Veeder v. Guppy

| Wis. | Jun 15, 1854

By the Court,

Smith, J.

This cause came to this court under and by virtue of the provisions of chapter 1 of the Session Laws of 1853, entitled “An act to allow appeals to be taken from the decision of the register of the land office,” approved February 1, 1853. This act provides that in all cases of conflicting pre-emption claims, which, may be decided by the register of the State land office, after the 15th day of January, 1853, it shall be lawful for the party aggrieved by such decision, to appeal to the Circuit Court of the county in which the land lies, within sixty days after the decision of the register; and until the expiration of sixty days, the register shall issue no certificate to the successful claimant; and in case of appeal, no certificate shall be issued until the decision of said court shall be made and certified to the register.

Section seven of the same act provides that “ the cases provided for in this act may be removed to the Supreme Court by appeal or writ of error, as in other cases, and the said court shall, on the hearing, of any such case, by order, affirm or reverse the order of the court below.”

The claims of the respective parties grow out of the act of Congress, entitled “An act to grant a quantity of land to aid in the improvement of the Fox and "Wisconsin rivers, and to connect the same by a canal in the Territory of "Wisconsin,” approved August 8, 1846, and the several acts of the legislature of the State in relation to the lands granted by that act of Congress.

The act of Congress is as follows: “That there be, and hereby is, granted to the State of Wisconsin, on the admission of such State into the Union, for the pui’pose of improving the navigation of the Fox and Wisconsin rivers, in the Territory of Wisconsin, and of constructing the canal to unite said rivers, at or near the Portage, a quantity of land equal to one-half of three sections in width, on each side of the said ^ox r^v'sr) lutes through which it passes, from its mouth to the point where the Portage canal oh all enter the samo, a d on each aide of said canal, from one stream to the other, reserving the alternate sections to the United States, to be selected under the directions of the governor of the State, and such selection to be approved by the president of the United States ”

By an act of the !agenda, c, approved Juno 29th, 1848, the State formally accepted the grant.

By the second section of the act of Congress of 1846, it is provided and declared, “ That ao soon as the Territory of Wisconsin shall bo admitted as a State into the Union, all the lands granted by this act shall be and become the property of said State, for the purposes contemplated by this act, and no other; provided, that the legislature shall agree to accept the grant upon the terms specified in this act, and shall have power to fix the price,” &c.

It seems to’be conceded that nearly all, or by far the greater portion, of the lands on the north and west side of the Fon river, wore, at the time of the grant, what are called “Indian lands”; that is, they had not yet been purchased of the Menomonee tribe of Indians, who held the Indian title.

The State was admitted into the Union May 29th, 1848.

October 18th, 1848, the United Slates, by treaty, purchased the Indian title of the Menomonees to a large tract of land, of which the lands granted were a part, which treaty was ratified January 23d, 1849.

By the eighth article of the treaty, the Indians were permitted, if they desired so to do, to remain and pccupy the lands for the term of two years from the date of the treaty, and thereafter until the president of the. United States should notify them that the lands were wanted by the government.

There was never any formal notice that the lands were wanted by the government; but the tribe continued their usual occupation of the tract purchased, until the summer or autumn, of 1852, when they were removed to a portion of the lands ceded by the treaty'near the falls of Wolf river. The legislature of the State of "Wisconsin, by an act entitled “ An act to provide for the improvement of the Fox and Wisconsin rivers, and connecting the same by a canal,” approved August 8, 1848, provided for the sale of the lands, and the application of the proceeds to the improvement contemplated by the grant.

The reason for early legislation by the State on the subject may be found in the third section of the act of Congress, which provides “ That the said improvement shall be commenced within three years after the said State shall be admitted into the Union, and be completed within twenty years, or the United States shall be entitled to receive the amount for which any of said lands may have been sold by the said State.”

