The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-01-24
ONCE MORE In COURT
The Claims of J. Fl. Linck
and His Satellites.
THE CAPITOL HILL JUMP.
What Are the Rights of the Plain.
tiffs?-The Claim in Behalf
of the City.

Mr.. J. h. Linck, Row Mcdonald, T.
r. Higgins and George Adkins doomed
to the front again yesterday.
These will be remembered as the gen
tlemen who Jumped" Capital Hill
about year ago; who held the fort for
some time, but WHO were finally
bounced by the Mayor and an increased
police force.
Arthur Brown appeared in behalf Of
Mr.. Linck and Sheeks C Rawlins repre-
sented the defendants and respondents,
Salt Lake City, Mayor Armstrong, An
drew Burt and Marshal Solomon. Mr..
Brown, inhis argument, contended that
the questions at issue came up on ap-
peal from the judgment sustaining the
general demurrer to a complaint in
equity. The title to lands now occu-
pied by Salt Lake City is denied, he
said, from the United States by virtue
of an act known as
THE TOWNSHIP ACT,
which reads as follows: whenever any
portion OF the public lands have been
or may be settled upon and occupied
as townsite, not subject to entry un-
der the agricultural presumption laws,
it is lawful, in case such town be in
corporated, for the corporate author
ties thereof, and, if not incorporated,
for the judge of the county court for
the county in which such town is stu
ated, to enter at the proper lano
Office, and at the minimum price,
the land so settled and occupied in
trust for the several use and benefit of
the occupants thereof, according to
their respective interests; the execu-
ton of which trust, as to the disposal
of the lots in such town, and the pro-
ceeds of the sale thereof, to be con-
Quoted under such regulations as may
be prescribed by the legislative authority
of the State or Territory ii which the
same may be situated" This is the
section giving the right. There ere
other sections upon the same subject
and are to be construed with it,
The lands entered under this act in
Salt Lake City, in 1871, had already
been in part occupied great many
years, to-wit: since 1S47 as city AS
the same were entered in government
sub divisions, the entry comprised
lands-thst is, parts of sub. divisions of
sections-which were not in use at the
date of the patent from the United
States. After the actual occupant had
proven up under the provisions of the
act of the Legislature provided for that
purpose, there remained large num-
Der of unclaimed lots or pieces of
1rv,- fln &,l-
the city, for which there was at
remained unclaimed up to the
this suit: they were open and
vacant and unclaimed on the day
mentioned in the omplaint-Fe February
18th, 1888. On that day the plaintiff
entered into the possession and occu-
pancy of this unclaimed land-he
claimed to be one of the cestui gui trast
named in the act as occupant. The
question involved in this case is whether
anyone can be such beneficiary after
the time of issuing the patent and the
time of proving up. The question
turns upon the proper construction of
the act of Congress. The object of
Congress in the section quoted was TO
encourage the growth of cities; in fact,
it provides for the sale of city lots at
mere nominal value. sAs in this case.
the lands may be of value so
that financially il becomes a gift
to the bsnefciaries from the
government The corporate authori-
ties are expressly made a trustee for
the benefit of the cestui gus trust As
trustee the city is liable as other trus-
tees, and the act is to be construed on
the same principles upon which we
would construe instruments creating
trustees. The whole controversy re-
Iates to the question who are the bene-
ficiaries and who are the trustees. The
city is not made a beneficiary by the
terms of the act, although it claims an
ownership here and is in this case
exercising the right of selling. Ard
the act nowhere provides that city,
village or town, shall receive as proprie-
tor, any part of the lands so conveyed,
except, of course, such parts of the
city as may be necessary for streets,
and as may have been selected or occu-
pied for public squares or other public
purposes.
1t follows that the benefciaries must
be such as come under the head in the
act classed as occupants" and the
term must apply solely to those taking
actual possession. What reason is
there for limiting these occupants to
any particular time? And is it prac-
ticabie, giving any sensible construction
to the act, to limit the word in the point
of time? The act was passed in 1874,
and it looks by its terms to the future.
Can it be limited to occupants at the
date of the act2 Great cities have been
built on the public domain since that
date. Under such construction, Dem
YER. Salt Lake and countless others
would be excluded. And the courts
have uniformly extended the act to
cities built since its date; 80 We cannot
limit it to its date. It is eontended
here that 1t should be limited to the
date of the patent Why? The
date is not selected by any
one, either the donsr, the trustee or
the beneficiary. The date of the patent
is pure accident. and is not selected
by either of the parties in interest.
Why should any new occupant of the
city be forbidden by this act? There
was the same necessity for giving the
lands free or at nominal cost, after
the date of the patent as before. If
the government gave these lands to
build up and to encourage the building
of the city, does the object cease be-
l. = u.