3 Wash. 648 | Wash. | 1892
The opinion of the court was delivered by
The townsite of Waterville was located on public lands. Entry thereof as such townsite was duly made by the judge of probate of the proper county on the 26th day of January, 1889. The provisions of the act of congress under which such entry was made are substantially as follows:
“Whenever any portion of the public lands of the United States have been or shall be settled upon and occupied as a townsite, and therefore not subject to entry under the agricultural preemption laws, it shall be lawful, in case such town shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the judge of the county court in which such town may be situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof according to their respective interests; the execution of which trust, as to the disposal of the lots in such town and the proceeds of the sale thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated.” See act of March 2,1867,14 U. S. St. at Large, 541.
The legislature of the Territory of Washington duly passed an act which purported to provide regulations as
| That we may correctly determine the rights of the parties under such circumstances, it is necessary to understand the nature of the grant made by said act of congress, and when the same took effect. As to the first, there is no great difference between the parties; as to the second, the contention of appellant is, that the grant took effect fully and completely at the date of the entry, while the respondent claims that anyone who occupied a lot at the date of the patent took thereunder, even although his occupancy did not extend back to the date of entry. While, as we have stated above, there does not seem to be much dispute as to the nature of the grant, yet the above contention makes it necessary that we should examine it. What, then, is the nature of the grant? We think it twofold: (1) A several grant to the several occupants, and (2) a grant of all unoccupied lands, for public purposes, to all the occupants as an aggregation. This latter grant does not very clearly appear from the act of congress, for if we adhere to the exact language of the granting portion thereof there would seem to be only a several grant to the
It follows that under the conceded facts the respondent had no title to the lot in question. He contends, however, that under the territorial act regulating the disposal of lots
From which it will follow that the judgment must be reversed, and the cause remanded with instructions to dismiss the proceeding. Neither party will recover costs of this appeal, or in the lower court.
Anders, O. J., and Stiles, Scott, and Dunbar, JJ., concur.