The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1885-09-11
IMPORTANT DECISION.
A Victory for Settlers on Alleged
Railroad Lands.
Judgr Brewer. of tho United States Cfrcuit
Court, Delivers an Important Deci-
sion I'm Regard to Railroad
Land Grants.

Court. Delivers an Important Deci.
sion I'm Regard to Railroad
Land Grants.
LEAvENwoRTH, 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. 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 bill was fled
January rs, 1883, and alleged that the rail-
road company unlawfully held twents-seven
thousand acres of land, having obtained
patents to which it was not entitled.
The lands are in Allen County, and are inn
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 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 Il 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
sach a 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 l. 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 & Texas
Company had attempted 10 get both grants.
while building only one road. Judge
Brewer held that the second grant super
setled the first and the patents issued under
the first grant tothe AtchisOn, Topeka & San
II 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 r 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.
Il. H. Brewster Co. VS.. the Kansas City,
Lawrence q Southern Railroad Company
This is proceeding i'm 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 SUIT
when either the ministerial officers have IS
sued patent for lands not subject to q
patent. or not within the scope of the grants
made by Congress. Ueavenworth, Lawrence
& Galveston Railroad company vs. United
States. g. United States. ,40,. A case involv-
ing the title to the same lands was before the
Superior Court of Kansas when l was a
member of that court. and the conclusion
sesccdent here. iNeer vs.. Williams - Kan |
Sas H. So far as any matters were considered
by that court shall say nothing, but refer |
simply 10 the opinion then wrote. see no
reason TO doubt the correctness of the views |
then expressed. That case was subm tied |
aisSs: an sgreef statement of facts, some of |
which sse 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 |
eviably send this case to the court of last
resort. / fOrbear any lengthy recital or
discussion 1 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
consists of a patent from the State of Kan
sas. dated Nav 49, 1875 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 ), 1868. Upon that
act, therefore. rests the legal title The (!
bcneficiaries of the two grants of that act
were as named by the State the Leaven- |
worth, Lawrence Il Galveston Ra ilroad Com |
gany, and the Atchison; Topeka Santa fe
need be said as nothing is claimed. To the |
second were granted lands for building a |
railroad from Atchison. enthusiastically |
with q branch from its crossing of the |
Neosho, down the valley of the Neosho to |
the point where the Leavenworth. Lawrence
Z Galveston Railroad should enter
grant was made to the State to aid |
IN the building of road to Emporia, |
the Atchison. Topeka & Santa Fe crossing of |
the Neosho northwestardly 10 the Union Pa |
cific Road at or near Fort Riley. And again |
In July. 1885, an act was passed by Con- |
gress granting directly to what is now known |
"a the Missouri, Kansas Texas Raj road |
Company lands to aid 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- I
italy the same as that of the branch Of the |
Atchison. Topeka Santa Fe above referred |
10. In March. 1856. the Atchison, Topeka g. |
Santa Fe assigned its franchise and grant in |
respect to this branch to the Missouri, Fan |
eas Texas, and in January. 1866, this assign |
ment was ratified by the State.
The Atchison. Topeka L. Santa Fe neverdid |
anything toward building this branch, but .
the Missouri. Kansas Texas constructed its |
entire road from Fort Riley down the Neosho |
Valley. Gould it claim any benefit of the |
grant to aid in build ng the branch? Gener- |
ally speaking think ii correct to say that |
when by separate acts at different sessions !
ent corporations or parties to aid in build
ing lines of road. with the same general |
course or direction. by no arrangement be-
building of only one road secure the bene.
Hts of both grants. Unless an intent to
the contrary is pla My disclosed by the Ian
9nage of one or other OF the acts OF Con-
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 settiers. ex
cept in those cases in which the Importance
OF some public improvement justiHes the
public aid.
But beyond this general view and sustain
Ing it. may be noticed these facts: The act
of 1853 provided for q branch" down the
Neosho Valley and not an independent cross
f0ad. Perhaps It would be giving undue i'm
ifs use concludes tn. question, and Vet it is
certainly significant of the intent of Con-
gress. Obviously that body contemplated a