The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-12-29
THE SANTA FE WINS OUT
Celebrated Receivership Suit Ter
inmates in its Favor.
PETITION OF THE STATE OF
KANSAS REFUSED.
Ruling by Judge Lewis A. Myers
Yesterday-The Alien Land Law
Does Not Apply to Railroads
VIII Be Carried Up to the Kansas
Supreme Court.

Oskaloosa, Kan, Dec. 2S.-The cele-
brated suit for a receiver of the Santa
Fe property in Kansas. was decided
here this afternoon by Judge Lewis A.
Myers, in favor Of the Santa Fe com
pany.
Court convened at o'clock and
Judge Myers at once handed down his
decision and written opinion. The gist
of the decision is that the act known
as the alien land law. under which the
suit was brought, does not apply to
railroads and that the right of way of
a railroad company is not real estate
in the eyes of the law The other queS-
tionS of law raised by the attorneys on
both sides were not passed upon by
Judge Myers, as he held this point
alone was sufficient to end the litiga-
ton. The decision is d complete vic
tory for the Santa Fe. The attorneys
for the plaintiff will at once take steps
to carry the case to the Kansas su-
preme court on an appeal. They will
also make an effort to get the case re-
opened in this court on a new point
suggested by Judge Myers decision,
that the right of way of the Santa Fe
is held not to be real estate.
Every effort viii be made to get
speedy hearing in the supreme court
and it is thought it will come up at the
FEBRUARY term.
The decision today is upon the hear
ing recently had before Judge Myers at
Leavenworth.
In the district court of Jefferson
county today, Judge Myers refused the
petition of the state of Kansas against
the Atchison, Topeka & Santa Fe Rail-
way company to forfeit and sell the
property of the railroad. The previous
orders appointing a receiver and grant
inc irai1 in Dir
judge announced, would be set aside
The opinion holds that the provisions
of chapter 3, session laws of 1891 re-
lating to aliens under which the action
was brought, are not applicable to
railroads.
The judge says: 1T is only necessary
to express an opinion upon one ques-
ton argued before the court. That is
the pivotal point in the case 1t is:
Does chapter of the session laws of
1891 apply to property necessarily used
in the operating of a railroad?' The
statute is then cited and the opinion
continues: THE great weight of jul
dicial authority in this country is that
the property of a railroad company,
necessary for the operation of its rail-
road. can not be seized and sold in
parcels under an execution.
THE courts have so held invariably,
when considering the words, real eS-
tate and lands that the same should
not be taken to mean roadbed or right
of way of a railroad company, or other
property necessary for it to use in the
performance Of its chartered obliga-
lions. The real estate held or acquired
by public corporation, like that held
or owned by a railroad company in the
exercise of eminent domain and neces-
sary for uses in which the public is
concerned, is not within the meaning
of the law real estate
Then follows citation in several cases,
and the opinion concludes as follows:
Considering all of the provisions of
the statute of 1891, in view of the well
known mischief intended to be rene
died thereby, and especially in view of
the express terms of the statute pro-
viding how real estate forfeited must
be divided into parcels and sold l am
forced to conclude that the term real
estate employed in section and other
sections of the statute was not intended
to embrace a railroad or any essential
part thereof. The legislature did not
intend to make the provisions of the
statute applicable TO railroads.
The statute fails to provide for a
forfeiture of railroads on account of
alien ownership of capital stock in rail-
way corporations and no petition can
he formulated under the provision of
this statute which should be sufficient
to forfeit and sell the property of the
defendant corporations, used in the
operation of its railroad.
In my opinion, neither the letter TOR
the spirit of the statute includes rail-
roads. The orders appointing a re-
ceiver and granting injunctions in aid
thereof, will be vacated and set aside