ARGUMENT
IN SUPPORT DP THE RIGHT
OF THE
Mo. River, Fort Scott and Gulf
EAILEOAD COMPANY,
TO EXTEND THEIR ROAD THROUGH THE
INDIAN TERRITOKY.
WASHINGTON, D. C.
GIBSON BROTHERS, PRINTERS.
1870.
ARGUMENT.
In support of the right of the Mo. River, Fort Scott, &
Gulf R. R. Company, formerly the Kansas & Neosho Val¬
ley Railroad Company, to extend its line of road''from
the south line of the State of Kansas, through the Indian
Territory, to a point at or near Preston, in the State of
Texas," the following argument is submitted.
The legislation of Congress gives the right of going
through the Indian country, "to a point at or near Pres¬
ton, in the State of Texas," to some one, and hut one, of
three specified companies ; and in order to ascertain which
of these three companies is entitled to this right, it is ne¬
cessary only to consider the acts of Congress on the sub¬
ject. Having determined which of the three roads pos¬
sesses this right, we must then look to the treaties, to see
if that road has the consent of the Indians, as required.
If so, it may go on ; if not, it must wait to acquire that
consent. The acts of Congress require the consent of the
Indians, which may be by treaty or otherwise; but this
consent is the secondary step in point of progress towards
the desired end, although it might be first in point of
time.
But this consent, whether embodied in treaties or
otherwise obtained, or to be obtained, can in nowise
control or afiect the construction of the several acts of
Congress bearing on this question. These acts of Con¬
gress must be construed in respect to themselves and each
other, as they alone afiect the right granted hy Congress.
Two things must concur before any road can build through
the Indian Territory to a " point at or near Preston, in
the State of Texas :" First, it must be the road to which
Congress has given the authority to so build; and second,
it must have or obtain permission from each Indian tribe
4
or nation through whose lands it proposes to build. The
laws specify no time for obtaining this consent, and there¬
fore it may be obtained from each tribe any time before
the road enters its territory.
First, then, to which road has Congress given this
authority to construct through the Indian Territory?
All the provisions of legislation in relation to this
grant of power are to be found in the act endowing the
Kansas and Neosho Valley Railroad Company. (14 U.
S. Stats, at Large, p. 236.)
The first section of said act provides, That for the
purpose of aiding the Kansas and Neosho Valley Rail¬
road Company, the same being a corporation organized
under the laws of the State of Kansas, to construct and
operate a railroad from the eastern terminus of the Union
Pacific railroad, eastern division, at the line between
Kansas and Missouri, at or near the mouth of the Kansas
river, on the south side thereof, southwardly through the
eastern tier of counties in Kansas^ with a view to its ex¬
tension so as to eflfect a junction at Red river, with a
railroad now being constructed from Galveston to Red
river, at or near Preston, in Texas, there is hereby
granted," &c.
Sec. 4 provides that the company shall file with
the Secretary of the Interior maps of its line, and that
then the said Secretary shall withdraw the lands in the
manner best calculated to subserve the purposes of the
act and the public interest.
Sec. 8 is as follows: *^That said Kansas and Neosho
Valley Railroad Company, its successors and assigns, is
hereby authorized and empoivered to extend and construct
its railroad from the southern boundary of Kansas south
through the Indian Territory to Bed river^ at or near Pres-
ton, in the Slate of Texas, so as to connect with the rail¬
way now being constructed from Galveston to a point at
or near Preston, in said State ; and the right of way
through the Indian Territory, wherever such right is now
5
reserved, or may he hereafter reserved, to the United States
by treaty with the Indian tribes, is hereby granted to said
company to the same extent as is granted by the sixth
section of this act through the public lands ; and in all
cases where the right of way as aforesaid, through the
Indian lands, shall not he reserved to the Govemment,
the said company shall, before constructing its road, procure
the consent of the trihe or trihes interested, ivhieli consent,
loith all its terms and conditions, shall he previously ap¬
proved and endorsed hy the President, and filed with the
Secretary of the Interior, ' '
Sec. 11 provides that after the said Kansas & Neosho
Valley E. E. shall have been located to the valley of the
Neosho river, other roads may connect with it on just and
equitable terms. Two provisos to said section are in
these words :
And provided further, That should the Leavenworth,
Lawrence and Fort Gibson Eailroad Company, or the
Union Pacific Eailroad Company, Southern Branch, con¬
struct and complete its road to that point on the southern
boundary of the State of Kansas where the line of said Kan¬
sas and Neosho Valley railroad shall cross the same before
the said Kansas and Neosho Valley Eailroad Company
shall have constructed and completed its said road to said
point, then and in that event the company so first reach¬
ing in completion the said point on the southern boundary
of the State of Kansas shall he authorized, upon obtaining
the written approval of the President of the United States,
to construct and operate its line of railroad from said point
to a point at or near Preston, in the State of Texas, with
grants of lands, according to the provisions of this act ;
but upon the further special condition, nevertheless, that
said railroad company shall have commenced, in good
faith, the construction thereof before the said Kansas and
Neosho Valley Eailroad Company shall have completed
its said railroad to said point : And provided further, That
said other railroad company, so having commenced said
work in good faith, shall continue to prosecute the same
with sufficient energy to insure the completion of the
same within a reasonable time, subject to the approval
of the President of the United States."