The thirty-eighth section of the act of the legislature, approved August 8, 1348, provides as follows “ Erom and after the passage of this act, every person-being the head of a family, or widow, or single man over the age of twenty-one years, and being a resident of the State of Wisconsin, who has made, or who shall hereafter make a settlement in person on any of the lands granted by the United States to said State to aid in the improvement of the Fox and Wisconsin rivers, and who shall inhabit and improve-same5 an<i who has erected or shall erect a habit-dwelling thereon, shall be, and he hereby is an-thorized to enter with the register appointed to sell said lands by legal subdivisions, any number of acres, not exceeding one hundred and sixty acres, to include the residence of such claimant, upon the payment to the treasurer of one dollar and twenty-five cents per acre for such lands, subject to the following limitations.”

The only limitation necessary to be noticed is the following: “ No lands required for the use of the State in constructing the said improvement of the said rivers, or returned by the board of public works as a site for hydraulic or commercial purposes, and no parcel or lot of land occupied for purposes of trade, and not agriculture/shall be liable to entry under the provisions of the last section.”

Another right of entry is provided for by the for ty-secoud section of the same act:

“Any tract of land not exceeding one -hundred and sixty acres, having improvements by cultivation on the same to the amount of five acres, or on which a house or other improvements have been erected, worth fifty dollars, previous to the passage of this act, shall be registered as improved or occupied lands^ and the claimant of said land shall have the right to purchase the same at one dollar and twenty-five cents per acre; provided, however, if any of said lands registered shall be wanted for carrying on said work on account of material, or by reason of including the termination of a canal, or any lock, dam, waste water or basin, or on account of flooding the same, said land shall be reserved, and an equivalent of land may be selected by said claimant from some other of the appropriated lands, not reserved as aforesaid, and on Ms application the lands so selected shall be registered in the same manner as if the same had been occupied or improved by such claimant, and said claimant shall be entitled to receive a just compensation for Ms improvement, to be agreed upon by the person claiming the samo and the commissioners, or three disinterested persons to be chosen by the said parties.”

By the act of the legislature published April 1U 1852, it is provided that “ Whenever any portion of said lands has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under any existing pre-emption law of this State, 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 for the county in which such town may be situated, to enter at the State land office, at the minimum price of two dollars and fifty cents per acre, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests,” <fcc.

Under this la3t act, the appellee, Judge Guppy, applied to the register of the State land office to enter the tract of land in question.

Under the thirty-eighth section of the act of August 8th, 1848, the appellant, Nancy Mars, applied to enter the same tract, by virtue of her settlement made thereon the 29th day of August, 1849.

And under the forty-second section of the same act, the appellant, Richard F.Yeeder, applied to enter the same land by virtue of his improvements thereon to the value of more than fifty dollars, prior to the pas sage of the act of August 8, 1848.

These are the laws, and the position of the parties before the court, and the rights of the respective parties depend upon the proper construction to be put upon the act of Congress making tho grant, and upon the several acts of the legislature in relation to the lands comprehended by the grant.

It is unnecessary at this day to go into an inquiry as to the power of the United Otates to grant the lands in question, or of the title which the grant by the United Otates carried to the Otate of Wisconsin. The former was the absolute owner in fee of the lands, subject only to ouch rights as the Indians might have therein; and of those rights, and the manner of divesting them, the Urib.d Otates was the sole and only judge. 'Whether the Indian title should be extinguished by purchase, or by conquest, by the general government, the Otate of Wisconsin was wholly unconcerned. It was sufficient for the State that it had the power to take, and that the United States had the power to grant.

The grant took effect, and the title to the lands vested, potentially, in the Oíate, on its admission into the Union, of and to a quantity of land equal to three sections in width on each side of the Fox river. In the early part of the argument it seemed to be a question with counsel whether the grant located the lands, or did any more than to define the quantity granted; but it was understood to have been finally admitted, that the location of tho lando was fixed by the grant and established, as the alternate sections on each side of tho Fox river. Tho quantity then became definite, and tho location sufficiently certain for the purpose of legislation; for it required only the ministerial acts of selection, approval and survey to render the specific parcels which would fall to the State or to the united States, certain and definite.

