Dodge City times., 1885-09-10
entitled to the lands and therefore equity

entitled to the lands and therefore equity
\ will not interfere. Doubtless IL the premise
| ID true the conclusion will follow. This pre-
!ents to my mind the most dificult question
| In the case and one upon which have slowly
| and hesi!atngly come to a conclusion. ]
premise this as the cgrrect rule applicable
legal title fails, the defendant may de-
| feat the action by proof that the equitable
title to the very lands is with it, but not BY
proof that it had all unadjusted equitable
claim upon the Government for an equal
quantity of unsettled lands. Even the act OF
1850. az heretofore stated, made q direct
grant to the RAILROAD company. 1t provided
for patents from the Government to it. 1t
granted lands in place and provided for in
demnity, lands to be sc elected by the Secreta-
ry 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.indemnity lands
t1nder the act Of 1895? Respondent claims
that they were. but the .evidence does not
satisfy me OF the fact but rather indicates to
the contrary. 1t is tSue that in August 1872,
the Leavenworth, Lawrence Galveston and
the Missouri, Kansas Texas Companies
filed Joint claim for these lands as .ndem-
nifty lands in whish the former company
claimed under the act OF 1864, and the latter
under both the acts of 1858 ard lSl6. But the
Commissioner of the General Land O:ies
recognized the claim as under the act
of 1853 alone. and certified the lands
to the State. This &as done in
April, 1873. But for the reasons given here
u.
Company had no valid, legal or equitable
claim under the act of 1868. But it is said
that under the act of 1866 it did have q valid
claim and that the mistake of the Commits
siOner in naming the statute does not de-
stroy equitable rights. But how can il be in
ferred that the Secretary of the Interior
would have recognized any claim under the
act Of 1866 or recognizing it made a selection
of these lands in satisfaction thereof.
1t does not seem to me that, under the
testimony, it can be said thai the Commits
siOner would or ought to have selected these
lands. Indeed. | can not see how the COM
pany was entitled to so large body OF lands
rs was in fact patented and certified to it.
Counsel say that it was entitled to $500
acres at least, and received title to only H.
OOG 1t may be true that it is all to
which it has received q good title;
but beyond this 210,970 acres of
Usage ceded lands were patented or certified
to ii and ut the time of this application and
selection, in 1872 and 1913, the title Of the road
thereto was, in the Interior Department at
least. supposed to be perfect, for not until
the October term, 1875, of the Supreme Court
was the title to these lands declared void,
and of the seven hundred and twelve thou
sand acres to which it had a perfect title. no
more than eighty-six thousand acres We're
conveyed after such decision. So that
whatever .claim for lands the road may
now have, claim which perhaps has recOg-
niZed force since the above decision. do
not think it can be said to have a valid equit-
able title to these lands, and the court may
not take the place of the department and
make a selection. AS said before. this part
of the case presents the most doubtful and
question, but my conclusion is
as above, and the decree must go as prayed
for.