Minnesota and Dacotah

by C. C. Andrews

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.