| Kan. | Jan 15, 1864
By the Court,
The case in which the judgment sought to be reversed was rendered, was an action for the possession of specific real property. The possession of the defendant below was admitted, the title being the only matter in controversy. To maintain the action it was necessary for. the plaintiff below to show title in itself. ' In this class of cases the plaintiff must recover, if at all, upon a paramount title; and whatever may have been the title of the defendant in possession, unless the plaintiff could show a better one, it must fail in the proceeding.
What then, was the title of the plaintiff? • The Act of Congress of January 29th, 1861, admitting the State of Kansas into the Union, by a provision in the third section, granted to the State for the use of schools, sections sixteen and thirty-six in each township of public lands, except where they or either of them had been “ sold or otherwise disposed of.” The land in controversy in this case, being part of section thirty-six, -was by that provision vested in the State, unless before the passage of the act the land had been “ sold' or otherwise disposed of.” This phrase evidently refers to a sale, or other disposition of the lands by the United States. It was claimed by the defendant that the selection and occupancy of a town site which the agreed statement of facts shows were made before the survey of the lands, was, under the provisions of the joint resolution of March 3d, 1857, (Stat. at Large, Vol. 11, page 25J,) such a disposition thereof as was contemplated by the third section of the act of admission. This claim is clearly
If the parties under whom the defendant claims acquired no title by the purchase from the Territory, the plaintiff ought to recover; but if that sale was legal,—if the Territory had the power to sell, then the defendant must succeed. It may have been very bad policy to sell that portion of section thirty-six, in township five, of range twenty, in which the lot in controversy is situate at the time the sale was made, for the sum of two dollars and fifty cents per acre. The history of the country shows that it was then worth much more than that price. It was a part of the site of the then second city in the Territory,—a city eligibly located geographically, and withal reasonably ambitious. Had the land been sold at public auction it would probably have brought at least four times the price fixed upon it. But these considerations can not affect the title of the purchaser if the Territory had the power to
The object of the act of May 30th, 1851, was to define the boundaries of, and establish municipal governments within the territories of Nebraska and Kansas. All the necessary machinery for such a government was provided, —a legislature to enact laws, courts to administer them, and an executive to execute them. In inaugurating, managing and perfecting their domestic polity, the people were omnipotent, except in so far as they were restrained by the ■ constitution and laws of the United States. They might lawfully provide for the protection of themselves and of their property. They could establish county, township, and city governments. They could regulate the alienation and acquisition of property. In short, the power of the Legislature extended to all rightful subjects of legislation consistent with the constitution of the United States, and the provisions • of the act organizing the Territory. This grant certainly included the power to establish schools. They are rightful subjects of legislation. The people who would inhabit the Territory would migrate, mainly, from States where schools had been established by law, and the very terms of the organizing act contemplate the establishment of “schools in the Territory.” In the argument, the power of the Legislature to establish schools was not questioned.
The power of establishing schools being conferred, and the law-giver expecting á disposition among the future inhabitants of the Territory to avail themselves of that power, it was eminently just' and proper that they should be aided in their efforts in 'that direction to the same extent that the people of the States had been aided. The power of Congress was ample, and 'had been exercised in many' instances. No • good reason can be given for aiding the educational interests of the people of a State, which with
Considering, then, the object to which these lands were to be applied, it could not be regarded as a strange proceeding on the part of Congress, that it had placed their management under the control of the territorial authorities. Did Congress do so ?
The thirty-fourth section of the Organic Act is in these words:
“ Sec. 34. When the lands in said Territory shall be surveyed under the direction of the government of the-United States, preparatory to bringing the same into market, sections number sixteen and thirty-six in each township shall be and the same are hereby reserved for the purpose of being applied to the use of schools in said Territory, and in the States and Territories to be hereafter erected out of the same.”
As has already been observed the objects of this act were, so far as the Territory of Kansas is concerned, the fixing of the boundaries thereof and establishing a government therein. It contains no provision for the sale or other disposition of the public lands therein. Another act upon that subject was passed at the same session. Section 5 of this latter act is substantially a copy of section 34 above quoted. It must be apparent that something more than a mere reservation from sale was contemplated by section 34; and upon its construction the rights of the parties must depend.
It is well settled that no particular words are necessary to constitute a grant, especially for public uses; and we
The object of the provision was to furnish the basis of a perpetual fund for the benefit of the people who should inhabit the country constituting the Territory, and they were authorized to make the lands available for the use of schools during the existence of the territorial government. The language is “for the purpose of being applied to the use of schools in said Territory How could they be applied to the use of schools “in said Territory” if the people were to have no control of them until a State should be erected and admitted into the Union ?
Having found that section 34 amounts to a grant, that the people of the Territory were the beneficiaries and that the lands might be made available during the territorial existence, what was the proper authority to administer the trust?
A sale of these lands or at least a portion of them must have been contemplated. In a sparsely settled country it could not have been reasonably expected that they could be leased. Lands being abundant and cheap, persons desiring to till the soil could easily procure the fee simple in broad acres upon which to expend their labors in the way of improvements. The only way of making the lands available was by their sale. To accomplish this, certain rules and regulations were necessary. - The manner of the sale, the form of conveyance, the officer to execute the same, the person to receive the purchase money must be pointed out. Who so competent to do these things as the people who
The manner of making the lands available was entrusted to the discretion of the Legislature; and as there was no other manner of doing so than by their sale, that was the means adopted.
But it is objected that no title could pass under the sale ordered by the Legislature, because an illegal application of the proceeds was directed. The proceeds were, by the act of the Legislature applied to the use of schools in the township in which the lands sold might be situated, when the grant contemplated a common fund. This state of things would not defeat the title of the purchaser. He could take the legal title although not bound to see the purchase money properly applied. If the purchase money were properly applied by the trustee it might be that the lands would be subject to a. charge for the amount of the value thereof fixed by the Legislature, but the purchaser would have the title nevertheless.
"We think, therefore, that the defendant at the-time of the commencement of the suit in the Court below, had the legal title to'the lands in controversy, and was entitled to the possession thereof.
The judgment will be affirmed.