National Republican., 1883-04-24
RAILWAY LAND GRANTS.


--
Mr.. Henry Beard Takes Issue with Judge
Payson-Tho Eject OF the Decision I'm
the Case OF schuIenberg VS.. Hartman.
To the Editor
I notice that one of your assistants has
been interviewing Judge Payson, of illinois,
a member of the committee on tho judiciary
in the house of representatives in the forty
seventh congress, upon the subject of land
grants and the legal effect of non-completion
of the entire roads for which grants have
been made, and tho meaning and effect of
declarations of forfeiture found in the grants.
The subject is a very important one. Upon
the point reported in the subjoined sentence
taken from the article in your paper of the
nineteenth instant, the reporter must have
misunderstood tho distinguished gontlcman
interviewed. Speaking of tho case of Schu.
lenberg VS. Hartman (2lst Wallace's Report,
p. 4i), he reports Judge Payson as having
remarked that--"The doctrine announced by
the court in that case as to the status of
lands so granted is more dictum. 1t was not
involved in the case at all ; not necessary to
be divided to determine tho real question in
volvcd in tho litigation, and in the Judgment
of very many of tho best lawyers in the
country il will not be adhered to when, if
question"
If the reader will refer to tho volume
quoted he will find that the case mentioned
was argued with great learning, and the ques
tion of the effect of the words relating to for
fcituro was discussed under tho third de-
cision of the argument.
We do not wish to misunderstood the de-
cision of the supreme court upon matter OF
SO much Importance. | quote five points
from the syllabus of the case prepared and
published under the supervision of the court: I:
l. That tho act fJuue D. 1855, aud the first sec
tion of the act of May D. 1861, uro grants IN pre-
sCnti, and passed the title to the odd sections
designated to lie aflerward located; when tho
route was fixed their location became certain aud
the title, which was preylouly imperfect, acquired
| precision and became attached to the land; that
the lands granted have not reverted to the United
States, although the road was not constructed
within the period prescribed 10 action having
beon taken either by legislation or judicial pro.
ceedngs to enforce forfeiture of the grants.
ii. Unless there are causes In statute restrain
ing the operation OF words OF present grant, these
must be taken in their natural sense 20 imI art All
immediate transfer OF title, although subsequent
| proceedings may be required Is give precision to
that title aud attach It to specific tracts No indl
| vidual can call in question the validity of the
| proceedings by which precision Is thus given 10
the title where the United States are satisfied with
| them.
III. The provision in the act of 1856 that all
| lands remaining unsold after ten years shall re-
vert to the United States, IL the road be not tn
completed Is condition subsequent, being effect
provision that the grant to the extent OF tho lands
unsold shall be void ii the work designated be
not done within that period.
| ". No one can take advantage of the non. per-
| formance of condition subsequent annexed TO an
estate in fee but the grantor or his heirs or success.
sors and If they do not see fit TO assert therrlghttp
enforce forfeiture on that ground, the title re-
| mains unimpaired in the grantee The rule
| equally obtains where the grant upon condition
| proceeds from the government,
| V. The manner In which the reserved right of
the grantor for breach Of condition must be as.
serted so restore tho estate depends upon the
character of the grant. II 1t be private grant,
that right must be asserted by entry or its equiya.
| lent. If the grant be public one, the right must
| be asserted by judicial proceedings authorized by
law, or there must be some legislative assertion of
such as ali act directing the possession and appro
pration Of the property, or that 1t be offered for
sale or settlement.
This appears to bo full and explicit ruling
upon the clauses of the granting acts, which
were as follows:
section IL Stat, PIP. 20-2l, IL is provided: And
| II said roads are not completed within ten years
no further sales (of land shall be made, and the
| And in the enlarged grant by act OF May 3, 1864
II is provided section o. Ii stat, p. 6o: THAT II
said road mentioned in the third section aforesaid
| is not completed within ten years from the time
of the passage of this act, as provided herein no
further patents shall be issued TO said company
for said lands and no further sale shall be made,
| and the lands unsold shall revert to the United
| States" ..t.. tsuf..
Again, in the case of Van WyclS VS.. Knevals
| (No. 1889, decided Mt the present term of the
supreme court, the railway land grant in
volved was that made by the act of 1866, July
| % IA Stat, 210), which contained the follow
ing proSiso: .
| That If said road Is not completed within ten
years from tho date of the acceptance ofthe grant
hereinbefore made the lands remaining un-
| patented shall revert to the United States.
The defendant in the court below, Van
! WxoIy ba1 olIaUad in his ansyypr that tho
railway company had not completed the con-
struction of the entire road as required by the
grant.
The United States supreme court, in decid.
ing the case, used the following language:
So far as that portion of the road which was
completed and accepted is concerned, the contract
ofthe company was executed, and, as TO the lands
patented, the transaction on the part of the gov
ernment was closed and the title of the company
| perfected. The right of the company to the re-
naming odd-numbered sections adjoining the
| road completed and accepted, not reserved, Is
equally clear. If the whole of the proposed road
thereon can be asserted only by the grantor, the
United States, through Judicial proceedings, or
through the action Of congress. (Schulenberg VS..
Decision rendered December II, 1882 (Morrl-
sons transcript, p. 4l6)
This clause shows how the court itself un.
derstands the decision in Schulenberg vs.
| Hartman.
That the same understanding of it has pre-.
vailed where ii has been most examined and
evidenced, viz, in the Office of the attorney
general of the United States, is evinced in the
case of the land grant TO Minnesota by act
July A, 1866 Q6 Opinions, 397), where it was
held that patents should issue for lands when
opposite portions ofroad were completed after
the expiration OF the limited time, and the case
of Schulenberg vs. Hartman is cited in sup
port of the conclusion.
Tho same view of the doctrine of that
case was again fully stated by Atty. Gen.
Devens in his opinion of Oct 26, 1880 in the
case Of the Atlantic and Pacific railway,
maintaining the duty Of the executive Off
GERS to be TO accept portions of road completed
after the limited time if found to be as re-
| quired by the law. This opinion is found in
ex. doc. 90 house, 47th Cong, I'd session,
in which, also, is found an opinion of Atty.
Gen. Brewster of June Is, 1882, maintain
ing the same doctrine, and referring to the
same case OF Schulenberg VS.. Hartman.
From the opinion of Attorney General
Brewster, June 10, 1882, quote as follows:
The proviso in the grant that the company shall
| complete the whole of its road within five yenls
| from tho date of the act is u condition subse.
| quent, tho failure to perform which does Tot ipso
| tacto work n forfeiture of the ,ranl, but only
gives rise to right IN the government TO enforce
| n forfeiture thereof Yet In order to enforce a
forfeiture such rightmust be asserted by judicial
| proceeding, authorized by law, or by some legis.
lativo action amounting 70 resumption of the