Thomas County cat. [volume] (Colby, Kan.) 1885-1891, 1885-09-17
] pIP0RTANT DECISION.
Victory sor Settlers on Alleged
Railroad Lands.


- - A<AvESwoRTH, KAN, September A.
One o. the most important railroad land
caees ever decided in the United States was
seeded yesterday by Judge Brewer, Of the
United States Circuit Court. 1t was an
equify case in the name of the Attorney
Henesal OF the United States against the
Kansas City. Lawrence & Southern Kansas
1aasroad Company. The bill was filed
January IS. 1888, and alleged that the rail-
road company unlawfuIly held twenty-seyen
Thousand acres of land, having obtained
patents to which it was not entitled.
The lands are in Allan 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 a 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 ), 1868 The Atcl-
ts0n, Topeka & Santa Fe Company, instead
OF buiAhg the branch, transferred its right
: TO do so TO the MISSOURI, Kansas & Texas
Company. Afterward Congress made a
grant July 4, 1866, to the Missouri, Kansas
& Texas Railroad Company for line down
the Neosho Valley. The company built
such line, but not as branch of tie
Atchison, Topeka Il Santa Company, as re-
quired by the grant to that company
Judge Brewer held that the Atchison, To-
peka & Santa Fe Company could not trans
fer its rights in the branch road, and that
even il it could, the branch had not
been built but an entirely indie
pendent line, belonging to a different
system. The Missouri, Kansas & 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 Atcnison, Topeka 4 San
ia Fe Company were void. He further held
that the company could not claim the lands
under the act of 1866, because il had made
no selection under that act. The case was
argued for the Government and settlers by
Hon. George Il. Peck, of Topeka. and Hon.
G. 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 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
b. H. Brewster Co., VS.. the Kansas City,
Lawrence Southern Railroad Company.
This is a proceeding iii equity TO set aside
tho patent to a body of land in Southern Kan
fas. There can be no question of tbs right
OF the Government to maintain such n SUIT
when either the ministerial officers have IL
sued q patent for lands not subject to a
patent or not within the scope OF the grants
made by Congress. Leavenworth, Lawrence
Galveston Railroad Company VS.. United
States, a2 United States, 140. a case invOlv-
ing the title TO the same lands w6s before the
Superior Court of Kansas when j was
member of that court, and the conclusion
then reached was adverse to the title of the
ieicndent here. tNeer VS.. Williams =, Kan
sas L. So far as any matters were considered
by that court ! shall say nothing. but refer
reason TO doubt the correctness of the views
then expressed. That case submitted
oVE<s sn agreed statement of facts, soIL:e of
which arc now not only not admitted but
Vigorously 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
magnitude of the interests involved will in
evitably send this case to the court OF last
resort, l forbear any lengthy recital
discussion. l simply state very briefly the
! conclusions to which upon the facts rs they
now appear have arrived.
The legal title must frst be examined That
consists of n patent from the State of Kan
eas, dated May ~. 1873, based upon "A certIfi-
cate to the State from the Commissioner of
the General Land Office. Both certificate
and patent recite that the lands passed I'M
der the grant of March J. 1S3. Upon that
act, therefore. rests the legal title. The
bcneficiaries OF the two grants of that act
were as named by the State. the Leayeu-
worth, Lawrence Galveston Railroad Com
Railroad Company. OF the first. nothing
need be said as nothing is claimed. To the
S second were granted lands for building II
Seilroad from Atchison. enthusiastically
with branch from its crossing OF the
Ncosho, down the valley of the Neosho To
the point where the Leavenworth, Lawrence
the valley. In July 1854, further
grnnt was made to the State TO aid
In the building of road TO Empora,
the atchson, Topeka Il Santa Fe crossing of
the Neosho northwestardly to the Onion Pa
CHIC 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
Z as the Missouri Kansas h Texas Railroad
Company lands to aid in building road from
Fort Riley southeasteriy 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 suhstan-
TALLY the same as that of the branch Of the
Atchison. Topeka Santa te above referred
to. In March, 1856. the Atchison, Topeka x
Santa Fe assigned its franchise and grant in
respect to this branch TO the Missouri, Kan
sas Texas, and in January, 1867, this assign
ment was ratified By the State
The Atchison, Topeka Santa Fe never did
: anything toward building this branch, but
the Missouri, Kansas Texas constructed its
8 entire road from Fort Riley down the Neosho
Valley. Could it claim any benefit of the
:. grant to aid in build ng the branch: Gcner-
! ally speaking think It correct to say that
when By separate acts at different sessions
of Congress lands are granted TO TWO diucr-
ont -r.t,rssor1,fions 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 inc bene
ffs of both grants. Unless an intent TO
the contrary is pla My disclosed by the IAN
Rtlagc of one or other of the acts OF Con-
gress, II will be presumed elmer ,nas tne ,a.
two roads must be built 70 earn the two
grants. Such views accord Win the rule
$ that grants are to be construed III favor OF
the Government and against the grantee,
ma also the policy OF the Government to Sc
cure the public lands to actual settlers eN-
Oept in those cases in which the importance
Of some public Improvement Jos'ihes 'he
But beyond this general view and sustain.
lnr it. may be noticed these facts. Inc act
Of 1888 provided for "branch aoWn Tue
NoDshotvaii and not an independent cross
roed. Perhaps IL would be giving undue I'M
pprtance to the word "branch 70 ho.u that
5 It's use concludes the question, ana !et u Is
certainly significant Of dne co ,nen ein n
single trunk line running soutn"ss.Mardty
fhrouRh the State, with branch down ths
Neoeho valley. all under one maIaSe IN M
and control Again, the third proviso 10 me
eranfiny section in the act OF IsS reads
%Prptfded also, that no part OF the land