The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-02-10

The supreme court yesterday handed
down an opinion in the case Of Minnie
Lockwitz VS.. James H. Larsen and j.
S. Bonney, appellants. The opinion
which affirmed the judgment of the
district court, was written by Justice
Bartch and concurred in by Chief JUS
tice Zane and Justice Miner.
The proceeding was in the nature OF
a contest between the plaintiff and de-
PENDANTS, claimants by right of occu-
pancy to determine VINO is entitled to
J a deed for q certain parcel of land on
| the Eureka townsite.
1t appeared from the record that on
Jan. %, 1891, the probate judge of Juab
/ county made application at the United
States land office at Salt Lake City TO
enter the townsite of Eureka City, pur-
suant to the act of congress of March
2, 1867. To this application some min
eral claimants filed patents. but these
were afterwards dismissed by the reg
lister and receiver, and on the proof
offered by the tOwnSite applicant his
| application was accepted and allowed
on May %, 1892 The money for the
land included in the entry was paid
and a receipt issued Dec. 81, 1896. At
the time of filing the application for
the townsite entry, one Michael l..
Powers was the rightful owner of pos
session and occupant of the land in
question, and at the time of the hear
ing herein his rights were, through
mesne conveyances, vested in the
plaintiff. In their application for a
deed to the land in dispute, the de-
PENDANTS aver that the tract has been
occupied by them or their predecessors
in interest continuously since Sept. s,
1895, and that they now claim to be
the rightful owners of the possession.
1t appeared that at the hearing the
court sustained a demurrer to their
applications, and a motion TO strike
them from the files, on the ground
that parties claiming such right I'M
der the townsite entry must show that
they or their predecessors in interest
were occupants when the application
for entry was accepted and the entry
allowed, and this ruling of the court
having been assigned as error, consti-
tutes the subject of appeal
The appellants contended that they
are occupants within the meaning and
intent of the act of congress of March
2, 1867, which provides that whenever
any portion of the public lands of the
United States have been or shall be
settled upon and occupied as a town
site, ana, therefore, not subject to
entry under the agricultural pre-emp-
ton laws, it shall be lawful for the
proper authorities or officer to enter
at the proper land Office and, at the
minimum price, the land so settled and
occupants thereof, according to their
respective interests, and that the exc
cution of the trust as to the DISPOSAL
OF the lots, shall be conducted under
rules and regulations as may be pre-
scribed by the legislative authority of
the state or territory in which the
same may be situated" Under this
statute the townsite of Eureka was
entered, and the provision is that the
land so settled and occupied may be
entered lor the use and benefit of the /
occupants thereof. This means that
those who are the actual settlers and
occupants at the time when the entry
is made, are entitled to the benefit
which may accrue by virtue thereof. /
The interests of such occupants at
taches simultaneously with the making
OF the entry, and no person who NAV .
nave occupied land on the tOwnsite /
prior thereto or may occupy such land
thereafter, but who was not a settler
ana occupant at the time of the entry.
can derive any benefit directly by rea-
son of the entry.
The opinion concludes: There is /
nothing in the record to show that the
entry was not finally allowed on the
appicatlon filed and proof submitted .
on the z3rd day Of January. 1891 and /
we are of the opinion that. under the
facts shown to exist herein. the entry
was made on that day, and that the
appellants merely claiming to having
become occupants thereafter. but
showing no right of occupancy by vir-
tue OF one who was a riGhtfuI occu-
pant on the day of entry, are not bene-
hciaries within the meaning Of the act
OF congress The court therefore prop
erly sustained the demurrer and motion
TO strike their application from the
files