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

PENDANT, did not take place until some time in
the month of May, 1856, in that case they must
find against the defendant, he not being an &C.
cupant within the meaning of the act Of Con-
gress, that as matter of law the entry of the
townsite relates back to the date of proof;
and the rights of contesting occupants are de.
termined as they existed at that date"
1t is true that the request to charge as above
stated, standing above as an abstract propssi-
non might not be strictly correct. as parties
might have derived equitable interest subse.
quent TO proof made from those who were oc.
cupants at the time Of such proof. But taken
IN connection with the pleadings before the
the defendant does not pretend to derive his
title from any occupant of the town site OF
Mankato, but claims as an original settler there
on. Whether MS answer as it is stated in the
case before this Court, sets up sufficient facts
to entitle him to affirmative relief, might we'll
admit OF doubt were the question raised. But
as no objection has been raised to it on that
ground, it is not necessary to consider the
point.
The counsel for the defendant urges that a
construction of the act of 1874, by which it
should be held that only those who were occu.
pants at the date of the application to enter,
were entitled to the benefits of the law. would
lead to great wrong and injustice. And he
supp0ses the case of shrewd Spectator, who
might select favorable location for town
site, and without making settlement, and in
order to prevent others from securing any
rights which might arise from settlement and
occupancy, should induce the Judge to make
application to enter the land as a town site.
but should defer making proof until it suited
his convenience to make settlement and occupy.
In the mean time, other persons, finding the
land vacant settle upon and occupy it, The
counsel affirms it would be monstrous to hold
that these last parties had no rights, because
"a y,ro vii cd nv
Judge to enter the land as town site.
1t is a sufficient answer to the objection to
state, that the case supposed is by no means
analogous to the one at bar. The counsel for
the plaintiff did not request the Court to charge,
that the rights of the occupants must be de-
termined as they existed at the date of the ap-
plicatiOn to enter the town site, nor does this
Court so hold. We propose to 90 no farther
in this case than to hold that the right to the
title of the lands embraced in the town site of
Mankato, was perfect in some person or per-
sons in esse, at the time the proof was offered
on the application Of Judge Chatfeld to enter
the town site, if the entry was actually made on
such proof Such proof must have shown not
that the land was vacant or that application
had been made in accordance with the law.
No injustice could therefore be done to those
selling upon the premises after that date, as
they do so, with notice of previous occupation.
IT they choose to take the risk of the sufficency
OF this occupation to vest title in the claimants,
they cannot complain if the result should be
adverse to their interests. 1t would lead to far
greater injustice by holding that the settlers
upon and occupants of town site, having
compiled with all the provisions of the act en-
titling them to enter the premises, can yet &C.
quire no rights which are not subject to be d.
vested by strangers, until actual entry of the
site. 1t would open wide door to litigation,
and 60 far to defeat the benefcent provisions
of the law.
We think the Court below also erred in some
of its rulings on questions concerning the in
PRODUCTION of evidence. But it is deemed I'M
necessary to discuss those points, as correct
ruling upon the fundamental issues of the case,
which have been dwelt upon at some length in
this opinion, will probably relieve the case of
its principal embarrassment. A new trial is
granted.