The State "being seized of one half of the lands on both sides of the "Fox river, (except those already appropriated by tho United States,) and the mode of partition established, it wes competent to tho State to prescribo the modo and terms for the salo and disposal of the lands granted to Lor, which mode and terms would amply to the specific lands of the State as soon as pert; bon was mano, unless tho alleged right of occupancy by the I-dims proven ted such legislation.

It is said the Indian title to the lands on the south and east ¡sida of the Fox rivor, was extinct at the time of the pr.vuf, and that the login1aturo contemplated only lauclr, of thb ciar, by tho act of Ángusí, 1343. That that act could not havo been intended to embrace tho lamb to winch tho Indian title had not been extinguished, beeatuo any settlement upon such lands was In con Taven tlon of the laws and tree too:; of the Unit :d Cut

Tho UnTanswer to this proposition is, that the law of 1343 waT's no distinction whatever between any of the 1 whs comprised, in the grant. The regulations for tin disposal and use of the lands aro general, and by the terms of the act apply epnally to all portions. There is no reservation or discrimination of any hind, but general rules aro adopted by which the rights of the State and its citizens shall bo determined, when the lands are or shall bo in- a condition to be sold. At the time of tho passage of the act, none of the lands had boen selected by the governor? and approved by the president. But the title of the State v,ras as complete as it ever has been, to the certain quantity of land granted. No further act of the United States was necessary, nor was any other act ever done or performed to vest the fee in the State, q’pg selection by the governor and the approval by the president, were acts of partition only, not of conveyance. They tended in no degree to enlarge the scope of, or confirm the grant. The State being the owner of the land, had a right to prescribe such rules, terms and conditions, to the disposal of the lands granted, not inconsistent with the terms of the grant, as it should deem proper, and those rules, terms and conditions would become operative on partition, and apply to particular parcels when the same shall become designated. If the United States could convey a perfect title, the State could take it. There is no reservation or mention of any outstanding, conflicting title, made in the grant. There is no restriction upon the State, of its power to grant pre-emption rights, at all relating to the questions involved in this case ; but so far as these questions are concerned, the title in the State is as full and complete as that of any other sovereign land holder.

Nor, is it easy to perceive the bearing which the Indian right of occupancy has upon the power of the State to legislate upon the subject of their lands. That matter rests wholly with the federal government. If that government gi anted lands to the State, to which it had not yet extinguished the Indian title, it was its duty at once to procure such extinguishment, that the grant might have its full effect, unencumbered. The State had no power to move for its extinction. It could only look to the United States to make good the title to the lands granted. If the title or possession of the State should be opposed by an adverse title in the Indians, she could not enter into treaty with the latter for its extinction. She could only look to the United States, who had the. sole power to treat with the Indian tribes. So long as she was unmolested by any Indian occupancy, and no title or right asserted incompatible with the grant; she had no cause of complaint against her grantor. If the United States, in making this grant, violated its obligations to the Indians, that was a matter with which the State, had nothing to do. As the federal government made no reservation on account of the Indian title, the State government was not bound to regard it. And it would seem that the federal government did not regard it in connection with and upon the narrow strip comprised in the grant, for the State was required to commence the work within three years or forfeit the benefit of the grant. The work could scarcely be commenced without the necessity accruing for using at least some of the lands, or at least entering upon some of the lands on the north and west side of the river. Indeed, the whole tenor of the act of Congress making the grant, seems to be regardless of the Indian title, and in the full expectancy of its immediate extinguishment. With such expectation and confidence doubtless the grant was made. A treaty, if not then in process of negotiation, was immediately entered upon, after the admission of the State, between the United States and the Indians, and was concluded the 18th of October following,' scarcely four months after the acceptance of the grant by the State. And if the privilege conceded to the Indians to occupy the lands ceded for two years, and thereafter till they should be notified that the lands were wanted, had been considered by either party an impediment to the reasonable use by the State, of the small quantity granted for the improvement, is it to be supposed that the treaty would have been silent as to the rights of the State conferred by the grant, especially when the State was bound to commence the work within three years, or forfeit the lands granted ? Would the United States thus'deprive the State of two years of the time within which the work was to be commenced ?

