The San Francisco call., 1899-05-27
SOUTHERN PACIFIC
LOSES SOME LAND
SUPREME COURT DECIDES IN
FAVOR OF SETTLERS.
Important Question Determined ir
Contests for Odd Sections in In
demnity Grant Limits.

A decision of the Superior Court of Los
Angeles County in two important railroad
land cases was upheld yesterday by the
Supreme Court. The Southern Pacific
Railroad Company brought separate ac-
tions against Frank A. Wood and others
and Frederick b. Jacks and others. BY
an act of Congress of 1866 the railroad
company was granted every odd section
of land lying within ten miles of it's line,
which grant was for the purpose of as
sisting in the building of the road. The
lands in question in this action, now well
settled lie within the indemnity limits of
the grant to the railroad The defendants
claim the land under patents issued to
them as settlers under the land laws of
the United States. To the complaints to
oust them from the lands the defendants
put in a demurrer, explained In the last
decision, and from which the railroad
company appealed. The sustaining of the
demurrer also sustainS the claims of the
settlers and as there are no doubt many
similar cases of settlers within the in
demnity limits of the company, the de-
| cision is of no small importance. An in
teresting point is brought out by the
higher court in this language:
Whatever right the plaintiff asserts or may
have is based upon said act of Congress of
1865 and its acts hereunder, while the
defendants rights are based upon the pre-
emption laws of the United States and their
compliance Herewith: and the defendants
patent was issued prior to the selection of the
same lands by the plaintiff they must have a
better right If said lands subject TO pre-
emption; and that they were so subject unless
Withdrawn from pre-emption by the act Of
1866 or by executive action Hereunder is not
questioned Section of said act (above
ouoted) provides: And the odd sections of
land hereby granted shall not be liable to sale
or entry or pre-emption before after they
are surveyed, except by said company as pro-
v!ded in this act''; but it is further provided
that the pre-emption act of 1S41 and the home
stead act of 1862 and the acts amenda tory
thereof shall be and the same are hereby ex-
tended to all other lands the line OF said
road where surveyed excepting those hereby
granted TO said company"
The court upon this point takes the
view that: THE title of the grantee re-
lates back to the date of the act but does
not attach to the lands to which the
United States did not nave full title at
that date or were otherwise eXcepte d
from operation of the grant, even Though
they should afterward be freed from
claim or possession which excluded them
under the grant" and in conclusion says:
But it is not necessary to a decision of the
present case to decide that question (the right
of the Land Department TO withdraw certain
indemnity lands from settlement for these
lands were not withdrawn by force OF the
act of Congress, and the withdrawal having
been revoked and the complaint does not
allege that Woods settlement made be-
fore the revocation, while they with
drawn it is not shown that his settlement was
Illegal or unauthorized that the patent was
improperly issued