Omaha Daily Bee Newspaper, January 31, 1892, Page 12

JANUARY 31 1892 -SIXTE BELONGS T0 THE CITY Omaha's Olaim to a Million Dollars’ Worth of Valuable Land. THE RAILROAD INTERESTS INVOLVED Property Originally Given as a Bonus to the Union Pacific. VALIDITY OF THE ACTION QUESTIONED Ohief Condition of the Deal Rendered In- operative By the Supreme Court. WORKING FOR OMAHA THE MISSOURI By the Law of Accretions the City Now Has an Indisputable Claim to Eighty Acres of Valuable Tracknge and Munufucturing Property. While the public spirited citizens of Oma- &a are engaged in solving the problem of how the interests of the city may be best ad- vanced; how union depots may be construct- *d; how factories may bo secured and how additional raiiroad lines may be brought into the metropolis of the west, few, it any, real< l20 that at the presenttime there is within the city limits more than 81,500,000 worth of real estato that Is claimed by other parties, ‘which in reality belongs to the aity. Early Town Site Lines, As early as 1853 the Council Bluffs and Nebraska Ferry company was organized un- der the laws of Iowa, its charter to continue for the period of twenty years. Enos Lowe was electea president of the company and a boat was put upon the river to ply between ‘Council Bluffs and the Nebraska shore. The old town site, of 320 acres, extending up and down the river for a mile or more and west to-Saunders street, was squatted upon by residents of the city and parties who were in the employ of the ferry company. The following year congress passed an act prganizing the tervitory of Nebraska. Dur- Ing the month of July, 1835, the town site containing 320 acres was platted. Four years later, in 1859, the lan1 was put upon the market, entercd und deeded to David D. Belden, mayor, in trust for the citizens of Omaha. By a resolution of the city council, adonted July 18, Belden as mayor was in- structed to deed to actual residents the lots which they then occupied, ana to offer all remaining lots at public sale. The sale wss made in conformity with tne resolution and deeds passed o the Bighest bidders. A neat sum was realized and passed into the city iroasury, Reserved Certain Blocks, Priortothis t.me, blocks L to Q inclusive, as shown upon theaccompanying map, had been reserved. They had not been offered to the public, nor had they been claimed by any of the parties who had squatted upon the lands in and about the city. At that early date the Missouri river flowed through what is now kuown as Saratoga bend, through Cut-Off lake and almost due south past the high biuff in the rear of the Omaba Milling company’s building at the eastond of Clark street. Then it ran aimost due south, the west bank being 400 to 500 foet east of the blocks of land mentioned. The same condition of the river is shown by the maps of the government surveys of 1850 and 1858, B What the Early Surveys Showed. The A. D. Jones map of Omaha, made 1n 1854, shows that the river intersected these blocks at Nicholas street, cut out & portion of block P and then flowed southeast without touchivg vlock Q. The Poppl 'in & Byers' map, made and copyrighted in 1857, and which was adopted the official map of the city, shows the west bank ot the river to have been from 400 to 500 foet east of the blocks heretofore mentioned. It shows the river to have interaected Graco street at or about on the line of Sixth street, extended. From that point it flowed south- east, leaving 8 wido leves in frout of all the town site to a point far south as Pacific street. Inall of the council pro- coedings of the '50s the strip of landis re- ferred to as *“'the leves,” and is reserved for the use of steamboats and for the landing of the boats of the Council Bluffs and Nebraska Ferry company. In the changes that took place along the river during the years from 1856 to 1870, tho ferry reserve from Webster street to a point @s far south as Jackson street was entirely washed away, but above Izard street, instead of being eaten up by the river, it widened out constantly and gradually, adding more and to the levee or river front. During all of those years the strip of land was used by the forry and the steamboats operating between St. Louis and the upper waters of the Missouri. It was a tanding for all of the boats and was one of the budiest places in the city between the months of April and November each year. ¥irat Unlon Paclllc Bonus. Late in the '50s the Union Pacific Railroad company concelved the idoa ef building & riilroad from Omaha to tbe Pacifio coast. Omaba was made the eastern terminus of the proposed road. Before active operations were commonced, officers of the company im- . poftuned the city for ald. Among other things, the company wanted a bonus fu the way of lands aud city lots. Proposition after proposition was suomittea, until at last the city agreed to donate a certain number of blocks of 2ity property, among them being the blocks referred to in the accompanying map and known as L, M, N, O, P and Q. The deed was o conditional one, & copy of the record found wn Deed book P, page i81, will show. The Deed and Its Conditions, The deed is as follows : This indenture. made the 7th day of Dece~ ber, A. D, I8, hetwoen' the oity’ of O, party of the st part. und the Unlon Fucitis uliroud eompuny, puriy of the second purt; witnosoth that, "' eroas. The clty council of the olt Omahu hus this diy passed wnd Approvad s resoiution In the words following, t wit: Kesolved, Iy the eity council of the cliy of omaha thit the muyor of said o.ty be, and he is hereby uuthorized, ewvowered und required 1o make, execute and acknowledge and de- iver 10 the Union Pacifie Kulirond company & deed of conveyanco in fee simple of the fol- lowing described