, 1892-05-12
TOWNSHIP CLAIMS.
A Judgment Reversed From Doug.
las County Court.
Two Parties Claiming TITLE to
Property in the Town of Water
vilIe-The Determination OF the
Rights of The 1sarttas

stPPSt1A IL II III 4JAlL1 anu Wy EEhLHa lRLB-
UNE,
Eleanor Newhouse, appellant VS.. Joseph
Simino, respondent.
No. 269-The toWnsite of Waterville was
located on public lands. Entry thereof as
such townsite was duly made by the Judge
OF probate of the proper county on the 26th
day Of January, 1889. The provisions of
the act Of congress under which such en-
try was made is substantially as follows
Whenever any portion Of the public
lands of the United States have been or
shall be settled upon and occupied. AS a
townsite, and therefore not subject to en-
try under the agricultural pre-emption
laws, it shall be lawful in case such town
shall be incorporated for the corporate au-
thoritles thereof, and If not Incorporated
for the judge of the county court in which
such town may be situated to enter at the
proper land office, and at the minimum
price, the land so settled and occupied in
trust tor the several use and benefit of the
occupants thereof, according to their re-
spectlye interests, the execution of which
trust, as to the disposal of the lots In such
town and the proceeds of the sale thereof,
to be conducted under such rules and regu-
latlons as may be prescribed by the legisla-
tive authority Of the state or territory in
which the same may be situated. See Act
of March 2, 1867, la Stat. at Large SAL.
The legislature Of the Territory of Wash
lngton duly passed an act which purport-
ed to provide regulations as provided for
III sand act OF congress. Acts of 1878, p.
2l6. Each of the parties to This action
claimed title to lot 15, in block 6, of said
townsite, by virtue having been occupants
thereof as required by said act Their re-
spectlve claims were duly filed with said
judge Of probate, and by him duly certi-
ned to the superior court of Douglas
county as required by the said act of the
pISlafI1Pn fHhn an1Na1loJ,t
mated plaintiff and the respondent defend
ant as required by said act. The cause
was tried by jury, and a verdict and
Judgment rendered for defendant There
was proof tending to show that plaintiff
was an occupant of the lot at thee date Of
entry, 4G also appeared from the proofs
that the defendant was not an occupant at
the date OF said entry, but was such occu-
pant at the date of the issuance of 6he pat
entsto said judge of probate.
That we may correctly determine the
rights OF the parties under such circum-
stances 1t is necessary to understand the
nature OF the grant made by said act Of
congress, and when the same took effect.
As to the first there is no great difference
between The parties; as to the second, the
contention OF appellant is that the grant
took effect fully and completely at the date
OF the entry, while the respondent claims
that anyone who occupied a lot at the date
VI blAC E'chtC1Iu IOOh OuGFGuQQef, even al
though his occupancy did not extend back
to the date OF entry. While, as we have
stated above, there does not seem to be-
much dispute, as to the nature Ofthe grant
yet the above contention makes it NECESSARY
that we should examine it. What then is
the nature of the grant? We think it two
fold: a. A several grant to the several
occupants; and, ~ A grant of ali unoccu-
pied lots for public purposes to all the oc
cupants as an aggregation. This latter
grant does not very clearly appear from the
act OF congress, for if we adhere to the ex-
act language Of the granting portion there
OF there would seem to be only a several
grant 70 the several occupants, and no
grant of anything further. But looking at
the whole section, and especially at chat
provision which provides for the grant CON
forming to regular subdivisions as estab-
lished by the United States survey, and
taking into consideration the fact that the
several occupancies taken together would
never correspond exactly to such govern
ment subdivisions, II seems clear that con
gress intended to grant other land than
that which was actually occupied by the
individual settlers. This seems to us to he
reasonable construction of the language
used and such has been the holding of the
courts.
See Halter Of selby, Mich. 1893. Cast
ner vs.. Gunther, 6 Mimi. 119. Winfield
ys. City Of PetaInma "A All so7 'ol0o
1t is true that the case Of LeebIer "
Chapin, II Nevada 60, by inference estab-
fishes different doctrine, but we are not
satisfied to follow that case, especially as
this precise Question was NOT nenesssriIy
involved, See concurring Oninion of Raaf.
ty. J. Ifthis is the nafure If tha eyIaSn+
and if. as we understand the rasnoS9cI e.,
comedies that Tie grant tooE afacf az If
the date Of the entry, we do not see how it
seuuent occuDancy of 4 Iot conld avail H..
any purpose. If the grant took afFact as 20
present grant at all at the time If antrW 4
SO took effect entirely and nvaT- Io+ -, a.
townsite became nriyate troaTty ~ ~
the several use of The individI1lsis tba H.
others for.the general use If the bodv ~
individuals mis- haino q thore o,0iyl q u
course, be no title acouiTed theraaftar f1 fr1oT3 4
tie government 81 from anv othar solToa ro.s
than that in which It had been vested II Nv
the grant The fact HAT tbo looroI +itiJo ~
went to the Judge Of hate for tbe baTaf;t :
of the real grantees co1IId of course No.
no effect upon this proposition
1t follows that under the conceded facts
the respondent had no titla IL tE9e III n,
question. He contends howaUar tbat,,,l II
der the territorial act repulatino fha 5isno-
sal Of lots in such cases tha verdict coi551a
properlv have been rendered fo bi1a az ~,
der said act one or the Other nor+v +o c' ~
action must succeed and r ~loj,,
tiff did not show good titIe has he az
defendant, would have 7udomenf' ' TbiS Go
construction of the terriforiaI act IN ctnas lls0
tion is warranted bv the lanenaoe 9seS 5s,g5
and this leads IT'S to aconsiderafiog II usst ssi5
aot IF the legisature ria All If conorass sssiu
was imperative until some provisions J
should be made far tbe detnrn3i7 ~ ~
the respective holdings Of tba onc,noItS -
The grant to an individual could NOT 'ia1T9 taITe
effect until the extent of his occnna,1nv y['rnU
had been defined and determined NV Psc,roS snr1e
proper authority The Grant to the Sgrn oolrto
cation could not take effect mil al of +he
individual occupancies had been defina5
and set asde The TS nroVidino iIH Deef 81 iGlnaa
chinery was left to the leeis7afI1re II tbe
territory, but, Of course, Rhe legisIa t%re Tlre
Hereunder must be harmonius W}tb iil'' a,ld M
not in opposition to, the spirit Of the grant