6 F. 651 | U.S. Cir. Ct. | 1881
1. I am of the opinion that within the meaning of the first section of the act of congress of July 23, 1866, (chapter 212 of that session,) granting lands to the state of Kansas for the use and benefit of the St. Joseph & Denver City Railroad Company, “the line or route of the road” was “definitely fixed” when on the twenty-eighth of March, 1870, a map of said location, adopted by the board of directors of the company, was received by and filed with the secretary of the interior as the law required. It follows that on that day the right to the use and benefit of the sections of land designated by odd numbers, within 10 sections on each side of that line, became vested in the company, including the quarter section now in controversy, unless it had been previously sold, or otherwise came within the excepting clause of •.the act.
2. The origin of defendant’s adverse title is a purchase made from the United States through its land officers 14 days after the rights of the company had vested. The equitable
3. The rights of the parties in this case are not affected by the question of notice. No other notice was required of the company than filing its map with the secretary of the interior. No other act was necessary on the part of the company to establish its right to the land. No other act could be done by the company towards perfecting the title until so much of the road was built as authorized it to apply for patents for the land. And it will scarcely be contended that until the patents issued any location by purchase from the government could come in and take it up as vacant land. It is probable that the strict legal title passed to the state of Kansas for the use of the company by the act of filing the map, and related back to the date of the statute, which makes a grant to the state in prmsenti of lands to be ascertained by the act of locating the route of the road. But it is sufficient to say that on the filing of the map there was vested in the company the equitable ownership of the land — an equity which could only be defeated by failure to perform the conditions of the grant. The power in the offices of the land department to sell the land was gone, and the patent issued by them conferred no real right, though it gave an apparent title. It is not a case, therefore, of notice, but a case of priority of right, in which the prior right must prevail. If it were otherwise, the filing of the map in the office of the commissioner of the general land-office at Washington, the only notice the company could give, was sufficient to require Cropsey to take notice of it.
4. With the question of forfeiture, by reason of failure to complete the road, neither defendant nor his grantor has anything to do. They cannot declare such a failure, nor does a loss of the title arise as a legal consequence out of such a failure. The sale to defendant’s grantor was not intended to assert such a forfeiture, because at the date of that sale no ground of forfeiture existed. This court, however, has settled the doctrine that in eases of this class the right to
The demurrer to the bill is therefore overruled, with leave to defendant to answer within a reasonable time, to be filed by the court.
