Public Lands.By the act of Congress admitting Kansas into the Union, certain grants of the public domain were made to the new state for specific purposes. S. E. Hoffman, H. B. Denman and E. P. Bancroft were appointed commissioners to select the state lands, and in Aug., 1861, they made showing that the aggregate of the 16th and 36th sections in each Congressional township of the state would amount to 800,292 acres, which lands were set apart by the act of admission for school purposes. Other lands included in the report of the commission were 46,080 acres for the support of the state university; 6,400 acres to aid in the erection of public buildings; 46,080 acres with the 12 salt springs donated to the state by Congress; internal improvement lands, granted by the act of Sept. 4, 1841, aggregating 500,000 acres, and lands selected under the act of Feb. 26, 1859, authorizing settlers upon the school sections before surveys were made, to make up deficiencies where the section or township might he fractional, 60,988 acres. This report embraced in the aggregate 1,459,840 acres of land, to which the state was entitled under the provisions of the various acts of Congress relating to the subject. By the act of 1877 Congress granted the state 300,000 acres as an indemnity for school lands lost by Indian reservations.
The public lands might be divided into four classes: 1Lands owned by the general government; 2Lands granted to the higher institutions of learning; 3Common school lands: 4Grants made to railroad companies. There were three ways of acquiring title to lands owned by the general government, viz: under the homestead act, by preëmption, and by taking what was known as a timber claim. Under the homestead act the settler was required to live upon his claim and cultivate it for five years, at the end of which time he could receive a patent or title. By preëmption, the settler who lived upon and improved his claim for one year was given the privilege of purchasing the land at $1.25 an acre. The settler who took a timber claim was required to plant 10 acres of timber, which should be done within four years, and only one timber claim was allowed in each section. In none of the three methods was the land taxable until the settler had complied with all the requirements of the law and secured his patent.
The grants of land for the purpose of aiding the construction of railroads were made by an act of Congress, approved March 3, 1863, the lands to be subject to the disposal of the legislature of Kansas. On Feb. 9, 1864, the governor approved an act accepting the grants. One section of the Congressional act provided that "actual and bona fide settlers under the provisions of the preëmption and homestead laws of the United States, may, after due proof of settlement, improvement and cultivation, as now provided by law, purchase the same at the minimum price."
A number of settlers had already located upon some of the lands embraced within the railroad land grants, and dissatisfaction arose among them when the railroad companies fixed the minimum price at double that asked by the government for public lands. This dissatisfaction was greatest with regard to the Cherokee Neutral Lands (See Neutral Lands) and the Osage ceded lands. The Osage ceded lands have been described as "covering Neosho and Labette counties, with a narrow strip surrounding them in Cherokee, Crawford, Bourbon, Wilson and Montgomery counties." By the treaty of 1825 the Osages ceded all their lands to the United States, except a strip 50 miles wide, the southern boundary of which coincided with the present southern boundary of Kansas. This, as well as subsequent treaties, was broken, and in Jan., 1867, the Indians ceded their lands to the United States, in trust, to be sold for cash to actual settlers. At the close of the Civil war there was a rush of settlers to the West, not much attention being paid to the land grants made to railroad companies by the act of March 3, 1863. The settlers refused to pay the railroad companies what they regarded as fancy prices, organized the Settlers' Protective Association (q. v.), and employed good lawyers to protect their interests. Suits were filed, and in Oct., 1875, the United States supreme court decided in favor of the settlers.
Notwithstanding the fact that the constitution of the state (Section 3, Article VI) provided that the 500,000 acres granted to the state by the act of 1841 should become a part of "a perpetual school fund," the legislature of 1866 gave the land to four railroad companies, the lands to be sold by an agent appointed by the governor. Prior to the passage of this act, W. W. H. Lawrence, secretary of state, in his report for the year ending on Dec. 31, 1864, gave a list of 495,551 acres of land which had been selected for the state under the provisions of the act of 1841. On Feb. 13, 1872, Atty.-Gen. A. W. Williams received notice that the general land office at Washington had patented to the state about 5,000 acres to supply the deficiency. Mr. Williams was requested to take part in the division of this 5,000 among the railroad companies. This he refused to do, and at the same time announced his intention of applying for an injunction to restrain the sale of any unsold portion of the 500,000 acres. He accordingly brought suit against R. D. Mobley, the state agent for the sale of the lands and obtained a temporary restraining order. The railroad companies declined to contest the case and the injunction was made perpetual. Thus a portion of the lands were regained for actual settlers under the preëmption and homestead laws, but it was a mere bagatelle when compared with the entire half million acres which rightfully belonged to the public school fund.
Peter McVicar, state superintendent of public instruction, instituted proceedings, before the action brought by Mr. Williams, to recover sections 16 and 36 for the school fund. In his report for 1870 he says the supreme court "declined to give any decision on the main point involved, on the ground of alleged informalities in the presentation of the case." On Jan. 20, 1874, the legislature adopted a resolution asking the attorney-general for his opinion as to the constitutionality of the law of Feb. 26, 1866, granting the 500,000 acres to the railroads. To the question Mr. Williams replied as follows: "1 think the law of 1866 is unconstitutional, but have not time to enter into any elaborate argument to show why I think so. Nor is it necessary that I should, for I have already taken legal action in the matter." He then gives an account of the injunction proceedings against Mobley, and in answer to question as to whether the lands could be recovered, says: "If the law under which these lands were sold is unconstitutional, there has never been any valid sale, and the title is still in the state. Whether the state will ever assert its title against the innocent purchasers who bought under what they thought a valid law, and who hold the patent of the state therefor, is not for me to say; but certainly no such claim will ever be asserted or prosecuted by me. Neither can the state, in my judgment, recover from the railroads the proceeds of the sales heretofore made, because such an action would have to be based upon the supposition that the law under which the sales were made was valid, and to recognize its validity would of course admit that the roads were legally entitled to such proceeds."
Truly, a complicated state of affairs, but Mr. Williams' opinion was accepted as good law and the matter was allowed to pass quietly into history, the title of those who bought lands to the railroad companies being recognized as valid, even though the law under which the sales were made was unconstitutional. The state auditor's report for 1882 showed the sale of the state lands during the preceding 15 years to have been 450,763.88, for which was received $1,805,389.05, or a little over $4 an acre.Pages 515-517 from volume II of Kansas: a cyclopedia of state history, embracing events, institutions, industries, counties, cities, towns, prominent persons, etc. ... / with a supplementary volume devoted to selected personal history and reminiscence. Standard Pub. Co. Chicago : 1912. 3 v. in 4. : front., ill., ports.; 28 cm. Vols. I-II edited by Frank W. Blackmar. Transcribed July 2002 by Carolyn Ward.
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