Los Angeles herald., 1910-11-21
S.P. CAN MAKE ONLY
TECHNICAL DEFENSE
Edmund Burke in Suit to Recover
Mineral Lands DiscIoses the
Railroads Weakness

lllS OOuluGiA clIlllC WIZ SSAAN NR 80
the federal court here today in an at
tempt to recover part of the mineral
lands held by that corporation under
patent containing an exception TO
, mineral, contends in an open leteer
that the Southern Pacific at best makes
and can make only technical defense.
Mr.. Burke's letter is supplementary to
a series of open letters between Judge
Frank Fl. Short, a corporation lawyer
of Fresno, and Editor Charles 2. Fox
of the California Oil World
The gist of these letters has already
been published in The Herald, wherein
it was made plain by excerpts from de-
csions, deeds and contracts that the
Southern Pacific does not own any
mineral contained in the lands of its
grants from the government, except
coal and iron.
Even its recent patent to some 100000
acres in this state, signed by William
H. Taft, that made no provision for the
exception of mineral therein, is fully
covered by an act of congress, leaving
practically nothing upon which the
Southern Pacific can base its defense.
The text of Mr.. Burke's letter to Mr..
Fox follows:
"The issue on that subject is now
made up and will be presented to Judge
Ross on the 21st inst. in suit that L
am maintaining against the Southern
Pacific Railroad company to recover
part of the mineral lands covered by
patent containing an exception to min
eral lands. When this suit was first
instituted it was termed raid on
vested rights and upon the rights of
innocent purchasers, and lawyers rep
resenting the Southern Pacific Railroad
company affected to treat the suit with
disdain. prophesying that 1t was not
based on a sound legal proposition and
would quickly fail, and now, on the
eve of the contest, we ind the South-
ern Pacific Railroad company interpos-
ing only technical defenses and seek
ing. through articles similar to that re-
ceiyed by you from Mr.. Short, to create
an atmosphere that the taking of those
lands away from the Southern Pacific
railroad company would be u great in
justice.
TRIES TO BLK PEOPLE
"The fact remains that the congress
of the United States never intended to
give those lands to the railroad com
pany and the courts and congress nave
said SO time and time again, and yet
i'm the year 1910 we find the Southern
Pacific Railroad company claiming
under an agricultural patent mineral
lands of greater value than it's entire
watered system all the way from San
Francisco to New Orleans.
II. notice that Judge Short says his
point of view is that during all of the
years that have intervened since the
patent issued, 1t has never been ques-
toned, that the full title did not pass
under the patents, while as matter
of fact the supreme court of this state,
time and time again, the United States
supreme court upon two occasions,
passing upon the explicit question,
have held that the exception was q
part of the description and that oral
evidence was competent to show the
mineral character of the lands and thus
avoid the patent, and these decisions
have never been questioned by anyone
until the late Secretary Hitchcock on
the ex parte application of the law de-
nartment of the Northern Pacific Rail
road company, without notice or hear
ing held that the inclusion of such an
exception was warranted by the Bar
den decision. while as matter of
fact TIE Barden case expressly held IL
was the bounden duty of the govern
ment to insert an exception IN TINS
patent.
"In Washington they call such de-
cision as Hitchcocks politics. An an
alogous case would be presented if the
following happened: Suppose prior to
the last primary election William +.
Herrin had gone to washington ana
requested Oscar Lawler to make rul-
ing, further ruling, that the eXcep-
tion in the patents in no way affected
the title of the Southern Pacific Rail-
road company. Now, what do you sup
nose Mr. Lawler would do under the
circumstances, and what effect do you
think 1t would have upon the judg-
ment of the sober minded citizens of
this state who are familiar with what
the political situation was then?
NO INNOCENT BUYERS
"There are no innocent purchasers of
Southern Pacific lands unless 1t be
contended that the Associated Oil COM
many and the X. T. 0. are innocent
purchasers under alleged leases of
mineral lands obtained by the South
ern Pacific Railroad company under an
agricultural patent.
"Judge Short says in his communica-
ton to you that: Later day discovery
of alleged legal error of subject so
carefully investigated and for so long
a time accepted is of very shadowy and
doubtful import AS a matter of fact
there never was any investigation,
careful or otherwise.
"In May, 1892, Jerome Madden made
an affidavit that some 100000 acres OF
land were non-interdicted mineral
lands, while as a matter of fact many
of those lands were covered with re-
corded mining locations and fve days
later the accommodating officers of
the government, then at Visalia, with
out notice, contest or hearing, ap-
proved the selections and rushed them
along to Washington, where subse-
quent patents with mineral exception,
were issued and as Judge Mcfarland
said in Gale VS.. Best, it was fair ar
gument to say, the Southern Pacific
Railroad company took that reserved
and unrestricted patent with full
knowledge of it's unstable and uncer-
tain character, and in that same case
Judge Mcfarland held that Southern
Pacific railroad grant patent was only
conclusive when issued without reser-
walton and no one has ever accused
Judge Mcfarland or the supreme court
of California, denying even an exact
Justice to the Southern Pacific Rail-
road company in any of the litigations
that has finally reached that court.
''Of course, neither my opinion nor
the opinion of anyone off the bench
is of any consequence in this matter,
but it annoys me to have eminent
counsel deprecating agitation when an
honest effort is being made to wiring
from the Southern Pacific its i'll gotten
lands"
HARTNELL NO. COMES BACK
sANFA MARIA. Nov. 2O-Hartnell