The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1895-03-29
REGISTERS OFFICE.


"A copy is hereto attached and admitted as
evidence:
REGISTERS OFFICE.
No. 2l15 Humboldt. Kans
July Il. 1866
certify that NeSton L. Ard has this day fill
ed in this office his notice to claim by right of
presumption the west half of the southeast
quarter OF section No, 2 in township No p ..
IN range No 20 east of the sixth principal me
ridian, in the State of Kansas - 50 per acre.
within X. X. limits.
WATSON STEWART. Register
Said W lords and figures, $3.50 per acre. with
in K X limits being written in red ink trans
vcrsely across the face of the certificate"
1t also appears from his testimony
that subsequently and in the fall Of
1866 and in the spring of 1867 he did
further work on the land and built a
house thereon; that about July l, 1867,
he again went TO the land office, but
was told by Col. n. $. GOss, then the
register, that he could neither change
his presumption into a homestead
entry nor prove up under the pre-
emptiOn law. In 1872 he made formal
application to prove up on the land,
but his application was denied by the
local land officers. From this denial
he prosecuted an appeal to the Com
missioner of the general land office
and thence to the Secretary of the
Interior by both of whom the decision
Of the local officers was affirmed.
The judgments of the District Court
were in favor of the plaintiffs, which
judgments were afterwards affirmed
by the Supreme Court of the State on
the ground that the legal title passed
by the instruments offered in evidence
through the railway company to the
plaintiffs, and that the decision of the
Land Department upon the facts of
defendants occupation and improve
ments was conclusive as against his
equitable rights. To reverse these
judgments the defendant sued out
writs of error from this court.
Mr.. Justice Brewer delivered the
opinion of the court.
AS these lands were not within the
place limits of either the l.. l.. d @. or
the NJ. *. d. Il. railroads and as they
were in tie indemnity limits of both
roads, it is not open to question that
the certification by the Land Depart
ment to the State of Kansas and the
conveyance by it to the railway COM
pany of the one tract, and the patent
directly from the United states of the
other operated to transfer the legal
title to these two tracts to the railway
company, and also that the United
States has no cause of action against
the railway company or its grantees
to disturb the legal title thus convey
ed. Or. r. company VS. Attorney
General, lis, u. s. 6S2; United States
VS. Railroad Co., al U. S. 1851 But it
is equally clear under the aut hOrity of
q hn Ioo al oil Of "
others, that no adjudication against the
government in suit by it to set aside
a patent estops an individual not q
party thereto from thereafter setting
up his equitable rights in the land |
for which the patent was issued. |
Referring to the allegations in the bill
of the United States in that case of
matters very like those presented |
here, Mr.. Justice Harlan, speaking |
for the court said, page 379): eff the
facts are as thus alleged, it is clear |
that the MissOuri-Kansas Company |
holds patents to land both within the |
place and indemnity limits of the
road which equitably |
belong to bona fide settlers who ac-
quired rights under the homestead |
and presumption laws, which were not |
lost by reason of the land department |
having, by a mistake or erroneous in
of the statutes in question
caused patents to be issued to the
"The question therefore is whether
the cases disclose equitable rights in
the defendants superiority to the
claims of the railway company. If his
rights are only those which spring
from presumption entry and subse-
quent occupation of the lands it may
well be, as held by the Supreme Court
Of the State, that the decisions of the
land department upon the question of
fact are conclusive against him. But
we are of the opinion that the testi-
mony shows a right anterior to his
entry-a right Ofwhich he
was deprived by the wrongful acts of
the local land officer, and which he
did not forfeit or lose by virtue of his
efforts to pre-empt the
land. According to his testimony he
had commenced improving the prem
ises prior to July IA, 1866. He was
qualified under the laws of the u ).
TO make a homestead entry. The
land was not within the place limits
Of either road, and had not been with
drawn by the land department from
entry and settlement, for the orders
for withdrawal were not made until
March 10 and April 80, 1867. He had
therefore on July II, when he went
to the land office, the right to enter
the entire 160 acres as a homestead.
This right be demanded. He made
)ut homestead application for the
and as described, rendered the appli-
cation and the land office fees to the
register of the land office, but the
register rejected the application, CIV
ng as a reason therefor that the land
was within the granted limits of the
Z. l.. & G.. railroad, and was double