Copyright
Walter Malins Rose.

A code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a online

. (page 80 of 114)
Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 80 of 114)
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any road constructed on said line of location as required by law, whereby
said company has failed to perform the conditions required of it by law,,
and so is not entitled to hold said lands which have been patented to said
company.

VIII. — Eighth. And your orator further represents and shows unto your
honors that by the act of Congress of March 3d, 1863, the Atchison, Topeku
and Santa Fe Railroad Company became entitled to every alternate section
of land designated by odd sections for ten sections in width on each side of
the line of the railway and each of its branches, with the right to in-
demnity for lands lost as provided in said act hereinbefore set forth.

And your orator further avers that it was not the intention of Congres.
to give to the said railroad company, or ever had been the intention of
Congress to give to any railroad company, a double grant on account oi
any branch line, and to allow indemnity to any branch line for lands lost
within the limits of the original grant to the company constituting the
main line.

And your orator further represents and shows unto your honors that
the said Missouri, Kansas and Texas Railroad Company unlawfully and
without right claimed certain lands within the granted limits of the Atchi-
son, Topeka and Santa Fe Railroad Company under and by virtue of an
assignment of the Atchison, Topeka and Santa Fe Railroad Company to
complete the branch line down the Neosho Valley as set forth in said act
of March 3d, 1863.

And your orator further represents and shows unto your honors that the
line of the Missouri, Kansas and Texas Railway Company crosses that of
the Atchison, Topeka and Santa Fe Railroad Company at or near Em-
poria, Kansas, and for a distance of ten miles on each side of said last-

2844



I'rooiHliire] FORMS. F. TIH.

named road, said Missouri, Kansas and Texas Railroad Company runs
through the granted limits of said Atchison company.

And your orator further avers that the Missouri, Kansas and Texas
tJaihvay Company was entitled to indemnity lands designated by even
numbers only under and by virtue of the act of July 2Gth, 186G, and by
no other act.

And your orator further represents and shows unto your honors that tin;
said Missouri, Kansas and Texas Railway Company, although it knew
that it was not entitled to any even sections within the granted limits of
tl'.e Atchison, Topeka and Santa Fe Railroad Company, unlawfully and
without right selected certain lands designated by even numbers within
the granted limits of said Atchison, Topeka and Santa Fe Railroad Com-
pany, and that the Secretary of the Interior, under the mistaken belief that
said road was entitled to said lands as indemnity, and under the mistaken
belief that the law entitled said Missouri, Kansas and Texas Railway Com-
pany to said lands, did approve said selections, and the President of the
United States did sign, execute, and deliver to the said Missouri, Kansas
and Texas Railway Company patents for said selections, under the mistaken
belief of law as aforesaid.

And your orator files with this amended bill of complaint a certified
copy of the lists of said selection and certified copies of patents for the
same, so unlawfully issued as aforesaid, all marked Exhibit D, and prays
that the same may be a part hereof the same as if incorporated herein in
haec verba.

And your orator further represents and shows unto your honors that
the said Missouri, Kansas and Texas Railway Company, although it knew
that it was not entitled to any odd sections within the granted limits of
the Atchison, Topeka and Santa Fe Railroad Company, unlawfully and
■without any right selected certain lands designated by odd numbers within
the granted limits of said Atchison, Topeka and Santa Fe Railroad Com-
pany, and that the Secretary of the Interior, under the mistaken belief
that said Missouri, Kansas and Texas Railroad Company was entitled to
■said lands, and under the mistaken belief that the law entitled said Mis-
isouri, Kansas and Texas Railway Company to said lands, did unlawfully
and without right, in the mistaken belief of the law. ap[)rove said selec-
tions, and the governor of the State of Kansas did sign, execute, and de-
liver to said Missouri, Kansas and Texas Railroad Company patents for
said selections under the mistaken belief of law as aforesaid. And your
orator files with this amended bill of complaint a certified copy of a list
of said selections so unlawfully i.'«ued as aforesaid, marked "Exhibit L,"
and prays that the same may be made a part hereof the same as if in-
corporated herein in haec verba.

