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TowSLEY V. Johnson.

ley has amply, honestly, in spirit, if not in the letter, complied with and entitled himself to all the benefits of the law. Johnson, if he has met its easy requirements in the letter, has not even tried to comply with the spirit of the act.

And we are urged to lend ourselves and the processes of this court of justice and equity to this measure on a ground merely technical. For the objections urged to Towsley's rights are not matters arising between him and Johnson, by reason of which the latter has any personal complaint against the former. They are not objections, which, if well founded in fact, would work any injury to the government. The object, and the sole object of the guards thrown around the privilege of preëmption by the law, is to secure on the public lands, actual permanent setters. Such was Towsley. So that the object of the law was in his case fully subserved.

If there be some express positive provision of the law which he has not complied with, or which he has violated, of course it must be applied, and he must bear the consequences of his neglect or disobedience of it, even though those consequences be so unhappy and so unequal as to give his home to one who did not build it, and who has done nothing to deserve it.

But a provision of law to have that effect, must be clear in its terms, and imperative in its demands.

Towsley settled on these lands in 1857, and asserted his preëmption right thereto, in 1858. Johnson did not settle on them, nor assert any right to them until 1860. Towsley being thus the first settler, if he has in all respects complied with the law, is entitled to the lands, without regard to anything which Johnson may have done. We have then to consider his rights first. And inasmuch as the record shows too clearly to admit of question, that his settlement on the premises was very early in the history

TowSLEY V. JOHNSON.

of this Territory, and his claim under the preěmption law ante-dated his adversary's two years, and inasmuch as his continued inhabitancy and extended and valuable improvements are in no particular assailed, I shall content myself with a brief consideration of objections urged against his claims to the lands.

The first objection urged against him is, that in consequence of the manner in which he went into possession of the premises, Towsley is estopped to allege any preëmption-right to the premises. The circumstances of this branch of the case are these :

In 1856, the Sulphur Springs Land Company was formed for the purpose of building a town on these and the adjoining lands. For this purpose, they laid claim to some 4,000 acres ; that is, they asserted that they had possession of, and were able and ought to keep others out of the possession thereof. For this, there was no law ; indeed the laws of congress forbade this. A part of this immense body they laid out into lots as a town. The lands here in ques. tion were so laid out and divided. The means by which they sought to populate this paper town, was to agree to give to any party who would build on one or more of these lots the title thereto, when the company should acquire it.

The lands here in question were thus laid off, and an agreement of this character was made by the company with Towsley. That is, the company agreed to make to him the title to two lots, when he should build a house of certain dimensions thereon. Towsley built the house, it being the farm-house, in which he has ever since lived. The company acquired a title to the lands by virtue of a preëmption entry thereof, made by one Bennett as a mail contractor. But it does not appear that it ever conveyed to Towsley the two lots according to its agreement. This may not be material,

, for shortly afterwards this preëmption entry of Bennett's was set aside by the Secretary of the Interior, as illegal and

TowSLEY V. JOHNSON.

void. The company was thus disabled to perform the agreement on its part. Besides, the title, which by means of fraudulent preëmptions, it had acquired to other lands, was also vacated, and it was left without means.

It became insolvent and went out of existence.

It was at this period that Towsley asserted his preënption-right to these lands. There is no pretence for saying that his previous dealings with this company stood in the way of his doing so successfully. So far as the technical doctrine of estoppel is concerned it cannot avail Johnson, for he is a stranger. Coke says (Co. Litt. 352, a): “Every

• estoppel ought to be reciprocal, that is, to bind both parties ; and this is the reason, that regularly a stranger shall neither take advantage, nor be bound by the estoppel.” Nor had the land been selected as the site of a city or town, and thereby taken out of the preëmption act. The only improvement on the tract was made by Towsley. The building of a hotel on an adjoining tract did not and could not affect the character of these lands.

With the company, the project of building a town failed, and he was left the sole occupant of the land. The previous survey into lots by an exploded company, and a single dwelling house, are quite insufficient to impress upon an otherwise vacant tract of eighty acres, the character of a city, or to withdraw it from the operation of the preëmption law; especially after the town enterprise was abandoned. Left by this company without any title to the lands, it would be unjust in the extreme, to deny to Towsley the only means of acquiring a title, and saving the $1,500 which he had expended in building thereon.

Another objection urged against this preëmption right is, that by a previous filing on another tract, the claimant exhausted the privilege conferred upon him by the law. In the case of Smiley v. Sampson, ante 56, this question was fully considered and decided. It is, however, right

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ToWSLEY V. JOHNSON.

to refer here briefly to the circumstances of this previous filing.

When he saw that the enterprise of the town was about to fail, Towsley went to the southern part of the Territory to find land which he could preëmpt. Having found a tract answering his purposes, he filed in the proper land office his declaratory statement of intention to preëmpt the tract; and, without making any improvements, returned to his home for his family, and to effect his removal. While at home, he broke his arm, and was thus laid up some weeks. As soon as he recovered he returned in company with his hired man to the tract, when he found it occupied and already preëmpted by another. He applied to the land officers for advice as to the course which he should pursue. They told him that he could not secure the land, were he to contest the entry already made, and that he had better abandon his claims thereto, and that his filing would not invalidate any subsequent entry under the preëmption law which he might seek to make. Acting under this advice, he did abandon his claims to the land, and has never since in any way asserted them. He returned home, and then laid claim to this tract. His whole conduct was open, ingenuous and fair. It commends him to our good opinion in every point of view. To say that such conduct shall be held to operate to deprive him of his right to these lands, is unreasonable.

On the question of our jurisdiction in this case, we refer to our opinion in Smiley v. Sampson.

Another objection to his claims here, is that Towsley con. tracted to convey the tract to McConihe, and in fact did convey a part of it to him; and in so doing, disqualified himself from preëmpting it. The facts do not support the position. Before asserting any preëmption claim to the tract, while he expected to get two town lots from the Sulphur Springs Land Company, he mortgaged them to Mc

TowSLEY V. JOHNSON.

Conihe. But this evidently did not qualify his prcēmption right. Between the date of his filing and the time he proved up, he made no conveyances. Conveyances made afterwards, whatever they were, if standing alone, do not show a previous contract. And the circumstances of his several mortgages and deeds clearly exclude the idea of any such contract. This objection is not well taken.

I have now considered each one of the objections urged against Towsley's preëmption right. They are none of them of any force. They do not either singly or all together displace the strong equity of his claim. It gives me satisfaction to find that he holds his home by sanctions of the law of the highest obligation, as well when regarded technically, as when regarded equitably. The flimsy claim of Johnson cannot prevail against his solid rights.

The decree of the District Court is affirmed with costs.

Decree affirmed.

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