Los Angeles daily herald., 1889-05-28

uppTTEU
peal to the District Court, that Court, at its Dc
cember term, 1854, rendered its decree in eac
case, affirming that of the Board of Land Com
missioners confirming TO Dalton, Palomare
aud Vejar an equal undivided onethird eacl
"of the lands of San Jose granted by Juan i
Alvarado Governor OF California TO lgnaci
Palomares and Ricardo Vejar, on April 10
1887, and re.granted by said Governor OF
March ID, 1S4O, to said Palomares and Vejal
aud to Louis AIenos, as described in the gran
first mentioned and the m ap to which the sam
refers, and which boundaries fully appear iron
the act of judicial possession" (described sur
| stantially as follows) commencing at tn
foot of black walnut tree, thence westerl
300 varas to the foot of hills called Las Lano
de Ia Puente to large walnut tree on the slop.
of small hill on the side of the road whicl
| passes from San Jose to Puente thence north
Jose, opposite high hill at q large oak; thence
easterly 10 900 varas to the Arroyo San Antonio
| to- two young cottonwood trees; thence south
| erly 9,70O varas to the place of beginning,
| from which decree there was no appeal, and
| the same became final. That under the direc
| ton and on behalf of the United States Sur
vey3r General, one George H; ThompsoSna. n; Sa1 1bep
to include, as. a part thereof, all the
lands described in the patents In ques
| survey was duly approved by said Surveyor
General and the same was then spread upon
the records of the General Land ONCE and OF
sequent to Msy l, 1871, the sold Surveyor Gen.
eral made another survey of said San Jose,
grant upon which the United States did on
ton, Vejar and Paiomares, which patent was
duly accepted by said claimante, and which
said patent and final survey di0 not include
any of the lands described in the patents in
question, but that all the said lands ''were
claimed and occupied by said Henry Dalton,
Ignacio Paloma'es and Ricardo Vejar. their
heirs and asssgnl, as a part OF said San Jose
grant,as petitioned for, granted and confirmed.
located and SURVEYED from August 1868 till
March l, 1872"
The bill. as amended, also alleges that by the
titled "An Act to forfeit the lands anted to
the Atlantic und Pacific Railroad Company to
aid in the constl uction of q railroad and tele.
graph line from the States of Missouri and Ar
kansas to the Pacific Coast, and to res tore the
same to settlement and for other purposes Z"
all the lands and rights to lands In California
heretofore granted and conferred upon SAID
Atlantic and Pacific Railroad Company were
forfeited, resumed and restored to entry for
non-completion of that portion of said railroad
to have been constructed in California.
alleged that the plaintiffs have elected and do
elect ito hold, select, reserve and set apart all
the lands in suit herein as part of said twenty
sections pei mile granted to said Atlantic and
Pacific Railroad CO. by said act of CONGRESS @
of July 27, 1866, and which were deducted
and excluded from said grant to the Southern
Pacific Railroad Company on account OF said
grant to the Atlantic and Pacific Railroad Com
pany, and also on account OF said San Jose
rancho and the location, claims and survey
thereof" and, further, that the route of the
mated by the plat thereof filed in the Office of
the Commissioner of the Central Land Office, as
aforesaid and as located and constructed is,
and it was necessary that it should be- up n the
same general line as that of the said Atlantic
and Pacific Railroad Company, as designated
by the plat thereof filed by said Company as
afore said, and all the lands. in suit herein are
situated opposite to that portion of said routes
which are upon the same general line and are
upon the same side of the designated route of
the Atlantic and Pacific Railroad Company as
the lands for which that Company had a rie hit
to select Indemnity or lieu for prior to July g..
1866, and which right since that time h as been
in the United States"
Allegations are also made as to the value of
the lands in controversy and in respect to the
claims of the defendants thereto. Three other
cases, entitled. respe ctively, United States vs.
Southern Pacific R. R. Co. ct al, No. 81, United
States VS.. Southern Pacific R. r. Co. ct 81, No.
