Register v. Reid

72 Ky. 103 | Ky. Ct. App. | 1872

Lead Opinion

CHIEF JUSTICE HARDIN

delivered the opinion op the court.

This case was submitted to and decided by the circuit court upon an agreed statement of facts, showing that in September, 1871, the appellee, under section 3 of chapter 102 of the Revised Statutes (2 Stanton, 430), purchased from and obtained the order of the Breathitt County Court for two hundred acres of the vacant and unappropriated lands in said county, which he caused to be duly and properly entered in the surveyor’s book of said county; and that entry was, within the time prescribed by the statute, surveyed and located by the surveyor by proper metes and bounds; and that a plat and certificate of the survey, duly made out and recorded by the surveyor, and a copy of the order of the court under which they were made, were deposited in the register’s office within the time prescribed by law, and more than three months before the institution of this suit.

It further appears by said agreement that within six months after said purchase and entry were made by the appellee he made a similar one for two hundred acres more of the vacant lands in said county, for which, in the same manner, he obtained the surveyor’s plat and certificate of survey, which, with a copy of the order of the county court, he also in proper time deposited in the register’s office, and did so more than three months before the commencement of this suit.

Upon the foregoing facts it was contended by the register in the court below, and is now insisted by the attorney-general for him, that, admitting the right of the appellee to have a patent issued to him for his first entry and survey of two hundred acres, it is not lawful for him to have the second grant of two hundred acres, for the alleged reason that by the provisions of the statute referred to the same person can not purchase and obtain the order of the county court for more than one entry of two hundred acres of vacant and unappropriated land.

Said section 3 of chapter 102 (supra), which embraces several subsections which need not be quoted, provides that “any person who wishes to appropriate any vacant and unappropriated lands may, on application to the county court of the county in which the same lies, and paying at such price as the court may allow, not less than five dollars per hundred acres therefor, obtain an order of court authorizing him to enter and survey any number of acres of such land in the county, not less than twenty-five nor more than two hundred.” Does this enactment import a prohibition on each person applying for orders for vacant lands from so obtaining authority to enter more than two hundred acres, or merely a restriction of the power of the county courts to authorize any one entry of more than that quantity or less than twenty-five acres? The circuit court, giving to the statute the construction last indicated, awarded the writ of mandamus against the register, and a careful consideration of the question constrains us to concur in that decision.

"While the statute in effect forbids the county courts to sell more than the two hundred acres of land by any one oi’der, it certainly, in providing that “any person” may purchase vacant lands, lays no express restraint on any one from obtaining more than one order, if not for more than two hundred nor less than twenty-five acres; and if the supposed prohibition can be deduced from the statute at all, it must be by implication only.

It is contended for appellant that the object of the statute should be presumed to have been to invite and encourage the actual settlement and occupancy of the vacant lands, which might be frustrated, if not defeated, by permitting a single person to acquire more than would be reasonably necessary for the use of one actual occupant.

But with reference to this very plausible argument it is perhaps sufficient to observe that if such had been the controlling intention of the legislature, they would not likely have provided the means of effectually evading it by enacting, as they did, in the ninth subdivision of said section 3, that “ a plat and certificate of survey shall be assignable, and the assignment thereof shall authorize a patent to issue thereon to the assignee,” thus rendering it easy for any person by arrangement with others to obtain any number of patents to himself. This court knows judicially, moreover, that before the adoption of the Revised Statutes nearly or quite all of the lands of the state of much value for farming purposes had been appropriated, and that the chief value of the residue consisted in the timber and minerals they contained; and it is not certain that the prohibition contended for might not operate to prevent their appropriation for those purposes, and tend to deprive the commonwealth of the revenue which they would yield in the hands of private owners.

But, independent of other considerations, it is not improbable that the legislature intended by the restriction of the statute to prevent as far as possible the conflicts and confusion of boundaries and claims which might arise from including in the same grants large quantities of land within which smaller entries and surveys may have been made, and for which patents may have already issued.

If, however, the meaning of the statute, so far as it involves the question under consideration, is so obscure or doubtful as to requii’e a resort to other tests than those already mentioned for a solution of the- difficulty, much weight is due to the fact that froxn the adoption of the Revised Statutes, over twenty years ago, till this controversy arose the same construction which we adopt has, as we believe, been acquiesced in by the people, and acted upon by that department of the government having official duties to discharge under the law in relation to the appropriation of public lands. It may be said upon high authority that a contemporaxieous is generally the best construction of a statute; and if there is ambiguity in the language, the understandixxg and application of it when the statute first came into operation, saxxctioned by long acquiescence on the part of the legislature and other departments of the government, is the strongest evidence that it has been rightly understood in practice. (Cooley’s Constitutional Limitations, pp. 67-71; Sedgwick on Statutory and Constitutional Law, pp. 251-253.)-

But puttixig all extraneous means of interpretation out of view, and looking to the language of the statute alone for its meaning, we can see no sufficient ground for giving to it a different construction from that adopted by the circuí* court.

Wherefore the judgment is affirmed. Judge Pryor dissenting.

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Dissenting Opinion

JUDGE PRYOR

delivered the hollowing as his dissenting .OPINION:

I feel constrained by a sense of duty, and from no desire to be at variance with my associates in their views expressed in the opinion rendered, to give my reasons for dissenting from that opinion.

