| Show Sm tm SALT LAKE lare city oitt may 1 1871 editor of mews news sir la in my letter of the lilith of april I 1 said I 1 should resume the subject and endeavor to show from the lays of the united states that congress neveil never did dia intend and never could have intended the result which my remarks showed showed shoved must follow if these laws of the united states ana ane are ara applicable tolU boutah tab I 1 now resume we the subject and add that since writing the I 1 have re ex ambi edthe the circular and instructions and find it proper for me lix in this letter to refer to both in connection with the laws of congress as they now exist I 1 further add that from the earliest period of the existence of the united states in their capacity as such it has been the policy of the government to encourage e not to discourage new settlements antto andio aid the settlers in opening u up P the coun country thus rendering it productive this I 1 assert without at present citing any an authority li bilty if however any such au thorl arlt tybe b it will be found foun d in the uniform practice of the government and in the numerous acts of congress granting and froin time to to time extending g preemption rights thus holding out to the cit izenson izen san encouragement of ultimately obtaining the lands id fee As this notice applies to this territory it is obviously proper to notice the fact that from july 1847 1844 the time of iha the first settlement here to september 1850 the time the organic act was approved a period of a little more than three years no laws of the united states civil or criminal had any force in this territory by this act see section 17 the constitution and laws of the united united states were extended over and declared to be in force here so far as the same or any provisions thereof may be applicable from this time by the force of this act the laws including the decisions of the courts above referred to if applicable but not otherwise have been in force here as elsewhere in the united states the question of applicability ot laws is to be decided bv by the courts I 1 con ceder cede but in making these decisions the laws of oft nature and particularly the aspects of nature are to be taken into consideration if we consider the aspects of nature mature and apply them to this territory which we are forced to do whether we fully understand them or not we find ourselves compelled either to turn savages and get our living by a wandering life to leave the country or to go upon lands not obrown our own and take the water by constructing artin artif artificial iclal channels and therein turn it on to other lands also not our own and thus by human effort supply water an article which had been withheld by natural causes and an article without which it would have been as I 1 have before said impossible to cult tate the soil here thenis then Is one instance of an impossibility of observing thelama the lawn lawa above mentioned and as the sett gett settlement lenient on the land could not have been made for the want of water and the water could not haye have been obtained without a tort toft if the same rule is to be observed here as is observed in the atlantic states again this country though not as cold as many in the east bast is yet ba BO cola coia cold as to prohibit all settlements without firewood this wood mas vas was not on theland wit lit vt it was I 1 in the kenyons kan if therefore wood oad was intended to b be withheld it constituted another prohibition against settling the country as settlements could not be made without it here then is another i ability to be overcome the same remarks will apply to building timber and conati i tute a third impossibility impossibilities are not required in lato laio to be overcome constitutions statutes and decisions of courts when impossible of execution are aro themselves void in this case I 1 call them thein inapplicable not void J I 1 by the organic act there were in addi add tion bionto to the clauses I 1 have before quoted other clauses to be noticed A territory was constituted and ana a legislative y was provided with authority to legislate legis late lato on all rightful subjects of legislation seo see theace the act what more explicit language calt cail cai cal be used to a people who at the time were ac aed dually settled on government land than wait this to authorize them to remain there and sett lethe country jf if one individual an au theorized zed another though gratuitously to settle and live on his ian aan jand d could he after ward maintain a suit in trespass against him for fur so doing I 1 think not then what becomes of the action for aar where is it the same rule applies to the United States to a state a territory and to less divisions such as counties cities and towns owning lands althe reason is there is an authority given and it is imma berfitt wilether that authority be expressed or implied ag 0 whether it is gratta gratuitous tous pt ot given for a valuable valuables abler abier consIder consideration atron he the government having been organized by Congress with it came the maxim that the salvation of the people esthe paramount law sarus salus rex lev esip and I 1 S inducil indu cit juta jura pricita pr ivita see brooms legal maxims maximi 1 9 