Bismarck weekly tribune. [volume] (Bismarck, D.T. [N.D.]) 1875-1878, 1876-08-02

NO. 4.
who are now parties in interest They
settled there in good faith, and many of
them purchased lots in accordance with
aaid plat. b IT, this department. had the
right to inquire into, and determine the
legality u, IN incospo ation. which do
net think i has, where the Incorporation
appears to be regular, should question
the propriety Of doing it in thistcsse.hfI
am unable to see. giving full credence to
the aieg4tioEs made in behalf of the con-
testants. that the incorporation Of this
city was in any proper sense fraudulent.
Upon the second point, it's urged that
the entry. of Maypr, Allen, Of June 4, 1873,
included all Of the land then actually &C.
-cupied, and all that the occupants Of the
town, site were entitled to claim and
that therefore, the amendment applied
f0E on June Eth, 1873, should ny no not be al
buThe limitations1ofit the amount Of land
which may be entered by. the act Of
March "a. 1867, IS IS folloWs:: sThe en-
.tlInr decla5atqry statement shall include
only such land as is actually occupied BY
'the town, ahdthe title to- ahiehiscin the
III t{s eaIs sftsl6gsgaG vge!. pqHiesso pHsso and nd
Set Sa|t take, City, (Copp's Lapd Laws, page
-f86b theselection need not, Jim my opir,-
ion, be accompanied by actual occupancy
sof the entire surveyed site. =
,aaHf ATTRACT claimed by prescription is
within the surveyed limits of a town site.
occupied SO far as found necessary by an
organized commpnityiIj ghaying public
buildings, places Of trade and commerce,
churches, school lShouses and dwellings, it
is ;.a selected &c r, within the meaning Of the
BIC Attorney General Gushing, in a very
able opinion upon the proper construction
|of the Town Site Act of 1874, where the
words Or Limitation are almost identical
with those contained in the act of 1867,
says: e" 1t is obvious that in municipal
settlements as well as in agricultural, there
must be space Of time between the com
mencementI and the consummation of oc-
cupation. There will be moment when
the equitable right of the agricultural
settler is fixed, although he have as yet
done nothing more in the 4, Way y Of 'inhabit-
Ling or improving than ITO cut a tree or
drive q stake into the earth. And it may
be long before he improves each one Of
all 10 his OF quarter sections 4 So. =, in
for a town. We must deal with such
things according to their nature. Towns
do not spring into existence consurnate
/ and complete. Nor do they commence
with eight house systematically distribut-
i ed each in the centre Of a forty-acre lot.
And in the case of town settlement of
three hundred and twenty acres as well
as that Of farm site of one hundred and
sixty acres, all which can be lawfully re-
qusite to communicate to the occupants
the right Of presumption to the block of
land, including every one Of its quarter
quarter sections, is improvement, or indi-
cation Of the Improvement of the entire
block, acts Of possession or use regarding
it, consonant with the nature of the
thing. ,,s &.
"That, in farm, will be the erection
Of house and outhouses, cultivation and
use of pasturage or woodland :ein town,
Lit. will be erecting houses or shops, plott-
ing out the land, grading or opening
streets, and the like signs and works of
occupation or special destination Opin-
ions Of Attorney General Vol. I, pages
74o and 741.. t...9 f.''' ~ s2s-
In this case the Jail, court house square,
school-house and cemetery are located
upon the lands claimed by the occupants,
who number, at least one hundred and
seventeen. q And while it may be true
that the stores and shops are upon lands
purchased by private parties, but included
in the plat with these lands ard all incor-
porated as one city, this, in my opinion,
does not effect the rights Of the occupants
under the circumstances of this case. So
far as improvements have been made,
streets graded, ETC., they have all been
done in conformity to the plat filed. The
school house and cemetery located upon
this land are used alike by the whole
city. tra 9f..52
The fact that people do not actually re-
side upon each quarter-quarter section or
fractional legal subdivision, in the view
take of the law, does not effect theirrights
to the quantity Of land which the law
permits them to enter for the purposes of
town site. The quantity Of land is to
be determined by the number Of occu-
pants, not, by the location Of their resi-
dences upon it.
Neither does the fact that more lands
were included within the corporate limits
Of this city than were actually occupied
thereby excepting them from the opera
ton of the pre-emption and homestead