University of Virginia Library

SIR: Your communication of the 20th May, transmitting papers regarding Superior City (so called) in the State of Wisconsin, submits for consideration three precise questions of law; two of them presenting inquiry of the legal relations of locations for town sites on the public domain, and the third presenting inquiry of another matter, which, although pertinent to the case, yet is comprehended in a perfectly distinct class of legal relations.

I propose, in this communication, to reply only upon the two first questions.

The act of Congress of April 24, 1841, entitled "An act to appropriate the proceeds of the sales of the public lands and to grant preemption rights," contains, in section 10th, the following provisions: "no lands reserved for the support of schools, nor lands acquired by either of the two last treaties with the Miami tribe of Indians in the State of Indiana, or which may be acquired of the Wyandot tribe of Indians in the State of Ohio, or other Indian reservation to which the title has been or may be extinguished by the United States at any time during the operation of this act; no sections of lands reserved to the United States alternate to other sections of land granted to any of the States for the construction of any canal, railroad, or other public improvement; no sections or fractions of sections included within the limits of any incorporated town; no portions of the public lands which have been selected for the site of a city or town; no parcel of a lot of land actually settled or occupied for the purposes of trade and not agriculture; and no lands on which are situated any known salines or mines, shall be liable to entry under or by virtue of this act." (v Stat. at Large, p. 456.)

An act passed May 28, 1844, entitled "An act for the relief of citizens of towns upon the lands of the United States under certain circumstances," provides as follows:

"That whenever any portion of the surveyed public lands has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the existing preemption laws, it shall be lawful, in case such town or place shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the judges of the county court for the county in which such town may be situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the several occupants thereof, according to their respective interests; the execution of which trust, as to the disposal of the lots in said town, and the proceeds of the sales thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same is situated; Provided, that the entry of the land intended by this act be made prior to the commencement of a public sale of the body of land in which it is included, and that the entry shall include only such land as is actually occupied by the town, and be made in conformity to the legal subdivisions of the public lands authorized by the act of the twenty-fourth of April, one thousand eight hundred and twenty, and shall not in the whole exceed three hundred and twenty acres; and Provided also, that the act of the said trustees, not made in conformity to the rules and regulations herein alluded to, shall be void and of none effect:" * * * (v Stat. at Large, p. 687.)

Upon which statutes you present the following questions of construction: "1st. What is the legal signification to be given to the words, 'portions of the public lands which have been selected as the site for a city or town,' which occur in the preemption law of 1841, and which portions of the public lands are by said act exempted from its provisions? Do they authorize selections by individuals with a view to the building thereon of a city or town, or do they contemplate a selection made by authority of some special law?

"Do the words in the act of 23d May, 1844, 'and that the entry shall include only such land as is actually occupied by the town,' restrict the entry to those quarter quarter-sections, or forty acre subdivisions, alone, on which houses have been erected as part of said town, or do they mean, only, that the entry shall not embrace any land not shown by the survey on the ground, or the plat of the town, to be occupied thereby, and not to exceed 820 acres, which is to be taken by legal subdivisions, according to the public survey, and to what species of 'legal subdivisions' is reference made in said act of 1844?"

These questions, as thus presented by you, are abstract questions of law,—namely, of the construction of statutes. They are distinctly and clearly stated, so as not to require of me any investigation of external facts to render them more intelligible. Nor do they require of me to attempt to make application of them to any actual case, conflict of right, or controversy either between private individuals or such individuals and the Government.

It is true that, accompanying your communication, there is a great mass of representations, depositions, arguments, and other papers, which show that the questions propounded by you are not speculative ones, and that, on the contrary, they bear, in some way, on matters of interest, public or private, to be decided by the Department. But those are matters for you, not for me, to determine. You have requested my opinion of certain points of law, to be used by you, so far as you see fit, in aid of such your own determination. I am thus happily relieved of the task of examining and undertaking to analyze the voluminous documents in the case: more especially as your questions, while precise and complete in themselves, derive all needful illustration from the very instructive report in the case of the present Commissioner of Public Lands and the able brief on the subject drawn up in your Department.

I. To return to the questions before me: the first is in substance whether the words in the act of 1841,—" portions of the public land which have been selected as the site for a city or a town,"—are to be confined to cases of such selection in virtue of some special authority, or by some official authority?

