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Show LEGAL OPINION. Important Ruling and Decree by On ief Justice White. Following i3 the text of a ruling and decree, delivered in tho Third district court, November 26th, 1S75, deciding a loug-pending town lot case: J'orah M. Fruit. appellant,-) In District Court urighini Young, appellee ) Di-tricl. Oct. t rm 1&75. 1 The appellant and appellee both claim, under the act of congress of March 2d, 1807, entitled "An act for the rebel of the inhabitants of citica and towns upon the public lands," and the act of the territory of Utah, of-February 17th, 1S69, prescribing rules and regulations for the execution execu-tion of the trust aruing under said act of congress. I The relief which was designed to be granted by said act of congress was to enable the inhabitants .of cities aud towns settled upon the public lauds ol the United States to secure a title to such landi from the government by paying to tho government govern-ment the minimum pries lor such lands. As a meuis of doiu ibid nust conveniently it was provided that when a city or town was incorporated that the corporate authorities thereof, and when not incorporated the judge of the county court of the county in which such city or town "may he situated," sit-uated," should enter at the proper land office and at the minimum price, tho land so settled and occupied, oc-cupied, in trust for the several use and benefit of the occupant thereof, according to their respective interests. These provisions created the corporate corpor-ate authorities of an incorporated city or town, and the judge of tho county court in case the city or town was not incorporated when the land was entered, under the provisions of the act of congress, trustees, depositories of the legal title fur tho inhabitants of the city or town who had settled and occupied the land for the several use and benefit of the occupants thereof according to their respective interest. The execution of which trust, as to the disposal of Iota in such town and the proceeds of the sales thereof, was to be conducted under such rules and regulations as might be prescribed by the legisla lative authority of the state or territory ter-ritory in which the same wassituated. Whatever may have been the purpose pur-pose of congress with reference to cities and towns, as communities, it is evident that the leading object was , to secure individual rights to the inhabitants in-habitants . of cities ami towns who were occupanta of the lands embraced within the limits of the entry contemplated by said acts. These individual rights flow fiom and arc "based upon the grant in the act of congress. It coaler a the right, defines iu character, char-acter, limits its scope and points out the manner of its consummation. The power conferred upon the territorial ter-ritorial legislature is to oxecute the trust. It has no power to interfere with tho individual rights which vested or became vested under tho act of congress. If this proposition be true, then we are to look to the act of congress alone to determine who are entitled under it. The primal fact which gives the right to the inhabitants ot the city or town as a community is that they have settled and occupied the public lands as a city or town, and the primal fact that gives to any individual a right to any lot or subdivision sub-division of such public lands, is that he or she was the occupant of Biinh lot or subdivision. Occupancy Oc-cupancy ib the central and leading idea of the griut, and upon this, in a positive or qualified sense, must depend any right which can be asserted under it. It is in trust for the several use and benefit of the occupants thereof according ac-cording to their respective interests. The execution of this trust, as to the disposal of the lots in such town and the proceeds of the sales thereof, is to be conducted under rules and regula-1 tions prescribed by the legislative, authority of the state or territory. What these rules and regulations shall be is left to legislative discretion, limited only by the condition that they must be in furtherance of the execution of the trust and must not violate its letter or its spirit. As to rights which may accrue to individuals individ-uals under the grant the legislature can only make rules and regulations lo eliminate and define, and establish estab-lish them. As .to the rights which accrue to the community, it has the power to dispose of the proceeds pro-ceeds of the sales. In determining whit are the rights of individuals under the act of congress tiie rule3 and regulations adopted by the legislature legis-lature could be looked to at most as only a legislative exposition or construction con-struction of the act of congress, and could not be regarded as authoritative or binding upon the court as a legislative enactment. Tucro being no controversy as to compliance com-pliance with the rules and regulations reg-ulations enacted by tho territorial legislature in bringing the claims of tt e parties before the judge of probate pro-bate in the court below, and none ns to the regularity of the appeal to this court, tbe court will