taylors law Glos glossary sary sarv 11 II bou viers law loj ico ido this salvation this necessity is seen feit felt and realized here heie though it may have escaped the observation of the department at washington be that as it may with them with as it was then and it still is a mandate ana ancl ne which could not and cannot now bo disobeyed if the time shall ever come wab gah i wh n aa d timber ohe r can ca n be ji grown d in these valleys sufficient for the inhabitants this thia dw this will ce cease ceef 11 but not till then bouvier says bays a maim maxim ma im is Is an established shed principle or proposition A principle tin rin ciple of law universally saly admitted as being just and consonant with reason re aon he also says maxims in law are P somewhat like axioms in geometry XI bl BI corm corn 68 they are principle principles 3 and aud authors aut sut honi bori ties and a part of the general customs or common or unwritten jawand are of the same strength as acts of parliament maxims maxima of law are holden bolden fl nor for or law the a application of the maxims to the ja case S 0 is t he the only difficulty I 1 now call attention to uch such s acts of the congress as have a bearing on this thia very important inquiry in so doing 1 I first take into consideration what was noticed in the circular under lo no 10 5 relating to swamp I 1 lands the language of the acts was swamp and over flowed lards lands 1 I 3 which may be or are found unfit for cultivation these were granted to the states in which they were situated see lesters desters Le land laws statutes at large one was approved march 2nd and 1849 the other september se t emder ember 1850 hence they were excluded clu ciu pd ed by law from the control of congress and therefore excluded by the circular these lands and the lands in the kenyons of utah have this striking similarity both are unfit ur dit fit for cultivation in other respects they are dissimilar there the lands are low and swampy here they are high and difficult of access the material part is they are both unfit for cultivation see 2 Stat statutes utes at large match march 3 1807 congress passed a law prohibiting settlements on lands ceded or oi secured to the united states by any foreign government or by any state not previously sold ceded or leased by the united states until thereto duly authorized ay law I 1 call attention to this act for foe the reason that it has an indirect bearing on this matter in this thia it contemplated an authority by law of settling on the lands land of the united states slates 1 and as I 1 have before said the organic act must be construed to be an authority of law to ex settle and occupy the lands here and in the thel absence of congressional legislation on the subject the legislative assembly of the territory by virtue of it Us g general legislative authority could regulate this exploration occupation and settlement in bidy may 1830 nine years after attorney general wirt expressed the opinion above referred to congress passed a pre emp tion lion act see sec see I 1 Bright leys leyb digest dige it sec see 64 4 statutes at large 40 0 this act provided for the tho purchase of the lands of the united states by persons who were in the ACTUAL cultivation culf culi and occupancy of such lands F erom from roul that time until sep riep ember thirty years ago and twenty ye years ars after attorney general wirt expressed his opinion and ten years after the passage of the act before quoted making it penal to cut timber on the publio public lands several laws were passed on the same subject and on the fth september 1841 the present act was approved thus settling the policy of the united states stales and establishing the right under certain circumstances and conditions dit ions for certain classes of people to actually occupy tue the lands of the united states with the right of ultimately purchasing baIng haing the kame same see gee I 1 Bright leys digest sec see sl 83 all these require ean an actual occupancy I 1 an actual settlement on the land and the la last t named act het requires a dwelling dwell house to U ic actually built thereon before passing to the homestead act I 1 refer again to the opinions of the attorney generals vand and to the act of couo cono congress ress making it penal to cut qt timber oi on the la lands rills none of the preemption pre emption acts refer to the acts of march maren making it penal to cut timber nor do they exempt in terms from its operation such settlers do they divest the title of the united states and vet yet it in the bona faldt occupant on the contrary the fee remains subject to being divested on the compliance with the law as to payment and receiving the patent in 1833 two years after the passage of the penal act and three years after the pass passage age aze of the preemption pre emption act of 1830 isz attorney general taney referred refer red ced to the opinion af of attorney general wirt and anif concurred therein but helas he was silent as lothe effect til the a benl penal and preemption pre emption acts would have I 1 ten tending ing to qualify that opinion concerning lands actually occupied by honest settlers in 1845 1843 twelve years later and four years after theatt of sept 4 attorney general mason referred to the preemption