St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1884-03-26
ST. PAUL NEWS.
AN INTERESTING CASE.
John B. Brisbin and Mrs. Miller Seek
ing to Recover Lands by
Presumption.
Large Amount of Lands Involved--An Adj
verse Decision--Going to the
Supreme Court.

parties are John B. Brisbin, Esq, and Mrs.
Miller widow of the late Ebenezer Miller Of
this city, and the Manitoba Railroad compa-
ny. This case is initial and test one to
others, which may follow, 3involving large
tracts of land in various parts of the state.
The facts as we derive them from the records
and the statements of Mr.. Brisbin are as fol-
lows: In June last Mr.. Brisbin made ap-
plication through the local land Office at Ben
son to be allowed to pre-empt section one,
town $780, range 20, which lands are claimed
by the railroad company, under the so called
land grant act of March, 1857. The argu-
ment was made on the 22d of February last.
Early in 1857 Messrs. Miller and Brsbin
were awarded large number of mail con-
tracts under act of congress March 3, 1855.
Among the contracts so awarded was one
from Minneapolis to Forest City. The act
referred to declares in these words: each
contractor engaged in carrying mails through
any of the territories west of the Mississippi
river, shall have the privilege of occupying
stations at the rate of not more than one for
every twenty miles of the route on which he
carries mail, and shall have presumption
right therein when the same shall be brought
into market to the extent of $40 acres, 20 be
provement' The act from which the fore
going is extracted was repealed June 81,
1860, expressly reserving all rights.
The term of the land grant act so far as
here applicable are: "There is hereby grant
ed, ETC., for the purpose, etc, "every alter
nate section of land designated by odd num-
bers, ETC., but in case it shall appear that the
United States have when the lines or routes
of said roads and branches are definitely
fixed sold by sections or parts Of sections
thereof granted as aforesaid or that the right
of presumption has attached to the same"
then it shall be lawful to select equivalents,
ETC., and from the tiers of sections nearest
those granted within certain limits.
The territory of Minnesota accepted the
grant May 20, 1857, and gave it to the Min
nesota and Pacific railroad corporation by the
act of May %, 1857. The Manitoba is Sue
cessor of the Minnesota and Pacific. The
lines of this por ton of the road were de-
fnitely fixed October 16, 1857. Pursuant to
the land grant act and the last referred to of
the territorial legislation in May and August
of the same year the lands were withdrawn
from market and have never been entered,
but were, under the acts, passed formally to
the corporation in 1860.
The contracts referred to were awarded to
Brisbin 81 Miller, April 25, 1857, pursuant to
bids made the preceding winter The mail
service began July 1 and ended June 80,
1858. The service was fully performed
and the contractors acquitted of all obi
cations under their contract. The contractors
made their improvements and occupied the
stations late in August, and early in Septem-
Der, 1857, at least six weeks prior to the date
the lines of the road were definitely fixed"
A declaratory statement was duly filed in the
proper land office. No steps, however, have
been taken to ''prove up'' until the applica-
ton referred to in June last.
The views of the applicants, as we gather
them from Messrs. Brisbin & Farwell, their
attorneys, are briefly these: By the terms of
the land grant act these lands were express
ly exempted from the grant, because ''the
right of presumption had attached'' before
the lines were definitely fixed" Even if
this were not the case congress was incapable
of divesting a bona tide presumption, al
though the right may have been inchoate.
Here the right of presumption was float
upon the entire line of the mail route and
became fixed description when the i'm
provements were located, precisely in the
same manner and upon the same terms as
the railroad lands when the lines are ''def-
nitely fiXed.n 1t will be noticed that there
is no limit to the time for 'proving up,n
which differs in this from other redemption
laws-nor is there condition of occupancy
after the mail service is performed, at which
time the right to make proof, payment etc,
completely accrues. The government with
drew the lands, disabled the parties and I'M
lawfully gave away the lands. In these
facts it is claimed no limitation of time can
attach
Mr. Brisbin also states that the decisions
of the department of the interior, of which he
says there are a large number, have uniform
ly supported these views which are them
selves supported by adiudications of the SUI
preme court of the United States. Each of
these tribunals declaring. First that
upon such facts the question is one entirely
between the government and the pre-emptor,
and second that a forfeiture will never be
enforced by lapse of time or laches excepting
in behalf of intervening bona fide settlers
which the corporation is declared not to be
upon facts homologous to those here present
The following notice has just been re-
ceived by Messrs Brisbin & Farwell:
UNITED STATES LAND OFFICE,
BENSON MINNESOTA, March "a, 1884. (
Messrs. Brisbn & Farwell, st. Paul, Mimi
GENTLEMEN: You are hereby notified that I'M
der date of March 10, 1884, the honorable COM
missioner of the general land Office rejected the
application of John B. Brisbin and others to make
proof and payment for section 1, 100, 80, en-
braced in presumption declaratory statement No.
7,147, unoffered series, filed Feb. II, 1858, under
act of March g. 1855, granting pre-emptive rights
to mail contractors
The land is in the fifteen mile indemnity limits
of the st. P. NJ. & M, formerly the MINI. & P,
and afterward st. P. d P. railway, under act of
March 3, 1857, stat. II. P. 1876, was regularly
selected for the railway company, and the selec-
ton approved and the land certified to the state
for railroad purposes March 49, 1863.
Circular of instructions dated Sept. 49, 1857,
Lester 459, prescribed rules and regulations for
carrying into effect the act of 1855, and con-
tanned the following: "Upon unoffered land the
claim must be proved up and paid for during the
existence Of the contract
The contract under which this claim was in
itiated is alleged to have been awarded in 1856,
and it expired in 1860. When claimants ceased
to be mail contractors their rights under the act
of 1855 expired. xxx by their laches and
failure to make proof and payment during the
life of their contract whatever rights they may
have had were forfeited.
The township was surveyed in 1856, and the
plat of survey was filed in the district land office
March II, 1857 The land was sin market from
that date, and no reason is assigned by claimants
for their failure to perfect their claim during the
existence of the contract
When the land was certified to the state the
title to the same passed from the United States.
See secretarys decision of Oct. %, 1888, S. NJ
Ry. Elk. Co. Vs. Kufner, Cops land owner V. 9,
P. 243.
The application under consideration does not
come within the intention of the act of April 81,
1876, 10 stat 35, and, in view of all the facts in
the case, is rejected subject to appeal in sixty
days.
Should you desire to take an appeal from the
foregoing decision, the same must be filed in
this office on before May 90, 1884, see rule SO
to So, rules of practice. Respectfully,
D. S. HALL. Register.
Mr.. Brisbin informs US that the case will
he annea1ad IN the seoretarv IF tha iD+arior