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Show SUPREME COURT DECISION. An Important Land Case. MirylCx. Husspy versus Job Smith. In the iprr-me Court of Utah Terri-toiT. Terri-toiT. Oetobtr Term. 173. In the matter of MuryG. Ha-w-r, Appellant, I Ami in the mutter of Job Smith, " Ke?ixmdent. j IJ'Triiiun, J., reiniereJ the opinion of the nuirt. Tho.f nr epeui.il pro:eriny, under un-der tin.' ol Congress of March 2nd, 1817, uimKinIy called tlie "Town-?iU:" "Town-?iU:" lnw at I.uruc.jJl ), and the act of the Territorial Lishture pa.-tl in pursuance tliereof: and to earn- out tin trust ariIni: thereunder, i I prove I Februarv 17, lbbo (L-iivs ot" Uuh. ISO'J. p. 4.) Mary G. Hussey and Jul Smith are separate find distinct dis-tinct cbiiinanL-i for the same parcel of ground in the City of Salt Lake. They separately made their application to the Probate Jntljje.each asking for the overtunent title, and each contesting contest-ing the riglit of tho other thereto. Iking ltd verse claimant?-, rAicrr-r'asef 1 nrees.srily are considered togetlier. L imn the hearing of the cases, the ; 1 'rotate Court adjudged that the cer- j tilicate of title issue tc Job Smith; I from which judgnieut of the Probate Court Mary G. llussry appealed to the District Court of tho Third Judicial Judi-cial District of tho Territory. The District Court aflirmcd tlie judgment of the Probate Court, and from this judgment of the District Court Mary G. Hussey npoenk-d to this court. The case was heard by the Court, silting without a jury, which made a finding of the facts and thereupon tra vfi its rniicliisiniia nf law And judgment accordingly. From the be-gi.f.ing be-gi.f.ing to the ending of this record, there does not appear to have been any exception taken to any ruling of the Court below, nor to the finding of tacts, nor to the conclusions of law. No effort seems to have been made for a review of the case in the court below. There was no motion to correct cor-rect tlie findings, nor any motion for a new trial. We therefore must accept the findings of tlie court below as the true and correct statement ot the case. There is a vast amount of extraneous extrane-ous matter filed with the record, but no steps having been til ken to make tlie same any part of the record, we cannot consider it. We have then only to consider whether the findings will support the judgment rendered thereon. there-on. Li considering this. question, let us first ascertain what the Act of Congress upon which tho above ease is founded says. It reads as follows: 'Whenever any portion of the public lands of tbo United States have been or shall e settled upon and occupied ay a town site, and therefore not subject sub-ject to entry under the agricultural pre-emption laws, it shall be lawful, "in case such town shall be incorporated, incorpo-rated, for the corporate authorises thereof, and if not incorporated for the judge of the county Court for the county in which such town may be situated, to enter at the proper land office, and at tlie minimum price, the land eo settled and occupiccl in trust 1 for the several use and benefit of the I occupants thereof, according to iheir ysDective interests, the execution of ' which trust, to the disposal of the lots in such town and tlie p7CCf PJ3 tho sales thereof, to be conducted under un-der such rules and regulations fls may be prescribed by the legislative authority au-thority of the State or Territory in which the same may W. situated, &c, ic. (Act of March 2d, lSd7: 14 Stat, at large, oli). In accordance with tho Act of Congress, the legislative i ;inthnritv of this Territory has made the necessary "rules arc! regulations" and upon no part of theseisany question ques-tion raised in this case. In pursuance of the Act of Congress Con-gress and the Territorial act thereunder, there-under, as tho findings of the Court below show, in November 1S71, Daniel Wells, as Mayor of the City of Salt Lake, entered the land in controversy, con-troversy, among other Jands entered en-tered by him as a " town site." The findings further show that, on the Uth dtiy of Peccmber, 1871, both said Job Smith and said Mary G. Ilussey filed their statements with the Probate Judge of the county, claiming claim-ing the preiijiscs in dispute; and that Job Smith had gone into possession thereof in 1JSM1, and has remained