I think not, for the following reasons:

The statute does not by any words of legal intendment say so.

The next preceding clause of the act, which speaks of lands "included within the limits of any incorporated town," implies the contrary, in making separate provision for a township existing by special or public authority.

The next succeeding clause, which speaks of land "actually settled or occupied for the purposes of trade and not agriculture," leads to the same conclusion; for why should selection for a town site require special authority any more than occupation for the purposes of trade?

The general scope of the act has the same tendency. Its general object is to regulate, in behalf of individuals, the acquisition of the public domain by preemption, after voluntary occupation for a certain period of time, and under other prescribed circumstances. In doing this, it gives a preference preemption to certain other uses of the public land, by excluding such land from liability to ordinary preemption. Among the uses thus privileged, and to which precedence in preemption is accorded, are, 1. "Sections, or fractions of sections included within the limits of any incorporated town;" 2. "Portions of the public land which have been selected for the site of a city or town;" and, 3. "Land actually settled or occupied for the purposes of trade, and not agriculture." Now, it is not easy to see any good reason why, if individuals may thus take voluntarily for the purposes of agriculture,—they may not also take for the purposes of a city or town. The statute assumes that the purposes of a city or town have preference over those of trade, and still more over those of agriculture. Yet individuals may take for either of the latter objects: a fortiori they may take for a city or town.

Why should it be assumed that individual action in this respect is prohibited for towns any more than for trade or agriculture? It does not concern the Government whether two persons preempt one hundred and sixty acres each for the purposes of agriculture, or for the purpose of a town, except that the latter object will, incidentally, be more beneficial to the Government. Nor is there any other consideration of public policy to induce the Government to endeavor to discourage the formation of towns. Why, then, object to individuals taking up a given quantity of land in one case rather than in the other?

Finally, the act of 1844 definitively construes the act of 1841, and proves that the "selection" for town sites there spoken of may be either by public authority or by individuals:—that the word is for that reason designedly general, and without qualification, but must be fixed by occupation. That act supposes public land to be "settled upon and occupied as a town site," and "therefore" not subject to entry under the existing preemption laws. This description identifies it with the land "selected for the site of a city or town," in the previous act. It limits the quantity so to be selected, that is, settled or occupied, to three hundred and twenty acres, and otherwise regulates the selection as hereinafter explained. It then provides how such town site is to be entered and patented. If the town be incorporated, then the entry is to be made by its corporate authorities. If the town be not incorporated, then it may be entered in the name of the judges of the county court of the county, in which the projected town lies, "in trust for the several use and benefit of the several occupants thereof, according to their respective interests." Here we have express recognition of voluntary selection and occupancy by individuals, and provision for means by which legal title in their behalf may be acquired and patented.

I am aware that by numerous statutes anterior to the act of 1841, provision is made for the authoritative selection of town sites in special cases; but such provisions do by no means exclude or contradict the later enactment of a general provision of law to comprehend all cases of selections for town sites, whether authoritative or voluntary. I think the act of 1841, construed in the light of the complementary act of 1844, as it must be, provides clearly for both contingencies or conditions of the subject. Among the anterior acts, however, is one of great importance and significancy upon this point, more especially as that act received exposition at the time from the proper departments of the Government. I allude to the act of June 22d, 1838, entitled "An act to grant preemption rights to settlers on the public lands." This act, like that of 1841, contains a provision reserving certain lands from ordinary preemption, among which are:

(v Stat. at Large, p. 251.)

Here the "selection" generally, and the "selection" by authority are each provided for eo nomine. It is obvious that the provision in the latter case is made for certainty only; since, by the general rules of statute construction, no ordinary claim of preemption could attach to reservations made by authority of the United States. The effective provision in the enactment quoted, must be selections not made by the authority of the United States.

In point of fact the provision was construed by the Department to include all voluntary selections: lands, says the circular of the General Land Office of July 8, 1838, "which settlers have selected with a view of building thereon a village or city."