pre emption settlers and recognized their rights this recognition tion lion inot directly fountin either of these act it by a feces sary implication so to be coni conk construed truid wilen allin alt all the acts are taken into consideration the homestead act also requires an actual I 1 occupancy and cultivation see hawes hawe I 1 s manual and an actual residence for five years by the act df congress approved july ag 20 1860 1866 entitled an act granting the right of way to ditch and canal owners oyer public lands and fo other rother purposes 1 ed that the mineral lands of the public domain both surveyed and unsun keyed are hereby declared to be free and open opert to exploration and occupation by all citizens of the united states and subject to the local customs and rules of miners it is further farther provided in sec 8 that the right of way for tor the construction of highways over the public lands not er I 1 for or publia public uses is 14 hereby granted and in sec sea 9 that whenever by priority of possession of rights to the use oi of water for mining ag ri culture ric manufacturing or other sur pur purposes poses have vested and accrued and the same game are recognized and acknowledged by the local customs laws and decisions of courts the possessors and owners of such vested rights shall be maintained and protected in the same I 1 and right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed provided however that whenever after the passage of this act any person or persons shall in the construction of any ditch or canal injure or damage the posses sian si on os ok any settler on the public alic domain the party committing such injury or damage shall be liable by reference to my nay former remarks it will be perceived that I 1 said no clearer principle of law existed or one which was more firmly sustained by reason by logic and by common law than for one ono individual without the consent express edor implied ed of another to go upon his land and take soil mineral substance water timber or do other damage than that a civil suit for fur so doing might be maintained and that this applied to the united staw stag states when they were owners of the land I 1 inow now state that the converse of the proposition ak salo yalo also aiso true if therefore the united states ox expressly pressly or impliedly authorize or per mit the citizens or other persons to go upon and settle their land whether for mining M ning agricultural or manufacturing purposes 4 llo aud take timber minerals water it or use other means to settle and oc papy the same that no civil suit for a torp ban pan thereafter be maintained against them ifer so doing on the contrary vested tights rights accrue to the settlers ardd arid this doctrine we noid ulia expressly declared in the act of july 26 1866 in which these rights are ara declared to be vested rights and ir tested vested they are su sueh such ch as neither Ibn lun arem grem the president or the officers ficere of of the law or the courts can leealla take oake from them it is the duty of the officers of the law pot to make the law but to enforce it and the duty of the courts when the case is before them to decide what the lawis lawi sand and render judgment accordingly in my previous statements you remember I 1 expressly named as being within the doctrine laid lala down by ny attorney genera I 1 wirt in his opinion of 1831 1824 coal timber of all kinds building roads diverting water waier from its natural channel taking soil or minerals from lands of the united states eyen even including the building ox of dams and using water all which as the law stood in 1821 1831 would be correct in isz 1815 attorney general mason saw sa w nit fit to concur with attorney attorney general birtt r t with the qualification of excluding from its ope operation r preemption pre emption or those who in good faith had settled upon theland the land this became bec bee amethe ametha the change chang e of the law after 1821 and before IN 1815 since 1 a greater change has taken place the country embraced em raced in the t treaty of gaude louie louk hidalgo a which includes include s this territory orys oryl has been ob tain bained in much of this country precious metals are found A large extent of this has no timber except on land wholly unfit for cultivation as I 1 have before stated and on this the timber la Is very poor in quality and quite insufficient in quantity the tillable land requires irrigation V to meet this new set of circumstances cengr congress M rol fol following low the settlers and the public mind has passed these laws to meet the necessities ol 01 the people in lit them they have named everything needed but wood and timber without wood ad and timber tho the land cannot be cultivated nor the mines success i fully worked nor manufactories manu factories carried on OIL WIth wita wood and timber all these classes of industry with the other privileges named In thesta t tute son sun t el can and will flourish Is inq it therefore rea real able abie to suppose that congress intended to withhold the use of wood and timber from the settlers in this mountainous region and would not attorney generals wirt wint taney and mason nason if they were now giving an opinion based upon the laws in force at the times |
