The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1860-06-01

der which the parties to this action respective.
" claim that thew are entitled to the relief
prayed for by them in the complaint and an.
swer in the action, is of the same character as
the occupancy required in the agricultural
pre.emption act. That the proof of occupancy
in both cases must be the same; that before
person can avail himself of the benefit of the
municipal presumption law, he must show him
self to be resident upon the town site and In
personal occupancy Of the premises to which
he asks le,''-to which charge exception was
taken.
This charge was incorrect and calculated to
mslead the jury. The language of the pre-
emption act of lS4l is essentially different from
that of the municipal pre-emption act of 1874.
The former is limited as to the age of the per.
son entitled to its benefits, as to his nativity,
requires the party to make settlement lin per-
son." and to "inhabit and improve the same"
and ''erect a dwelling thereon" prohibits him
from leaving his own land to make settlement
on the government land, and also from own
ing three hundred and twenty acres, at the time
of making his presumption. On all of these
points the act of 1874 is silent, and where the
presumption right has been so carefully guard
ed in the one case, and in another and subse.
quent act, all these restrictions are omitted, it
would certainly be strange construction to hold
that they must be supplied by implication. 1t
is true, both acts speak of a settlement, but the
act of 1874, defines what settlement is intend.
ed, viz: I" settled upon and occupied as q
to,unsite, while the previous act, both in terms
and in the construction which the Department
has placed upon it, limits the settlement to
letter of the Statute, do we find any authority
in the reason of the case, for finding such COLI
struction upon the act, as was given by the
Court below. The object and idea of settling
and building town is not for the purpose Of
agriculture, but for that of trade. And being
used for purposes of trade, it cannot (at least
Onlyto limited extent) be used for cultivation
of the soil. And this idea was evidently enter
tanned by Congress in framing the law of 1874
in the use of the language, ''and therefore not
subject to entry under the existing pre.emption
laws" The intent was to provide for cases, to
which no law then in existence applied. As
the object of the settlement and occupancy of
tOwnsite is totally different from that of set.
Element under the act of l84l, no legitimate in
ference can be drawn, that the particular man
ner or requisites of settlement and occupancy
in each case must be the same. And the re-
quisites of the act of 1874, as to settlement
and occupancy are compiled with, when
these are such as to attain the object in view,
namely the use of the land as a to,cnste, for
purposes of trade, commerce or m anufactures
1t is obvious that sdch a settlement need not
necessarily be in person, nor require any cul.
tivation of the soil. A still further argument
might be drawn against the construction placed
upon this act, by the learned Judge before
whom the cause was tried, by showing that the
abuses, which the restrictions in the law of
lS4l, were designed to prevent, cannot from the
nature of the case, obtain under the act of
1874, and that therefore could not have been
intended that these restrictions should be ap-
,1iod To 1ocf cd OF Pnfif 10
sary further to dwell on this point.
The question of occupancy, as before re-
marked, becomes material in this case, only 80
far as may be necessary to show ,oho the occu.
pants are or were for whose benefit the trust
was created. And in this connection it will be
proper to inquire, whether there is any limit as
to time, within which person must show himself
an occupant, in order to claim the benefit of
the act of 1874. While the act does not in terms
fix any limit, careful examination of its pro-
visions, will aid in determining the question.
1t will be observed that before it is lawful to
enter land under this law, it must have been
settled upon and occupied as town site. If
such be the case, it may be entered for the
''several use and benefit of the occupants there
Of" This latter clause is in close connection
with that prescribing how the land shall be
occupied, and it is natural inference that the
occupants referred to in both clauses are the
same persons. Government does not part with
its title until q certain condition or conditions
have been complied with. The condition is,
that the land has been settled upon and occu
pied in such manner, that it is not " subject to
entry under the existing presumption laws"
When such settlement has been made the oc.
cupants under this act acquire certain vested
rights. They are entitled to have trust es.
tablished and declared in their favor. The
Government having decided that at certain
point of time, sufficient improvements ard of
such character have been made, as will rem
der the land not subject to entry under exist
ing redemption laws, in consideration thereof,
permits the entry thereof, at the minimum
price, and for the benefit of the occupants.
There is much reason why these benefits should
accrue only to the parties and their assigns,
who have so improved the land, as to render it
subject to entry under this act. Such improve.
ment necessarily implies the expenditure of
considerable amount of money, time, and labor.
If the parties making these investments are
not entitled to the benefits of the act they are
without remedy from any other source. These
benefits are. the acquisition of the land at the
minimum price. IT, having fully complied with
all the conditions emitting them to the entry of
the land, or at farthest, when by proper proof
they have shown that they have complied with
these conditions. they are not then entitled to
these benefits, 60 instanti it is impossible to
define or limit the time, either from the act
itself or in reason, when they shall be entitled
to receive these benefits. The right of entry
is predcated upon the performance of certain
acts, these acts having been performed, the
land officers decide that the right exists-it is
as perfect then as it can ever become. And
the right must exist in favor of the persons who
have performed the conditions on which it IS
based. The proof having been submitted and
found sufficient, there is nothing further re-
quired of, or that can be done by the occu.
pants to give them a better right than they
then possess under the act of 1874. They
have acquired an equitable right to such
land as they have shown, has been set
tied upon and occupied in accordance with
the law, and are entitled to have the
trust instantly established and declared in their
favor. Nor can this right be in any manner
affected by any delay on the part of Govern
ment to recognise it by the proper evidence of
title, since the right is in no manner based
upon the existence of such evidence. The
duplicate and patent are merely the evidence
of the existence of the right previously &C.
quired, convenient and perhaps necessary for
the enforcement of the right, but not comforting
it. They are the effect and not the cause.
We're the rights of the occupants to remain in
allegiance and uncertainty, until, and contingent
upon the issuance of the patent by Govern.
ment, the benefits to be derived from the act
would be comparatively of little worth. For
from the delays incident to the hearing of an
peals, and the lack of the necessary force in
the proper department, much time usually
elapses after the proof is perfected before the
patent issues. The entry should be made by
Government at the time the proof is admitted,
if the same is found sufficient and its failure tn