The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1885-09-11

entitled TO the lands and therefore equity
viii not Interfere. Doubtless II the promise
u true tho conctus!on will follow; This pro
SCENTS to my mind the most difhcult question
in the case and one upon which have slowly
and hesitnt,ngly como 70 CONCLUSION: j
premise this rs the correct rule applicable
10 this branch OF the case. When the
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 II had an dnadjusted equitable
claim upon the Government for an equal
quantity of unsettled lands Even the act OF
lSS6. as heretofore stated, made direct
for patents from the Government to It. 1t
granted lands in place and provided for in
demnity, lands to be selected by the Secreta-
~ of the Interior. The lands in controversy,
are not part of the lands In place, but are
within the indemnity strip.
We're they ever selected as.indemnity lands
under the act of 1852 Respondent claims
satisfy me of the fact but rather Indicates to
the contrary. 1t is true that in August, 1872,
the Leavenworth. Lawrence 4 Galveston and
filed joint claim for these lands as ndem-
nifty lands. in which the former company
claimed under the act of 1863, and the latter
under both the acts of 1858 and 1865 But the
Commissioner of the General Land Office
recognized the claim as under the act
of lass alone, and certified the lands
to the State. This was done in
tofOre, think the Missouri, Kansas & Texas
Company had no valid, legal or equitable
claim under the act of 1868. But it is said
that under the act OF 1855 it did have q valid
claim and that the mistake of the Commits.
sioaer I'm naming the statute does not de-
stroy equitable rights. But how can II be in
ferred that the Secretary of the Interior
would have recognized ANY claim under the
act of ls66, or recognizing il made a selection
OF these lands IN satisfaction thereof.
1t does not seem to me that. under the
testimony. it can be said that the Commits
sioner would or ought to have selected these
lands. Indeed. can not see how the Com
pany was entitled to SO large n body of lands
as was in fact patented and certified to it.
Counsel say that 1t was entitled to $4,000
acres nj least, and received title to only H.,
OOO. 1t may be true that it is all to
which it has received good title:
but beyond this 210.910 acres of
Usage coded lands were patented or certified
TO it and at the time of this application and
selection in 1872 aud 1873. the title of the road
thereto was, in the Interior Department at
the October term. 1915, 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 were
conveyed after such decision. So that
whatever claim for lands the road may
now have, a claim which perhaps has recOg
nized force since the above decision. do
not think it can be sad to have valid eQuit.
able title to these lands, and the court may
not take the place of the department and
make a selection. As l said before, this part
of the case presents the most doubtful and
as above, and the decree must go as prayed
for.