And your orator further represents and shows unto your honors that
the said Missouri, Kansas and Texas Railroad Company, unlawfully and
•without any right, for the reasons heretofore set forth in paragraph four,
laid claim to certain odd-numbered sections of land within the granted
limits of the Atchison, Topeka and Santa Fe Rivilroad Company, as de-
scribed in Exhibit L, filed herewith, under and by virtue of tlie act of

2845



V. 713.



FORMS. [Code Fed,.



Congress of -July 1st, 18G4, but your orator avers that said act conferred
no rights upon any railway company, and that said act never became bind-
ing and effective as against your orator, and that all patents issued under
an'cl by virtue of said act and selections made were unlawfully done under
a mistaken belief in the law, and that all of said patents should be delivered
up for cancellation.

IX. Ninth. And your orator further represents and shows unto your

honors that there was, by the act of Congress of March 3d, 1863, reserved
to the United States all even sections within the granted limits of the lines
of railways therein mentioned, and that, as heretofore shown in the fourth
paragraph of this amended bill, the Leavenworth, Lawrence and Galveston
liailroad Company became the beneficiary of the grant in aid of a railroad
and telegrapli line from the city of Leavenworth to the southern line of the
State in the direction of Galveston.

And your orator further represents and shows unto your honors that
the line of the said Missouri, Kansas & Texas Railway Company crosses
I lie line of the Leavenworth, Lawrence & Galveston Railway Company,,
and that approaching said crossing and for some distance prior to the inter-
section of said lines the railway grants of said road overlap each other,
as can be more readily shown by reference to Exhibit A and Exhibit B,
filed with this amended bill, and which are made a part hereof.

And your orator respectfully represents and shows imto your honors
that notwithstanding all even sections within the granted limits of the
Leavenworth, Lawrence & Galveston Railroad Company were reserved
to the United States and excepted from the operation of the grant to the-

^lissouri, Kansas & Railroad Company, the said Missouri, Kansas &

Texas Railroad Company unlawfully and without any right in law or
equity, made a selection of certain even-numbered sections within the
granted limits of the Leavenworth, Lawrence & Galveston Railroad Com-
pany, and which said selection was unlawfully and without right approved
by the Secretary of the Interior, who acted under the mistaken belief
that said road was entitled to said lands: and the President of the United
States, acting under a mistaken belief in the law, signed, executed, and de-
livered certain patents to said even-numbered sections within the granted
limits of the Leavenworth, Lawrence and Galveston Railway Company to
said Missouri, Kansas and Texas Railway Company. That a certified
copy of said selections, so unlawfully made and approved as aforesaid,,
and of said patents so unlawfully signed, executed, and delivered as afore-
said, are filed herewith, marked "Exhibit E," and made a part of this
amended bill the same as if set forth in haec verba.

X. — Tenth. And your orator further represents and shows unto your
honors that if said Missouri, Kansas and Texas Railway Company made
any claim to any land under and by virtue of the act of Congress of July
1st, 1864 (13th Statutes at Large, page 339), that the said claim was
illegal and void for the reason stated in section four of this amended bill,
and if the Secretary of the Interior caused any selections to be approved
which were selected under said act, that he did so under a mistake of law
and without any lawful right to approve said selections, and if the Presi-

2840



Proccdnrcl FORMS. F. 713..

dent of the United States signed, executed, and delivered any patents for
any such selecteions that he acted under a mistaken l)elief in the law and
that his acts were illegal and void and without any authority in law, and
that the patents, for the reason stated in paragraph four of this bill should
be delivered up for cancellation, and if the governor of the State of Kan-
sas signed, executed, and delivered any patents for any such selections
tliat he acted under a mistaken belief in the law and that his acts were
illegal and void and without any authority in law, and that the patents,
for the reason stated in paragra{)li four of this bill, sliould he delivered up
for cancellation.

