The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-02-09
THE u. P. WINS IT.
Farmers Lose Contest Over
Right of Way.
Judge Pollock Gives Railroad
Possession of Land.
BIG SUM INVOLVED.
Question Came Up Over Double
Track Construction.
Company Claimed 200 Feet from
Topeka to Kansas City.


| disputed possession this morning un-
| der decision of Judge Pollock in the
| United States circuit court of all of its
| original right of way, 200 feet on each
! side of its track from the western
| boundary of Leavenworth county to
| within a few miles of Kansas City.
about thirty miles of right of way
claimed by farmers whose property
abuts on the railroad
Property valued at upwards of
$150,000 is involved and the estimated
! acreage is about 1900 of the choicest
Kaw bottom land. The case has been
a bitterly fought and a long drawn
out one.
The railroad company claimed that
the right of way in question was
originally granted to the Leavenworth,
Pawnee & Western Railroad company
by an act of congress of July L. 1852,
which in express terms provided
''That the right of way through the
public lands be and the same is here
by granted to the said company; said
right of way is granted to the said
railroad to the extent Of 200 feet IN
width on each side of said railroad
where it may pass over the public
lands and the United States shall ex-
tinguish as rapidly as may be the In
dian titles to all lands falling under
the operation of this act and required
for said right of way"
The act of July 1, 1862, is generally
known as the Union Pacific act but one
of its sections granted to the Leaven-
worth, Pawnee & Western Railroad
company the same rights given to the
former company.
The right of way in dispute was
across the Delaware diminished reser-
walton which included all the lands on
the north side of the river extending
from the west line of Leavenworth
county to a point a few miles this
side of Kansas City; that reservation
had been set aside for the Delaware
Indians by treaties dated September
pa 1929. May 5, 1854, and May 80,
1860. The last treaty diminished the
reservation and provided for the al
lotment in severalty of so acres OF the
land to each member of the Delaware
tribe.
After that was done the act of July
1852, granting the right of way was
passed and it was claimed by the al
iottees that the grant being subsequent
to. the allotment did not affect lands
within the boundaries of the reserVa-
ton. When the Union Pacific, which
was the successor in interest of the
Leavenworth,. Pawnee & Western built
its road from Kansas City west it
claimed right of way 400 feet wide
through the reservation and built its
road under the terms of the act of con-
gress. At that time the entire right OF
way was not needed and the railroad
company placed its right of way fences
so feet from the track on each side but
always claimed to be the owner of the
400 foot right of way. As the country
settled up the persons acquiring land
along the line of railroad used the UNI
enclosed part of the right of way in
various ways and finally asserted own
ership to it, There have been many
cases involving this title and in all of
them the claim of the railroad COM
pany to the entire right of way has
been upheld.
In 1905 the volume of business on the
L, 4 II IN
extent that it was necessary to build
second track from Kansas City to To-
peka, and to reduce grades and curves
in the original track. To do that re-
uuired the use of portions of the outer
$50 feet of the right of way and when
the railroad company attempted to
change it's track the adjoining land
owners objected and attempted by
force to keep the company within the
100 feet enclosed within the right of
way fences.
When the railroad company saw that
force was being used which might lead
to serious trouble it brought a suit in
the United States circuit court asking
to have the defendants restrained from
interfering with its use of the 400 foot
right of way. On March IA, 1905, a re-
straining order was granted but the |
railroad company was required to file a |
bond in the sum of 900 to indemnify |
the land owners for damages. While |
the litigation was pending the second |
track was completed and necessary |
changes were made in the original |
track AS a matter of fact the railroad J
company did not attempt to possess |
itself of the entire 400 foot strip clear |
across the Delaware reservation but |
only took possession of the land act |
ually needed at places where changes |
in the track were necessary. The case |
was argued before Judge Pollock some |
time ago and he has had it under adj |
visement until now.