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.
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