in actual possession thereof ever since and js still ho. They do cot show that, tlie appellant (Mary G, Hussey) ever was in possession of said land or any pjrt thereof, or that she ever was one of the occupants ol the "town-site," or that she was then or ever had been or is now even a resident of the city of Salt Lake, or of the Territory. Tlie only instance in which her residence iy referred to, is at the time she received a deed for this property from "Win. Jennings, on the 'Jih day of March, 1S72, when she is declared to be a non-resident of this Territory, but a resident of the State of CnV.C. What then does ''occupant" under the law mean? and which of tlie two parties was the "occupant" "oc-cupant" within tlu meaning of the law, and the rightful claimant to the deed nf title'.' Shall we say thai the purfy not in possession at any time is the "occupant.'" "occu-pant.'" or shall 'wc say that he who had the actual possession is to be considered con-sidered rightfully the "occupant?" I'pon thi -e ipi cations wo nr not without authority. The "Town;!e law," of L-iU, is very similar to tlnd ol 117 (now under consideration so far as tlie question of Occupancy goes. And the Supremo Court ot Michigan in the matter of Henry Selby and p:)Ming, appellants (0 Mich. li3), s h-s. that "tho law of 1314 was, wc Lii'mk, very clearly designed to protect bona fide town settlers and did not recognizo any paramount individual ; claims over them." I The Secretary nf the Interior I Jacob Thompson) in a letter to tlie Commis- I sioner of the General Land Office, : dated June 2n, Lvis, says that in the act of IS 1 1, by the term "occupants" is meant those who are settlers or residents and that it only embraces eitizuns thereof that is, of the town. The Supreme Court of Iowa, in Hall r. Doran (6 Iowa 4o3), assert a like doctrine where the act is special, but with language similar to the general law, although they add that ibo party to be entitled to tho laud must have been the occupant at the time the county judge is required to make the deed and to execute the : trust. This question lias also been under cons idc rat in in the Supreme Court of the United Suites, and passed upon bv that tribunal in a ease taken from Colorado. That case, (Cofiekl m. McClelland Mc-Clelland and Davis, decided December Decem-ber term, 1S72, hut not yet reported,) arct-e under the law of IS 14 and a sneeial law for the relief of tho citi-zt-ns of Denver, (13 Stat, at Largo U4.) but the language of that special act, as well as the law of 1S44, is similar sim-ilar to that of tiic law now under consideration. con-sideration. . . The Supremo Court of tho United States declare therein that ''occupation ''occupa-tion and possession" give thc"right," but assert that the occupancy and DC-session must exist at the time of the entry of the lands by the probate J Tne Iowa cao referred to says that tho occupancy niiu-t exist a( Ut f"" -vic.i' i i"1:- i-i ioj'ui! to male the .'.-..I. The Colorado case (by the U. ' S, Supreme Court) says that thisi occupancy oc-cupancy must lx-at the time tut cntm oltr'tr h:n-l ' the probate jmlje. Yet all the eases referred to herein declare that the title must go to the actual occupant. Tho appellant, MaryG. Hu.-sev, never was an occupant, occu-pant, either at the dale of entry of the land, or at the time at which the deal was required to he made, or at anv other tims. She therefore has no right whatever to a deed lor.said premises. The other party, Job Smith, having becu iu contuiuetl actual possession of said premises from 1S;V. lie wa., and is, an occupant witiiin the full meaning mean-ing of the law. These points Wing decisive of this case, it is unnecessary to consider the other questions raised. The matter of the right of appeal from the Probate Court was not in issue. is-sue. The judgment of the District Court is affirmed. McKean, Ch. J., and Emerson, J., concurred. Territory of Utah, County of Salt Lake, j I, Alfred S. Gould. Clerk of the Supreme Su-preme Court of the Territory of Utah, do hereby certify that tlie foregoing is a full, true, and' correct copy of an original decision made and filed by said Supreme Court. October 27, 7:1. f In witness whereof, I i Seal have set my hand and ailixcd 1 the seal of said Court, thu 27th day of Oetuter, A. D. 1873. Alfred S. Gui ld. Clerk. |