not look to the act of the legislature of Feb. 18U9, in the determination of the question at iirsuo in this case, but will address itself to the construction of tho act ol congress aa the eourco from which whatever rights may bo asserted, by either of the parties, must llow, aud as tho standard by which their respective re-spective claims must be tested and determined. It has for a long time been the settled policy of the government of the United Stites to encourage the actual settlement of the public lands, and it has also regarded with disfavor tho entry of. public lands for purposes of speculation. specula-tion. The settlement required by law includes actual occupation of the land, and tho subjection of the soil by labor, to the beneficial use of ihe person per-son proposing to enter or buy tho land from the government. The price at which the l-nd could be bought was hxca Dy law, as were aiso the precedent conditions to a purchase. pur-chase. The first act of the settler was the occupancy of the land; the last was the payment of the purchase money, O'y tho entry of the land at the proper laud office.) The issuance issu-ance of the patent followed as a sequence to the regular entry of the land. The title to the land and the right to tho title remained in the cov-ernmeut cov-ernmeut until tho ontry of the land at the proper land ullioo. Tho fcettlor had possession and th right to possession, and upon compliance com-pliance with the prerequisites of the law ho had tho exclusive rigi;t to buy of the government at the price fixed by lawthe entrance money or the minimum price for the laud, lit; was called a pje-emptor, one who buys before, or one who has by law a lirs't and exclusivo right to buy the land of the government. The right of the preempior depends upon the occupation of tho land and its eun-tinucu eun-tinucu possession, to the time of application ap-plication to enter it at the proper land iillice. An abandonment or surrender of p Mses.nioii, u a forieitu h of all right to enter the laud. The right ot tho settler upon public lands U :hen a possession with a right to possesion, posses-ion, coupled with a right (tho precedent prece-dent conditions being complied with) to eniur Lhe land at the minimum government prire. Tin- title to the land remains in the government and no right to a title inures to tho p re-em re-em p tor until he has entered the land. Even after he has occupied the land, made his improvements and filed his declaration of an intention to enter the land, the government can by special grant convey the land to another. an-other. The preemptor has no estate, legnl or equitable, in the land which can be recognized or enforced in law except such as grows out of the possession pos-session of the land. The policy of the federal government govern-ment with regard .to public lauds settled and occupied as sites of cities or towns was, in the beginning, tho reverse of that governing as to public lands ripen to preemption. Such lands wero withdrawn from entry, and the government held them with a view to public sales to the highest! bidder. This latter policy was abandoned aban-doned in 1SU, and since then the policy of the government has been to allow the entry of such lauds at tbe minimum price for the use aud benefit ben-efit of (ho occupants of thu lands within such city or towu sites acc;rd-ing acc;rd-ing to their respective interests. In other words '.ho policy which had guided the government with regard lo tho settlement and entry of agricultural lands, was adopted by it mutatis mutundis, as to the inhabitants inhabi-tants nf cities and towns, the occupancy occu-pancy of the land in both cases being the substantial basis upon which tho individual right depends. Tbe nature na-ture and quality of the interest which each class baa in the land is tbe Bame. The government holds the title the interest ot the occupants occu-pants is only a possession, aud the right to the possession, with the right, to the one aa a preemptor and the other as a member of a community to enter or have entered the land in other words, to buy it of the government govern-ment at the minimum price. This limited interest in the land is the creature of the acts of congress; it is novel and anomalous, and only subject sub-ject to the ordinary rules of law governing real est a to (if at all) in a narrow and subordinate sense. The feo simple which is usually the largest possible estate which a man can have in and and which draws to it all of the incidents ofsuch an estate such as posscssiou or the right of possession, and is tho predicate of the relations of the landlord and tenant, does not enter into or constitute any part of this statutory interest in land which is created by the acts of congress. On tho contrary the feo is recognized as being iu another, and this estate or interest in the land exists in its 'narrow and meagre entirety, without 'and independent ofit. To apply to it the rules and analogies analo-gies which ordinarily govern and guide- in determining interest and relations re-lations in regard to real estate, would be in contravention of the very nature na-ture of tho right