17 Utah 352 | Utah | 1898
This is an action to try the title and to recover the possession of the S. W. i- of section 29 in township 1 N., range 2 W., of the Salt Lake Meridian. The plaintiff claims title by virtue of a deed of conveyance by the Central Pacific Railroad Company to him, and the following grant of the United States to that company: “That there be, and is hereby, granted to the said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United.States, and to which a pre-emption
Section 2265, Rev. St. U. S. 1878 (2d Ed.), provides that “every claimant under the pre-emption law for land not yet proclaimed for sale is required to make known his claim in writing to the register of the proper land office within three months from the time ot the settlement, giving the designation of the tract, and the time of settlement; otherwise, his claim shall be forfeited, and the tract awarded to the next settler in the order of time on the same tract of land who has given such notice, and otherwise complied with the conditions of the land.” Section 2267, Id., requires the proof and payment for tffe
As we have seen, tbe act of congress in force on July 16, 1868, created a land district consisting of tbe late territory of Utah, and authorized tbe appointment of a surveyor general, register, and receiver of public moneys, with tbe same powers and subject to like duties given to and imposed upon like officers in tbe other territories; and tbe same law extended tbe pre-emption, homestead, and other laws of tbe United States applicable to tbe disposal of its public lands over it. After the creation of tbe land district and tbe extension of such laws over it, persons having tbe qualifications and mentioned in tbe law were authorized and bad tbe lawful right to settle upon tbe public lands therein subj'ect to pre-emption, and tbe right to improve tbe same; and, by so doing, they acquired lawful rights thereto. This, it appears from tbe record, Moroni Olney bad done; and it appears be complied with tbe requirements of the law as far as possible before tbe register of tbe land office was appointed, and that, within a month thereafter, be filed tbe declaratory statement tbe law required. When the acquisition of a right by an individual depends upon an act required of him within a specified time, and be is deprived by tbe government or person exacting it of tbe opportunity to do it then, but does it as soon as an opportunity is afforded later, tbe law will accept such performance, and secure him tbe right. Likewise, when an individual, in tbe prosecution of a' lawful right, does everything required of him as far as be is able, and fails in some particular because a public officer fails to discharge a duty towards
When Olney, the pre-emptioner in this case, filed his declaratory statement, his right must be deemed in law to relate to the date of his settlement on the land .in dispute. Therefore he had a lawful claim upon it when the grant to the railroad took effect, and the land in dispute was not included in it. The grant of land to the Central Pacific Railroad Company took effect when the line of definite location of its road was made; and the survey filed in the general land office; but it did not include the