Seattle daily post-intelligencer. [volume] (Seattle, W.T. [Wash.]) 1881-1888, 1884-07-18

LyTtiBHer4 FFSTF gtFSf IN1Qs--
ity, be made % convey any estate
ether than inst such an estate AZ the
granting act created and passed 10 the
grantee
The Northern Pacific Railroad Com
pany was the creation Of Congress. Il
ga, endowed OF a certain estate IN the
granted lands In tie act hich gave 1t
exi-tence aud prescribed the laE Of it,
being. II gave II capacity 70 sue and
be sued. to acquire lands and to bold
property, bat expressly denled i the
power 10 mortgage or make lien upon
it, road or properly without the consent
81 Congress. The resolution Of May
81, 1870, gave that consent. The autEOr-
IL alton 10 mortgage IL terms extended
only TO Its property and rights II
property" The extent 10 which the
company could create lien by ~sy Of
mortgage upon iis property" Ia lands
vss exactly measured By the CD ,raoter
and extent Of Its swn estate therein.
Whatever was included 10 the terms e it,
D operty and rights Of prop$rty. u
could iuc0mbeF by IT. mortgage 10 the
extent f its e-ta'e nr oEurT-hIp. and
no furtn~r. II the estate or property OF
the COMPANY IN it, lands, EOHsyvr &C
| q1ired. EhstaeT through its grants of
/ bv Uurchsss or condemnation. vas
| charged or iucumbeTed Nth prior liens
/ or was Leld upon condition. the mort
gage If the company could only convey
/ shat estate or property II had IL n e
| time of the execution Of the mortgage.
/ subject to the liens and conditions then
/ existing. The grant TO the Northern
| Pacidc Railroad Company, although
1 grant iH DrVssafi, Wis upon conditions
to be subsequently, performed, which
conditions had not keeu performed at
/ the date OF the joint resolution Of
May 81. 1870. or AT the date of any
/ mortgage of SAID company subsequently,
| made.
tbs clear, therefore, that the prop
erty and rights Of property Of the
coIapanv, Ar respects the lands included
| in lts Congressional grants, which 1t
was Authorized to mortgage To secure
ts bonds, was it, Conditional estate
then held, and not the unconditional
fee.
The mortgages took the estate
charged with the conditions upon which
II was granted, aud cannot escape the
consequences Of breach OF those con
dItions. They were annexed to the
grant. aud run with the land, and, not
having been performed, the estate l. sub
ject To be forfeited, aud the mortgages
having only the estate of their prantor
for their security, their lien falls when
the estate upon which 1t rests falls. his
conclusion Is fully sust aimed by abuud
ant authority.
In Toushstone, page 1T, the PROPOSE
ton is stated as folloss:
Ard If be that hath the estate grant
| - ~. Gr,k tn ~
condition snll; for the condition doth
always attend and wait upon the estate
or thing whereunto 1t Is annexed; so
that although the same do p IS through
the hands of al hundred men, Yet 1t IL
subject TO the condition still"
Kent says, vol 4, p. rs:
"Persons who have An estate or free
hold subject to a condition are seized
and NAV convey, though the estate
will continue defsaslble until the con
dnion he performed or released, or IL
barred by the statute of limitation. or
by estoppel."
The Supreme Court of the United
~ tes, in Foxcraft VI. Mallet. 4 How,
377) say:
The condition, or charge, WAS on the
land as an membranes by the very
terms of the deed to hIm, and he could
not, If he tried. convey a title to the
land which should be free from II. Sc
| a condition attaches to the land Wher-
ever II goes, although the same should
pass through hundred hands. In OuI
| view IL operates like u covenant which
runs with the land. and all assignees are
bound by ooysnants real that run with
the land"
The mortgages and bondhnlders
claiming the benefit of the Inortga q
of the Northern Pac flo Company took,
by virtue of their mortgage, only the
estate and title the mortgagor had IN IT
the company could give no higher or
better title than It had; and Its esta IL
being conditional one, subject to- de
teasance for condition broken. II de
featrd, the mortgage must fall with
the failure of the title of she uort-
gagor.
he great object Of making the grant,
so far as the Government or the people
are concerned. has been achieved. There
Is now a continuous line OF railroad from
Lake Superior to Puget Sound, and that
WAS What the Government sought to Sc
cure by making the grant. Tue Govern
meut Is not concerned in the least as "a
what corporation may own or operate
the road or any portion of IL; the fact OF
It's existence is all that is or was of im.
portance to the Government.
Two hundred and fourteen miles OF
road FROM Wallula, w. T., To Portland
Ogn., vas constructed by another com
pany, with which running connections
nave been established. There is no ne
Gesslty or use for parallel line tn this
PA miles of road, and he good reason
can be assigned why the Northern Pa
ohio Railroad Company should retain
title To more than QUO 600 acres of val
uabio land adj soent TO road It did not
construct, anu for which 1t has rendered
TO the Government no equivalent what
ever. and does not ewes propose to
these lands are largely agricultural
and to a considerable extent already
occupied.
A complete and perfect title to these
lands cannot now De had without the
action of Congress. either To confirm the
tue TO the company or To resume the
title by declaring the lands forfeited q
the Government.
The lands along the branch, aggregat
ing some 1000. UOU acres, which are ais,
proposed to be forfeited, are not greatly
dIssimliar IN situation to the lands pro
posed To- bs forfeited along the maII
line. True, no road has beeu Construct
ed on the proposed branch, as III th,
former case, tut the time in which tn,
Northern Pacific Railroad Company wa
10 have constructed It's road has p sse,
fully tivs years the 4ta of next month
For twenty years these lands have beer
numbered by this grant, and their ocou
patton and ~ ttlemrut are now greati,
re arded 10y It's influence. Experience
has shown that, whatever may toe SAT-
IN favor of these grants AS means o
inducing railroad balldlng into new $50
lions OF the country, they have bcel
uniformly attended With oppression o
the settler by the extortouate prices de
nauded by tue grantee for their lands
whereby the Just expectations of TIA,
Government VI benefits To be derives
by the people settling these iauds hay
been largely defeated. These lands ar
also largely agricultural, aud in the az
ricniteral portions a good degree %
development Tor new cOuaIIy ha
already taken place, IN advance u
tue approach of this road and withon
| its AID.
A considerable portion of these land