XI. — Eleven. Your orator further says that the ^Missouri, Kansas and
Texas Railway Company, falsely and fraudulently claiming to the Secre-
tary of the Interior that it or its predecessor corporation had constructed
its line of road as required by said act of Congress approved July 26, 1866^
and had constructed said Neosho branch road under said act of March 3,
1803, and the assignment from the Atchison, Topeka and Sante Fe Rail-
road Company, and that it was entitled to select as indemnity lands odd-
numbered sections of land lying outside of the ten-mile granted limits of
the road of the Leavenworth, Lawrence & Galveston Railroad Company
but within the twenty-mile indemnity limits, said Secretary, misled by
and believing such repr^'sentation, by mistake in the facts and as to the
lawful rights of said company, permitted said Missouri, Kansas & Texas
Railway Companj' to select such odd-numbered sections as indemnity, and
he approved selections thereof outside of the ten-mile limits but within
the twenty-mile indemnity limits of said road, and they were thereafter,,
under the same mistake and error of fact and of law, patented to said
company, when in fact and in law they were not subject to such indemnity,
but by the said act of Congress of 18G3 were reserved to the United States,
as and for indemnity lands for the Leavenworth, Lawrence & Galveston
Railroad Company, and were necessary for that purpose. Said selections
as and for indemnity lands were approved by said Secretary April 10, 1873^
and at other dates thereafter, and patents were thereafter, before the com-
mencement of this suit, unlawfully issued to said company on or about
May 19, 1873, by the governor of Kansas, unlawfully claiming authority
to do so under said act of March 3, 1863. And your orator for the purpose
of identification of paid lands files with this, its amended bill of complaint,
a certified codv of the lists of lands designated by odd numbers so unlaw-
fully selected as aforesaid, marked "Exhibit H," and prays that the samfr
may be made a part hereof the same as if set forth in haec verba.

Your orator says that said lands so selected, approved, and patented had
been and were, by the act of Congress ajjproved March 3d, 1863, and by
said act of Congress approved July 26th, 1806, reserved from selection as
indemnity lands or otherwise by the Missouri, Kansas and Texas Railway
Company, and were reserved to the United States as and for lands subject
to selection as lands for indemnity for the said Leavenworth, Lawrence &
Galveston Railroad Company in lieu of lands lost from the grant in place-
in favor of said company within ten miles of its line of located road. And
all said lands were required as such inderrnity lands, and they and more

2847



F. 713.



FORMS. [Code Fe<?.



were required to make up to said company the amount of lands necessary
to satisfy and equal tlic lands granted in place within ten-mile granted
limits of said grant, and for said lands so granted in place, lost, and taken
therefrom by prior homestead and pre-emption entries and grants for
those and other purposes.

And the Secretary of the Interior, in making and approving said selec-
tions of lands as ind<'ninity for the Missouri, Kansas & Texas Railway
Company, and the governor of Kansas and the President of the United
States in signing and issuing patents to said company for said lands, did
so under the mistaken and erroneous belief that said lands were subject to
such selection and could be lawfully so patented, and that they were mis-
led into such mistake by the false and fraudulent representation of said
railway company and its agents that said lands were lawfully subject to
sucli selections and patenting, when in law and in fact they were not.

XII. — Twelfth. And your orator further avers that no right to in-
(lemnitv lands could accrue to the Missouri, Kansas & Texas Railway
Company until after the completion of its entire line of road as required
by said act of Congress of July 26th, 1866, and not until a selection was
actually made of such lands, approved by the Secretary of the Interior,
and that such selections were partially made by it on August 20th, 1872,
partially on April 10th, 1873, July 29th, 1874, partially on May 10th, July
12th, December 6th, 1876, and April 19th, 1877, the portions of the lands
so selected on each of said dates being fully shown in. the patents issued to
said company for such lands. But your orator further avers that such
selection so made by said railroad company were not approved by the
Secretary of the Interior until a long time subsequent to the dates on
which they were made by said defendant company. And your orator says
that prior to July 26th, 1866, and prior to the filing of the map of definite
location, and prior to the selection of said lands by said company, or to
the approval thereof by the Secretary of the Interior, and prior to any
grant or conveyance thereof, or any contract for sale by the Missouri,
Kansas & Texas Railway Company, a lai-ge number of actual and bona
fide settlers, over the age of twenty-one years, citizens of the United
States, each thus and otherwise having all the qualifications required by
the homestead and pre-emption laws of the United States to obtain patents
from the United States, each for a half quarter section of said lands within
ten miles of the located line of road of said Leavenworth, Lawrence & Fort
Cibson Railroad Corcpany, and its successor, and each for one quarter
section of said lands outside of said ten-mile limits, but within twenty
miles of said line of road in Allen County and elsewhere in said State of
Kansas, claimed the riglit under said laws to take the necessary proceed-
ings and do the acts requisite to obtain title under said laws respectively
to such tracts of land, including most of the lands herein and in said
patents mentioned. For this purpose sundry of such persons, prior to July
26th, 1866, and prior to the filing of the map of definite location, and prior
to such selections as required by said laws a half quarter section of land,
some within said limit of ten miles and some outside thereof, but witliin
the twenty-mile indemnity limits of said road, and others, did each enter

