The Abilene reflector. [volume] (Abilene, Kan.) 1883-1888, 1885-09-10

entitled to the lands and therefore equity
will not interfere. Doubtless if the premise
is true the conclusion will follow. This pre-
sentS to my mind the most difficult question
in the case and one upon which have slowly
and hesitat ngly come TO conclusion.
premise this "a 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 IL but not By
proof that il had an unadiusted equitable
claim upon the Government Tor an equal
quantity of unsettled lands. Even the act OF
ISS6. as heretofore stated, made a 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-
~ of the Interior. The lands in controversy
are not part Of the lands i'll place, but are
within the indemnity strip
We're they ever selected as indemnity lands
under the act of 1866! Respondent claims
that -theV were. but the evidence does not
satisfy me of the fact but rather indicates TO
the contrary. II - true that IN August, 49,.
the LcavenwOrth, Lawrence n Galveston and
the Missouri. Kansas ~ Texas Companies
filed a JOINT claim for these lands as ndem-
nifty lands. in which the former company
ella med under the act Of lst3, and the latter
under both the acts of 1855 and lS6j But the
Comm 's>fOner of the General Land Office
recognized the clam as under the act
of 1853 alone. and certified the lands
to the State. This was done in
April. 1888. But for the reasons given here
tOfOre, Tn INK the missouri, Kansas y leAaS
Company had no valid. legal or equitable
claim under the act of 1868. But il is said
that under the act of ls66 IT did have valid
clam and that the mistake of the Commits
siOner in naming the statute does not de-
strov equitable rights. But how can it be in
fcrred that the Secretary of the Interior
wOuId have recognized any ella IN under the
act of 1866 or recognizing it made selection
OF these lands in satisfaction thereof.
Ii does not seem to me that, under the
testimony. II can be said that the Commits
siOner would or ought to have selected these
lands. Indeed. can not see how the Com
IN fact patented and certified to Il.
Counsel say that il was entitled to Sl9.2O
acres al least, and received title to only H.
0J 1t may be true that il is all 10
which il has received a good title;
but beyond this 2109I0 acres of
Usage ceded lands were patented or certified
to it and at the time of this application and
selection, in lSI2 and 1873. the tie of the road
thereto was, in the Interior Department mt
least, supposed to be perfect for nOt until
the October term, 1873. 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 Il 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 ella III which perhaps has recOg
niZed force since the above decision, do
not think IL can be sad TO have valid equit-
able title to these lands, and the court may
not take the place of the department and
of the case presents the most doubtful and
question, but my conclusion IS
as above, and the decree must go as prayed
for.