Bower v. Higbee, 9 Mo. 256

Bower v. Higbee

9 Mo. 256 | Mo. | 1845

Scott, J.,

delivered the opinion of the court.

Jacob Eiler was entitled to a right of pre-emption to a qr. sect, of land in Platte county, under the act of Congress 1st June, 1840. In the spring of 1841, he leased the qr. sect, land to which he had a preemption right, to the plaintiff Rowers, for ninety-nine years. In the year 1842, the defendants, Higbee and others, made rails on the tract of land leased to Bower, and took them away. Bower, the lessee and plaintiff, brought an action of replevin to recover- the rails, in which he submitted to a non-suit, in consequence of instructions given and refused by the court, and a motion being filed to set aside the non-suit which was overruled, he appealed to this court. Eiler did not prove his right to a pre-emption until some considerable time after the rails were made and removed. An act of Congress renders void all transfers of a right of pre-emption made before the issuance of a patent.

The question arising on this state of facts, is, whether the plaintiff can maintain an action of replevin for rails made on the land subject to the right of pre-emption.

Admitting the lease to Bower to be valid, and that it substituted him to all the rights of Eiler, yet can he maintain this action. What is a pre-emption right? Is it any interest in the land? Is it certain that the party entitled to it, will ever avail himself of it? Until he does, there is certainly no surety that he ever will acquire any right. What *259if a person entitled to a right of pre-emption should die before proof of his right, will it descend? A pre-emption is nothing but an offer by the government to an individual settled upon the public lands, which he may or may not acbept. The circumstance that the period has not arrived when the acceptance can be signified, makes no difference. That ho will accept may be presumed, but still an absolute certainty that he will accept, when the time for acceptance comes, will not confer any right, until an acceptance is actually signified in the manner prescribed by law. Timber cut upon land belongs to the tenant in fee simple, a tenant for life even has no right to it. On what principle is a pre-emption claimant entitled to it? But for our statute no right of actión would be in a pre-emption claimant. That statute has given an action of trespass, and his remedy on principle would seem to be confined to the words of the statute. ' Ejectment 237, sec. 27. If one individual bound himself to another, that until the expiration of a limited time, the latter should have .the right of purchasing his land at a stated price, would he to whom this obligation is made, acquire any right to the land, until he had actually accepted the offer? Upon an investigation it has been ascertained that similar views with respect to the nature of aright of pre-emption to the public lands of the United States, have been entertained by the courts of other States, in which the land laws of the federal government prevail. Davenport vs. Farrar, 1 Scammon Rep. 314; Quails 4 Blackford 286.

I have no doubt about the invalidity of the lease. So bold a contrivance to evade the law ought not to be countenanced, and to enter into an argument to show its invalidity, would be treatingit with a dignity of of which it is altogether unworthy.

The other judges concurring, the judgment is affirmed.

Judgment affirmed.