Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1901-07-28

ton has been appropriated in point Of
fact there can be no doubt, for the case
agreed states that it has been used from
| the year 1904 until and after the insti-
! tuition OF this suit, as we'll for the pur-
pose of military post as for that OF an
Indian agency, with some occasional
interruption Now this is appropria-
| ton, for that is nothing more nor less
than setting apart the thing for some
particular use But it is said that this
appropriation must be made by author
ity of law. We think that the appro-
priation in this case, was made by au-
thority of law. AS far back as the year
| 1898, see Act of May sd of that year,
Vol 3, Laws u. S. 46, an appropria
ton was made for the purpose, amongst
other things, of enabling the President
| of the United States to erect fortifca
tons in such place or places as the pub
lie safety should, in his opinion. require.
| By the Act of 2Ist of April, 1906, Vol.
A. Laws u S. 81, the President was au-
thorized to establish trading houses at
such posts and places, on the frontiers
or in the Indian country on either or
both sides of the Mississippi river, as
he should judge most convenient for
carrying on trade with the Indians.
And by Act of June II, 1909, he was au
thorized to erect such Notifications as
might, in his opinion, be necessary for
the protection of the northern and west
ern frontiers. We thus see that the es-
tablishing trading houses with the In
dian tribes, and the erection of fortifi-
cations IN the west, are purposes au
thorized by law; and that they were to
be established and erected by the Pres
ident. But the ~lace in question is one
at which trading house has been es-
tablished, and fortifcation or mill
tary post erected 1t would not be
doubted, we suppose, by any one, that
if Congress had by law directed the
trading house to be established and the
: military post erected at Fort Dearborn,
by name; that this would have been by
authority of law. But instead OF des-
ignating the place themselves. they left
it to the discretion of the President,
: which is precisely the same thing in ef-
, feet. Here then is an appropriation
: not only for one but for two purposes
of the same place, by authority of law
| But there has been a third appropria-
, ton in this case by authority of law
: Congress, by law, authorized the cree.
o ton of lighthouse at the mouth c
! Chicago river. which is within the linn
: priated $1,000 for its erection; and The
y case agreed states that the lighthous,
{ was built on part OF the land in dis
pute before the Ist of May, 1884 w,
n think. then, that there has been an ap
preparation, not only in fact but i,
: law
i Wilcox V. Jackson. Pet .,o3
5 The definition given t. the word az
d propriated' as used in the Act OF Cpl
l. gress OF 1880, is the opposite Of II
word inappropriate" as it appears il
= Act OF June 10, 1880 The word unap
:, propriated as used in the latter &C
:. means unappropriated by any law @
i Congress.
Again a settler upon a tract of pub
II nc land occupying and cultivating il
y but without entry in the Land Office
e ecqulreS no rights against 4 govern
i, ,nent grantee. In Northern Pacific +
n K. co. V. Colburn, 164 y. S. .3S,3. on
J. Kelly settled upon the mad The Stat
II Court held that his cultivation and OF
y Cupation created a claim which h
" could have perfected under the publ
. land laws, and therefore excepted til
~ land from the Conpanys grant TIL
," Court said: eff it be true as matte
u OF law, that mere occupation or cult
III walton of the premises at the time
c. the filing OF the map of definite loo;
I'd ton, unaccompanied by any filing of
OF claim in the Land Office then or Their,
I'd after. excludes the tract from the O,
Or Grafton of the land grant the decisio
ch OF the Supreme Court of Montana w;
n right. But frequent decisions of tn
or Court have been to the effect that r
or pre-emption or homestead claim a
~ taches to a tract until an entry in II
- local land Office. Thus, in the case
- Kansas Pacific Railroad v. Dunmeve
~ 113 U. S. 62o, GA. Mr. Justice Mile
10 speaking for the Court, said: OF q
VI the words IN the English language, til
word attached was probably the be
ne that could have been used 1t did n
of tivation of the land, but it meant a pr
|g- ceeding in the proper land Office.
he which the inchoate right to the Ia,
o. was initiated. 1t meant that BY su
ed proceeding a right of homestead HI
H. fastened to that land. which could ri
ad en- into perfect title by future re-
,e dence and cultivation
his language was quoted and t
MS decision reaffirmed in Hastings & D
II kota Railroad v. Whitney, I32 u.
lbs 357: Whitney v. Taylor, 1873 u. S.
'ir- In Landslide " Daniels, 100 U. S. /
wv. no, it was ruled that such a notice
claim or declaratory statement is
urt dlspensably necessary to give the clai
ent ant any standing as pre-empter, I
up- rule being that his settlement alone
Of not sufficient for that purpose
rod also Maddox v. Burnham, 1s6 U.
- 544. Now in this case the allegatic
-; are that Kelly never made any en-
in the local land office. and the decis
'on OF the Secretary of the interior is b
=, ed simply on the fact of occupation ;
ne cultivation. And while the decision
mn that fact may be conclusive betw
the the. parties, his ruling that such oc
ers, patton and cultivation created a 81;
rat exempting the land from the operat
ex- OF the land grant, is a decision O,
pre- matter of law which does not concl