pieces, or parcel of land, sit- aute in the cou of Douglas. and territory VN, O, P und Q, deslenuted n ap thereof, made and by Poppleton’ & Byers, gonveyunce to contain a proviso that fn cuse the eastern winus of the Union Pacifie Kallroad company, on the Missour r ahull not be locsted und continued within one and one-fourth wiles of Farnuw street, in said olty of Omaha, then and in thut caso the premiscs heroby conveyed shall revert and ome reluvesied in tho sald oity. ‘Therefore, in consideration of the preuwises and the sum of 8l to the suld parsy of the Airst part, in band pald Dy the said Darty of he second part, the recelps whereof s uo- nowledged, the sald party of the first purt bath grauted, bar:alnoed, sold. conveyed and gonlmud. und by theso pey ur doth grant, in, séll, couvey and conlirm unto the rty of the second part, its successors jg0s forever, ull those certain pleces or E‘ of land, situsted in the county of uglas und territory of Nebrasku, und de- scribed usfollows, to wit: Bloeks L, MLN, O, P and Q, 1u sald city of Omaba, as dosignated on the likhographed ap wade thereof, made und published Ly ‘oppleton & Byers. together with the appur- teusnces, uuto the suid party of the second art, its suocessors and assigns foraver. Ana ic said party of the fiest part doth hereby covenunt and agree with the sald l)lr'r of the second part, its successors and assigns, that 1t is Inwfually seized of said premises: that It has good right and lawfal authority 10 sell the same and that it will warrant and +fend the title to the sgme, against all per- sons clniming by. through ot under it. Pro ed, however, that in case the eastern terminus of the Unlon Pacifie ralirond on the Missour! river shall not be _loeated and con tinued within one and one-fourth miles of Farnam street, in said city of Omaha, then in that case, the promises nereby conveyed shail revert to and bocome reinvested in the said eit In withess whereof, the mayor of the city of Omaha, the party of the first part, has here- unto set hils hand and caused the same to be attested by the city clork of sald olty with its corporate seal. B E KesANEDY, Mayor of the Uity of Omnha. Attest: Bymon Rewn, City Clerk. In presence of W ilifuin E. Harvey. United States internal revenue stamp. [SEAL] Deed to the Right-of-Way, The deed of right-of-way over the levee is egually interesting, and 15 a3 follows: This tndenture made the Tth day of Decems ber, in the yoar of our Lord onv thousind Wt hundred and s.xty-three, botyeen the y of Omuha, in the territory of Nebrasku, of the first part, and tho Unfon Pacific rail: rond company of the second part us follows, namely: That reas, nt a meeting of the city unvil of ity held th s day, the following resolu- tlon was p-sse | und adopted by sald council, towit: Wherens, The Union Pacific Rallroad com- pany is desirous of obtaining the right-of-way over all that ceriain p ece or parcei of lan i situated In the city of Omaha, in the terr.tory of Nebruskn, 1y.ng along the bunk of the Mis- scurl river, and designatea the litho- graphed plat of sal city, made and published by Popploton & Byers. us ievee, for the pur- pose of constructing and malntuining and oporating three or more tracks of sald rall- roud over tho sanie, With the requisite side- tracks, turnouts, switches, water stutions, warehouses and appurtennces. and whai- ever else may be requisite and necessary to the operation, maintenance and security of said railroad, 118 property and business: and Whereas, The grant of such rights and priv- 1lezes to sild compuny will be of great benefit and advantige tosaid city, so loug us the game shull bo used by satd company; thero- ore, Kosolved. By the oity councliof the clty of Omuha, that the mayor of suld city be and he is hereby authorized, empowered nnd re- quired to muke, execite und deliverto the sald Unfon Pacific Railroud company, their successors, usslvnecs grantees, in accord- unco with tho charter of suld city, andthe ordinanves thereof. in such cases mude and provided a deel of grant of sald oity and the corborate authority thereot, of the right-nf-wny over. upon and throuzh the suid premises,with the frec and uninterrupted ifberty and priviiege of laying out, locating and constructing, maintaining. operating. furnishinz and enjoying three or more tracks of snld rallrond over the same, with the requisite side tracks. switches,water s warehouses, wharves and uppurtenunce may be requisito and tion, Construction. oper: onjoyment and security of sa nces and busine: nd_regross upon, ¢, to and for the successors, ants. oceupees Sossors, Its property, trains, passe froight, 50 long as the same sfinll be 1picd and enjoyed for that purpose by the id company, 118 grantees, successors and assignecs, And further, Resolved, that the rights and privileges hereby zranted shall not be so construed us to conflict With or imbair any privilete here tofore granted to any person or persons, or bodjes po.itic or corporate, whatsoever, li or to the uforesald srounds; that suitabie cros- singsshill bo mado nnd provided by ssid compuny at all public streets crossed by anv of the said railroud tracks which {s nocessary for the public to use to euublo it 0 reac the steamboat and ferry Inndings, 60 as not to obstrucy truvel 1o or from the ferry orsteambout land- 1ngs, and that the right of the pubiic to travel over and onjoy the said ground shall be unim- puired only 50 fur us the re sonablo exeroiso of tho pr.vi eges hereby granted sha.l abridge the sume. ani that the substance of this last resolution be incorporuted in said grant by way of ilmitation of the privileges of suid com- pany. ' Aow, therefore, in consideration of the premises and the sum of 81, lawtal money of ihe United States, unto