Bismarck weekly tribune. [volume] (Bismarck, D.T. [N.D.]) 1875-1878, 1876-08-30

two are required before entry can be
made. Althou;-: each Of such steps
must be taken ar,>. e 'cessary as cir
cumstaRces to- be -7es @a and proved,
they are not otsynena.n,fs 80 i',eir mean
ing, nor is it necessa1, +,st tg@y should
be simultaneous. To se.oct is to choose,
to set apart, to designate, while settle
ment requires the performance Of some
act connecting the settler with the tract
claimed.
.al Occupancy has more general meaning
than settlement, and may or may
not include actual residence.
The selection of a townsite may, and
oftimes of necessity does, proceed it's
actual settlement and occupation. This
is necessary in order to secure uniform
-ity in size in the lots and blocks, and
regularity and system in the streets.
If it were required that site must
actually be settled upon and occupied,
before it could be considered as select
ed, the provision of law first above cited
is unnecessary and really meaningless.
= Il am of the opinion that where spe.
cific tract Of land is designated and
chosen, part Of which is surveyed into
lots, blocks and streets, which, together
with it's exterior boundaries, are marked
by stakes or proper monuments, and
said acts are followed by settlement,
improvement and occupation within a
reasonable time, such tract must be con-
sidered as selected within the meaning
of the law, and therefore excluded from
pre-emption filing. .. ST. .
I am also Of the opinion that this se-
lection may be made before or after ac-
tual settlement and by persons assecia:
ted together for that purpose, or drawn
together by common interest. :
Before entry can be made of the land,
it must appear that the selection was
made in good faith, not for the purpose
of speculation, and has been settled up
on and occupied for purposes of trade
and not agriculture.
The site Of the present City of Bis.
marck was selected because it was an
ticipated that at this point the Northern
Pacific Railroad would cross the Mis-
souri, River, to this fact, is to be attri-
buted it's rapid growth and development.
On this account the parties who claim
as pre.emptors the lands upon which
this city is built were attracted there.
They were fully coghizant of this fact
when their settlements and improve
ments were made. You very properly
rejected the entries Of Hackett and
Proctor, each Of which purchased or
contracted to purchase, lots of the L. S.
and P. S. l.. Co., after the survey was
commepced or completed, and before
they made settlement upon the tracts
now claimed by them.>
The fact that said company sought by
illegal means to obtain title to the tract
orig ginally selected by it as townsite,
in no way affects the rights Of the occu-
pants in whose behalf application is
now made to enter said lands.
They made their settlement and i'm
provements in good faith and are enti-
tied to the protection which the law
provides.
The corporate authorities having In
cluded more land in their application
than was originally selected as town.
site, the question arises as to what lands
they are now entitled to enter for that
purpose.
I am of the opinion that their entry
must be limited to such contiguous
limits, and at the date Of incorporation,
were free from valid claims under the
e-emption or homestead laws.
By the act Of incorporation, the au-
thority of the Probate Judge to act for,
and in behalf Of the occupants Of said
townsite, was superseded by the officers
therein named when qualified.
Neither the act of incorporation nor
the application of the corporate autho-
rites included the E5 Of the NE4 ofSec
4, a part of the tract originally selected.
This tract is therefore excluded from
said townsite. Valid rights had been
attached to the NE4 of NE4 of Sec 5, T
1873 N, r so w, and the 81 Of SCI and
the 81 of SW4 of Sec 80, L 139 N, R so
W, at the date of the incorporation Of
said city, and not being originally Sc
lected as a part Of said townsite, were
improperly included in the application
of the corporate authorities, and will be
awarded to the parties entitled thereto.
The corporate authorities will there
fore be restricted in their entry to the
NW4 and the WI of the NE4 of Sec Z
aforesaid, subject to the right of way by
the Northern Pacific Railroad.
These are the only tracts which can
properly be considered as settled upon
and occupied for townsite purposes un-
der the testimony as presented and arc