Nor is there good reason for supposing that the provision for an approval of the selections made by the governor, by the president of the United States, was intended to protect the Indian title to the land north and west of the Fox river. The grant is so specific as to leave little room for selection. It carried the alternate sections on each side of tho Fox river and the lakes through which it passes. It would seem that there was but a narrow scope for choice, and the terms of approval by the president apply as well to those lands to which the Indian title was extinguished, as to those to which it remained, as well to the odd as to the even numbered sections, as well to the lands unsurveyed, as to those surveyed.

If the selection by the governor, and approval by tho President, Was essential to vest the title in the Gtato, the act of the legislature of August, 1848, is inoperative and void, unless it has a retroactive operation upon such settlements as should chance to be upon the lands which might fall within the grant? upon partition, for at the date of the act no selections and approvals were made.

If the act of the legislature became operative upon such settlements as were made in or before 1848, and should chance to fall upon the lands selected andap-proved, then it must operate equally upon all, for the terms of the act are general, and the rights granted by it would vest as soon as the selection and appro. val were made.

But we think it is clear that the legislature had the right to say to whom, on what conditions, on what terms of pre emption or ether purchase, (so that they were as favorable as those granted by Congress to settlers on public lands,) any of the lands that might take by virtue of the act of Congress of 1046, restricted only by the terms of that act. It was not necessary that the State should be in possession to authorize her to pass the act of August, 1848. The grant was actually made, and wanted only the survey, the selection and approval, in order to specify the particular parcels, which were certain to be made, and she could as well prescribe the rules and regulations for their sale, before as after survey, selection, approval and possession.

Although the quarter section in dispute in this case was not specifically, yet it was potentially granted by the act of Congress of 1846.

It is well settled that the poss-'ecioa of a tract of land by the Indians, does not affect the validity of a grant' by the government to a State, or to a citizen, made without the consent of the Indians. Our relations with those tribes are held to be of a political character, exclusively; (Cherokee Nation vs. Georgia, 5 Pet. 1,) and their rights growing out of their oceir pancy of the soil, cannot be brought in question, in a suit between individuals, especially where both parties claim through the same grant of Congress. The power of the government to grant, and the capacity of the State to take cannot be doubted. It was purety a d11®^011 °f policy with the general government, whether it would grant the lands before the Indians were removed from possession. Neither of the parties here derive or claim title or' right through the Indians, but all claim under and through the same source. Nor does there appear to have ever been any controversy with the Indians in regard to the lands granted by the act of Congress. See Jackson Ex-dem. Klacker vs. Hudson, 3 J. R. 375 ; Fletcher vs. Peck, 9 Cranch. 37; U. S. vs. Clark, 9 Pet. 168 ; Clark vs. Smith, 13 id. 195; McIntosh's Lessee vs. McIntosh, 8 Wheat. 543.

Very soon after the grant took effect, in October, 1848, the United States made a treaty, for the purchase of the entire Menomonee tract, which .took effect upon its ratification, in January, 1849/ From that time the Indians were mere tenants, occupying under the United States.

But it is contended that, as the act bf Congress of 1802, made it a penal offence to trespass upon the Indian lands, and as the Indian title to a part of these lands was not extinguished at the time of the admission of the State, and to a part of them it was extinguished, the act of the legislature of 1848, ought to be so construed as to apply its provisions to that portion only' to which the Indian title was extinct; that it cannot be supposed that the legislature intended to apply the 38th and 42nd sections of 'the act of 1848> to lands upon which entry was not only forbidden? but rendered penal by the laws of Congress. If, however, the federal government had the power to grant the lands, and did grant them, by the act of 1846, which grant would take effect on the admission of the State, it may well be asked whether the government did not, by the force and effect of the grant virtually suspend the operation of such penal laws in respect to the particular lands granted It may well be said, that as the grant was without reservation, the general government took upon itself the arrangement of any claim of title in the Indians. At all events? we think that is a matter resting solely with the general government, and cannot be urged here by disputing claimants under the laws of the State, either as affording a rule of construction of the statutes of the State, or in depreciation or limitation of the grant Irom Congress upon which all the parties primarily base their claim. It was competent for the government to make the grant, and to arrange the claims of the Indians, if any they had, in its own way. If the rights of the Indians were infringed by the grant or its consequences, the United States government were bound to make adequate compensation, but what redress or compensation was, or might be made, or whether any was claimed, or whether any actual in jury was suffered, were matters exclusively ‘ within the cognizance of that government; and it is not for • rival claimants to these lands, citizens of the State, to call the State or the United States to account for the manner in which they have derived or conveyed title? nor to inquire in what manner the government has? or may arrange with the Indians their alleged right of possession.