the suid party of the first part, well and truly made by iho sald purty of the second part, at and before the ensonling and_delivery hereof, the receipt Whereof Is hereby acknowiedged,the suld party of the first purs hath granted. bargainet and sold, nnd by these presonts doth grant, bar- gain and soll unto the sald party of the sécond Ditt, its grantees, successors and assigns the right-of-way over. upon and throuzh wll that cortain ploce or parcel of land situate in the City of Omahn snd torritory of Nebraskn. Iving along the b :nk of the Missourl river and designated on the lithozraphed plutof suid city, and published by Popp.cton & Byors us Tevee, from the northern to tae southern cor- porate timits of suid oity, with the froe and uninterruptea liberty and briviieze of liyin out, locati constructing, maintaining, sperating, furnishing and enjoying three or more tracks of said-ra Iroad. overand upon same, Wwith the requisite 3.6~ track switches, water station houses, whurves and _apperiunax whatever else may be requisito i for the location. constractic malntenence, enjoyment und s railroad und its “business, with ogress and rour sime, to and for pury, its grantees, succe: tenunts, vants, occupees and possessors, its property, truins, pussenzers and frelght. To have and to hoid all und singulur the said rlzhts and privileges aforesa:d. unto the suid purty of the second pi antoes, sors und assigns, 80 long as the sume used. occupied und enjoyed for the vurposes aforesnid, by the suid party of the sccond art, its grantees, successors and assizns. Provided, huwever. that the rizhis and privileges hereby granted shull not be so construed us to confl.et with, or impair any privileges herotofore granted Lo any person br persons or bodies politie, or coporite what- ever. in or to the said round; aud; Provided further, that suitable crossinzs shall be provided by the said purty of the second part nt all public streets crossed Ly “ny of the sald railroad tracks which it 1s nec- essury for the public to use to enable it to ronoh the forry and stoan boat lundinzs, an 13 Provided further. that the right of the pub- lic to truvel over and enjoy the sald promiscs shall be fmpaire | only 80 far ns the reason- able exercise of the privilezes hereby granted shall abridzo the sume. Tn witness whercof the mayor of said city of Omuha, the suid purty of tho first part, has hereunto set his band as such mayor und (-ml.\edrll:u sare LI“) I‘m uttested by the clty clerk of the eity with its corporate 4 15 B, KENR D Mayor of ihe city of Om ki BYRON Rekn, Oity Clerk. in presence of Georgo B. Lake. [SKAL] United States revenue suimp 5. How the Title Was Obtained. The maunner in which the Union Pacific railroad company obtained from the city its alleged titlo Lo blocks L, M, N, O, P and Q, and the right of way over the levee is besc explained by the conncil journal of Novem- ver and December, 1863, At that time the council was composed of six members, George B, Lake, 8. J. Good- rich, D. C. Sutphen, Heury Grebe, John Campbell and John H.' Kellow, with B. E, B, Keunedy mayor ana presidiug oficor, At the session held November 30, 1863, Mayor Kennsay, Aldermen Campbell, Good- rich, Lake and Kollom were present. By permission Messrs. Dye, Hauscom, Me- Cormick, Mills, Taylor and Kountze were atlowed {0 address the meeting upon the ques- uon of deeding to the Union Pacific raiiroad company the right-of-way over the leveoand the blocks of land heretofore mentioned, After o lengthy discussion the matter was reforred to the judiciury committee,of which Judge Lake was chairman, with wstructions to report at the next regular meoting to be beld Decemuer 2, 1563, At the next meeling there was not a quo- rum of the aldermen present and the council adjournea 0 meet De- cember 7. When the adjournad meeting was held, it was attended by Messrs, Campbell, Goodrich, Luke, Kellom and Mayor Kenncay, Alderman Lake, chairman of the commit- teo on judiciary, reported back two resolu- tions, which are erabodied 1o the deeds tothe Union Pacific Raliroad company, copies of which are publisbed in auother place iu this article. Alderman Goodrich moved the adoption of the resolutions, and upon roll-call all of the wmembers voted “aye." Weut Through with a Rush, Just what influences were brought to bear upon the couucii o fnduce its wembers o act with such great haste is not known at the present time. Twenty-nine years have passnd away, dimming the recollections of the men who attended the council meoting. The meeting, however, was one at which busiuess was not allowed o lag or linger by w;[w::-luc. at meeting, beld on the evening of Decomber 7, 1563, the report of tho cominit- tee on judiciary was recewved and adopted. The deeds to the land betore referred 1o were excouted, sealed and sigued, to at once be turued over to the keeping of the railroad company. ‘The records show all of this, ang they rlso show tlut the business was transactea ntone tting of the council, at & meutiie that was beld pursuant to an aajourn- meut taken & 8 ume when less tions, whatsoever ols sary for the lo maintenunce railrond a with free ingre: through sald com| grantecs, Wi the Attost than & quorum of the members ware present to vote upon the proposition to adjourn. Claim the Action was Flegal. Parties who nave losked into tha matter stake thetr roputation that ali of the business transacted at the meeting of the city council held on tho evening of December 7, 1363, was illegal and void. They hold that there never was o ruie adopted by which less than a quorum of a legislative body could adjourn to astated date. Tho records of the city show the facts, They show them approved by the president and attestod by the clerk. They show that the