Books: Minnesota and Dacotah

C >> C.C. Andrews >> Minnesota and Dacotah

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Now, the rights of an agricultural preemptor we understand. He is
entitled, if he shall "make a settlement in person on the public
lands," and "shall inhabit and improve the same, and shall erect a
dwelling thereon," to enter, "by legal subdivisions, any number of
acres not exceeding one hundred and sixty, or a quarter-section of
land, to include the residence of such claimant." (Act of 1841, s.
10.) And of two settlers on "the same quarter-section of land," the
earlier one is to have the preference. (Sec. 11.)

Now, was it ever imagined that such claimant must personally inhabit
every quarter quarter-section of his claim? That he must have under
cultivation every quarter quarter-section? That he must erect a
dwelling on every quarter quarter-section? And that, if he failed to
do this, any such quarter of his quarter-section might be preempted by
a later occupant?

There is no pretension that such is the condition of the ordinary
preemptor, and that he is thus held to inhabit, to cultivate, to dwell
on, every quarter quarter-section, under penalty of having it seized
by another preemptor, or entered in course by any public or private
purchaser. He is to provide, according to the regulations of the Land
Office or otherwise, indicia, by which the limits of his claim shall
be known,-- he must perform acts of possession or intended ownership
on the land, as notice to others; and that suffices to secure his
rights under the statute. It is not necessary for him to cultivate
every separate quarter of his quarter-section; it is not necessary for
him even to enclose each; it only needs that in good faith he take
possession, with intention of occupation and settlement, and proceed
in good faith to occupy and settle, in such time and in such manner,
as belong to the nature of agricultural occupation and settlement.

Why should there be a different rule in regard to occupants for
municipal preemption? The latter is, by the very tenor of the law, the
preferred object. Why should those interested in it be subject to
special disabilities of competing occupancy? I cannot conceive.

It is obvious that, in municipal settlement, as well as agricultural,
there must be space of time between the commencement and the
consummation of occupation. There will be a moment, when the equitable
right of the agricultural settler is fixed, although he have as yet
done nothing more in the way of inhabiting or improving than to cut a
tree or drive a stake into the earth. And it may be long before he
improves each one of all his quarter quarter-sections. So, in
principle, it is in the case of settlement for a town. We must deal
with such things according to their nature. Towns do not spring into
existence consummate and complete. Nor do they commence with eight
houses, systematically distributed, each in the centre of a forty-acre
lot. And in the case of a town settlement of three hundred and twenty
acres; as well as that of a farm site of one hundred and sixty acres,
all which can be lawfully requisite to communicate to the occupants
the right of preemption to the block of land, including every one of
its quarter quarter-sections,-- is improvement, or indication of the
improvement of the entire block,-- acts of possession or use regarding
it, consonant with the nature of the thing. That, in a farm, will be
the erection of a house and outhouses, cultivation, and use of
pasturage or woodland: in a town, it will be erecting houses or shops,
platting out the land, grading or opening streets, and the like signs
and marks of occupation or special destination.

The same considerations lead to the conclusion that it would not be
just to confine the proofs of occupation to facts existing at its very
incipiency. The inchoate or equitable right, as against all others,
begins from the beginning of the occupation: the ultimate sufficiency
of that occupation is to be determined in part by subsequent facts,
which consummate the occupation, and also demonstrate its bona fides.
If it were otherwise, there would be an end of all the advantage
expressly given by the statute to priority of occupation. Take the
case of agricultural preemptions for example. A settler enters in good
faith upon a quarter-section for preemption; his entry, at first,
attaches physically to no more than the rood of land on which he is
commencing to construct a habitation. Is that entry confined in effect
to a single quarter quarter? Can other settlers, the next day, enter
upon all the adjoining quarter quarters, and thus limit the first
settler to the single quarter quarter on which his dwelling is
commenced? Is all proof of occupation in his case, when he comes to
prove up his title, to be confined to acts anterior to the date of
conflict? Clearly not. The inchoate title of the first occupant ripens
into a complete one by the series of acts on his part subsequent to
the original occupation.

In the statement of the case prepared in your office, it is averred
that numerous precedents exist in the Land Office, not only of the
allowance of town preemptions as the voluntary selection of
individuals, but also of the application to such preemption claims of
the ordinary construction of the word "occupation" habitually applied
to agricultural preemption claims. That is to say, it has been the
practice of the Government, not to consider municipal occupation
"circumscribed by the forty-acre subdivisions actually built upon; * *
but that such occupation was (sufficiently) evidenced, either by an
actual survey, upon the ground, of said town into streets, alleys, and
blocks, or the publication of a plat of the same evidencing the
connection therewith of the public surveys, so as to give notice to
others of the extent of the town site:" all this, within the extreme
limits, of course, of the three hundred and twenty acres prescribed by
the statute.

I think the practice of the Land Office in this respect, as thus
reported, is lawful and proper: it being understood, of course, that
thus the acts of alleged selection, possession, and occupation are
performed in perfect good faith.

Something is hinted, in the report of the commissioner, as to the
speculation-character of the proposed town settlement,-- and, in the
official brief accompanying your letter, as to the
speculation-character of the proposed agricultural preemption. I
suppose it must be so, if the land in question has peculiar aptitude
for municipal uses. But how is that material? The object, in either
mode of attaining it, is a lawful one. Two persons may lawfully
preempt a certain quantity of land under the general law, and intend a
townsite without saying so; or they may preempt avowedly for a town
site. As between the two courses, both having the same ultimate
destination, it would not seem that there could be any cause of
objection to the more explicit one.

So much for the first branch of the second question. As to the second
branch of it, the same line of reasoning leads to equally satisfactory
results.

The municipal preemptor, like the agricultural preemptor, is required
to take his land in conformity with "the legal subdivisions of the
public lands." I apprehend the import of the requirement is the same
in both cases. Neither class of pre-emptors is to break the legal
subdivisions as surveyed. The preemptor of either case may take
fractional sections if he will, but he is in every case to run his
extreme lines with the lines of the surveyed subdivisions. In fine, as
it seems to me, there is nothing of the present case, in so far as
appears by the questions presented, and the official reports and
statement by which they are explained, except a convict of claim to
two or three sectional subdivisions of land between different sets of
preemptors, one set being avowed municipal preemptors, and the other
professed agricultural preemptors, but both sets having in reality the
same ulterior purposes in regard to the use of the land. The
Government has no possible concern in the controversy, except to deal
impartially between the parties according to law. The agricultural
preemptors contend that different rules of right as to the power of
individual or private occupation, and as to the criteria of valid
occupation, apply to them, as against their adversaries. The municipal
preemptors contend that the same rules of equal right, inceptive and
progressive, in these respects, apply to both classes of preemptors. I
think that the latter view of the law is correct, according to its
letter, its spirit; and the settled practice of the Government.

The investigation of the facts of the case, and the application of the
law to the facts, are, of course, duties of your Department.

I leave here the first and second questions; and, proposing to reply
at an early day on the third question,

I have the honor to be, very respectfully,

C. CUSHING.

Hon. ROBERT McCLELLAND,

Secretary of the Interior.

THE END.
_______

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