The grant took effect, potentially, carrying the alternate sections, on each side of the Fox river, on the admission of the State into the Union, the 29th of May, 1848. Although the particular alternate sections were not set apart and specified, yet as such specification only required the selection of the gover llor anc‘ aPProval of the president, of the particular series of alternates, the grant was sufficiently certain £or ¿]10 purpO303 0f legislation, and for the prescription on the part of the State, of the rules and regulations which should he observed in their disposition and sale; 'for in law that is certain which is capable of being reduced to a certainty.

If these reviews bo correct, it follows that in 1848? at the time of the passage of the act of the legislature before referred to, the legislature had the right and the power to prescribe terms of sale, and of pre-emption in regard to all the lands which by the simple process of selection and approval, should fall to the State by the terms ami operations of the grant. The terms of sale and pre-emption proscribed by the act of 1848, could not apply to any specific lands, for at that time none of the lands were specified by selection and approval, or otherwise, but they were general rules, to appljr to any and all lands contemplated by the grant, whenever any parcel, by the process of carrying out or executing the grant, should, from time to time, become designated. Any other construction of that act of the legislature, would render the ' whole act in relation to sales and pre-emptions? wholly inoperative and void, and would practically prevent the 8 bate from commencing and carrying on the work until such time as the general government should see fit to remove the Indians and formally extinguish their title, and compel a forfeiture of the lands granted, by withholding possession, and rendering the commencement of the work within three years, impracticable.

But the State did not thus construe the act of 1848 or the act of Congress of 1846, for the same-legislature that passed the act of 1848, provided for the establishment of a land office at Oshkosh, and for the appointment of a register and receiver, for the appoint' ^ ,, , n O • ■ ; ^ ment of a.board ox commissioners to carry on the work, prescribing their duties, and the same legislature also proceeded to appoint their officers, who at once entered upomthe performance of their duties.,

Richard F. Veeder, Nancy Mars, and Joshua J. Guppy, as trustees for the settlers, fee., are the parties before the court.

Veeder made claim, and now claims to enter the the land, with the register of the State land office, under the 42nd section of the act of the legislature of 1848, by virtue of his having had improvements upon this tract of land at the time of the passage of the act, of the value of more than fifty dollars.

Nancy Mars made claim and now claims to enter the land under the 38th section, by virtue of a settlement made thereon by herself and husband, (since deceased,) the 20th day of August, 1849, aad by herself the 17 th March, 1851, in her own right.

Joshua J. Guppy made claim to enter the land as trustee for the settlers thereon, by virtue of the 9th. section of the act of the 14th April, 1852, which provides that “whenever any portion of said lands are, or shall be settled upon, and occupied as a town site, and therefore not subject to entry under any existing pre-emption law of this State, it shall be lawful, &c.” providing that the county judge may enter the land in trust for the settlers, &c.

It is claimed in behalt of Guppy that the Indian title did not become extinct until August, 1852, when the Indians were removed, and that inasmuch as, when that title became thus extinct, this tract was found already settled and occupied as a town' site, the right of Guppy accrued,

But at the passage of the act of April 17, 1852, this land, according to the reasoning of the counsel for Guppy, was Indian land, and the act could no more apply to this land, in behalf of the settlers, than could the act of 1848 in behalf of Veeder or Mars.

If the act of April 17,1852, could potentially apply to such Indian lands as might chance to be occupied as a town sité at the time when the Indian title should thereafter become extinct, so could the act of 1848, potentially apply to such lands as should fall within the 38th and 42nd sections of that act.

