, 1862-10-11

intention OF Congress to give the preference to
the prior settler.
Sd. May a settler cross quarter section line to
take minor sui division upon which he has no
Improvements, from another who has We hold
that all laws and instructions in relation 10 set
tiers on surveyed lands, were by the act of July
17th. 1854, made applicable to unsurveyed lands
in this Territory; still we think we ought to give
such latitude to law and instructions as peculiar
circumstances may require in order to arrive at
an equitable conclusion.
The act of Sept. 4th 1861 does not confne a
settler to technical quarter-section, and the act
Of April 9TH 1916 permits the sentry, selection
or location of quarter-quarter sections" If this
privilege was denied to settlers on unsurveyed
lands, much mischief might ensue, for settler
on unsurveyed lands, might prior to the survey
have so located his dwelling and improvements
as to render it impossible for him to claim in any
other way without loss In the case before us,
Barron has no improvents on the forty acres in
dispute We, however, do not deem it necessary
for settler to have improvements on each forty
acre tract. If the land is in compact form, and
includes his dwelling and improvements, and he
has fulfilled all the requirements of the law, it is
enough, and Baron has done all this. But so
has Sparks, and further, he has improvements on
it, and he too, settled before the surveys that is,
in point of fact, but the surveys were extended
soon after his settlement 0hree days. that he can
/ i o1.- 4 H.
time he made TIE improvements, he either did, or
might hare knOpn that Barron claimed the land.
The improvements are slight, and are not of such
a nature that the loss of them would seriously af-
feet him, his dwelling orchard and other princi-
pie improvements being upon another quarter
section. Had the improvements spoken of been
made prior to the survey, with no means of know
ing of any adverse claim the case would have
presented different aspect as it is we do not
think they are of such a character as to affect the
rights of Barron.
4th. The lines of Barrons claim do not cores
pond with the lines of his claim as taken before
the survey.
The act of July 18th 1854 provides that set
! lltIS Slldll give uOICt VI Tue pdIllCuldI bidCb
claimed within six months after the survey of the
land is made and returned, but does not specify
the exact manner in which they shall be made to
conform to the Government surveys. We hold
it to be the duly of those who settle before the
survey to conform to the legal subdivisions after
/ the survey in such manner to include as far
as practicable the land claimed by them before
the survey. By examining the plat submitted by
j. G. Sparks,-and to the admission of which as
evidence the attorney for Baron objected-we
find that the eastern line of Barrons claim as ta-
ken prior to the survey, run dsgonally, at an an
gle of about $50 across the forty acres in dispute
and so as to include about three-ffths of said
forty acres in his claim, this diagonal line result
ed from the use of a pocket compass without
knowing its variation, so that it was absolutely
necessary to change his lines, and we are OF the
opinion that as regards the forty acres in dispute,
Barron has as far as is practicable complied with
the law.
9TH. As to whethersBarron was, or is bona
fde settler.
so well known that we need not repeat them
The evidence of James Buckley-one of Barrons
witnesses-shows that Barron offered to give him
Buckley lot if he would build on it, and that
he told said Buckley that he intended "to start a
town" There is no proof, however, that he ever
carried that intention into effect, that he has
taken any steps which would prevent him from
subscribing to the oath required of pre-emption
claimants. We do not recognize the expression
of an intention unaccompanied by acts of suffi-
cient force to work forfeiture. See Testers
Land Law page 423. There is no proof that
Barron is not acting in good faith, and he has sol
emnly sworn that he is. If be is not, he has per-
iured himself, for the punishment of which crime
provision is made in the law. But we may not
Judge him.
One point more remains to be fully considered;
Sparks claims to have acquired some right by
virtue of purchase of the pre-emption right Of
A. B. Roberts We mention this only to say
that no such right can be acquired, for the reason
that all or any assignments OF pre-emptiOn rights
are expressly inhibited by law. a settler must
acquire the right of pre-emptlon by virtue Of has
oton acts, and not by the acts Of another.
In this case we are of the opinion that Z. H.
Barron is the rghtful claimant to the northwest
1-4th of section 20.
We will now proceed to examine the claim oi
the city of Walla Walla to the northeast 1-4th
of the northwest 18th of section 20.
The evidence in this case shows, that in 1859 a
Mr.. Case was employed to survey portion o.
what is now the city of Walla Walla, and that il
was laid off into streets, alleys, blocks, &c. When
the public surveys were extended over the land
in question, it was found that the principle por
ton of the town as surveyed by Mr.. Case was up
on the south half of the southwest quarter o.
section No 20, and the plat of said survey shows
that three fractional blocks fell upon the forty
acres claimed by John G. Sparks. In 1861 w
w. johnson was employed by the commissioner
of the county to complete the survey, so as to in
clude the whole of the south half Of the south
west quarter of section 20, and the said Commits
sion ers filed declaratory statement claiming th'
said south half of the southwest quarter, and thu
said south half was incorporated. All these act
clearly indicate an intention to claim the saiC
south half and no more.
. Subsequent to May last there was nothing OF
file in this office to indicate an intention on th
part of the city to claim said land. There wa
not, and is not yet according to the evidence, an.
# buildings on the land in question occupied pla