PREEMPTION FOR CITY OR TOWN SITES.
_______
PREEMPTION FOR CITY OR TOWN SITES.
AT a late moment, and while the volume is in press, I am enabled to
present the following exposition of the Preemption Law, addressed to
the Secretary of the Interior by Mr. Attorney-General Cushing. (See
"Opinions of Attorneys General," vol. 7, 733-743-- in press.)
PREEMPTION FOR CITY OR TOWN SITES.
Portions of the public lands, to the amount of three hundred and
twenty acres, may be taken up by individuals or preemptioners for city
or town sites.
The same rules as to proof of occupation apply in the case of
municipal, as of agricultural, preemption.
The statute assumes that the purposes of a city or town have
preference over those of trade or of agriculture.
ATTORNEY GENERAL'S OFFICE
July 2, 1856.
SIR: Your communication of the 20th May, transmitting papers regarding
Superior City (so called) in the State of Wisconsin, submits for
consideration three precise questions of law; two of them presenting
inquiry of the legal relations of locations for town sites on the
public domain, and the third presenting inquiry of another matter,
which, although pertinent to the case, yet is comprehended in a
perfectly distinct class of legal relations.
I propose, in this communication, to reply only upon the two first
questions.
The act of Congress of April 24, 1841, entitled "An act to appropriate
the proceeds of the sales of the public lands and to grant preemption
rights," contains, in section 10th, the following provisions: "no
lands reserved for the support of schools, nor lands acquired by
either of the two last treaties with the Miami tribe of Indians in the
State of Indiana, or which may be acquired of the Wyandot tribe of
Indians in the State of Ohio, or other Indian reservation to which the
title has been or may be extinguished by the United States at any time
during the operation of this act; no sections of lands reserved to the
United States alternate to other sections of land granted to any of
the States for the construction of any canal, railroad, or other
public improvement; no sections or fractions of sections included
within the limits of any incorporated town; no portions of the public
lands which have been selected for the site of a city or town; no
parcel of a lot of land actually settled or occupied for the purposes
of trade and not agriculture; and no lands on which are situated any
known salines or mines, shall be liable to entry under or by virtue of
this act." (v Stat. at Large, p. 456.)
An act passed May 28, 1844, entitled "An act for the relief of
citizens of towns upon the lands of the United States under certain
circumstances," provides as follows:
"That whenever any portion of the surveyed public lands has been or
shall be settled upon and occupied as a town site, and therefore not
subject to entry under the existing preemption laws, it shall be
lawful, in case such town or place shall be incorporated, for the
corporate authorities thereof, and if not incorporated, for the judges
of the county court for the county 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 for the several use and benefit of
the several occupants thereof, according to their respective
interests; the execution of which trust, as to the disposal of the
lots in said town, and the proceeds of the sales thereof, to be
conducted under such rules and regulations as may be prescribed by the
legislative authority of the state or territory in which the same is
situated; Provided, that the entry of the land intended by this act be
made prior to the commencement of a public sale of the body of land in
which it is included, and that the entry shall include only such land
as is actually occupied by the town, and be made in conformity to the
legal subdivisions of the public lands authorized by the act of the
twenty-fourth of April, one thousand eight hundred and twenty, and
shall not in the whole exceed three hundred and twenty acres; and
Provided also, that the act of the said trustees, not made in
conformity to the rules and regulations herein alluded to, shall be
void and of none effect:" * * * (v Stat. at Large, p. 687.)
Upon which statutes you present the following questions of
construction: "1st. What is the legal signification to be given to the
words, 'portions of the public lands which have been selected as the
site for a city or town,' which occur in the preemption law of 1841,
and which portions of the public lands are by said act exempted from
its provisions? Do they authorize selections by individuals with a
view to the building thereon of a city or town, or do they contemplate
a selection made by authority of some special law?