itself. Tho title to :real estate is now in abeyance. Thu ! statutory interest vanishes upon tho mere abandonment of the possession .of tho land. Tho title to real estate can only bo transferred from one Jpersou to another by writing in proper form aud duly attested. This i interest can pass from one to another by the surrender of possession of the land. The conclusion educed from .analogies and abovo announced, isi ; further strengthened and confirmed j ; by the language of the acts ot con-; gress in conferring this right upon the inhabitants of cities and towns. The entry uuder authority of the acta of congress is "in trust for the several use and benefit of the occupants thereof according to their respective interests." This phraseology points out the class who are the beneficiares in the trust "occupants" and also fixes ihe Lime of occupancy, the date of the entry of the land by the corporate cor-porate authorities or the judge of tho county court which determines the individual cesticcque trusts. Those iu possession of the land when the entry is made by the pro-, pro-, bate judge, are the persons for whom khe land is held, in trust, and to whom he is to make the deeds. This is the construction and u leaning of the act of congress Copeld vs. Mc Clcll.ind, 16th Wallace, 331. The a-;t of congress of May 23d, 18-14, referred to in the citation just made, uses the same phraseology in reference to this subject matter as the act of congrow of March 2d, 1867, under which the i parties in this case claim, f That this is the reasonable and just construction of tbe act of congress and that the presumption is in favor of the actual occupant at the time of entry of a lot or parcel of ground within the limits of a city or town site, settled and occupied as euch upon public lands and entered under; authority of the act of congrcesi of March 2t 1S67, above referred to, i is, in tho opinion of the court, sus-' taincd by reason and authority; but out of this springs another question of general interest and necessary to the adjudication of this case, and that U whether the occupancy at tho time of ontry is conclusive in favor of tho right of tho individual occupying, to the titlo to tho land, or whether it is only presumptive, aud if so, whether the circumstances in this case repel the presumption in favor ol the actual occupant at the time of the ontry ol tho land by the trustee, aud show tho right to the land in controversy to be in another. The act of congress of March 2d, 1807, " confers upon the state or territorial legislature the execution of the trust, "as to the disposal of the lota in such town," etc., "under such rules and regulations as may bo prescribed," etc. This must be done according to tho respective interests of the oecu-' oecu-' pants. Does this language "respective interests" apply to the topographical area and measurement of the lots occupied, or is it to be considered in a laruer scuse as embracing the na ture of the occupancy and tho quality of interest iu the land which tho occupant claims as well. The legislature legis-lature has construed this language in the larger and more comprehensive sense: By section 3 of tho act of tho legislature of Utah, entitled "An act prescribing rules and regulations lor the execution of tho trust arising under the act of congress ot March 2d, 1807," it is enacted "that each and overy person, or association, or company of persons, or corporation claiming to be tho rightful owner ol possession, occupant or occupants, or to bo entitled to the occupancy or possesion ofsuoh lands, or wany lot, block, sliaro or parcel' thereof, shall within sjx mouths" ic, &c, sign a statement iu writing, &c. These are the persons and thco the interests which the legislature regarded re-garded as entitled to claim and assert title to lots or parcels of land in any oily or town in the territory under this act ol congress. It is manifest that it was tho design of the legislature legisla-ture to extend the benefits of tbe act of congress to two classes of persons, actual occupants aud the rightful claimants or owners ot possi-KSion without thu occupancy or possession. This legislation in the opinion of the - court was in bar-' mony with the act of congress, and within tho authority conferred by the net of congress upon tho territoiial Icgislalure.aud the construction given by the legislature to tho act of ooii-gKaj ooii-gKaj in this particular is adopted by tho court. - The findings of tho law by the court in the case un I it consitInr.it ion aro as follows: First That under-the n-veral ucb of conqrcas upon tbe suhjeet ..ut cs peciatly the act ol the 2: id of May 1844, entitled "An act for the rehc:l of tho citizens of towns upon lie public lands of the United States under certain circumstances," and the act of March 2, 1RJ7, entitled "An act for the relief of the inhabitants inhabi-tants of cities and towns upon the public lands," that the right which the individual inhabitant ol tho city or town took was a possession of the land with the right to possession and the use with the riht a3 a member of the community to hnvo the land entered by tho trustee indicated