Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1893-10-17
AN EMPIRE INVOLVED.
Decision of the New Mexico Supreme
Court in the A. & p. Road VS..
Robert Mingus.
Two Sides of a Momentous Question
Affecting Title to Millions Of
Acres of Land.

Opinions in the case of the Atlantic &
Pacific railroad to eject Robert Mingus
from 100 acres of land situated in what is
now Guadalupe county have just been
placed on file in the territorial supreme
court.
The railroad claimed title under the act
of congress of July 81, 1866, making its
land grant, while Mingus held patent
from the United States issued December
10, 1891. Mingus' case was sustained by
the lower court, and on appeal the case
was heard during the past August term.
Judge Seeds and Judge Lee have writ
ten an elaborate opinion reciting the act
above named and holding that the or
ganization of the company and the sub
scriptions to its stock seem to have been
in accordance with the terms of the grant;
and that the lands of its grant had been
withdrawn from entry. The opinion
further recites the subseq uent acts per-
hitting the company to mortgage its
grant, franchises, etc. The history of the
construction of the road and the dates at
which the several portions were COM
pleted is also mentioned; and then
the act of forfeiture Of the un-
earned portions of the grant Is
quoted. The order of the interior
department restoring the lands opposite
the uncompleted portions OF the road to
the public domain is set up as the cru
cial factor of the case; and while the JUS
tices mention that, to declare ali act of
the highest legislative body invalid is an
extraordinary duty, on the ground, how
ever, that, whilethe U. S. congress was enti-
tied to great respect, the guarantees of
the constitution as to private prop
erty should also be respected, and
they felt justified in ruling in favor
of setting aside the forfeiture act as in
valid and unconstitutional, and that the
subsequent order Of the interior depart
ment was void. The act permitting the
road to mortgage its lands and franchises
is construed to mean confirmation OF
the lands to the road and its mortgages
The contention was made that the road
was already in default when this mort
gage act passed in 1871. Congress knew
It, yet it passed the mortgage act and
thereby placed the title to these lands in
the road and it's mortgagees that it car
ried complete fee with it and could moi
be subsequently Invested. The fact il
also noted that the language of the grant
ing act is considerably different from the
wording of similar grants, and it is con
strued therefore that congress proposed
different method of enforcing the build
ing of the road than forfeiture. The
opinion concludes:
-"For these reasons we think it would
serve no good purpose to remand the
case for further proceedings in conform
ity with this opinion, but that it will bt
better for all parties, and tend to secure
a more speedy conclusion of the questions
of law involved, if judgment is entered il
this court in favor of the plaintiff 9TH
railroad) for the possession of the lant
described in the declaration. And it il
SO ordered"
As against this holding, Judge Fall ant
Judge Freeman file contrary opinion
The same allegations as in the first opin
ion are recited and they say there is NJ
question as to the regularity of the organ
ization, subscription and mortgage; an
there has been no failure by the roa
except to construct it with due diligence
They hold that the mortgage act of 1871
passed after the road was in default, wa
only declarative of the right to mortgage
and not confrmatory of any right what
ever. They also contend that the for
fixture clause was for the benefit of tn
government. and not of the railroad, an
that time was of the essence of the cor
tract. In this respect they quote tn
Southern Pacific VS.. Esquibel, 4, N. M
337 They proceed:
"Are we then to say that tho legislature
and the courts are to have due regard fo
the rights of the grantee, and no regar
whatsoever for the rights of the Unite
States, or of the public, and shall not COZ
slider the public welfare, which is 81
pressly declared to be the object fc
which the enormous grant was made
Are we to say that congress intended
create corporation and give it the breat
of everlasting life * X and set
above the laws, above the courts, abo1
the people?"
The opinion concludes: "The act {
, 1856 forfeiting the unearned grant WI
valid and constitutional. Judgment b
low af1irment."
Robert Mingus wins the case as again
the railroad and the grant, so far as Il
courts of New Mexico are concerned. III
case will be taken to the supreme cou
: of the United States. The real amour
of land involved covers millions OF acr
lying within an 80 mile strip e1tendlr
from the A. & P. junction on the RI
Grande across central New Mexico ar
the Texas Panhandle and Indian territol
to Sepulpa.