Dodge City times., 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 RaiIroad
Land Grants.

LEAvENwORrH, KAN, September A.
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 It was an
equity ease in the name of the Attorney
General of the United States against the
Kansas City. Lawrence & Southern Kansas
Railroad Company. The bill was filed
January 25, 1888, and alleged that the rail-
road company nnlawfully 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 a transfer from the Atchi-
son, Topeka & Santa Fe, and also by an inde-
pendent 10 itself. 1t seems that the grant
to the Atchison, Topeka & Santa Fe Com
pany required that company to build
branch down the Neosho Valley. This
grant was made March 3, 1863. The Atch-
isOn, Topeka & Santa Fe Company, instead
of building 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 the
Atchison, Topeka & Santa Company, as re-
quired by the grant to that company
Judge Brewer held that the Atchison, To-
peka Il 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 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
seded the first and the patents issued under
the first grant tOthe Atchison, Topeka & 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 X. 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 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. Fl. Brewster Co, VS. the Kansas City, |
Lawrence Il Southern Railroad Company
This is proceeding in equity to set aside |
the patent to a body of land in Southern Kan |
sas. There can be no question of the right |
OF the Government to maintain such suit |
when either the ministerial officers have is |
sued q patent for lands not subject to q |
patent. or not within the scope Ofthe grants
made by Congress. 0eavenwOrth, Lawrence |
Il Galveston Railroad Company VS.. United |
States, s.! United States, 140) A case invoiv-
ing the title to the same lands was before the |
Superior Court of Kansas when / was a
member Of that court. and the conclusion
then reached was adverse to the title of the |
defendent here. tNeer VS.. Williams u Kan
sas H. So far as 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 submitted
upon an agreed statement Of facts, some Of
which are 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
of the interests involved will in
eytably send this case TO the court of last
resort, l forbear eny lengthy recital Or
discussion. Simply state very briefly the
to which upon the facts rs they
now appear have arrived.
The legal title must first be examined. That
consists of 4 patent from the State of Kan
sas dated May 10, 1878, based upon q certfi-
cate TO the State from the Commissioner of
he General Land Office. Both certificate
and patent recite that the lands passed un-
Ter the grant of March 3, 1868. Upon that
,ct therefore, rests the legal title. The
of the two grants of that act
we're as named By the State, the Leaven-
worth, Lawrence Galveston Ra lroad Com
Dany, and the Atchson. Topeka s. Santa Fe
Railroad Company. OF the first nothing
need be said as nothing is claimed. To the
second were granted lands for building
With branch from its crossing of the
Neosho, down the valley of the NeoshO to
he point where the LeavenwOrth, Lawrence
he Gaxeston yaey In Railroad ny 1864 should further en5er
yrant was made to the State to aid
n the building of road to Empora,
he Atchison, Topeka & Santa Fe crossing of
he Neosho noIthwestardly TO the Union Pa
.itic Road at or near Fort Riley. And again
n July. 1866. an act was passed by Con-
eress granting directly to what is now known
Company lands TO aid in building road from
Fort Riley southcasterly and down the Ne
,ShO Valley to the southern boundary of the
,tate of Kansas. The Ine OF this road was
therefore, for part of its distance substan-
tally the same as that of the branch Of the
Atchison. Topeka Santa Fe above referred
o. In March, 1856. the AtchiSon, Topeka Il
santa Fe assigned its franchise and grant in
aspect to this branch to the Missouri, Kan
as Texas, and in January, 1867, this assign
nent was ratified by the State.
The Atchison, Topeka g. Santa Fe never did
nything toward building this branch, but
he Missouri, Kansas Texas constructed its
ntire road from Fort Riley down the NeOsho
ALLEY. Could it claim any benefit of the
rant to aid in build ng the branch? Gener-
lily speaking | think it correct to say that
Then by separate acts at different sessions
# Congress lands are granted to two differ
mt corporations or parties to aid in build
ng lines of road. with the same general
curse or direction, by no arrangement be-
ween such corporations or parties, can the
uilding of only one road secure the bene-
is of both grants. Unless an intent to
he contrary is pla My disclosed by the Ian
uageof one or other of the acts of Con-
ress. it will be presumed either that the lat
er grant superseded the former. or else that
wO roads must be built to earn the two
rants. Such views accord with the rule ,
hat grants are to be construed in favor of
he Government and against the grantee, |
ure the public lands to actual settlers. eX-
ept in those cases in which the importance
some public improvement justifies the
ublic aid.
But beyond this general view and sustain | ,
lg it, may be noticed these facts: The act
1858 provided for branch down the
eosho Valley and not an independent cross {
Dad. Perhaps 1t wopld he giving undue i'm ,
ortance to the word branch to hold that
s use concludes the question, and yet it is
ertainly significant of the intent of Con- !
ress. Obviously that body contemplated a
ngle trunk line running southwestwardly ;
trough the State with a branch down the
eoSho valley, all under one management ]
nd control Again, the third provisO to the
ranting section in the act of 1863 reads ,