Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1901-09-14
may COST large SUN.
More About Judge shiras' De.
cision in the O'Brien
Land Cases.
If Ruling is Sustained by Higher
Courts Railroad Will Have
to Pay.
Estimated That Sioux City & ST.
Paul Will Have to Re.
fund $4,000.

SIOUX city, sept. lo.--Ine 0eclSioA VI
Judge Shiras, of the federal court, in the
famous O'Brien county land cases will,
if sustained by the higher judiciaries,
probably cost the Sioux City & ST. Paul
Railroad Company something like s27l,-
1925.
The "unearned lands claimed by this
railroad company under the original
grant amounted to 21,692.lS acres that
figure being specified in the 1895 decis-
ion of the supreme court which re-
stored the title to the United States. OF
this acreage, practically all was sold,
and at an average price of about $3.50
per acre The land is actually worth
about $50 an acre, but 1t was sold at the
lower figure because of the imperfect
I title Now, since the federal judiciary
has held that the railroad has no title to
this land, and since the last decision of
Judge Shiras has practically held that
the purchasers We're not innocent pur-
chasers and are not entitled to the land,
attorneys believe that the buyers can
recover whatever money has been paid
to the railroad company for the land
1T is my opinion that the purchasers
can recover from the railroad" said NJ.
b. Davis. who was retained. as counsel
in the O'Brien county cases. In my
briefs I regarded the sale of land after
the 1887 act as speculative act found
that seven individuals had made fifty
| nine purchases. including $3.50 acres.
and this certainly does not indicate that
the purchasers were bona fide settlers,
acquiring the land for homestead pur-
poses. / think the sale of these 'un-
earned lands as conducted by w. p.
| Jewett, of st. Paul, land commissioner
for the Sioux City & st. Paul railroad.
is generally regarded as simply the dis
posal of Jewett's prospect of securing.
title, and he seems to have regarded
that in about the proportion of $3.50 an
acre to $50 an acre
| The railroads troubles began when
| the remedial act of March g. 1887, was
passed by congress. providing for the
adjustment of land grants to which rail-
road companies were not entitled by
reason of their failure to comply with
I the necessary conditions. Immediately
after this act the railroad company be-
gan making contracts of sale calling for
| Q series of cash payments. Then, under
| the 1887 act, suit was begun by the
| United States against the Sioux City &
st. Paul Railway Company to recover
1 title to the unearned lands. and the SUI
preme court, in 1885, held against the
railroad and restored the land to the
government. The land was opened to
| homesteaders, and practically all of it
| is now contested between the grantees
| of the railroad company and the paten-
tees under the homestead act
\ The original contracts of purchase
made by those who bought portions of
| this unearned land contained this pro-
/ vision:
In case the said second party shall
pay the several sums of money afore-
said, punctually. and at the several
times above limited and shall strictly
perform all and singular the agree
ments and stipulations aforesaid, ac-
cording to their tenor and intent, then
the first party will make unto the sec
\ ond party. heirs or assigns. deed con-
veying said premises3in fee simple, with
the ordinary covenants of warranty"
The fact that the purchasers are en-
titled under the above contract. to de-
mand warranty deed from the rail-
road company is equivalent to guar
anty of title by the railroad company,
and failure to establish title after con-
veyance of warranty deed is recog-
4 niZed as giving the purchaser right to
recover the purchase money.
But it would appear from a supple
mental contract made by the railroad
company that it was the intention of
\ the railroad to refund the purchase
money in case of failure to establish
4 title. These supplemental contracts
4 We're made with an unknown part of
the land purchasers. after suit was be-
i gun against the railroad company in
/ 1890 to recover title to the land in con-.
troversy The supplemental contract
was to the effect that If the supreme
court should finally decide adversely to
the right of the railway company to
hold the lands under the grant. the pur-
chaser would surrender his contract OF
/ purchase to the company, upon pay
ment to him by the company of all
money received from him.
The secretary of the interior held
this supplemental contract to be an
annulment of the first one. but Judge
Shiras decided it was nothing more
4 than stipulation as to the measure OF
damages the purchaser would be enti-
| tied to recover.
The supplemental contract would UNI
questionably give all holders the right
to recover the purchase money.
Besides the right in recovery, which is
implied in both of the above contracts.
attorneys believe thu, there is fur
Their chance for the purchasers to recov-
err under a clause in section 4 of the
congressional act of 1887, which reads:
Provided that nothing in this act
shall preevnt any purchaser of lands err
roneously withdrawn, certified or pat
ented az aforesaid, from receiving the
purchase money therefor from the
grantee company. less the amount paid
to the United States by such company
as by this act required
The question which arises in apply
ling this provision to the purchasers
4 from the Sioux City & ST. Paul Railway
Company is to be found in the fact that
the land in this particular controversy
4 was sold by the railroad after the pas
sage of the above act; and. that, being
a remedial act. it is doubtful Whether
4 lit will apply to land sold after Its pas
sage.
!. A. L. BoIlinser Dead.
i Davenport, Sept. ia. L. Bolinger
president of the sieg Iron Company.
4 died suddenly yesterday OF paralysis OF