6
The act granting aid to the Union Pacific railroad,
southern branch, approved the day following the act above
cited, provides for a road running in a different direction
and having a different objective point. The law says to
^'construct a road from Fort Eiley, Kansas, or near
said military reservation ; thence down the valley of the
Neosho river to the southern line of the State of Kansas,
with a view to an extension of the same through a portion
of the Indian Territory^ to Fort Smith, Arkansas," &c.,
&c.
In this act, then, there is nothing whatever to conflict
with our rights. The competing road depends only on
the provisions of the law endowing our own road. By
the 8th section of this law we have the absolute right of
way to Preston, Texas. By the 8th section of the other
act, the other road has a right of way to Fort Smith, Ark¬
ansas. The routes are different, the terminations differ¬
ent, and no portion of the lines are identical. They
simply cross each other, and nothing more.
Our road has the offirmotive right, by its charter and by
act of Congress, to build through to Preston. This right
may be forfeited and the right thrown upon another road,
upon the happening of a specified contingency. But the
other road takes this privilege, if at all, by no inherent
right or power in its own charter, but simply by the for¬
feiture of our company. Taking thus our rights that are
vested in us by affirmative legislation, and taking them
by means of our forfeiture, is it not good law to assert that
every step of their advance toward the appropriation of
our rights must be strictly construed, whilst we, being
the first recipients of the rights, are entitled to a more lib¬
eral construction ?
In other words, we are the owners of the right to build
to Texas through the Indian Territory; but that right
may be forfeited, and taken from us, by the happening of
a certain event, specified in a subsequent clause of the
same law which gives us this positive right. We are the
7
possessors, and they seek to take from us this possession
by means of a provision of that law which may properly
he denominated our charter. Must not their right he
clearly and unquestionably established, and are not all
the legal presumptions in our favor?
The language of the law itself imports that the right
\ñ affirmatively only to be transferred when we have
been clearly shown to have forfeited it ; and this construc¬
tion is established and illustrated by the restrictions and
conditions under and by means of which alone it can be
cast upon another company.
There are four conditions, the concurrence of all which
are necessary before a rival company can become the re¬
cipient or inheritor of our rights.
First, The competing road must '^construct and com¬
plete its road to that point on the southern boundary of the
State of Kansas where the line of the Kansas and Neosho
Valley shall cross the same before the said Kansas and
Neosho Valley Kailroad Company shall have constructed
and completed its said road to said point."'
Second, It must '^obtain the written approval of the
President of the United States to construct and operate
its line of railroad from said point (that is, the point
where our road crosses the line) to a point at or near
Preston, in the State of Texas."
Third, It must have '^commenced in good faith the
construction thereof (that is, south of the State line) be¬
fore the said Kansas and Neosho Valley Railroad Com¬
pany shall have completed its said railroad to said point."
Fourth, ^^That said other railroad company, so having
commenced said work in good faith, shall continue to
prosecute the same with sufficient energy to insure the
completion of the same within a reasonable time, subject
to the approval of the President of the United States."