committes on judiciary was instructed to report upon A certain matter at astatea time; that when that time came, which was & regu- lar meeting of the city council, less than a uorum of the members were in attendance. Nothwithstanding tnat fact the council was called to order and the body adjourned to a stated timo, Not & word appears in the records to show that a call for aspecial meet- ing was issued. [t was simply a motion to adjourn. At thatadjourned meeting the busi- ness was transacted Acting under the authority granted by the deeds wnich were oraered at the illegal meet- ing-of the Omaha city council, the Union Pacific Railroad company tok possession of the whole river front, but did it live up to the terms of the deed! Violated Terms of the Deed. The deed provided in clear and unmistak- ablo terms that when the railroad company failed to maintain its eastern terminus within one ana one-fourth miles of Farnam street, then the property, especialiy blocks L, M, N, O, P and Q should revert to and become the property of the city of Omaha, To out n long story short, the castern terminus of the road did not remain ut the point agreed upon, but went to the Transfer, at or near Spoon Lake, Towa, and three miles from the eastern terminus of Farnam street. The location was settled by a decision of the United States suprome court. Dectsion of the Supreme Court. The decision in that case concludes as fol- lows: ~ “It has beon argued, however, that the “And the Union Pacifio rallroad compan. does hereby covenant with the City Water Works company that it has done nothing whoreby the tjsjo to said premises can be annulled." Used for’ ter Works Purposes, This deed of conveyance was accoptod by the water \orks company ¢ud tho work of ostablishing its down town pumping station was commenged, located upon the levee which was owned by the city and over ¢ which the Union Pacifio had the rlzhl-bfi\n\)n Two settling basins wero placed upon the block purchased from the railroads, As tho city grew, their ca acity became too small to meet the public demand for wager aud another basin was lo- ocated, this oneoh Cuming strest between Seventh and Bighth, The real estate boom of the early 'S0s fol- lowed and again the water works company found itself unable to supply the public, ow- ing to the lack of reservoir capacity. The company could mnot get down onto block 828, the one directly south of tho basin located in Cuming street. In casting about for more eround it attemptod to purchase block- P, but that was not for sale. However, it _was for rent. A bargain ‘was soon struck with the ratlroad company, by which the block was leasod to thy water works company for a long term ot years at an annual rental of $500. Upon the execution of tho lease covering block P, the water works company com- meuced excavating and soon had the whole of the block, together with Nicholas and Tzard streets, betweon Seventi and Bignth, coverod with settiing hasins. Took Blg Rentals from the Property. For ten years the wator works compauy has occupied the block, together with the streots, und during that time it has paid 1nto the treasury of tho Union Pacific company as rental, the sum of $50,000, which, under "the revewsion clause in the deed originally made to the Union Pacific road by Mayor Ken- nedy, should have boeu paid into the city treasury of the city of Omaha, Terms of the Right-of-Way Deed. The question has been asked, “Did tho The pamping house was | the city to a point opposite the foot of Far. nam street. Made by the River's Changes. At this timoe the neck of the horse shoe was fully two miles i width. ITn 1851, when the noxt survey was made the river had slowly crept in, cutting off a portion of the neck of tho horse sho, and adding a narrow strip of land to the levee or river front oppo- sito the city of Omaha. Another survey was made in 1856, showing that the loves had increased to some extent, 80 much 80 that that portion of section four- teen, township fifteon, range thirteen, Iying between biocks L, M, N and O was platted as government lot two, containing thirty-two acres. That portion of the seetion lying be twoen r line of the river and blocks I, Q S was known s govern- ment lot three and contained 34.20 acres, ubsequent surveys were mado in 1508 and and the plats and field notes of ocach show that the nock of the groat horseshoo had gradually become narrower until at its lower end it hada width of less than 100 feet. The Property Grew Rapidly, All of the time that had intervened be twoen the years 1851 and 1877 accrotions had been forming along the river front opposite the north ond of the city. until thers was a high dry bar nearly three-quarters of a mile in width, covered with a growth of willows ana underbrush. During the uigh water of 1877 the river cut through the lower end of the the neck of the horseshos and dropped into ths charnel that 1t uow occupies. This change loft a valuable tract of Iand between the old river bed aud the corporate limits of the city, but it was carefully watched, and instead of being taken posession of by the city of Omaha, un- der the provisions of the laws of accretion, it was squatted upon by parties who wero in- terestod in the old Council Bluffs and Nebraska Iorry company, which was in- corporated in 1853 and authorized to exist for the torta of twenty years from that date. Took Posseasion of the Accretions, William Brown, who for many years was tho owner of the Lone Tree ferry, and after. bridge1s not a part of section 10, east of | and opposite orn boundary of 10 which, on the west- Tows, the president fixea tho terménus. Lt is, however, the only bridge that the company has extending its voad to the western boundary of lowa; and clearly it has uo