It seems to me that the same considerations which induced this construction of the word "selection" in the act of 1838, dictate a similar construction of the same word in the subsequent act. Besides which, when a word or words of a statute, which were of uncertain signification originally, but which have been construed by the proper authority, are repented in a subsequent statute, that is understood as being not a repetition merely of the word with the received construction, but an implied legislative adoption even of such construction.

II. The second question is of the construction of the act of 1844, supplemental to that of 1841; and as the construction of the elder derives aid from the language of the later one, so does that of the latter from the former. The question is divisible into sub-questions.

1. Does the phrase "that the entry (for a town-site) shall include only such land as is actually occupied by the town," restrict the entry to those quarter quarter-sections, or forty acre subdivisions alone, on which houses have been erected as part of said town?

2. What is the meaning of the phrase in the act "legal subdivisions of the public lands," in "conformity" with which the entry must be made?

I put the two acts together and find that they provide for a system of preemptions for, among other things, agricultural occupation, commercial or mechanical occupation, and municipal occupation.

In regard to agricultural occupation, the laws provide that, in certain cases and conditions, one person may preempt one hundred and sixty acres, and that in regard to municipal occupation a plurality of persons may, in certain cases and conditions, preempt three hundred and twenty acres. In the latter contingency, there is no special privilege as to quantity, but a disability rather; for two persons together may preempt three hundred and twenty acres by agricultural occupation, and afterwards convert the land into a town site, and four persons together might in the same way secure six hundred and forty acres, to be converted ultimately into the site of a town; while the same four persons, selecting land for a town site, can take only three hundred and twenty acres. In both forms the parties enter at the minimum price of the public lands. The chief advantage which the preemptors for municipal purposes enjoy, is, that they have by statute a preference over agricultural preemptors, the land selected for a town site being secured by statute against general and ordinary, that is, agricultural preemption. In all other respects material to the present inquiry, we may assume, for the argument's sake at least, that the two classes stand on a footing of equality, as respects either the convicting interests of third persons, or the rights of the Government.

Now, the rights of an agricultural preemptor we understand. He is entitled, if he shall "make a settlement in person on the public lands," and "shall inhabit and improve the same, and shall erect a dwelling thereon," to enter, "by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section of land, to include the residence of such claimant." (Act of 1841, s. 10.) And of two settlers on "the same quarter-section of land," the earlier one is to have the preference. (Sec. 11.)

Now, was it ever imagined that such claimant must personally inhabit every quarter quarter-section of his claim? That he must have under cultivation every quarter quarter-section? That he must erect a dwelling on every quarter quarter-section? And that, if he failed to do this, any such quarter of his quarter-section might be preempted by a later occupant?

There is no pretension that such is the condition of the ordinary preemptor, and that he is thus held to inhabit, to cultivate, to dwell on, every quarter quarter-section, under penalty of having it seized by another preemptor, or entered in course by any public or private purchaser. He is to provide, according to the regulations of the Land Office or otherwise, indicia, by which the limits of his claim shall be known,—he must perform acts of possession or intended ownership on the land, as notice to others; and that suffices to secure his rights under the statute. It is not necessary for him to cultivate every separate quarter of his quarter-section; it is not necessary for him even to enclose each; it only needs that in good faith he take possession, with intention of occupation and settlement, and proceed in good faith to occupy and settle, in such time and in such manner, as belong to the nature of agricultural occupation and settlement.

Why should there be a different rule in regard to occupants for municipal preemption? The latter is, by the very tenor of the law, the preferred object. Why should those interested in it be subject to special disabilities of competing occupancy? I cannot conceive.

It is obvious that, in municipal settlement, as well as agricultural, there must be space of time between the commencement and the consummation of occupation. There will be a moment, when the equitable right of the agricultural settler is fixed, although he have as yet done nothing more in the way of inhabiting or improving than to cut a tree or drive a stake into the earth. And it may be long before he improves each one of all his quarter quarter-sections. So, in principle, it is in the case of settlement for a town. We must deal with such things according to their nature. Towns do not spring into existence consummate and complete. Nor do they commence with eight houses, systematically distributed, each in the centre of a forty-acre lot. And in the case of a town settlement of three hundred and twenty acres; as well as that of a farm site of one hundred and sixty acres, all which can be lawfully requisite to communicate to the occupants the right of preemption to the block of land, including every one of its quarter quarter-sections,—is improvement, or indication of the improvement of the entire block,—acts of possession or use regarding it, consonant with the nature of the thing. That, in a farm, will be the erection of a house and outhouses, cultivation, and use of pasturage or woodland: in a town, it will be erecting houses or shops, platting out the land, grading or opening streets, and the like signs and marks of occupation or special destination.