The Kansas and Neosho Valley Railroad Company must
not only have forfeited all its rights, but the competing
road must have complied with each and all of these four
8
conditions before the first-named road could be deprived
of its right of construction. Has the Kansas and Neosho
Valley Company forfeited .its rights under the acts of
Congress?
It is admitted that this-company built the first road to
the southern line of the State of Kansas, but it is claimed
that it has not built to the point on said southern line
contemplated by the legislation on the subject.
Let it be borne in mind that the only authority to com¬
peting roads is in the one act of Congress endowing this
road, which was also the first act of the two, and there¬
fore it is to be construed in reference to its own provisions
alone^ if possible ; and in construing the same, one has no
more right to recur to the act in relation to the Southern
Branch road than to any other contemporaneous legisla¬
tion .
In the act, then, of July 25, 1866, is there any point
specified on the southern line of the State? A careful ex¬
amination of the act shows the only specification to be in
the first section, stipulating, or reciting rather, that the
road is to run ^^southwardly through the eastern tier of
counties in Kansas thus giving the lohole south line of
the southeastern county in the State as the limit in which
the terminus is to be fixed. , It is not denied that we have
struck the south line of the State loithin the limits of this
county, and thus complied with the express provision of
the law. And it is well known, also, that we had a com¬
pleted line to the south line of the State within the limits
of this county before any other line of railroad ivas com¬
pleted to said south line at any point.
It is urged, however, that the implication of the law is
that our road should have struck this south line of the
State in the valley of the Neosho river ; and it is clearly
intimated by the Secretary, and plainly expressed by the
Commissioner of Indian Affairs, in his instructions to the
Indian superintendents, who are examining com^mis-
sioners, that the point of crossing should have been on the
west hank of the Neosho river.
9
Hon. E. S. Parker writes to said commissioners under
date of the 25th of May, ^^to determine and report the
time at which the Kansas and Neosho valley, or the Union
Pacific railway, southern branch, first reaches the south¬
ern boundary of Kansas, in the valley of the Neosho
river, on the tuest side thereof^ with a good completed road."
And again : The Secretary (of the Interior) arrives at the
conclusion that but one main trunk through the Cherokee
country is contemplated by thë legislation and treaties ;
and that it must enter the Indian Territory in the valley
of the Neosho river, on the luestioard side of said river
In reply to the statement that we are required to cross
the State line and enter the Indian Territory from the
west bank of the Neosho, it is only necessary to state
that from the State line, for several miles north, the
Neosho river is the dividing line between the counties of
Cherokee and Labette, and to cross the Neosho before
passing the State line would be violative of the charter
of our company, and of the act of Congress before alluded
to, which requires us to build southwardly through the
eastern tier of counties.
The Statutes of Kansas, p. 280, provide as follows :
The county of Cherokee (the southeastern county in
the State) is bounded as follows: commencing at the
southeast corner of the county of Crawford ; thence west
with the south line of said Crawford county to the SW.
corner of section 14, township 31, south of range 21, east
of the 6th principal meridian ; thence south on the section
line to the Neosho river ; thence with the channel of said
river to the south boundary line of the Stale of Kansas ;
thence east on said boundary line to the southeast corner of
the State ; thence north luith the east line of the State of
Kansas to the beginning."
As to crossing the State line in Ihe Neosho valley, whilst
it is admitted that the terms of the law make no such re¬
quirement, it is claimed to be èstablished and required by
implication. To establish a conclusion by implication,
10
the hypothesis should be reasonable, consistent, and the
words enacting it susceptible of no other interpretation.
The provision under which this implication is claimed
is to be found in the 11th section of the act, where it is
provided that any railroad company legally chartered
and subsidized by Congress may connect and consoli¬
date with this railroad company after the same shall be
located to the valley of the Neosho river, upon just, fair,
and equitable terms, to be, agreed upon between the par¬
ties.
