The Kansas herald of freedom., 1858-07-31

Strate tnat the same was intended TO apply
To actual and existing towns exclusively.
1t refers to and recognizes only such sur
veyed lands as are settled upon and occu-
pied as a town site-not such as have
been selected By Hon-residents, proprietors
or claimants, as the site for a town or city
-as exempt from entry under existing
pre- emption laws. There is no provision
made for filing notice of selection, and
the act does not specifyypr contemplate
any proceedings whereby lands which
have been merely selected shall be exclud-
ed from the operation of other pre-emp
ton laws.
Prior to the passage of this act of May
23d, 1914, it was the policy and practice
of the Government to prohibit the sale or
acquisition by pre- emption of lands which
were occupied by town sites or trading
posts-the object of such prohibition be-
ing to secure the interests of the Govern
ment by the sale of the lands at their en-
HANGED value in such a manner as might
be deemed best to effect that object.
That clause in the act of 1841 which
provides that no portion of the public
lands which have been selected as the
site for a town, shall be liable to entry
under or by virtue of its provisions, can
not, therefore, be construed to recognize
the right of selection of individuals of
portions of lands for town sites for their
own use and benefit, since at that time
the system of granting rights of pre-emp
ton on lands of that character had not
only been adopted, but was directly at
variance with the established practice and
policy. 1t was manifestly not the object
of the law to withhold from pre-emption
such lands as individuals might designate
or select, without authority, as the site for
a probable or prospective city or town.
If so, it would have been within the pow
er of any person or persons to defeat the
pre-emption claims of those whom they
were interested in opposing, by alleging
that the particular land upon which such
claimant had settled, had hitherto been
so selected.
1t was, then, not intended by the said
clause of the act of 1841, to withhold
lands which might be regarded as eligible,
or adapted for town purposes, from pre-
emption, until claimants should have an
opportunity to make settlements and i'm
provements, since at that time it was not
to protect the interests or supposed rights
of citizens of cities or towns, tha: such
lands were withheld and excluded from
pre- -emption, and therefore the supposition
that said clause would recognize and pro
tect from the claims of Others such seiec-
tions, is erroneous.
The act of 23d of May, 1874, further
provides that the lands so settled upon
and occupied shall be entered in trust for
the eseveral uses ard benefits of the occu-
pants thereof Referring to the title of
the act For the relief of citizens OF
town." &C., it may be easily determined
that by the word Occupants is meant
those who are settlers or residents, and
that it only embraces the citizens thereof.
The parties for whose benefit and in whose
behalf the application, dated September
8, 1856, and signed by Michael S. Bright,
the county Judge of Douglas county, was
made, have not shown that they were oc
cupants within the meaning of the law,
nor does it appear that they are not occu-
pants Of the town who would be entitled
to the benefits ofthe law, in preference to
the so-cailed "proprietors of Superior
City,"
Said act further provides that the entry
of the land intended by this act, shall in
clude only such land as is actually occu-
pied by the town, and shall not exceed in
the whole, 800 acres.
The act of 1S41, provides for the entry
of any number of acres not exceeding one
hundred and sixty acres or a quarter sec
ton of land. by those claiming the right
of pre- emption under it.
The limited words of the two statutes
are essentially different. The one limits
the entry of such lands only as is occu-
pied by the town; the other gives the
right of acquiring any number of acres
not exceeding 160 acres.
Before an entry is permitted under the
act of 23d of May, 1874, it must be shown
that one or more of the legal subdivisions
of the public lands is actually occupied
by the town, and the nature, extent, and
efficiency of such occupation must be de-
termined by the facts in each particular
case.
The application above mentioned, to
obtain the benefits of the act of 1914, not
being consistent or in accordance with the
views hereinbefore expressed, is hereby
rejected. Very respectfully, your obedi-
ent servant, j. THOMPSON, Sec.
Hon. THos. A. HENDRICKs,
Commissioner of General Land Office.