The third section of the act under which the claim of the appellee is asserted reads as follows, viz.: “Any person who wishes to appropriate any vacant and unappropriated lands may, on application to the county court in which the same lies, and paying at such prices as the court may allow, not less than five dollars per hundred acres therefor, obtain an order authorizing him to enter and survey any number of acres of such land in the county, of not less than twenty-five nor more than two hundred acres.”

The position assumed in the opinion rendered is “that any one person may obtain patents for as many entries and surveys as he may make of vacant lands in any county, provided no one survey contains exceeding two hundred acres; ” that all the vacant land in any county may be appropriated and entered by one person, if he can obtain the order of the county court and presents his surveys to the register of the land-office, each survey calling for two hundred acres or less.

The agreed facts presented, and upon which the opinion of the court below was rendered, is where the appellee had obtained one survey of two hundred acres, and made application to the court of the same county for an additional two hundred acres.

The- solution of this question will determine the rights of corporations, companies, and individuals who have under this law, as the history of the recent attempted legislation of the state will show, located and surveyed thousands of acres of these vacant lands, and are now demanding of the register patents for perfecting their titles. In order to arrive at a correct construction of this enactment it is proper first to ascertain the object the legislature had in view in its passage. There were large quantities of vacant lands in the state when this law was enacted. It was the intent of the state government to have the counties in which this land was located populated as rapidly as possible, and for the purpose of encouraging emigration and the settlement of these wild lands the county courts were required, for the small sum of not more than five dollars for every hundred acres, to make an order authorizing the party applying to enter and survey any number of acres of land in the county, containing not less than twenty-five nor exceeding two hundred acres. The land, as will be seen from the price fixed by the law, was a mere donation to the settler, and the act made liberal provisions for the purpose of attaining the object sought to be accomplished. I can not, with all due deference to the opinion of the court, perceive any other reason for the enactment of the law than to encourage the actual settlement of these waste lands. If the legislature intended that any one man should locate or enter as many surveys in any one county as he pleased, I see no reason for restricting the highest number of acres to two hundred. The act, if the state desired to sell the lands, would have authorized patents to issue for any number of acres designated by the survey. It can not be that this restriction was made to prevent conflicts in surveys, for the reason that the larger the number of surveys the more liable the entries to interfere the one with the other. In the opinion rendered, a person in order to obtain one thousand acres of land must have five different surveys, more likely to produce confusion and trouble than one survey for the whole tract. It is plain, however, that the state intended the act, or an acceptance of its provisions, as a gratuity to the settler or squatter when he wished to occupy this land as a home for himself and family.

The construction placed upon the act by a majority of the court is in effect determining that the state was legislating for the interest of the speculator who could locate and enter all these lands, and require the hardy mountaineer or the actual settler to pay tribute to him by way of an increased price for the privilege of living upon it. The very law enacted by the legislature for the purpose of guarding against this evil is used by appellee as the means of thwarting the purposes of the legislature in enacting it. It will not do to say that the ninth section of this same law, authorizing the assignment of any plat or survey, is an argument in favor of the views expressed in the opinion. This power to assign and sell existed without the ninth section. The legislature never intended to prohibit the donee of this land from selling it. It is not to be presumed that the speculator could obtain thousands of entries in the names of others in order to have them assigned to him, or that the actual settlers would all deprive themselves of the comforts of home by selling out to him ■, and even if this be so, it could be argued with the same force that because one man might under a contract buy all the land in any one county, he had the right under this law to make as many two-hundred-acre surveys of unsold land in the same county as he could find land to run them off on.

I also differ from the opinion in which it is intimated that this power in the county court or right in the citizen to locate as many surveys as desired has received the judicial or official sanction of the officers of the state, and particularly of the county officers whose duty it is to protect the interest of the state and parties claiming the benefit of its provisions.

Instances have doubtless occurred where patents have been issued for more land than the parties were exxtitled to; but while this is so, it will be found from the public history of such proceedings in the counties where these lands are situated that many of the county judges have refused to grant to the actual bona fide settler and citizen the right to enter more land than the two hundred acres; and hence in these counties where the lands have been of but little value there are hundreds of men who have been and ai’e now in the possession of lands, upon which they and their families have lived for nearly half a century, with no other right and title than the mere occupancy of the soil. They have been denied the right to locate more than the two hundred acres; and while one patentee may suffer by reason of the construction herein given, hundx’eds are made homeless or subjected to expensive litigation by a construction enlarging this legislative bounty, by which companies and individuals are locating thousands of acres of this land, and including pex’haps the possessions of those who have beexx denied the right to enter it under this same law.

While this case now before us only involves the right to enter an additional two hundred acres of land, I am well aware from the argument and agreed facts that it is but a test case, and that there are those who have surveyed thousands of acres now clamoring at the register’s door for patents. The progress in the improvements of the state is making these lands valuable, and I can xxot concur in what must be the inevitable result of the opinion, that the beneficial provisions of the statute were all intended for one person only, if he happened to be so fortunate as to have his surveys for all the wild lands made and entered under the order of the county court.

The register acted properly in refusing to issue the patent, and his construction is sustained, not by implication, but by the express language of the act itself.