This provision, by itself, implies absolutely nothing ex¬
cept that at some point on its route from the Kansas river
to Red river this road sliould cross the valley of the Neo¬
sho, and cannot, by any species of verbal torture, be con¬
strued to imply, necessarily, that it should cross said val¬
ley in the State of Kansas. This construction might be
claimed with more propriety if it were a provision in our
charter under the laws of the State, and we were limited
to the privileges granted by said charter, and had no ex¬
tension of those rights by act of Congress beyond the lim¬
its of the State. But the act of Congress extends our
rights, and gives us the privilege to build clear through
the Indian Territory to Red river ; and it is in this law
providing for the extension of our rights from the south
line of the State, southwardly, that the provision for this
union and consolidation is to be found, implying thereby,
if it implies anything on the subject, that said union or
consolidation is to be made within the new limits granted
to our authority, or south of the south line of the State of
Kansas.
Our road is now within eight orten miles of the Neosho
river, pointing directly towards it ; and, if we are per¬
mitted to proceed, but a few days will elapse until we
shall build to and across the same. Once arrived at that
point, which is, also, upon the chartered route of the
Southern Branch road, there is no reason why that or
any other company complying with the necessary con-
11
ditioïls should not unite with us upon such just, fair, and
equitable ternas as may he agreed upon between the re¬
spective parties in interest. Our point of crossing the
Neosho is above the mouth of Spring river ; hut so far as
compliance with the provisions of this act is concerned,
it might be at any point before the same empties into the
Arkansas, for the stream is the Neosho river from its
source to the Arkansas river, although below the mouth
of Spring river it is sometimes denominated Neosho or
Grand river. The Osage treaty of 1825 describes this
stream as the Neosho, at the mouth of Grand Saline,
which is forty or fifty miles below the south line of
Kansas, and thirty or forty below the mouth of Spring
river ; and a map prepared in the Interior Department,
by Hon. Joseph Wilson, Commissioner of the General
Land Office, in October, 1868, describes it as Neosho
river" all the way to its mouth at Fort Gibson. In fact,
Neosho" is the Osage word for Grand," and the
former is the correct as well as the recognized name of
the stream.
It is argued by the Honorable Secretary of the Interior
that our point of crossing the State line should be in the
valley of the Neosho, because the chartered route of the
Southern Branch road is down said valley ; and this road
could not follow its chartered route and come to the place
where we crossed the State line unless that point was in
said vallev.
»
It may be said, in reply, that the Southern Branch
Company is not required to follow the meanderings of the
stream within the first or lowest valley thereof in order
to comply with the law ; nor has it done so, in fact, in
the construction of its road. If this were required, it has
lost whatever rights it may have had by non-compliance
with its charter and the law. The law in regard to this
company provides that it shall construct and operate a
railroad from Fort Kiley, Kansas, or near said military
reservation, thence down the valley of the Neosho river to
the southern line of the State of Kansas."
12
The initial point of this road is on the Kaw river, and
twenty miles or more from the nearest point on the Neo¬
sho valley. Judgîng from its located line from Humboldt
to Oswego, it must be in some places as much as ten miles
from the bed of the Neosho river. It would not have been
compelled to go any further from said stream to unite
with us on the south line of the State at the point to which
our road is now built.
But even if a change of their chartered route had been
necessary to enable them to strike the point at which we
cross the State line, that militates nothing against the
correctness and legality of our selection of that point, as,
if they win the race, it operates a complete and total
change both of route and direction. Instead of building
southeast to Fort Smith, Arkansas, they will be com¬
pelled to build southwest to Preston, Texas, in a to¬
tally different direction, and having an entirely separate
and distinct objective point.
Our road was intended to be the through road, whether
our company built it or not. It was to be the great
through direct line from the Lakes to the Gulf, and al¬
though we might lose the right to build by neglect or
failure, still the road succeeding must come to our point
of crossing the line, in order that the directness of the
transit to the lakes may not be endangered. It was not
expected that any other of these three roads would try to
come to this point unless they were certain to succeed, as
it was not understood to be on the direct line of either of
them. The Southern Branch road made no attempt to
reach this point, because.it knew.it could not succeed. It
made no claim of the franchise until the interlocutory de¬
cision of the Secretary ; and that decision surprised no
one, perhaps, more than the company it benefited.
But we cross the line xvithin the valley of the Neosho,
as the argument of Mr. Joy has demonstrated. The
valley of a stream is the country that is drained by the
said stream and its tributaries. We are within ten miles
13
of the Neosho river, in a country drained by its waters ;
within less than a mile of its largest tributary, and fairly
within the Neosho valley, according to the true intent and
meaning of the acts of Congress on the subject.
