The weekly Minnesotian. [volume] (Saint Paul, Minn. Territory) 1852-1858, 1855-05-05
THE TOWN SITE LAWI
Decision Of Commissioner Wilson in the Supe
re ri0r City Case. f.-f a. :


Decision of Commissioner Wilson in the supe.
r.a rior City Case. f.-1 q FL.
The following document just received by
/, private hand from Washington, contains infor-
nation OF vital interest to every owner or oc-
cupant of Town Sites in this Territory. 1t is
the decision of the Commissioner of the Gene
, raj Land Office upon the important case of Su-
perior City, in which the point was, whether
a part or the whole of piece of land, selected,
occupied and plated for town, could be pre-
empted by subsequent settlers. In the matter
in question, the Land Officers at Hudson held,
that town sites laid out and settled before the
Government Surrey, might be pre-empted. on
the ground that the laying out and settlement
of town site prior to the Government Survey,
was illegal, and therefore void. ..,....- 3.
So far as this question is involved in this
case, it has beensettled according to the plain
est principles of justice. Commissioner Will
son decides adversely to the Hudson Land Of
! fcers. .-., 'Nr.. .s -
1t seems also, from this decision that there
must be an actual settlement and occupancy
for the purpose of trade, in order to hold land
as town sites; and that when pre-emptors at
tempt to settle upon lands they knew were be-
ing claimed and settled as town sites, they
have, in judicial parlance, no equities, and
cannot therefore, hold the lands by pre-emp-
ton. -.....
| The occupants of town sites in this Terrific
ry need, therefore, feel no further uneasness
in regard to their rights, as this decision, we
think, protects them The law firm of Wilkin-
son, Babcock & Brisbin, in connection with
Mr. Sargent the associate counsel east, have
conducted the case to this result, in q manner,
which reflects considerable credit upon their
legal ability. M. S. Wilkinson, Esq, of the
former firm, argued it in person before the
Commissioner Of the General Land Office, at
Washington. .......- .......
GENERAL LAND OFFICE,
April 10, 1855.
SIR:-In the case of Vincent Roy. BAIL Den
mis-, Charles Brissett, and Antoine Warren, us.
Benjamin w. Brunson and others, the former
claiming by virtue of the Presumption act of
4th September, 1871, the latter under act of
23d May, 1914, the lands in controversy, being
portions of sections l3 and "a, of T. 49 N, r.
IA w., subject to sale at Hudson, State of Wis
consin; very careful examination has been
made of the voluminous testimony, &C., with
the view of eliciting all the facts in the case,
and ascertaining what rights, if any, the par
| ties claiming, respectively, have under the said
laws of 184l and 1874.
The first question to be determined is the ap-
plcabiity of the act of 23d May. 1874, "for
| the relief of the citizens of towns upon the
lands of the United States, under certain cir
cumstances," to the lands in controversy. That
law provides "that whenever any portion of
the surveyed public lands has been or shall be
settled upon and occupied as a tOacn site, and
therefore not subject to entry under existing
pre-emption laws" it shall be lawful for the
proper authority to enter the same "prior to
the commencement of the 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 pub
| lie lands" "and shall not, in the whole
exceed 32O acres"
1t has been decided, that where lands were
thus settled before the survey, the persons who
settled upon them prior to the survey were not
excluded from the benefits of this law, and
hence that the term 'surUeyed public lands"
had reference to the date Of entry and not of
settlement This decision has been affirmed by
the Secretary of the Interior, and is final.
| 1t, therefore, follows, that whenever any por-
tions of the public land has been, or shall be
settled upon and occupied as a to,cx site, and,
therefore, not subject to entry under the exist
ing pre-emption laws, that such portion comes
within the operation of this act OF 1874.
The next point is, what classes of lands, from
being so settled and occupied, were excluded
from the benefits of existing pre-emption laws?
The only pre-emption law in existence when
the act of 1874 was passed, that applies to the
great mass of the public domain, was that of
4th September, 1841 and was, therefore, the
one evidently alluded to in that act
| The lands excluded from the operation of this
Pre- emption act of 1s41, of the character un-
der consideration, were as follows to wit
1st SECTIONS or fractions of sections inciu-
ded within the limits of any incorporated
town." -.e.ss.sr
| I'd. "POrtiOns of the public lands which have
been selected as the site for city or town."
Sd. "a parcel or lot of land actually settled
and occupied for the purposes of trade, and not
agriculture" c.a .esi st-.If
The case now under consideration certainly
does not come under the first of these classes;
and although, the counsel for the town has
labored ably and ingeniously to show that it is
embraced within the second, his argument fails
in one important particular, even admitting
the correctness of his hypothesis, because the
act of 1874 requires that the "portions of the
public lands which have been selected as the
site for city or town" shall be settled upon
and occupied as a town site
But cannot acquiesce in the correctness of
these bypotheses. Congress never could have
intended to place all the best and most valua-
BILE locations of public lands at the disposal of
a few land hunters. who, wandering about from
point to point. selecting mill sites, harbors and
landings and surveying and plating them in
to town-sites, would thus be able to render all
their fellOw-citizens tributary to, or dependent
on them. Such exclusiveness is repugnant to
the whole land system and legislation of our
country, and yet to this extent these hyp0the-
ses would lead, without any forced construc-
tion. .e sa. ~ re- lsisr5-i5. .s1,.s q.
The selections treated of in this part of the
law, in my opinion, are clearly those which
counties, &C., are authorized by law to make,
and which are intended to prevent interference
/ by settlers till such selections can be consum-
mated by entries. .,t.- .s.....,,.,......
| am, therefore, clearly Of opinion in this
case, that only those legal subdivisions which
were settled upon and occupied as town site
at the time the entries were made, are subject
to the operations of this act of 23d May, 1874.
In relation to the pre-emption claims II
the settlements or alleged settlements were
made with a knowledge of the fact that the land
was being settled upon and occupied as a town
site, the claimants, under those circumstances,
have no equities, and unless they can bring
themselves clearly and fully within the require
ments of the act of 4th September. 184f; that
is. unless they can clearly establish legal
4 right to the land under the law, they should
not have it. srsE sf;3 O. ,sarzaW ~
The cases are returned for denomination