Kansas weekly herald., 1855-01-26

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land which may be pre-empted shzl have
two properties. to wit That the Indian til
tie shalIbe exEzSgmshed and that ashall be
surveyed. He act of 1854. provides that
all the land to which the Indian title is ex-
tinguished shall be subject &c., but is si-
lent as to the survey. Here we are met by
another rule Of construction conveyed in
the well known law maxim, g Uasaus express
10 alterias est erclusio.' The mention of,
but one is an exclusion of the other. We
are driven then to read this act as appliea-
bic to all the lands to which the. Indian title
has been extinguished, whether surveyed
or unsuryeyed. This will satisfy every
rule of construction and arrive at the OBJ
vious meaning and purpose Of the law.
But to preclude all doubt, the act has this
proviso, athat where unsuryeyed lands are
claimed by pre-emption, notice of the spe-
cifc tract claimed shall be filed within three
months after survey made In the field, &c.
Thus. clearly recognising the construction ]
have contended for, legalizing a settlement
before survey, and requiring the fling of
claim and description after survey. Here
then we have one point established that
a man may commence his pre- g7re-emption on
unsurveyed lands.
Let us follow up the argument. Pre-
emption may be correctly defined to be, the
right of purchasing before others. Under
the law applicable to this Territory it is
right not resulting from single act Of the
Government or the settler, but gradually
maturing through successive steps or stages,
to ,Uit: personal settlement-erecting adwel-
ling house-inhabiting the land-official
survey-fling claim and description max
ing and filing the necessary affldavits-
try IN the Registers Ofice-payment ofthe
purchase money which under the act Of
1854, must be before the first day Of sale
and granting the patent. Some of these
are to be done by the settler, and others by
the Government. The Government has
coyenanted and agreed through the solemn
medium of an act of Congress that they
will perform their portion of them if the
settler will perform his; and if the latter
does SO perform the acts prescribed by the
law to him, the officers of the Government
have no choice but to complete the title to
him. No man can step in between the
pre-emptor and his final right to patent
His right before the granting of the pat
ent is what is called an inchoate title-a
term familiar to every lawyer. 1t is a title
commenced but not completed, and may be
assimilated to the case of a purchaser who
has taken possession under articles of a.
greement, has paid part Of his purchase
money and is waiting for the day to pay
the balance and take his deed. The patent
though conclusive evidence of the consuma-
ton of title is not the only medium by which
the settlers rights accrue. The entry and
the patent would both be illegal if made in
the absence of the preceding steps, for
Register cannot allow an entry, nor Re-
ceiver take the purchase money and deliver
the patent without the prerequisites which
give these acts of his. validity and force.
Each of these preceding steps contributes
its share to make up the title. They are
all ingredients going to make up the whole.
The rights which were vested in the pre-
emptor before his last act of payment were
contingent and defeasible, it is true, by his.
own delinquency, but the patent when OBJ
tanned, proves that the title has fully ma
tured and that he has been in possession
from the beginning not as an intruder but
by right. AS each step or stage in the ac
QUESTION contributes its share to that acqui-
sition, neither one alone can claim that the
title was acquired at the lnofnent of its per-
formance, the final eonsumation gives re-
Prospective sanction to the whole and relates
back to Its first inception. Indeed this prin-
ciple is so familiar that had been writing
only for those learned in the law, should
not have entered into this elementary ana
lysis of it.
Here then we have two more points es-
ablishe d; that a pre-emptor who complies
with the requirements of the Acts of Con-
gress cannot be prevented from obtaining
his title; and that when finally consumma-
ted it relates back to its original inception.
If so he is to be considered and treated
as having been the owner of the land from
that time, and of course may then sue and
recover for, any trespassses committed at
any time after his first personal settlement.
and will take as his own without eompen-
satinn any houses or other ilnnrnyementS |