SO, and United States VS., The Cotton Marble
and Lime Co. ct al, No. 88, were submitted at
the same time as the present case and upon the
same arguments and as they involve sub.tan-
TALLY the same questions, what is here said will
apply to them as well.
While in these cases but a comparatively
it seems from from o decision of the Secretary
of the Interior rendered June %. 1888, and re-
ported in Vol. of the Land Decisions, page
BIG, were instituted by the Government to test
its right to a large amount of land similarly
situated That decision was used upon an ap-
plication on the part of the Southern Pacific
Railroad Company that it be called on, under
the act of Congress of March 3, 1887, for o re-
conveyance of the lands which were held by
the Land Department to have been improperly
patented to said company, so that for a refusal
ernment to set aside such patents, and that 10
further patents should be issued to said Com
pany for lands in the limits of the forfeited
pany; and also that the then subsisting with
drawal of lands Within the primary grant limit
of the Southern Pacific Railroad (branch line),
which are also within the granted and indem-
nifty limits of the Atlantic and Pacific Rail
road, should remain uDdisturbed until the
rights OF the Southern Pacific Company should
be determined by suits before the courts. The
Secretary, in deciding upon the application,
after dividing the lands covered by the grants
into three classes, tO-wit
l.. Lands within the common primary limits
of the grant to the Atlantic and Pacific Rail
road Company, and of the grant to the South.
ern Pacific Railroad Company (branch line)
Lands within the primary limits Of the
grant to the Southern Pacific Railroad Com
pany tbranch line) and within the indemnity
limits of the grant to the Atlantic and Pacific
Railroad Company
grant to the Southern Pacific Railroad Com.
pany (branch lineJ, and within the primary
limits of the grant to the Atlantic and Pacific
Railroad Company, held, that as to the lands
embraced in the first class as thus divided, for
which patents had been issued to the Southern
Pacific Railroad Company, suits should be
Drought 10 duuui JneH, ana U1Ab all pending
selections of similar lands be cancelled, and
other unpatented lands within said limits be
restored to settlement and entry; and that the
request of the railroad company that such
lands be held In reservation until the rights OF
the company thereto could be determined by
the courts be denied, the Secretary basing his
conclusions in that respect upon the decisions
of the supe rior Court in the cases of the Mis-
souri,, Kansas and Texas Railway Company vs.
Kansas Pacific Railway Company, 81 u s. 49l
and the st. Paul and SIOUX City Railroad Com
pany VS.. Winona and 1t. Paul Railroad Com
pany, 112 U. s. 720.
In respect to the lands embraced in the third
class the Secretary authorized the institution
of like proceedings upon the authority of the
supreme Court in the cases of the Kansas
Pacific Railroad Company vs.. Atchison, Topeks
and Santa Fe Railroad Company, liz U. 3
Ala, and Sioux City and ST. Paul Railroad
Company VS. Chicago. Milwaukee and St. Pau,
Railroad Company: ~ U 8. 4o6;
class, while expressing a doubt whether the
| seIvation OF prospective rights (of the At
lantic and Pacific Railroad Company pre-
vented the attachment of the grant of the
| Southern Pacific Company to lands in place, he
did not feel disposed to disturb the ruling made
| by the Department in the cases of Gordon
| VS.. Southern Pacific Railroad Company Is L.
| D GID, of Coble (6 l.. D., $40 and 812) and
| of Vass decided December 10, 1887, in which
cases 1t was held that lands within the indem-
nifty limits of the Atlantic and Pacific Railroad
| Company were excepted from the operation OF
| the grant to the Southern Pacific Company by
| the proviso to the twenty.third section of the
| act of March 8, 1871, although said lands fall
within the granted limits of the Southern Pa
eifc railroad, because the Atlantic and Pacific
| Company had g prospe ctive right of selection
of said lands whenever its grant should be 10
Gated. But in view of the doubt expressed the
| Secretary colcurred in the Recommendations
of the Commissioner of the General Land Office
| that the unpatented lands OF this class be con-
tinued in reservation pending adjudication by
the courts, or until such time as the Depart
i NAnf chn . to IOWA