The settlers upon this tract were as much trespassers as were Veeder or Mars, and if no right could accrue to the latter under the act of August 8, 1848,' neither could any accrue to the former under the act of April 17, 1852, at the time of their entry or settlement.

If, in .August, 1852, when the Indians were removed, the act of April 17, 1852, became operative upon the land, and found it occupied as a town site, so did the act of August 8, 1848, apply and find it occupied and improved by Veeder, and settled upon by Mars.

If it is claimed that, in August, 1852, when the Indians were removed, the act of April 17, 1852, vested the right to enter, in Guppy as trustee for the settlers, by virtue of the occupancy of the latter, by the same force of reason did the act of August 8, • 1848, vest the right to enter the land, in Veeder, for at the time of the passage of both acts, the Indian title or possession remained unextinguished, upon the hypothesis of the counsel for Judge Guppy.

If the act of April ll, 1852, found this quarter section occupied as a town site, at the time of the supposed extinction of the Indian title,In August, 1852, so did the act of August 8, 1848, find this quarter section with improvements on it, made by Veeder, under and within the provisions of the last npned act.

The oesiid que trusts of Guppy must accord the same rule of construction to Veeder and Mars, which they claim for themselves. If they were all trespassers, in pan delicto, when both acts were passed, .(neither repealing the other) the claims of both or either would hold according to a proper construction of both acts. If the acts of the Legislature applied to neither, no right would vest. If both acts are to be so construed, as that both may stand if possible, then that right would be upheld and secured which first vested.

. But this hypothesis of the counsel for Guppy cannot be admitted, for reasons apparent from a consideration of the propositions above stated.

"When the State accepted the grant, as she did by the act before quoted, (Session Laws of June, 1848, page --) the State became tenant in common with the federal government, of all the lands within the locality of the grant, with the process of partition prescribed and fixed ; and she had then the right to prescribe by the act of her legislature, by what rules, regulations and conditions the specific lands, which should fall to her, on partition, should be disposed of, so that she kept within the terms of the grant. ■

The State had a right to say that if, when partition should be made, and the lands should be specifically defined, any person having improvements on Parce^ ftS should fall to the State, should have the right of pre-emption.

The State actually did, not only this, but more -¡¡han this, by the act of August 8, 1848, for by the 42d section of that act, it is provided that lands having improvements thereon to the value of fifty' dollars, should be registered, as occupied lands, and the person, having such improvements, should have the right to enter, unless the lands were wanted for the purposes of the improvement, <fec.

The right to enter was expressly given to such as had improvements at or before the passage of the act, and it applied by its terms to the whole grant.

Then any one, who at the time of the passage of the. act of August 8,1848, had the requisite improvement on any of the lands granted, which, on partition should fall to the State, took by virtue of that act, the right to enter such land in accordance with the provisions of the act — for the 42d section expressly applies to such improvements made previous to the passage of that act.

The State having the power to vest such right of entry, on the passage of the act of 1848, that right became vested in such persons as had the requisite improvements, and, as at the time of the passage of the act it could not apply to any specific parcel, because, as yet, no partition, or selection and approval had been made, the right partially vested, to all such lands within the grant as should fall to the State.

If it is' said that Veeder was a trespasser in August, 1848, it is replied, that so were the settlers in April, 1852. If, the instant of the extinction of the Indian title broke upon Veeder as trespasser, so did it break upon Guppy’s cestui mie trusts. The same prospective or retrospective scope must be given to the act under which Veeder claims, as to the act under which Gruppy claims.

But neither the occupation of Veeder, nor the settlement of Mars, nor that of the settlers, was an act malum in se, but was merely malum prohibitum. For aught that appears, Veeder’s occupation may have been' lawful. He may have had license from the United States. In any event, neither the State nor the parties here litigant can set up such trespass, if any there was, to defeat or control the operation of the act of the legislature of the State. ■

Whether the legislature of 1848 was wise, or whether or not it was sufficiently guarded, or whether it was made under a misapprehension of its legal ' consequences, is a question with which we have nothing to do.

