56 Kan. 644 | Kan. | 1896
The opinion of the court was delivered by
The right of the plaintiff to recover depends upon whether there has been a failure of the title to the land in question, and which the defendant attempted to convey by a deed containing full covenants. If the railway company and those claiming under it acquired no title to the land, and if it remained public land, subject to pre-emption or homestead entry, then Oox acquired a good title to the land, and the contention of the plaintiff must prevail. The claim that the plaintiff must fail because he did not resist the entry of Oox is without force, if the paramount title was in the United States. “ Where the title to the land in controversy is in the United States and liable to entry and settlement under the provisions of'the
Although the case was disposed of by the trial court upon an erroneous view, the question remains whether the railway company obtained title to the land by the subsequent selection that was made. It appears to have .been made with the permission of the land department, in lieu of land lost to the company by reason of the attachment of homestead or pre-emption rights. The fees were paid, and a certificate of selection was duly issued to the company. The land was within the indemnity limits of the grant, and, if it was subject to be selected by the company as indemnity land, it would seem, from the agreed facts, that
The judgment will be reversed, and the cause remanded to the district court to try and determine the x amount of damages which the plaintiff has sustained.