The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1858-07-22
May Is, 1857, entitled An act to incorpo-
rate certain towns.

I
judge, it is contended that this town is legal.
iy and properly named Moritzions, by virtue
Of survey and claim, and the making and
recording Of plat, by the proprietors Of
Moritzions, prior to the survey, claim,
and plat OF the proprietors of Lower Mon
ticello, and that his application to enter,
having been made before the town was in
corporated as Lower Monticello" takes
precedence of the subsequent claim of the
| corporate authorities to enter the same lands.
| la deciding this case, am governed by
the act of Congress, approved May "a, 1874,
! entitled An act for the relief o. citizens
/ OF towns upon the lands of the United
/ States" &c., &c, which provides " that
| whenever any portion Of the surveyed pub
/ lie lands has been, or shall be, settled upon
and occupied as town SITE &c, &c, &c,
lit shall be lawful, in case such town or
place shall be incorporated, for the corpor-
ate authorities thereof and, if not incorpOr-
ated, for the judges of the county court tor
the county in which such town may be sit
uated, to enter at the proper land office, and
at the minimum price, the land so settled
and occupied, in trust for the several use AMI
benefit OF the occupants thereof, according
to their respective interests
1t Is also by the same act provided that
the entry shall be made before the com
mencement OF the public sale of the body OF
land in which it is included, and that 1.-The
entry shall include only such land as is ac-
tually occupied by the town, and be made
in conformity to the legal subdivisions of the
public lands authorized by the act of oath
April, 1920, and shall not in the whole ex.
coed three hundred and twenty acres"
1t will be remarked that this law provides
that an entry of public lands which have
been actually settled and occupied as town
site may be made by q trustee for the use
and benefits of the occupants.
The only beneficiares of the trust are the
occupants Of the town. This law recogniz-
es no other proprietors, and this department
cannot recognize or protect claims or in.
tercsts of nonresident shareholders or lot
owners.
In regard TO the" occupants OF any town
or place entitled to the benefit of the act OF
Congress under review, their rights and in
terests remain the same-are fixed by the
same laws, and must be determined and Sc
cured to them on the same principles, who
ever may be the trustee or trustees of the
legal title to the lands. They cannot, there
lore, so far as the action of the officers of
the Land Department is concerned, be sup
posed to have any direct interest in having
the legal title vested in any one except the
party legally qualified to accept and execute
the trust.
The act of May 23d, ls4l, in my opinion,
hnf LII
to make an entry Of town site; and his
qualifications must be judged of and found
to be legal at the time the entry is admitted,
and not at any previous time. Between
different trustees or parties claiming to be
such. who are seeking an entry of the same
land and town site, no preference is given to
the first applicant. The proper question
for the officers Of this department to consid-
or, in such cases IT, which is the party re-
cognsed by the law as having the quaiiica-
tions TO accept the trust!
Should we admit, therefore, in this case.
that the application Of the county Judge, on
the 9th of April, 1857, to enter the town
ste OF Moritzions, was sufficient and in pro
per form, and accompanied by tender of
payment and that he was at that time the
mains that the entry was not admitted at
that time.
Before any entry was ettected-yn May
18th, ls31--the town was incorporated by
the name of Lower Monticello and after
that incorporation the corporate authorities
became the legal trustees for the occupants
OF the town, and we accept them as the pro.
per parties to make the entry BY the in
corporation the authority of the county
judge is superseded and concluded.
As to the quantity of land which the trus-
tee or trustees may enter for the use and
benefit OF the occupants of town, that
Is clearly limited to such land as is actual
ly occupied by the town that is actually
used by the residents of the town for town
purposes; the entry must be made in con-
iormity to the legal subdivisions of the pub
lie lands, and " shall not in the whole cx.
coed three hundred and twenty acres even
though It might happen that more than that
number of acres are occupied.
In the case of the two towns of Monticello
and Lower Monticello, the local officers NAV
receive any further testimony respecting the
state OF facts existing at the time at which
they may fix upon to consider the matter,
and should admit the the entry by the cor
porate authorities, respectively, for 50 much
land, by legal subdivisions, as is shown by
Satisfactory proof to be actually used and oc-
cupied for town purposes.
In the application Of the party seeking an
entry of this kind and in the certificate of
the register OF the sale OF the lands, deem
1t eminently proper, if not actually neces-
sary, tina, it be set forth that the entry is
for the use and benefit Of the occupants Of
the town.
The papers which accompanied your re-
port are now returned. and the case may be
remanded to the local officers for further
proceedings in aecordasce with the forego-
ing views.
The claim of Tobia. u. Mea!y IS good
for the land he seeks to enter by pre-emption.