Nor have we anything to do with these alleged trespasses. That was a matter of which the federal government alone had cognizance and sole jurisdiction.

It is conceded as a fact, that Veeder, at the time of the passage of the act of August 8, 1848, had the requisite improvement on the south-west quarter of section five, to entitle him to enter the land under the provisions of that, act, and that ultimately, in process of partition, by selection of the governor and approval of the president, that quarter section Game-to the State by operation of the grant.

We think, therefore, that on the taking effect of the act of August 8, 1848, the right of Veeder became vested, subject only to the contingency of that tract of land falling within the grant to the State.. That on partition and. the title to that specific par-ce-^ °f Hnd vesting in tlie State, the right of Yeeder to enter it, vested in him.

'j'be subsequent act of April lYth, 1852, could not have an ex post facto, or retrospective effect to divest Yeeder of his right, because it ■ had, subsequently to the passage of the act of 1848, become a town site. Although Yeeder may have laid it out as a town site, in the full belief that the title would come to the State, and his right to enter thereby vest in him, the legislature could not, in 1852, pass an act to divest him of his right already actually or potentially vested. He may have incurred equitable liabilities to settlers, which a Court of Equity would enforce. But of that we have no concern now.

If Yeeder’s right potentially vested on the passage of the act, the subsequent settlement of Mars could constitute no claim adverse to his, though equitable relations may have been created, of which we are not, and cannot be informed in tShis proceeding.

This may be a hard case. It has been so suggested to us, and the argument of expediency has been falteringly urged in behalf of the settlers. But we have no power to entertain considerations of that kind. The law, in all its sternness, is presented as our only rule of action, and from its requirements we have not, even if we sought it, any means of escape. We are not unmindful of the consequences of our determination, and a consciousness of them has had the only effect which, it is presumed, counsel desired, to ensure a more earnest, careful ■ and solemn investigation of the legal rights of the parties. .

As 'we view the law of this case, we think the settlers could not by virtue of their settlement prior to the act óf 1852, nor by virtue of their actual occupancy of the land as a town site, at the time of the removal of the Indians, acquire any rights under that act, which would divest any individual, who had acquired rights under the act 1848. If the latter act did not, actually or potentially, vest any rights to what are called Indian lands until the removal of the Indians, neither did the former act, and if these acts Tb ecome operative upon this tract simultaneously, then the rights of all parties must he settled hy the p riority of legislative action, because neither act in any manner repeals the other.

Consequently Judge Gruppy had no right to enter this land in' trust for the settlers.

It may, perhaps, he proper to say a few words in regard to the doctrine of estoppel, which has been urged h y counsel with a good deal of energy. This doctrine is both equitable and legal, and will always be applied by courts, both of law and equity, in all proper cases. But it is a doctrine to be applied with caution, upon well-ascertained facts, and between the proper parties. This, however, is neither a proceed ing at law, nor in equity, properly so called, but a pe > culiar statutory proceeding, wherein we are seeking to as certain the conformity or non-conformity with certain statutory enactments, by operation of which cert ain rights are granted and secured. The conduct of all the parties, their equitable relations, rights and duties growing out of their transactions, have not been, nor can they be fully investigated in a proceeding like this. Nor, have we all the parties in interest before the Court. To attempt to apply the doctrine of estoppel to one of the parties in this proceeding, without knowing upon whom else it is to ope rate, or whether those enjoying it are the persons ecTa^a61y entitled to its benefits, might operate very unjustly. We are satisfied that we could not safely apply it in a proceeding of this limited and réstrict-ed character, if it were applicable herein. But we are satisfied that it is not, and that our power is confined to the investigation of the rights of the parties as the statutes have defined them, and that it is not only our strict duty, but that it is far safer to leave them in their statutory rights, and to leave their equitable relations and obligations to the process and the forum, whereby and wherein all may be fully heard upon adequate and competent issues, and complete justice be done to each and all.

The j udgment of this Court is, that the order and judgment of the Circuit Court be, and the same are hereby reversed.