in said acts of congress, at tho minimum mini-mum price in the proper land office of the United States, and the right under such rules and regulations as nnght be prescribed by the proper legislative authority to have title made to himaplf fhr Hn,.h l,.r subdivision as he occupied, or hat! the rightful claim of possession to at the time ol the entry of the land by the trustee, etc. Second That this right was a statutory right created and existing by authority of the acts of congress, declaring, defining and limiting it. Third That tho basis of the right, and .an indispensable constituent of it, is;tha actual occupancy of the laud at the time of the entry by the trustee, or the possession, actual or constructive, con-structive, or the right to the possession pos-session at that time. Fourth That occupancy at the time of the entry of the land by the trustee, presumptively gives the right to the occupant of the land, but that thia presumption may bo impeached and overthrown by proof. Fifth That possession being of the substance of the right, that the right may be lost by an abandonment or surrender of the nosseswinn. find tl.t I it may bo transferred to another by a transfer of tbe possession. Whether at all, and if so, or how far improvements on lots may enter into tbe question of rights of occupants occu-pants under the acts ot congress referred to, is not necessary to the determination of this case, and therefore there-fore has not been discussed ordecided in this opinion. An application of tho conclusions of law to the facts as ' found by the court will readily determine de-termine the rights of the parties in this case. Tho appellant, Sarah M. Pratt, was iu the possession of tho lot in controversy, contro-versy, occupying it as a home at the time of the entry of the laud on wliioh the city of Salt Lako is situato, by the trustee, under the act of con -gress. This gave to her a prima facie right to a title from the trustee. Is this right repelled by the proof, and a right established in the appellee, Brighara Young ? Sarah M. Pratt and her husband, Orson Pratt, occupied occu-pied the lot for some yearB previous to 1S61, and she put improvements upon it. They then left it, and alter wards, some several years beiorelbOS, the appellee came into possession. In the latter part of 1S67, or early in 1868, Mrs. Pratt came back lo the city of SJU Lake and, according to the testimony ol both the appellant aud appellee, the appellee gave her the possession of the lot. There was no qualification of this surrender of possession at the time, no reservation ot rent, or any agreement of any kind, showing or tending to show that there was any reservation of tho possossion, or the right of possession, by the appellee. No rent was ever paid by, or claimed of the appellant, and she has had tbe continuous possession pos-session from the 12th of March, 186S, occupying it as a home for herself and her family. There was an eflbrt made to prove that Orson Pratt paid rent for tho premises to the appellee, but in this (even if appellant would have been bound by it) there is a failure. There is no proof that Orson Pratt ever paid rent lor the premises, or ever knew that any was paid, or that any authorized agent of his ever paid any rent for him. Upon this Btate of cise it is the opinion of tho court that there is no sufficient proof in thia case to repel the presumptive right of Sarah M. lJratt to a title to the lot in controversy contro-versy as the occupant thereof at tho dato of the entry of the land by the trustee under the act of congress. Jt is therefore ordered, adjudged and decreed, that tho deoreo of tho court below of the 28th of November, IS3, declaring that Sarah M. Pratt is not the legal and rightful owner and occupant of the property therein in controversy, but that the said Brig-ham Brig-ham Young, senior, is tho rightful owner and occupant thereof and entitled en-titled to a deed in fee simple thereto, there-to, and further decreeing that Brig-ham Brig-ham Young pay the sum of six and fifty hundredths dollars costs, and that Sarah Mi. Pratt pay the -sum of fourty-four and eighty-flvo hundredths hund-redths dollars costs, bo and tho same is reversed, set aside and held for naught. It is further ordered, adjudged and decreed that Sarah M. Pratt was in ! posicssion and rightful claimant ol the south had of lot number five (5), block seventy-six (76), plat A, in Salt Lake city, being one hundred and sixly-five ( 1G-3) feet square, enclosed en-closed by a bo.ird fence and including the dwelling house ol the soil. Sarah M. Pratt at the lime of the entry of the lands enbrac.ed within S.ilt Lake city by the mayor of s.iid city under the provisions of the act of congress ot Muxh 2d, 1807, entitled au act "lor the relief of the inhabitants of cities and towns upon tho public lands," and that the said Sarah M. Pratt is entitled to a deed in feo simple thereto from the mayor of S.dt Lake city. It is further ordered that this judgment judg-ment of the court be certified to the mayor of Salt Lake city, and that the appellee, Brigham Young, senior, pay the costs of this court and of tho court below- |
