. When it is remembered
that the certiication of lands by the secretary O.
tho interior ~ the grantee has long heen recognized
as mode of conveyance, and that such certificates
have been regarded and treated sufficient con-
veyance and transfer of title. Ia fact which wa
wen wen known to congrsss) it can hardly be doubted
that mode of transfer in place of conveyance BY
patent as provided in the act of July 4.
CERTIFYING AND PATENr1NG
The secretary then dwells at considerable
length upon the difference between certifying
and patenting, and continues:
The act Of Aug 3, 1854 no Stat. SAG, &c.,
2,449. r. 81. provided that in all cases where
any law of congress to any one of the States OF
Territories and where the said law does not copve,
the fee simple title of such lands which have been
or may hereafter be, certified by the commissions,
of the general land office under the seal of the said
office, either as originals or copies of the originals
or records shall be regarded as conveying the fet
simple OF all the lands embraced in such list:
that are OF the character contemplated by sucl
act OF congress and intended to be granted thereby
.3uch was the general law applicable to grants &c
States OF the character of grants under considera
ton, when July Ii, 1866, congress amended the
act relating to lands granted to the State of Mime
sofa in the manner before stated; leaving out
OF the amendment the prc-ision for patents
and providing for only certifying tho lands Whel
We apply to such amendment, as we must, the gen.
eral law existing at the time applicable thereto w
lind that such general law and the amendment are
in complete harmony, anu taken TO-
gether they make the. title complete BY
the mode Of certifying the lands
Upon the second proposition presented by this case
deem it only necessary to say that, it having been
Long ago as 1876 that the land in question passet
been 50 certified. the department cannot now pro-
coed to make another adjudication and disposition
of the land, even if the naked title did no
pass by the act of certification. Il il
not claimed that there was any mistake O
fraud in certifying the said land to the State
Such certifcation was in accordance with the de.
cision and ruling then prevailing in your office an,
this department. cases so ad51dicated cannot b.
reopened and another disposition be made of tn
lands because different rule may be found to pre-
vail Of . subsequent time. The lands hav
ing been certified to the State, sucl
certif'cation was evidence that the Stat
was entitled to patents, if patent
were necessary in order to convey the title. II
such case it would clearly be the duty of this de
partment to issue the patents, and when issue,
they would by selection, take effect as of the dat,
OF certlfcatiOn and cut off all Intervening claims