
    L. L. & G. Railroad Co. v. Charles Coffin, Treas’r, &c.
    
    Osa&e Ceded Lands; Claims of Railroad Companies, under Land Grants, Not Sustained. The question in this case — the claim of the plaintiff in error to certain lands in the Osage Ceded Tract — being one whose ultimate decision belongs to the supreme court of the United States, and such question having been decided by that court, must also be decided by this court in the same way, adversely to the claim of the plaintiff in error.
    
      Error from Neosho District Court.
    
    This action was .commenced in April 1872, in the district court of Neosho county, by the Leavenworth, Lawrence & Galveston Rid. Co., as plaintiff, against Thomas Leahy, the then treasurer of Neosho county, to enjoin the collection of taxes for the year 1871 which had been assessed and levied on about 125 sections, or 80,000 acres, of the Osage Ceded Lands lying in said Neosho county, which lands said Railroad Company claimed to own in fee, but which plaintiff claimed were not subject to taxation for said year 1871. Plaintiff claimed that it had received said lands under the act of congress of March 3d 1863 granting lands to the state of Kansas to aid in the construction of certain roads and telegraphs, and the act of the legislature of the state of Kansas, approved February 9th 1864, (Laws of 1864, p. 149; Gen. Stat., p. 885,) and by virtue of the treaty between the United States and the Great and Little Osage Indians, concluded 29th September 1865, and proclaimed January 21st 1867, and by virtue of constructing its railroad through said lands to the south line of the state of Kansas — but claimed that it did not so construct such road to the satisfaction of the Secretary of the Interior, and the acceptance of the Governor of Kansas, until December 1871, and.that the patents from the state of Kansas to plaintiff for said lands were not executed until March 1872. The case came here on appeal from an order of the district court sustaining a demurrer to plaintiff’s petition. ( L. L. & G. Rid. Co. v. Leahy, 12 Kas. 124, decided at the July Term 1873.) This court reversed the order of the district court; but in regard to the real merits of the controversy, as disclosed by the facts alleged in the petition, the court (12 Kas. 126) said:
    “There is nothing in all this which tends to show that these lands were taxable in 1871, or to limit the previous general allegation [in the petition] that they were not subject to taxation for that year. It does present however a very serious question as to whether it does not show that the company has no title whatever to these lands, and therefore has no right to maintain this action. It does not appear from this petition whether these lands are all within, or all without, or part within and part without, the limits of the tract formerly owned by the Osage Indians, and covered by the provisions of the treaty of 1865. If they are without those limits, then it is easy to see how title could pass by the grant of congress, the acceptance by the state, and the construction of the road. If they are within, then it may not be so easy to see how any title could thus pass to the ciDinpany. Outside of this case, (for counsel are silent in their briefs as to the effect of the treaty provisions on the question of title, and in fact ignore the treaty entirely,) we are aware that a grave controversy is pending as to the title of these lands. We know as a matter of public history, as well as from the petition, that the secretary of the interior has declared that title to lands covered by that treaty did pass to plaintiff on the completion of its 'road; and we do not decide that it did, nor that it did not. We shall not decide a question of that importance until it is fairly before us.” 
    
    
      The case being remanded, and the term of office of Leahy, the former treasurer, having expired, Charles Coffin, his successor-in office as county treasurer, was substituted as defendant. And thereafter, at the April Term 1874, the action was submitted to the district court upon an agreed statement of facts The district court held that under the agreed facts, and the pleadings, the plaintiff did not have any title to'or interest in the lands, and consequently could not maintain the action; and judgment was rendered against the plaintiff for costs. To reverse this judgment the plaintiff brought the case to this court. The petition in error was filed May 21st 1874, but the hearing was postponed from term to term, by-consent, pending the determination of the cases in the United States courts referred to in the opinion.
    
      Solon O. Thacher, for plaintiff.
    C. F. Hutchings, for defendant.
   The opinion of the court was delivered by

Brewer, J.:

The principal question in this case is, as to the title of the plaintiff in error to certain lands in the Osage Ceded Tract. This question having been recently decided by the supreme court of the United States, (the court of last resort upon this question,) adversely to the plaintiff in error, it is sufficient for us to direct an affirmance of the judgment below in accordance with the conclusion reached by that court. Judgment affirmed.

All the Justices concurring.  