The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1883-04-13
n. r. Il. II. LANDS.

we puoiiSneo last week what inIormation
We could procure In regard To the status OF
certain lands In this Territory within the
limits Of the grant to the N. p. r. R. Go.
We referred 10 decision OF Secretary Teller
rendered sometime In December. We have
succeeded in procuring from a legal friend
at Butte copy Of this decision and regret
that We have neither time nor space TO give
II entire, but the following is the syllabus:
JAMES y. PERKINS VS.. CENTRAL PACIFIC
RAILROAD COMPANY.
These grants 10 railroads are present
grants; when they take effect they operate
go instGnte upon the lands within the granted
limits. The gran, Is not held In allegiance
TO await the default Of settlers, but the title
vests or does not vest ut once and SO far as
regards the land In which the title does not
vest at once, the claim of the company is at
al end.
This same rule must be applied as was ap
piled In Mining Company vs.. Consolidated
Mining Company, where II was held that,
where there In "either Q dwelling-house or
the cultivation Of any portion Of the land On
which some one Is residing and asserting
claim, the title does not vest" II the grant
Is present one, and the title does not vest
when the grant takes effect, 1t canpot vest
afterward.
1t was the intention Of Congress that only
such un ccupi lands as were not held ur-
der any claim recognized by the Govern
ment, should pass under the grant. Grants
10 railroad companies must be strictly con-
strued against the grantee, t92 u. 5 1889.
The lands, therefore, In those sections to
which the M .an aud hon, q al 81 aim
had attached at the time the line of the road
was fixed, were not granted at all. The act
did not undertake to grant them. IL Is not
Q grant with All exception, but Q grant Of
those sections or parts Of sections to which
such claims had not attached. IL was not q
grant Of tn. entire odd sections, subject To
pre- emption aud homestead claims thereon;
but the grant did not touch the lands to
which these claims had attached.
This decision Of the Hon. Secretary was
strongly reinforced by another, rendered In
February last, the syllabus Of which We also
give:
RAILROAD CoMrANY.
An entry whether void or voldable. exist
ing At date of definite location Of the line of
road, excerpts the land covered thereby from
the operation Of the grant. Cease Of Kuis-
kern VS.. Hastings & Dakota Railroad Com.
pany, o Copp, so, ov-rruled.)
Lands thus or In anywise appropriated at
date of definite location Of the line of road
do not pass under the grant, but are except.
ed, or rather, are not granted.
Uutil date Of dpfiiiite location of the line OF
road, the grant Is only float, and does not
attach 10 any specific tracts.
Service In the army for given period is
equivalent 10 residence for the same period
upon the land embraced in q homestead ell.
try under the act of March 81, 1854.
1t would appear from these decisions that
so far rs the Interior Department Is con.
cernsd its policy aud rulings are well settled
In favor Of claimants under the Government
as against the Railroad Company, and our
legal friends whom we have questioned on
the subject appear to agree that the position
Of Secretary Teller Is sound and we'll for ii.
fed and will probably be fully sustained by
the courts.
Mr.. O'Bannon informs us that he was ad
vised by letter from the Register at Helena
under date Of April 4Lh, that no proof would
be required to accompany filings or entries
on any lands in odd numbered sections
"where the record shows there was a filing
upon the land at the taking effect of the
grant, which might have been perfected aud
title acquired" This seems to US the cor
rect view and In accordancn with the above
decisions of the Secretary. On. Monday,
however, Register Adkinsoa telegraphed him
that thereafter the affidavit of disinterested
party, To the effect that The land sought to be
entered was occupied" Oh February 81
1872, would be required.
1t Is considered by some that occupancy OF
these lands under q mere possessory right
would defeat the claim of the railroad com.
pany under their grant; but We have no
rulings of the local land Office ON this point.
The interest in this matter is undated, and
the issues raised with the railroad company
will probably be adiudicated and settled al
all early day. We understand the settlers In
this county interested Ia lands Of this char.
acter are raising fund for the purpose oi
employing able counsel, both here and at
Washington, to represent their interests at
the Department aud in the Courts.