Thomas County cat. [volume] (Colby, Kan.) 1885-1891, 1885-09-17

entitled to the lands and therefore equity
will not interfere. Doubtless if the premise
10 true the conclusion will follow. This pre-
eents to my mind the most difficult question
in the case and one upon which have slowly
and hesitafingly come TO CONCLUSION; !
premise this as the correct rule appEcaosS
10 this branch OF the case. When tne
legal title fails, the defendant may De
feat the action by proof that the equuaDie
title to the very lands is with il, but not by
proof that il had an unadjusted equitaoio
claim upon the Government. Tor an equal
quantity of unsettled lands. Even the act OF
lss6. as heretofore stated, made a direct
grant to the railroad company IL provided
for patents from the Government to II. IL
granted lands in place and provided Tor IN
demnity. lands TO be elected by the Secrcfa-
~ of the Interior. The lands in controversy
are not part of the lands in place, but are
within the indemnity strip.
Were they ever selected as-indcmnify lands
under the act of 1857 Respondent claims
that they were. but the evidence does not
satisfy me of the fact. but rather indicates 10
the contrary. IL is true that in August lSI2
the LcavcnwOrth. Lawrence & Galveston and
the Missouri. Kansas x Texas Companies
flied joint claim for these lands as Indem-
nifty lands. in which the former company
claimed under the act OF lsd3, and the latter
under both the acts OF 1855 and lstfi. But the
Commissioner of the General Land ONCE
recognized the claim under the act
of 1863 alone. and certified the lands
20 the state. This done in
April, 1853. But for the reasons given here
tOtort, MINK the missouri, knIlS:iS & ltNds
Company had no valid, legal or equitable
claim under the act of 1853. But it is said
that under the act of 1850 il did have valid
claim and that the mistake of the Commits
sioncr in naming the statute does not de-
siroy equitable rights. But how can il he in
ferred that the Secretary of the Interior
would have recognized any claim under the
act OF lhtf, or recognizing il made a selection
OF these lands in satisfaction thereof.
1t does not seem to me that. under the
testimony. il can be said that the tommis-
sioner would or ought to have selected these
lands. Indeed. | can not sec how the Com
pany was entitled 10 so large body of lands
rs was i'll fact patented aud certified to IL.
acres ri least, and received title TO only H.
On. 1t may be true that il is all 10
which il has received good title:
but beyond this 2.03I0 acres of
Usage cedcd lands were patented or certified
10 il and n the time of this application and
selection, IN lS.2 and lS13, the tile OF the road
thereto was in the Interior Department at
least, supposed To be perfect. for not until
the October term. Is15, OF the supreme Cour.
was the title 10 these lands declared void.
and of the seven hundred and twelve thou
sand acres TO which it had perfect title, no
more than cighty-SiN thousand acres were
conveyed after such decision. so that
whatever claim for lands the road may
now have. a ella III which perhaps has recog-
niZcd force since the above decision, do
not think IL can be SAID TO have n valid cIuit-
able title 10 these lands. and the court may
not take the place of the department ana
make a selection. As ! said before, this part
of the case presents the most doubtful! and
as above, and the decree must go as prayed