authority to bu True, it 18 not opposito section 10; but tho company has taken up its road from that scc- tion, and now it comes to the river where the bridge is uctually coustructed. Having abandoned its road, so far as it extended above that point; huaving commenced ity bridge where it is; having applied to con- gress for power to mortgage iLand for spa- clal power to levy toils and charges for the use of it; and having obtained these powers | it is not at liberty now to assert that it has located its bridge at the wrong place. ““To hold that the bridgeis not a part of tho | road would defeat the plain object congress bad in view 1n 1862 aad in 1864~ a continuous line for connections with lowa roads. It would be allowing the connection to ba made | in Nebraska instead of 1n the western boun- dary of Iowa, when the act of 1571 exprassly declared that nothing therem should be con- strued as to eastern terminus of the Union F railroad from the place where it was then fixed by existing 1aw: “Holding then, as we do, that the logal ter- minus of the railroad is fixed by law on the Iowa shore of the river, and that the bridge is a part of the railroad, there can be no doudt that the company is under obligatio o operate and run’ the wholo road, wcluding the bridge. as one connected and continuous line, *What this means is not aificult to un- derstand. It is a requisition made for tho convenience of tho public. An arrangement such as tho company hus made, by which freight nnd passengers qestined for or be- yond the eastern Lerminus are stopped two or three miies from it and transferred to an- other traip, and ngain transferred at the ter- minus, or by which freizht and passengers golng west from the eastern end of the line must be transferred at Omaba, breaks tho road into two lines and piainly is iuconsistent with continuous operation of it as a whole. The mandamus awar.ed in thrs case, thero- fore, imposes no duty beyond what the aw requires, 'For these reasons we think the circuit court did not err in hoiding that Hall and Morse wera competent to apply for the writ in this case. The aecreo of the circmt oourt is af- firmed."” Removed the Eastern Termiu Following closuly upon the heels of this decision of the suprome court came & notice from the president of the United States or- dering a removal of the eastern terminus of the Union Pacitic railroad to the Iowa sideof the river. ‘I'he ofticials complied with the terms of the order, und even wount beyon the instruc- tions therein contained. Instead of removing the terminal point simply to the lowa side of the rviver, they located it inland nearly Lwo wiles at & poiut now koown as tho “Irans- fer.” Thero it has remained up 10 the pres- ent date, but during all of the years that have intervened the Union Pacific company bas retained possession of tue blocks of city proporty, L to Q inclusive, notwithstanding thatl thé deed of conveyance expressly stated that whenever the eastern terminus of the railrosd was maintained at & point more than one and one-fourth miles from Farnam stroet, then the property should revert Lo the oity. Not only has the corapany held possession of these five blocks, containing eight lots each, whicn at & low estimate are worth on the aggregats, $120,000, but it 0 failed to y the taxes, or a portion of them which ave accrued during the past twenty-nine years, Sold Part of the Property, Aside from this, it has sold aud uisposed of one of the blocks, the one known as block Q. Ou September 7, 1872, Sidney Dillon, then hrunlunl of the Union Pacific company, and enry McFarland, its secretary and treas- urer, sold the whole block to the Omaha City Watsr Works company, which hus since be- come the Awerican Water Works company. The deed which is recorded in ead book 43, on page 283, sbows the consideration to have been #1,200, but at that time itis probable that Mvr. Ditlon bad but little confidence in the title that b mpany held to this block and the others L, M, N, O aud P, as the records sbow the decd 1o have beeu a carefully word ed instrument. Instead of Lelng a straight couveyance, after tho usual granting clause, there aro iu- sertod in the deed the following words: 'd any otner. | | to u polut opposite Grace street. Union Pacific railroad company comply with tho terms of the right-of-way deed executcd Ly Mayor Kennedy on December 7, 15631 That deed provided that tho railroad com- pany should construct and maincaiv thres or more side tracks upon the tract or strip of land known as levee, in front of the blocks L. M. N, O, P, and Q. Upto this date the company has done notbing of the kind, although it claims pos session of the ground, and refuses to allow roads to eutor thereon. o single enters unon the levee at the inter- section of Cuming street. It ruus almost due north, past the settling basins of the water works company to & point opposite Nicholas street. There the track enters upon block O and runs in a northwesterly airection to the center of block N, where a switch has been placed. From the switch two tracks branch out, one ruuning to the northeast, and the other to the northwest, both reaching sand pits in the streat between blocks N and M. Thiore is another track however, that the railroad company claims belps it to comply with the terms of the rignt-of-way desd. This intersocts the track that runs north upon the leves, at & point opposite Jzard streev. From there it ex- tends in a northeasterly direction, entering the possessions of = the Eust Omaba Land company sud extending to the fac- tories in that manufacturing suburb. This track, however, is not owued entirely by the Unioa Pacitic 'company, but was put down by that company and the Burlington road a couple of years ago and is Kuown as a