But there is another view of this case which, it is sub¬
mitted, is final and conclusive of the question.
Sec. 4. of the act of Congress requires this company to
file maps of its line, and instructs the Secretary, upon such
filing, to withdraw the lands in such manner as may be
best calculated to effect the purposes of this actf &c.; the
purposes of this act being to secure the construction of a
railroad from the Missouri to Ked river.
Our map of the road to the south line of the State was
filed with the Secretary of the Interior on the 5th of Jan¬
uary, 1869, almost eighteen months ago ; and although
the road is not built on the very quarter section designated
on said map, yet the point to where it is built bears the
same relative situation to the Neosho river and the Neosho
valley as is borne by the one indicated on said map.
This map was accepted and filed by the Secretary of the
Interior, and the lands withdrawn in consequence ; and
authority was given to t^ company under the ofiicial seal
of the Department of the Interior to build its said road
through the Indian Territory, as may be seen by reference
to the records of said Department.
On the 12th of June, 1869, the lands were withdrawn
from market.
The letter notifying the officers at the Topeka land of¬
fice was dated June 19, 1869, and the notification to the
Humboldt office bore date the 22d of the same month.
The lands in the strip'' south of the neutral lands
were withdrawn by letter, dated Oct. 19, 1869.
The Secretary of the Interior is an executive officer of
the President of the United States, supposed to act by
his authority and under his direction. His acts are, in
legal contemplation and effect, the acts of the President.
Here, in this filing and these withdrawals, are one pass-
14
ive and four active approvals of the selected and estab¬
lished line of our railroad. Here is the approval and
authority of the President to build to the point we have
now reacheJ. Eighteen months ago the President was
notified of our intention, and eighteen months ago he
signified his approval thereof. If we have been deceived
into building to the wrong pointy the Government has
aided in that deception, and become fully responsible for
it. We are not supposed to be wiser than the highest
officers of our Government, and if they have received and
approved of the map of our location, they cannot now,
when the road is completed, reverse that decision and
deprive us of our rights because we relied upon their
decision, and governed ourselves according to their ap¬
proval.
If this location was accepted so as to give us our lands,
under the law, itioas accepted for all the purposes ^ henefits^
and advantages of the law. It cannot be accepted in
part. It must be accepted in full, if at all. The accept¬
ance of this map of location by the President, through the
official action of his Secretary, was, both in logic and law,
an agreement, upon his part, to give us his approval to pro¬
ceed through the Indian country, if we built our road to
that point in advance of our two competitors, said ap¬
proval to be conditional only upon our securing the con¬
sent of any Indian tribe or tribes on our route whose con¬
sent had not been previously obtained.
This map was filed before the Southern Branch road had
reached the Neosho valley, where it first strikes it, with a
completed road. It made no effort to reach the point we
had selected, and no remonstrance or protest against the
correctness or legality of that selection. It knew, or had
the means of knowing, the point to which our road was
located, as it was open to the knowledge of all who de¬
sired to be informed on the subject.
The filing and acceptance of this map and the with¬
drawal of the lands, especially those in the strip'' which
15
borders on the south line of the State, is an acceptance for
all the purposes of the act of Congress, and an official
pledge that upon the completion of our line, as designated,
we should he entitled to and should receive all the bene¬
fits and advantages of the act.
This acceptance cannot be divided so as to give us the
lands to the south line of the State, and deny us the rights
accorded to us by the act south of said line. It gives
all the rights of the law, or it gives none. It is an accept¬
ance for all the purposes of the act if it is an acceptance
for any one of them.
