St. Landry democrat., 1884-03-01
OPELOUsAs La, SATURDAY. MARCH {. 1854

lOf ISsu4BS VI patGHLe W tue grantees
later grants were made directly to cor
porations, who undertook to construc
proposed roads, and all grants to corpo
} rations have provided for issuing pat
Q ents, after completing the roads, ane
. complying with the conditions Of tn
7 granting acts.
: The land department early adopted
the theory that all Of these grants wer,
grants III present. ; and that the require
ments in each case, to build the road
was a condition subsequent, and under
this theory the land department has
certified to States, all lands granted il
advance Of the construction Of the
roads. and we are candidly told that
lands were thus certified over 30 years
ago, for roads not yet built, and will
| probably never be built.
| In case of Rice VS.. Railroad Co., /
Black S58l the Supreme Court of the
| u. S., held that one OF these grants to
the State of Minnesota was not a grant
in present.; and that the condition was
a condition precedent, and not subse-
Quent.
Subsequently in Schulenberg VS.. Har-
riman, 81 Wallace AZ the same Supreme
Court held that another of these grants,
was grant in present., that the require
ment to build the road within a time
limited was condition subsequent, and
that notwithstanding the express provi-
sions in case of failure to perform the
conditions, the land should revert to the
United States. Such revision would
not occur without a declaration of for
feiture BY Congress. The Court did not
profess to overrule the former case
but based the different conclusions on
the difference in the provisions of the
two grants the same Supreme Court
held in case Railroad CO., vs.. c. C.
Shane 90 Wall, 444, aud Humwell rs.
Cass Co, 90, Wall. 464) that those were
not present grants, and the legal title
had not vested in the grants; even af-
ter the completion of the road, (see
cases cited,) but fife land department.
still holds that all railroad grants are In
present.; Such uniform rule has the
merit of simplicity in comparison with
the rules of Courts; requiring due con-
siderations of the several parts of the
grant, to determine whether it is, or is
not a present grant. Although the de-
partment holds all grants to be IN pre-
sentt yet lit holds under grants provid-
ing for issuing patents, that construc.
ton of a portion of the road, is a condi-
ton precedent to the issuance of pa
tents, yet if this condition precedent is
not performed within the time, it is
held, in the absence of a declaration of
forfeiture by Congress. The condition
may be performed after the time allow
ed, and on such performance, the
grantee is entitled to patents. The
,ame as If the conditions had been per-
formed within the time provided. No
authority is cited for such doctrines, by +
he land department., there is no author !
ty for it. Yet it shows conclusively,
hat Congress has right to declare for
.eiture for nonpeFformance of its con-
litions. {
This subject should receive more de- !
iberate considerations and should be J
Governed by well established rules of
aw. e
It is immaterial whether forfeiture
las, or has not been declared, as the !
onstructien of each portion of the road
J condition precedent to the issuance
f patents. The, condition must be
trictly and literally performed within
be time prescribed. Or the right to
atents and all rights depending on the
of the conditions, are for
yer gone. Warren VS.. Bean 6 Wis. y
2O,E Bank vs.. Hanger, Peters $50, 665. y
Insurance Co., VS.. Howery, 6 Otto ga; q
)avis vs.. Gray, 16 Wall 208-22O; Farms a
Torth VS.. Hand p. r. r. Co. 2, Otto 40 v
3; Story Ed. Jurs. 274-5-2, Chitty on y
ontracts ii A. M. Ed. 106s-9, the sole y
of declaration of forfeiture is ?
} diyest the grantee of what title al
eady vested in him. Rogan vs.. Walk q
+, Wis. 527; Chalker VS.. Chalker, i 2
onn. 10; Schnlenberg vs.. Hartman, 81 =
Vail A-6S. The title does not attach o
, lands within the granted limits until q
10 definite location of the road. Mo. 2
te. r. R. Co., rs. Kansas Pacific r. R. Q
O., 4 Otto. 491 1876 R. r. Co, VS.. Ere ,