2848



I'loccJure] FORMS. F. 713.

upon, occupy, and improve, as required by said laws, some each one-half
quarter section of land, and others each a quarter section of such lands.
And sundry of such persons did each do all the acts required by and in all
respects comply with the homestead laws in due time to be entitled to
occupy said tracts of half quarter sections and said tracts of quarter sec-
tions, and to claim and receive patents from the United States respectively
therefor; and sundry other of said persons did each do all the acts required
by and in all respects comply with the pre-emption laws in due time to be
entitled to occupj' said tracts of half quarter sections and quarter sections,
and to claim and receive patents from the United States respectively there-
for, and said persons respectively have ever since been, and yet are, en-
titled to receive a patent conveying title to them respectively for said
tracts of land so by each occupied and improved, including most of said
lands herein and in said patents mentioned. And many of said persons
have respectively, ever since so entering upon said tracts of land, con-
tinued to occupy and hold said lands by reason of the matters aforesaid,
and yet claim and occupy them, and are ready and willing to do whatever
may be lawfully required of them each to procure a patent from the United
States. And many others so qualified and intending to make homestead
and pre-emption entries, claiming and entitled under prior homestead and
pre-emption entries, so made prior to such selection of approval, have con-
tinuously been and remained in possession for the jiurpose of securing title
as aforesaid, and are ready to comply with said laws. And the defend-
ants, and those under whom they claim title, always well knew all the mat-
ters aforesaid, and none of them ever took or had possession of any of said
lands so occupied, but all said lands have been in the occupancy and pos-
session of such claimants as aforesaid, claiming a right to obtain title
thereto from the United States. Your orator says that it is unable now to
specifically state all the tracts of said lands which have been settled upon
and occupied by actual bona fide settlers as aforesaid, and for which they
are entitled to receive patents under the homestead and pre-emption laws
.as aforesaid, and permission is prayed to make proof thereof.

And your orator incorporates herein a list, so far as your orator has
been enabled to obtain the same, of such persons claiming said lands, with
such information respecting the same as your orator has been enabled to
obtain, and alleges that the same is true to the best knowledge and in-
formation of your orator; and your orator also avers that a numerous num-
ber of said tracts of land hereinafter set forth were settled and valuable
improvements made upon said tracts of land by bona fide settlers, having
the right to make homestead and pre-emption entries, and tliat a number
of parties named herein as claimants, for a valuable consideration, pur-
chased the improvements and all rights and interest of said parties in and
to said tracts of land, claiming a right to enter said lands and obtain pat-
ents therefor by reason thereof, and that the dates herein given are the
dates upon which said claimants actually went into possession of said
lands.

And your orator further avers that said original settlers and the pur-
chasers of their improvements, who are now laying claim to said lands.
Fed. Proc— 179. 2849



F. 713. FORMS. [Code Fed.

wore unlawfully and without right refused the right of homestead and pre-
emption entry of said indemnity lands prior to the date of selection of
said lands by said railroad company as indemnity, and that said lands were
unlawfully and without right withdrawn from the public lands of the
United States by direction of the Secretary of the Interior and Commis-
sioner of the General Land Office, under a mistaken belief in the law, long
prior to their selection by the Missouri, Kansas and Texas Railway Com-
pany.

.'Vnd your orator respectfully inserts, in support ot the previous allega-
tions in this paragraph, a memoranda, or so much thereof as is applicable,
prepared by the Commissioner of the General Land Office, showing the
names of settlers and the description of lands settled upon Avithin the in-
demnity limits of the Missouri, Kansas and Texas Railroad prior to the
selection of said lands by said railroad company, etc., etc.

And your orator respectfully files herewith certified abstract copies of
the tract books of the General Land Office, marked Exhibit M, and prays
that the same may be made a part hereof the same as set forth in haec
verba, etc., etc., etc.

