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. 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.

I think the practice of the Land Office in this respect, as thus reported, is lawful and proper: it being understood, of course, that thus the acts of alleged selection, possession, and occupation are performed in perfect good faith.

Something is hinted, in the report of the commissioner, as to the speculation-character of the proposed town settlement,— and, in the official brief accompanying your letter, as to the speculation-character of the proposed agricultural preemption. I suppose it must be so, if the land in question has peculiar aptitude for municipal uses. But how is that material? The object, in either mode of attaining it, is a lawful one. Two persons may lawfully preempt a certain quantity of land under the general law, and intend a townsite without saying so; or they may preempt avowedly for a town site. As between the two courses, both having the same ultimate destination, it would not seem that there could be any cause of objection to the more explicit one.

So much for the first branch of the second question. As to the second branch of it, the same line of reasoning leads to equally satisfactory results.

The municipal preemptor, like the agricultural preemptor, is required to take his land in conformity with "the legal subdivisions of the public lands." I apprehend the import of the requirement is the same in both cases. Neither class of pre-emptors is to break the legal subdivisions as surveyed. The preemptor of either case may take fractional sections if he will, but he is in every case to run his extreme lines with the lines of the surveyed subdivisions. In fine, as it seems to me, there is nothing of the present case, in so far as appears by the questions presented, and the official reports and statement by which they are explained, except a convict of claim to two or three sectional subdivisions of land between different sets of preemptors, one set being avowed municipal preemptors, and the other professed agricultural preemptors, but both sets having in reality the same ulterior purposes in regard to the use of the land. The Government has no possible concern in the controversy, except to deal impartially between the parties according to law. The agricultural preemptors contend that different rules of right as to the power of individual or private occupation, and as to the criteria of valid occupation, apply to them, as against their adversaries. The municipal preemptors contend that the same rules of equal right, inceptive and progressive, in these respects, apply to both classes of preemptors. I think that the latter view of the law is correct, according to its letter, its spirit; and the settled practice of the Government.

The investigation of the facts of the case, and the application of the law to the facts, are, of course, duties of your Department.

I leave here the first and second questions; and, proposing to reply at an early day on the third question,

I have the honor to be, very respectfully,

C. CUSHING.

Hon. ROBERT McCLELLAND,

Secretary of the Interior.

THE END.

ADVERTISEMENT.

THE OFFICIAL OPINIONS OF THE. ATTORNEYS GENERAL OF THE UNITED STATES. Edited by C. C. ANDREWS, Esq. VOLUME VII. (8 vo.) now ready. Washington: Published by R. Farnham.

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A TREATISE ON THE REVENUE LAWS OF THE UNITED STATES, in one volume, 8 vo. By C. C. ANDREWS, Esq. (Soon to be published by Little, Brown and Company. See their list of new Law Books.)

REFLECTIONS ON THE OPERATION OF THE PRESENT SYSTEM OF EDUCATION. By C. C. ANDREWS, Esq. Boston: Crosby, Nichols and Company: 1853.

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THE END