part- nership affair. Should the City Take Possession? With this condition of affairs existing, in connection with blocks L, M, N, O, P,and Q, what is there to prevent the city of Omaha from declaring the deal betweeu the city and the Union Pacitic atan end and stepping 1n and taking possession of the proparty under the provisions of the roversion clause cor tained in the deed executed Decembel 156314 ‘Chere are some perties who assert that the statutes of limitation have run and that the ity has lost the opportuuity of doclaring its Tights in the promisos. The law DOOKS, how- ever, view the subject in a different light. Any number of supreme court decisions are right 10 point with this case, ana all of them show that the statutes of Lmitation never run aganst & municipal corporation uny more than they do 8Zainsta miuor, They sbow that a municipal corporation stands in the same position as a minor. The oficers of the municipality are always elected at stated iutervals and for stytod térms, which always keeps it in its wilnority, so fur as bowg barted by the stitules of limitavion are cou- cerned. If this law is gopd, and all the writers of text books agroe that it is, there is nothing to permit the cily from stepping intn court any day for the porgose of declaring the old deed void and of ng'force and affect. The Landund Its Value, While there arp, ip doubt, many people in Omaba who have not soen this land, a word 1egarding its contouk might not be out of place, & All of the blocks #hd the leveeare high and dry, and well adapted for trackage or the eroction of warehuisos aud factories. They lie some twenty feet'above the river at low water mark and #rd hot only protected by a heavy clay baok,cbus also by the system of government rip rapthat was put in Lwo years ago. J Elghty Acros in This Deal, Another question of much greater interest t0 the city, is whether or notit will take pos- session of the cighty acres of bottom laod that lies directly east of and adjoining the blocks of land heretofore described and tne strip of land knows 8s the leveo, Iu 1550 according to the governmeut sur- vey, the river flowed in the shape of an im- mense horse-shoo, cowlug down through its present channel against the bigh bluffs on tha Towa side, north of Council Bluffs, At o point south of the Carter Whiwe lead works it turoed and flowed north, thence west tnrough Cut-Off lake and thence south wlong the Nebraska bluffs from a poiut 0ppo- | site Commereial street to about where Clark now intersects Teoth street. Irom that point it tflowed in @ southeasterly direction Then the curve changed Lo & direclion that was a trifie west, sod the flow was directly south, the chavnel bugging the Nebrasks shore along the levee from the northern limits of tockholaer in the Council Blufts and Neoraska Ferry compeny, took posses- sion of lot 1in lowa and lot 3on the Ne- draska shore, together with all of the accre- tions. Anarew McCown, another of the partios in the old ferry company, took posses- sion of lot 3 with the aceretions thereto. Under squatters’ titles these partics held possession of the lands until death, after which their heirs held possession until they passed into the hands of J. M. Woolworth, trustee for the Council Bluffs and Nebraska Ierry company, which held a charter that expired in 1873. Recent Doals With the Property. Tho records in Council Bluffs show that for the sum of 5,000, on April 19, 1801, Fravk C. and John A. McCown, executors of thoe ostate of Andraw McCown, deceased, con- veyed the whole of lot 3, together with the accretions to Theodore Miller, who is an em- ploye of the East Omaha lana company. Prior to this, and on December 15, 1888, for the sum of $300, the records show that John H. C. Brown conveyed the same prop- erty toJ. M. Woolworth, trustee. Again, on May 1889, Emma McKenzie, Alex- ander 1 Mary R. Soreuson, Alfred Helen Van Camp, heirs of W. D. Brown, deceased, James Jack- s0n and wife vonveyed the same property to J. M. Woolworth, trustes. —Later on, and on December 25, 1889, C. H. Downs, who was a ferry company squatter, couveyed tho same property to Woolworth, as trustee, the con- siaaration being $100. Each deed was carefully drawn and great care was used 1o s that they contained a clause as follows: “Extending to the low water mari of tho said Missouri river on the Nebraska shore, as shown by the survey of 1850, with all aceretions hereto formed to the s and also any and all accretions formed to any of the abave described property.” The Title Lacks Completeness, The chain of title is far from being com- plete, as there is nothing on the records of either Douglas county, Nebraska, or Potta- wattamie county, Iowa, showing that An drew McCown,” W. D, Brown, C. H. Downs orany of the other parties who appoar as grantors ever obtained title to any of the lots orlands from United States or apy other person. The records show that the ferry company had a tract of land, which was platted as Ferry addition to Ccuncill Bluffs, But this tract, accordiug to all of the sur- vln_yn‘ was always on the Iows side of the river. Will 1ie Deeded as Neoded, While there is nothing that ll|l€nlr! of rec- ord, there is an understanding between the Union Pacific Railroad compauy, the East Omaba Land conpany and the old ferry com- pany, thut these lands will be deeded back and ‘l‘nrlh, as any ono of the parties may de- mand. This statement has been made by an oficial of oue of the companies, and to prove that it 18 true a deed which is now executed, but not filed for record, bears evidence. Not long ago the old fersy cowpany deeded to the Kast Omaba Land company uorth balf of lot 3, and in veturn the Kast Omahia Land compauy deeded to the Council Biuffs and Nebraska ll‘arr{ company the soutd half of the same lot. Both deeds, like those taken by Woolworth contained the clause, “Extending to the low water mark of the said Missourl river on the Nebraska shore, as shown by the survey of 1556, witn all accretions hereafter formed to the same, and also any and all acoretions formed to any of the above described property.’ This evidently means but one thing, and that the three companies lay claim to all of the river front that belongs to the city of Owmaba. How the Lan To show conclusively that the land, slong the levee front and adjoining blocks L, M, N, O, P and Q were formed by accretion aud not by any sudden change in the chau- nel of the Missouri rrver, it is only nccessury to peruse the testimouy taken in the East Omaba case which 18 now before the u- remo court of the United States, aud nown us the State of Nebraska agaiost the Stato of lowa, brought to settle the boundary line between the Lwo states. The testimony was taken st Omahe last sammer, aud occupled several weeks of time. The point at issue was whether tue land had been formed by accrotion, or whether it bad been added ia largo tracts. The testimony of C. B. Kustio, Jobn A. Was Formed. Marsh, Thomas Tostevin, John MoPherson, A, D, Jones, Eugene L. Ware, C. F, Potter and Theodore Miller, all men who had re- five years, was taken, All of the witnesses agreed upon the point that the cutting of the river along the Nebraska shore had been slow and imporcentible. Tha testimony of County Surveyor (George Smitn is giyen. S yor Smith’s Statement, George Smith, aged 50 years, callod and sworn. Ho testified that he had resided in Omaha since 1856 and by occupation was & surveyor and civ | engineer. He had mado a The river between Owaha and Council Bluffs had been under his observation during the period of his residence in Omaba and he was fumiliar with its traversings and loca- tion. The changes :n the river from 1856 to 1877 were ail brought about by abrasion and acoretion, It worked itself fnto the shape of an immense crook or 1oon, four miles uround from the fair straight channel in which it ran from 1851 to 1853, In 1850 witness sub- divided into lots the whole of section 14 in Towa and found about eight rods washed away from the line of the original survey made in 1851, On tho abrasion side of the river the shore was usualiy perpendicular from ten to fiiteen feet high, owing to 1he stage of the water. Accumulations nnd ac- cretions were woing on opposite to whero the abraaing was occurring. The accumulations and abrasions differed in differont yours, hut there was a constant wearing off on the cur rent side and a filling in_on the other side. ‘T'he wholo eharacter of the chunge was slow and gradual as distinguished from a sudden change or cutoff. The river bad not mado any sndden changes of its chanuel outside of banks or cut off any portions of land oxcept by ubrasions. The filling was made up of a deposit of the silt and sand that floated n tho river and settled when it got outside of the rapid course of the channel. Witness had made survevs of the land formed against the Nebraska shore for the purpose of determining the available timber, and ‘between 1856 and 1832 he had noticed that thoro had been a great deal of accration. Sinco 1863 nlmost overy yoar ho had been upon the bottoms and had seen the land form, Smiley, George Swith, J. A Swobe, W. W. although he made no special measurements to determine the fact. The cutting away on one shore was cotemporapeous with the accretions on the opposite shore, What Mr, Smiley Knows. John A. Smiley bad resided in Omaha since 1856. He was fomiliar with the Mis. souri river in the vicinity of Couneil Bluffs and Omaba. It was the rule that . the Missourl river cut on one side and filled at & proportionate rate on the other. That was true in relativn to the great bend and had been for more than thirty years. The river had cut the horse- shoe down Lo a narrow neck and then ocut through in 1887, The change in the course of the river from where it ran in 1850 to where it ran in 1877 was not a sudden one, but was slow and gradual, every vear cut: ting some on one side and filling up on the opposite sive. Somo years the river would not cut more than ten feet, but in nineteen years 1t went from a mile to a mile and a Balf in some places, Witness was on the vew land once or twice each year, and from observations that he made was willing to state that tbe accrotion was gradual and im- perceptible without measurement, but not imperceptiblo to engineers who 'measured the ground. Law of Accretions, Taking it for granted that the witnesses in the Nebraska-Iowa case were correct in their version of the wearing away of the land in the neck uf the horseshoe, the land extend- ing to the water line on the west bank of the river, where it flowed in 1877 prior to the cut- off, would belong to others than the old ferry company, as originally it held no land be- tweea the levee and the west shore of the river. Then the question of who was the owner of the accretions naturally follows. The general law_on sccretion is 8s follows : “Accretion is the {ncrease of real estate by the addition ~ of portions of soil by gradual depositions through the operation of natural causes, to that already in possession of an owner. “The owner of land on u stream has a right to.all accretions thereto,caused by the deposi- tion of alluvium thercan, without regard to the question of whether such accretions wure formed solely by natural causes, or by such causes influenced by the artificial works of others, and without regard to the question of whether or not such stream 1s navigable,"” Omaha Owns the Land In Question. There can be no question but that tho title to the original levee