In consideration whereof, and forasmuch as your orator can only have
adequate relief in the promises in this honorable court, where matters of
tliis nature are properly cognizable and relievable, your orator prays that
this lionorable court may order, adjudge, and decree as follows:

I. That the patents issued to the Missouri, Kansas & Texas Railway
Company for even-numbered sections of land within the ten-mile granted
limits of the road of the Leavenworth, Lawrence & Galveston Railroad
Company on the east .side thereof be vacated, cancelled, and declared null
and void. (141 Sup. Court, U. S. Reports, 358, 371.)

II. That the patents issued to said railway company for odd-numbered
-cc-tions of land outside of the ten-mile limits but within the twenty-mile
indemnity limits of the road of the Missouri, Kansas & Texas Railway
Company, and of the road of the Leavenworth, Lawrence & Galveston Rail-
road Company, on the east side thereof, be vacated, canceled, and declared
null and void. (141 Sup. Court, U. S. R., 372.)

III. That for the same reasons the patents issued to the Missouri, Kan-
sas & Texas Railway Company for even-numbered sections of land within
the ten-mile limits of the road of the I^eavenworth, Lawrence & Galveston
Railroad Company on the west side thereof, and the patents issued to the
Missouri, Kansas & Texas Railroad Company for odd-numbered sections
on the west side of the road of the Leavenworth, Lawrence & Galveston
Railroad Company, within the twenty-mile indemnity limits of said two
roads, be vacated, canceled, and declared void.

IV. That the patents issued to the Missouri. Kansas & Texas Railway
Company for lands in both even-numbered and odd-numbered sections
of lands, and on both side of said road, whether within the ten-mile granted
limits or outside thereof, and within the twenty-mile limits of either and
of both of said roads on which homestead or pre-emption entries had been
made or attempted to be made on or prior to July 26, 1866, and all so made
or attempted then or thereafter, but prior to the selection and approval of

2850



rrocedurej FORMS. F. 713.

any of said lands as indemnity lands for said Missouri, Kansas & Texas
Railway Company, be vacated, canceled, and declared void. (141 Sup. Court,
U. S. R., 374, 377. 380.)

V. And your orator prays that as to all lauds unlawfully witlilu'ld t'roui
pre-emption and homestead settlement, and as to all lands from which
occupants have been evicted by judicial process, it may be adjudged and
decreed that said settlers and occupants respectively originally entitled to
such lands, or those claiming under them, shall be ascertained, and that
they be reinstated in their respective rights and possession of said land,
and allowed to perfect their respective entries and titles as authorized
by section three of the act of Congress approved March 3, 1887, to pro-
vide for the adjustment of land grants, etc. (24 U. S. Stat., 557), and as
otherwise authorized by law.

VI. And your orator prays that its right to recover from the Missouri,
Kansas and Texas Railway Company an amount of money equal to the
government price of all the lands unlawfully patented to it, may be
as indemnity lands, and of all lands unlawfully patented to it, may be
afiirmcd and saved to it as required by the acts of Congress approved
March 3, 1887, being "An act to provide for the adjustment of land grants
made by Congress to aid in the construction of railroads, and for the for-
feiture of unearned lands, and for other purposes." (24 Stat. 556.)

VII. That the patents for all lands selected or approved as indemnity
lands for the Missouri, Kansas & Texas Railway Company, and granted
to said company by patents, be vacated, canceled, and declared null and
void.

\'in. That the patents issued to the ^lissouri, Kansas and Texas Rail-
way Company for lands in both even and odd numbered sections, and on
both sides of said road the ten-mile granted limits, on which homestead
or pre-emption entries had been made or attempted to be made, ajid upon
which there were then and there subsisting homestead or pre-emption entries
at the date of filing of the map of definite location as herein set forth, be
vacated, canceled, and declared void.

IX. That the patents issued to the Missouri, Kansas and Texas Rail-
way Company for lands in both even and odd numbered sections of land,



Online LibraryWalter Malins RoseA code of federal procedure. (Superseding Detsy's Federal procedure.) Embodying enactments of Congress, constitutional provisions, established principles, and court rules, in force December 1, 1906, and the Bankruptcy act of 1898, with amendments and orders, together with a → online text (page 80 of 114)