We filed this map of location when we had 160 miles of
road to build before reaching the southern line of the
State^ to call the attention of the Government to our con-
teioplated route and termination. It would have been
easy at that time to change our point of crossing the
State line, if we had then been notified that it would be
necessary. On the contrary, our map was accepted and
filed, our location received and approved, and formal per¬
mission under the seal of an executive department given
us to go through the Indian Territory, entering it on the
line as mapped and located. On the faith of this accept¬
ance and permission, we went on and built one hundred
and sixty miles of first-class railroad on the located line,
according to the contract with the Governmeit^y (for it was
nothing less,) and now, after expending six millions of
dollars, completing said road to the State line, and asking
for our franchise through the Indian country, secuiei to
us by legislation, and agreed to be accorded to us by the
President, are we to be informed that our location was
wrong, the Government acceptance a mistake, and, not¬
withstanding the pledged faith of the Government, that
we must be deprived of the advantages which we have
fairly and honorably earned by energy, industry, and a
lavish expenditure of money ? Is not the faith of the
Government worth something ; and is it policy to allow
either persons or corporations to be robbed because they
have relied implicitly upon it ?
16
There is another consideration worth some thought in
this matter. The law gives a large discretion to the
President in our favor. Even if the other road had
clearly won the race, by reaching the indicated point
first, the franchise could not have been cast upon it tlierij
save on the approval of the President. The concurrence
of his action is necessary before we can he deprived of our
rights. The law does not compel him to give his assent
to the transfer of our rights to the other company, even
when they have complied with the conditions necessary
to authorize them to ask it. He has, then, a discretion to
give or withhold that assent plainly accorded by the law.
In view, then, of the pledged faith of the Government,
assuring us these franchises in the most formal manner
possible, relying upon which, under the law, we have
expended millions to complete the first road to the desig¬
nated point, is it not a proper case for the exercise of that
discretion unquestionably belonging to the President
under the law, by means of which justice may be done to
all parties, and the integrity of the national faith fully
and completely vindicated ?
It may also be added that no rival road has acquired
these rights, whatever may be the decision in regard to
our application ; as no other road of the two named has
built a completed road to the south line of the State, at
the point where the line of our road crosses the same, or
where it was located.
It is submitted, then, that the Kansas & Neosho Valley
Eailroad Company is entitled to the franchise south of the
State of Kansas, under the Congressional legislation on
the subject, and that the Union Pacific Railroad, South¬
ern Branch, is not, by reason of the following conclusions
claimed to be established by the foregoing argument :
First, Said Kansas and Neosho Valley Railroad Com¬
pany has built the first completed line of railroad to the
south line of the State of Kansas, in the direction of Pres¬
ton, Texas.
17
Second, No other road is built to the point where this
road crosses the State line, or to the point on said line to
which it is located by its maps, as required by law, before
said road can be deprived of its rights.
Third, It has built to said south line through the eastern
tier of counties in Kansas ; and the law gives it the whole
south boundary of said tier in which to fix and establish
its crossing of the State line.
Fourth, It was not required to cross the State line in
the Neosho valley, either by terms or implication^ other
than in the requirement to cross in the eastern tier ; and
this it has done.
Fifth, It could not cross the State line west of the
Neosho river without violating its charter and the plain
provision of the act of Congress^ specified in clear and un¬
mistakable language.
Sixth, The Southern Branch road can connect with it
in the valley of the Neosho, south of Kansas, and on the
chartered route of said road.
Seventh, The present terminus of this road is practi¬
cally in the Neosho valley, being within ten miles of the
river, in a country drained by it, and within less than a
mile of the bed of its largest tributary.
Eighth, The Southern Branch road could have come to
this point, as it has built almost its entire line since it
knew or might have known of this location ; and it could
have come to this point without going out of its char¬
tered limits or general direction, and without going fur¬
ther from the bed of the Neosho river than it has already
gone at other points on its line, and without any increase
of the length of its line.
Finth, A change in its.chartered direction would not
have made any difference if it had been necessary to make
such change in order to reach this point ; as if it had done
so first, and complied with the other conditions, it would
have been compelled to radically change both its direction
and termination.
18
Tenth, Because the acceptance of the map of the road,
filed eighteen months ago, and the withdrawal of the
lands under it, is an adjudication by the Government to
the effect that if this roal reaches the point indicated on
said map before either of the others named in the law^ it
shall be entitled to all the benefits of said act south of, as
well as in, the State of Kansas—an acceptance of said
map of route for one purpose being an acceptance for all
purposes, the same being a complete, entire, and indivisi¬
ble act.
CRATG & BLAIR,
Attorneys for M. R., F. S. ^ G. R, R. Co.