"Do the words in the act of 23d May, 1844, 'and that the entry shall
include only such land as is actually occupied by the town,' restrict
the entry to those quarter quarter-sections, or forty acre
subdivisions, alone, on which houses have been erected as part of said
town, or do they mean, only, that the entry shall not embrace any land
not shown by the survey on the ground, or the plat of the town, to be
occupied thereby, and not to exceed 820 acres, which is to be taken by
legal subdivisions, according to the public survey, and to what
species of 'legal subdivisions' is reference made in said act of
1844?"
These questions, as thus presented by you, are abstract questions of
law,-- namely, of the construction of statutes. They are distinctly
and clearly stated, so as not to require of me any investigation of
external facts to render them more intelligible. Nor do they require
of me to attempt to make application of them to any actual case,
conflict of right, or controversy either between private individuals
or such individuals and the Government.
It is true that, accompanying your communication, there is a great
mass of representations, depositions, arguments, and other papers,
which show that the questions propounded by you are not speculative
ones, and that, on the contrary, they bear, in some way, on matters of
interest, public or private, to be decided by the Department. But
those are matters for you, not for me, to determine. You have
requested my opinion of certain points of law, to be used by you, so
far as you see fit, in aid of such your own determination. I am thus
happily relieved of the task of examining and undertaking to analyze
the voluminous documents in the case: more especially as your
questions, while precise and complete in themselves, derive all
needful illustration from the very instructive report in the case of
the present Commissioner of Public Lands and the able brief on the
subject drawn up in your Department.
I. To return to the questions before me: the first is in substance
whether the words in the act of 1841,-- " portions of the public land
which have been selected as the site for a city or a town,"-- are to
be confined to cases of such selection in virtue of some special
authority, or by some official authority?
I think not, for the following reasons:
The statute does not by any words of legal intendment say so.
The next preceding clause of the act, which speaks of lands "included
within the limits of any incorporated town," implies the contrary, in
making separate provision for a township existing by special or public
authority.
The next succeeding clause, which speaks of land "actually settled or
occupied for the purposes of trade and not agriculture," leads to the
same conclusion; for why should selection for a town site require
special authority any more than occupation for the purposes of trade?
The general scope of the act has the same tendency. Its general object
is to regulate, in behalf of individuals, the acquisition of the
public domain by preemption, after voluntary occupation for a certain
period of time, and under other prescribed circumstances. In doing
this, it gives a preference preemption to certain other uses of the
public land, by excluding such land from liability to ordinary
preemption. Among the uses thus privileged, and to which precedence in
preemption is accorded, are, 1. "Sections, or fractions of sections
included within the limits of any incorporated town;" 2. "Portions of
the public land which have been selected for the site of a city or
town;" and, 3. "Land actually settled or occupied for the purposes of
trade, and not agriculture." Now, it is not easy to see any good
reason why, if individuals may thus take voluntarily for the purposes
of agriculture,-- they may not also take for the purposes of a city or
town. The statute assumes that the purposes of a city or town have
preference over those of trade, and still more over those of
agriculture. Yet individuals may take for either of the latter
objects: a fortiori they may take for a city or town.
Why should it be assumed that individual action in this respect is
prohibited for towns any more than for trade or agriculture? It does
not concern the Government whether two persons preempt one hundred and
sixty acres each for the purposes of agriculture, or for the purpose
of a town, except that the latter object will, incidentally, be more
beneficial to the Government. Nor is there any other consideration of
public policy to induce the Government to endeavor to discourage the
formation of towns. Why, then, object to individuals taking up a given
quantity of land in one case rather than in the other?
Finally, the act of 1844 definitively construes the act of 1841, and
proves that the "selection" for town sites there spoken of may be
either by public authority or by individuals:-- that the word is for
that reason designedly general, and without qualification, but must be
fixed by occupation. That act supposes public land to be "settled upon
and occupied as a town site," and "therefore" not subject to entry
under the existing preemption laws. This description identifies it
with the land "selected for the site of a city or town," in the
previous act. It limits the quantity so to be selected, that is,
settled or occupied, to three hundred and twenty acres, and otherwise
regulates the selection as hereinafter explained. It then provides how
such town site is to be entered and patented. If the town be
incorporated, then the entry is to be made by its corporate
authorities. If the town be not incorporated, then it may be entered
in the name of the judges of the county court of the county, in which
the projected town lies, "in trust for the several use and benefit of
the several occupants thereof, according to their respective
interests." Here we have express recognition of voluntary selection
and occupancy by individuals, and provision for means by which legal
title in their behalf may be acquired and patented.