The same considerations lead to the conclusion that it would not be just to confine the proofs of occupation to facts existing at its very incipiency. The inchoate or equitable right, as against all others, begins from the beginning of the occupation: the ultimate sufficiency of that occupation is to be determined in part by subsequent facts, which consummate the occupation, and also demonstrate its bona fides. If it were otherwise, there would be an end of all the advantage expressly given by the statute to priority of occupation. Take the case of agricultural preemptions for example. A settler enters in good faith upon a quarter-section for preemption; his entry, at first, attaches physically to no more than the rood of land on which he is commencing to construct a habitation. Is that entry confined in effect to a single quarter quarter? Can other settlers, the next day, enter upon all the adjoining quarter quarters, and thus limit the first settler to the single quarter quarter on which his dwelling is commenced? Is all proof of occupation in his case, when he comes to prove up his title, to be confined to acts anterior to the date of conflict? Clearly not. The inchoate title of the first occupant ripens into a complete one by the series of acts on his part subsequent to the original occupation.

In the statement of the case prepared in your office, it is averred that numerous precedents exist in the Land Office, not only of the allowance of town preemptions as the voluntary selection of individuals, but also of the application to such preemption claims of the ordinary construction of the word "occupation" habitually applied to agricultural preemption claims. That is to say, it has been the practice of the Government, not to consider municipal occupation "circumscribed by the forty-acre subdivisions actually built upon; * * but that such occupation was (sufficiently) evidenced, either by an actual survey, upon the ground, of said town into streets, alleys, and blocks, or the publication of a plat of the same evidencing the connection therewith of the public surveys, so as to give notice to others of the extent of the town site:" all this, within the extreme limits, of course, of the three hundred and twenty acres prescribed by the statute.

I think the practice of the Land Office in this respect, as thus reported, is lawful and proper: it being understood, of course, that thus the acts of alleged selection, possession, and occupation are performed in perfect good faith.

Something is hinted, in the report of the commissioner, as to the speculation-character of the proposed town settlement,—and, in the official brief accompanying your letter, as to the speculation-character of the proposed agricultural preemption. I suppose it must be so, if the land in question has peculiar aptitude for municipal uses. But how is that material? The object, in either mode of attaining it, is a lawful one. Two persons may lawfully preempt a certain quantity of land under the general law, and intend a townsite without saying so; or they may preempt avowedly for a town site. As between the two courses, both having the same ultimate destination, it would not seem that there could be any cause of objection to the more explicit one.

So much for the first branch of the second question. As to the second branch of it, the same line of reasoning leads to equally satisfactory results.

The municipal preemptor, like the agricultural preemptor, is required to take his land in conformity with "the legal subdivisions of the public lands." I apprehend the import of the requirement is the same in both cases. Neither class of pre-emptors is to break the legal subdivisions as surveyed. The preemptor of either case may take fractional sections if he will, but he is in every case to run his extreme lines with the lines of the surveyed subdivisions. In fine, as it seems to me, there is nothing of the present case, in so far as appears by the questions presented, and the official reports and statement by which they are explained, except a convict of claim to two or three sectional subdivisions of land between different sets of preemptors, one set being avowed municipal preemptors, and the other professed agricultural preemptors, but both sets having in reality the same ulterior purposes in regard to the use of the land. The Government has no possible concern in the controversy, except to deal impartially between the parties according to law. The agricultural preemptors contend that different rules of right as to the power of individual or private occupation, and as to the criteria of valid occupation, apply to them, as against their adversaries. The municipal preemptors contend that the same rules of equal right, inceptive and progressive, in these respects, apply to both classes of preemptors. I think that the latter view of the law is correct, according to its letter, its spirit; and the settled practice of the Government.

The investigation of the facts of the case, and the application of the law to the facts, are, of course, duties of your Department.

I leave here the first and second questions; and, proposing to reply at an early day on the third question,