The Abilene reflector. [volume] (Abilene, Kan.) 1883-1888, 1885-09-10
IMPORTANT DECISION.
a Victory for Settlers on Alleged
Railroad Lands.
Judgr Brewer, of the United States Circuit
Court, Delivers an Important Deci-
sion in Regard to Railroad
Land Grants.

One of the most important railroad land
cases ever decided in the United States was
decided yesterday by Judge Brewer, OF the
United States Circuit Court. 1t was an
equity case in the name of the Attorney
General of the United States against the
Kansas City, Lawrence & Southern Kansas
Railroad Company. The Dill was filed
January %, 1888, and alleged that the rail
road company unlawfully held twenty-seven
thousand acres of land, having obtained
patents to which it was not entitled
The lands are in Allen County, and are i'm
proved farms worth several millions of dol
lars. and the title to many other lands are
Indirectly involved. The railroad company
claimed the lands under a transfer
from the Missouri, Kansas & Texas
Railway Company, and that com
pany by & transfer from the Atchi-
son, Topeka & Santa Fe. and also by an indie
pendent to itself. 1t seems that the grant
to the AtchisOn, Topeka & Santa Fe Com
pany required that company to build a
branch down the Neosho Valley This
grant was made March 3, 1868. The Atch
isOn. Topeka u Santa Fe Company, instead
of building the branch, transferred its right
TO do so to the Missouri, Kansas & Texas
Company. AfteTward Congress made a
grant, July I, 1866, to the Missouri, Kansas
d Texas Railroad Company for a line down
the NeOshO Valley. The company built
such a line, but not as a branch of the
Atchison, Topeka IL Santa Company, as re-
nuired by the grant to that company
Judge Brewer held that the AtchsOn, To !
peka & Santa Fe Company could not trans |
fer its rights in the branch road, and that |
even if it could, the branch had not !
been built but an entirely indie |
pendent line belonging to a different |
system. The Missouri, Kansas e Texas |
Company had attempted to get both grants,
while building only one road. Judge
Brewer held that the second grant super
seeded the first, and the patents issued under
the first grant to the AtchiSon, Topeka Il SAN
Ia Fe Company were void. He further held |
that the company could not claim the lands |
under the act of 1866, because it had made |
no selection under that act. The case was |
argued for the Government and settlers by |
Hon. George II. Peck, of Topeka, and Hon. |
c. F. Hutchings. of Usage Mission and for |
the railroad company by Hon. George w. |
McCrary and Hon. James Hageman, of To
peka. The decision is regarded as a great !
victory for the settlers on the lands, and |
there is great rejoicing. The people of the |
State were deeply interested in the decision /
and watched the case with great anxiety. |
1t is thought that the railroad company will |
of course appeal the case to the Supreme |
Court of the United States.
THE SUIT.
ID. II. Brewster x Co, vs.. the Kansas City,
Lawrence IL southern Railroad Company
This is a proceeding in equity to set aside |
the patent to a body of land in Southern Kan
sas. There can be no question of the -ighr !
of the Government to maintain such a SUIT |
when either the ministerial officers have IS
sued a patent for lands not subject to a
patent, or not within the scope of the grants
made by Congress UeaVenwOrth, Lawrence
IL Galveston Railroad Company W.. United
States, ~ United States, 740D. a case invOlY-
ing the title to the same lands was before the
hyperion Court of Kansas when / was
member of that court. and the conclusion
kheu reached was adverse TO the title of the
defendant here, tNcer VS. Williams y Kan
EaS H. So far any matters were considered
by that court | shall say nothing, but refer
simply to the opinion then wrote. | see no
reason to doubt the correctness of the views
then expressed. That case was subm tied
n hSzs HIi agreed statement of facts, some of
which are now not only not admitted but |
and successfully disputed. This
change comes from examination of certain
questions not heretofore considered by me. |
In view, however of the similar ~ in many
respects and also OF the further fact that the
of the interests involved Will in
send this case to the court of last
resort ! forbear any lengthy recital or
discussion. | simply state very briefly the
conclusions to which upon the facts as they
now appear have arrived.
The legal title must first be examined. That
of a patent from the State of Kan
sas. dated Nav 49, 1873 based upon Il certiti-
cate to the State from the Commissioner of
the General Land Office. Both certificate
and patent recite that the lands passed un- !
der the grant of March 3, 1865. Upon that
act. therefore, rests the legal title The
bcneficaries of the two grants of that act
were as named by the State. the Leaven-
worth, Lawrence Galveston RIA lroad Com
pany, and the Atchison. Topeka x Santa Fe
Railroad Company. OF the first, nothing |
need be said as nothing is claimed. To the
second were granted lands for building Il
from AtchiSon. enthusiastically
with branch from its crossing of the
Neosho, down the valley of the Neosho to
the point where the LeaVcnwOrth. Lawrence |
~ Galveston Railroad should enter
the valley. In July 1864. further
in the building of a road to EmpOra,
the Atchison, Topeka Santa Fe crossing of
the NeoSho noTthweStardly to the Union Pa
cific Road at or near Fort Riley. And again
in July. 1866. an act was passed by Con-
greSS granting directly TO what is now known
as the Missouri. Kansas Texas Railroad
Company lands to ard in building road from
Fort Riley sOutheasterly and down the Ne
oshO Valley TO the southern boundary of the
State of Kansas. The line of this road was
therefore for part OF its distance subStan-
TALLY the same that of the branch Of the
Topeka II Santa Fe above referred
to. In March, 1856. the Atchison, Topeka *
Santa Fe assigned its franchise and grant in
respect to this branch to the Missouri. Fan
SaS & Texas, and in January, 1861, this assign
ment was ratified by the State.
The Atchison, Topeka Il Santa Fe never did
toward building this branch, but
the Missouri. Kansas n Texas constructed its
entire road from Fort Riley down the NeOShO
valley. Could il claim any benefit of the
grant TO aid in build ng the branch? Gener-
ally speaking think II correct to say that
when 10y separate acts at different sessions
of Congress lands are granted TO two differ
ent corporations or parties to aid in build
ing lines of road, with the same general ,
course or direction. by no arrangement be-
tween such corporations or parties can the
building of only one road secure the bene-
fits of both grants. Unless an intent to
the contrary is pla My disclosed by the IAN
guage of one or other of the acts of Con-
greSS, il will be presumed either that the lat
ter grant superseded the former, or else that
two roads must be built to earn the two
grants Such views accord with the rule ,
that grants are to be construed in favor of
The Government and against the grantee.
and also the policy of the Government TO Sc
cure the public lands to actual settlers. eN-
eept in those cases in which the Importance
Of some public Improvement justihes the
public aid.
But beyond this general view and sustain ,
ing il may be noticed these facts: The act
of 1868 provided for branch down the
NeoSho Valley and not an independent cross
road. Perhaps Il would be giving undue i'm ,
portance to the word brunch to hold that |
its use concludes the question. and yet il is
significant .Of the intent of Con- |
gress. Obviously that body contemplated a
single trunk line running enthusiastically ;
through the State, with branch down the
Neosho valley, all under one management | ]
and control Again. the third proviso to the '
granting section in the act of 1855 reads. ,
Provided, also, that no part of the land ;
granted by this act shall be applied to aid in /
the construction of any railroad or part 5
thereof, for the construction of which any I
previous grant of land or bonds may have 7
been made by Congress" Now the
iafa oh no rarr !