I am aware that by numerous statutes anterior to the act of 1841,
provision is made for the authoritative selection of town sites in
special cases; but such provisions do by no means exclude or
contradict the later enactment of a general provision of law to
comprehend all cases of selections for town sites, whether
authoritative or voluntary. I think the act of 1841, construed in the
light of the complementary act of 1844, as it must be, provides
clearly for both contingencies or conditions of the subject. Among the
anterior acts, however, is one of great importance and significancy
upon this point, more especially as that act received exposition at
the time from the proper departments of the Government. I allude to
the act of June 22d, 1838, entitled "An act to grant preemption rights
to settlers on the public lands." This act, like that of 1841,
contains a provision reserving certain lands from ordinary preemption,
among which are:
"Any portions of public lands, surveyed or otherwise, which have been
actually selected as sites for cities or towns, lotted into smaller
quantities than eighty acres, and settled upon and occupied for the
purposes of trade, and not of agricultural cultivation and
improvement, or any land specially occupied or reserved for town lots,
or other purposes, by authority of the United States." (v Stat. at
Large, p. 251.)
Here the "selection" generally, and the "selection" by authority are
each provided for eo nomine. It is obvious that the provision in the
latter case is made for certainty only; since, by the general rules of
statute construction, no ordinary claim of preemption could attach to
reservations made by authority of the United States. The effective
provision in the enactment quoted, must be selections not made by the
authority of the United States.
In point of fact the provision was construed by the Department to
include all voluntary selections: lands, says the circular of the
General Land Office of July 8, 1838, "which settlers have selected
with a view of building thereon a village or city."
It seems to me that the same considerations which induced this
construction of the word "selection" in the act of 1838, dictate a
similar construction of the same word in the subsequent act. Besides
which, when a word or words of a statute, which were of uncertain
signification originally, but which have been construed by the proper
authority, are repented in a subsequent statute, that is understood as
being not a repetition merely of the word with the received
construction, but an implied legislative adoption even of such
construction.
II. The second question is of the construction of the act of 1844,
supplemental to that of 1841; and as the construction of the elder
derives aid from the language of the later one, so does that of the
latter from the former. The question is divisible into sub-questions.
1. Does the phrase "that the entry (for a town-site) shall include
only such land as is actually occupied by the town," restrict the
entry to those quarter quarter-sections, or forty acre subdivisions
alone, on which houses have been erected as part of said town?
2. What is the meaning of the phrase in the act "legal subdivisions of
the public lands," in "conformity" with which the entry must be made?
I put the two acts together and find that they provide for a system of
preemptions for, among other things, agricultural occupation,
commercial or mechanical occupation, and municipal occupation.
In regard to agricultural occupation, the laws provide that, in
certain cases and conditions, one person may preempt one hundred and
sixty acres, and that in regard to municipal occupation a plurality of
persons may, in certain cases and conditions, preempt three hundred
and twenty acres. In the latter contingency, there is no special
privilege as to quantity, but a disability rather; for two persons
together may preempt three hundred and twenty acres by agricultural
occupation, and afterwards convert the land into a town site, and four
persons together might in the same way secure six hundred and forty
acres, to be converted ultimately into the site of a town; while the
same four persons, selecting land for a town site, can take only three
hundred and twenty acres. In both forms the parties enter at the
minimum price of the public lands. The chief advantage which the
preemptors for municipal purposes enjoy, is, that they have by statute
a preference over agricultural preemptors, the land selected for a
town site being secured by statute against general and ordinary, that
is, agricultural preemption. In all other respects material to the
present inquiry, we may assume, for the argument's sake at least, that
the two classes stand on a footing of equality, as respects either the
convicting interests of third persons, or the rights of the
Government.
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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