The daily union. [volume] (Washington [D.C.]) 1845-1857, 1856-09-30
PRE- EMPTI0N OF TOWN sITEs.-OPIsI0S OF THE
ATTORNEY GENERAL.
ArrOAsEr GEsEnALs orrlor, July 2 1855.


sR Your communication Of the goth May transmit
ting papers regarding Superior City, $50 eaied) in the
State OF Wisconsin, submits for consideration three precise
questions Of law two q them presenting inquiry Of tne
domain and the third presenting inquiry Of another mat
ter which, although pertinent TO the case yet is compre
hended In perfectly distinct class oil legal relations
propose, in this communication, 10 reply only upon
the two first questions.
The act Of Congress Of April a. ls4l entitled An act
to appropriate the proceeds OF the sales OF the public
lauds and grant presumption rights contains in sec
ton 10th, the following provisions "No lands reserved
for the support of schools lands acquired by either Of
the last treaties with the Miami tribe OF Indians In
the State of Indiana which may be acquired of the
Wyandot tribe OF Indians in the State OF Ohio or other
Indian reservation 10 which the title has beeD may be-
exnguished by the United States at any time during the
operation of this act no sections Of land reserved to the
United States Alternate to other sections Of land granted
to any Of the States for the construction Of any canal
railroad other public improvement sections, or
fractions Of sections included within the limits of any in
corporated town portions OF the public lands which
have been selected for the site OF city town no par
Gel Of lot OF land actually settled occupied for the
purposes of trade and not agriculture and lands on
which situated any known salnes mines shall be
liable TO entry under or by virtue of this Stat
at Large, p. 456
An passed May 49, 1874 entitled "An act for the
lief 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 shall be settled upon and occupied as
town site and therefore not subject to entry under the
existing presumption laws it shall be lawful in case such
thoes thereof and ii 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 settled and occupied in trust
for the several and benefit OF the several occupants
thereof according their respective interests the
ton of which trust the disposal of the lots in said
town. and the proceeds of the sales thereof to be conducted
under such rules and regulations may be prescribed by
the legislative authority of the State Territory in which
the is situated ProUided That the entry Of the land
intended by this act be made prior to the
of public sale of the body of land in which it is included
and that the entry shall include only such land actu
ally occupied by the town. and be made in conformity to
the legal subdivisions of public lands authorized by the
act of the wentyurth of April thousand eight hun
bred and twenty and shall not in the whole exceed three
hundred and twenty And prouided also That the
of the said trustees made in conformity to the rules
and regulations herein alluded to, shall be void and of
none effect" ". Stat at Large, P. 6s7)
Upon which statutes you present the following ques
tons of construction:
"lst What is the legal Specification TO be given to the
words portions of the public lands which have been
ected site for city town. which in the pre-
emption law of s4l and which portions of the public
lands by said exempted from its provsions2 Do
they authorize selections by individuals with view to
the building thereon of city town. or do they contem
plate selection made by authority of some special law
AID Do the words in the act Of 23d May, 1874 and
that the entry shall include only such land is actually
occupied by the town. restrict the entry to those quarter
quarersectons, oryacre subdivisions alone which
houses have been erected of said town. do they
only that the entry shall not embrace any land not
shown by the survey on the ground or the plat OF the
which is to be taken by legal subdivisions according to
the public survey and what species of legal subdiys
ions is reference made in said act of ls44P
These questions thus presented by you abstract
questions of awnamely of the construction of statutes
They distinctly and clearly stated not to require
Of me any Investigation of external facts 10 render them
Ineligible Nor do they require of me to attempt to
make application OF them to any actual case conflict OF
right controversy either between private individuals
or such individuals and the government
1t ia true that accompanying your communication there
ia MACS If
and other papers, which show that the questions pro-
pounded by you not speculative ones and that on
the contrary they bear in way matters Of interest
public private to be decided by the department But
those matters for you not for me- TO determine You
have requested my opinion of certain points of law TO be
used by you far you fit in aid of such your
determination thus happily relieved of the task of
examining and undertaking to analyze the voumnous
documents 10 the case more especially as your questions
while precise and complete In themselves derive all need
full illustration from the instructive report in the case
Of the present Commissioner Of Public Lands and the able
brief on the subject drawn up in your department
To TO the questions before the first is in
substance whether the words in the act OF s4l-"porons
of the public land which have been selected the site for
city towa'-are be confined to of such selec
ton in virtue Of some special authority or by some official
authority
l think not, for the following reasons,
The statute does not by any words Of legal ntendment
ssyso
The preceding clause Of the act which speaks Of
lands included within the limits Of any incorporated
town. implies the contrary, in making separate provision
The next succeeding clause which speaks OF land act
ally settled occupied for the purposes Of trade and not
agriculture leads TO the conclusion for why
lection for town site require special authority any
than occupation for the purposes Of trader
The general scope Of the has the tendency Its
general object regulate Ia behalf Of individuals the
acquisition Of the public domain by preempton, after vol
untary occupation for certain period OF time and under
other prescribed circumstances In doing this 1t gives
preference presumption TO certain other uses OF the public
land by excluding such land from liability to ordinary
presumption. Among the thus privileged and TO
which precedence in presumption accorded is "se
TONS fractions Of sections included within the limits
OF any incorporated town 3D. portions OF the public
land which have been selected for the site OF city or
town. and %, "land actually settled occupied for the
purposes OF trade and not agriculture Now II b not
easy any good why, II individuals may thus
take voluntarily for iha purposes Of agriculture they
not also take for the purposes Of city or town The
statute that the purposes Of city OF town have
preference those OF trade and still those Of
agriculture Yet individuals may take for either Of latter
objects fortiori they may take for city or town
Why should II be assumed that individual action n this
respect prohibited for towns any than for trade
agrculture2 IL does not the government whether
two persons preempt hundred and sixty ceres each
for the purposes Of agriculture for the purpose of
town. except that the latter object will incidentally be
beneficial to the Nor is there any other
consideration Of public policy TO induce tho government to
thea object individuals taking up given quantity OF
land in rather than In the other2
Finally the act Of 1874 defnyely construes the act OF
1884, and proves that the elesonn for sites there
spoken Of may be either by public authority by indi
yduals that the word is for that dosgnedy gene
raj and without qualification but must be fred by occu-
patton That set Fupposes public land to be Settled upon