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.