remains in the city of Omaha, notwithstanding the right-of-way aeed held by the Union Pacific company. Again, with the reversion clause that the deeds to the blocks L, M, N, O, P and Q con- tained, it is more than probable that that proporty also belongs to the city. Such bemg tne case, the question of how the city shall measure its river front naturally arises. The river has receded and & large tract of land has veen formed by accretion between the old levee and the preseat west bank of the stream. If the law of accretion is good, then this property still belones to the city of Omaba. In measuring and ascertaining the new. river frontage, the law upon the subject reads af follow: “When a new shore is formed by the wear- ing away of the stream, the land of the new shore is'to be divided between ihe owners entitled to it, according to the following rule: Give to each owner a share of the new shore line in proportion to what they held in the old shore line and complete the division of the land by running @ line from boundry be- tween the portions on the old shore L0 the point thus ascertained on tho new.’ Procedent for Omaha's Clai his question arose in the case of Kohr vs Snyder, reportea in the 144 Illinois, puge The case went to the suprome court, where the decision of the lower court was sus- tained, In handing down his opinion the court said: “A tractof land bordering on this Mississippi was divided nto subdivisions or lots, and extending to the river. These lots became the properly of various owners, Subsequently there were accretions along the river frony aud in acjusting the matter of such ancretions amonz the riparian own- ors, it was held that the proper mode was to measuro the eutiro rivor front as It was found to be when the lots were latd out_and then note the aggrogate number of feet front- age, as well s that of each lot; then meas- ure'n lino as nearly as may bo with the mid- dlo thread of so much of &_stream as lies op- posite tho line so measured; then divide tho thread line into as many equal parts as thero aro lineal feet in the shore line, giving to each property owner as many of these parts us his property measurod in the shore line; and then complete the division by drawing lines petween the points.” Parallel Case In Towa, Another case in point is that of Cook vs the City of Burlington, reported 1 the 50 Towa, page 94, Cook attempled 1o take pos- sessi0n of & portion of thelevee under a right- of-way deed from aralroad company. Tho court held as follows: *“Accretions 10 a strip of land in a civy, along the ri bank which 1s reserved for a public bighway and-other public purposes, partakes of the same rela- Lion as the original reservation; and the city holds title to it subject to the same uses and conditions. The city has no rights, however, o make any unqualitied disposition of it to & railroad company, to bedeld and used as pri- vate property, but may grant the right-of- way over 1t 1o such railroad company.’ Value ot the City's Property, “Paking the Omaha possessions into consid eration Lo get the exact arca of the land formed by accretion, and which under the general law would become the property of the city of Omaba, it is vpecessary to lind the river frontage Lbat the city originally held. From the south side of Cuming street, be- tween blocks Q and 425, the distance 10 the north line of block L 1s about 2,700 feet. Run & thread line up the cheunel of the river the same distance and a triangle is formed as shown in the accompanying map, Then be- inning with block L and briuging the lines own 10 the river wiil form a tract of land of s trifie more than eighty acres, A large portion of this land s within the one mile limit aud if placed upon the market would be worth $5,000 to $12,000 per acre for warebouse and business purposes. I'be allegea owners who are trying to hoid on and claim possession declaro that the statutes of limitation have run and that the city has lost all powerof securing relief. In tuis the courts differ with the alleged owners, as time aud again cases have been decided, proving conciusively that the statutes never ruu against municipal corporations. How the Property Could Be Used, Slould the city decide to reclaim this laud together with the original levee snd the blocks L, M, N, O, P and Q, which in the aggrogate would equal 100 acres, the next question thel arises is, of what use could it sided in Omaha from twenty-five to thirty- | great many surveys of Douglas county, Neb, | bo put to be of a benefit in the upbuilding of Omaha. Livery acre of the vast tract is as level as & floor, high above the water of the river and unequalled for depot grounds, trackage or warehouse purposes. | . With the bridge built over the river at East Omaha, this city would be 1n a position 1o extond a band of wolcome to all the oast- without asking any favors of the Union Pacific or the Burlington company, The city could not only afford to donate frolzht and passenger dopot grounds, but it conld give halt & dozon companies ample Frounds for trackage And torminal faciities | besides having acres left to donate to facto- ries and_manufacturing onterprises s eeking a western location. ———— rida and Southeast, Dixie Flyor Sloopers—Nashville to Jack sonville. Pla, without chango over Nash ville, Chattanooga & St. Louis raflway, via Chattanooga, Atlanta, Macon. Berths on- gaged through from St. Louis over the Look- out Mountain route. Apoly to or address J, H. Batimer,west, pass, agt.,% LuCledo bldg. . Louis, Baby's cheel is like a peach, Is it Madame Ruppert's bleach? No! but baby's mama's cheelk Volumes to its praise doth speak! Call for Mme. Ruppert's book, “How to be Bean 01" of Mra. J. 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