2389, revised statutes, grant to the inhabitants of cities and towns on the public lands the privilege of entering the lands as town sites, at the minimum price of $1.25 per acre, through the corporate authorities of such towns and cities, or the judges of the county courts, acting as trustees for the occupants thereof. The maximum quantity liable to entry varies with the number of inhabitants, as will be seen by reference to the statute.

Surveying a tract of public lands and dividing it into town lots, making a plat of it as a town, and building one house on one lot, is not sufficient to impress upon it the character of a town, so as to withdraw it from the operation of the pre-emption law. Townsley v. Johnson, 1 Neb. 95.

§ 284. Lots not platted on a town-site map, nor fenced, can not be held by the corporation, if there is an adverse claim.

Robinson v. Mining Co., 5 Nev. 44.

The state of Nevada stands in the situation of an ordinary trustee as to all the public land granted to it by the United States, except the 90,000 acres granted for the purposes of an agricultural or mining college, as to which she has undertaken to bear the expenses of converting the trust lands into interestbearing bonds, without calling on the trust fund for reimburse

ment.

Nevada v. Rhodes, 4 Nev. 312.

No title can be acquired under the town-site laws to any mine of gold, silver, cinnabar, or copper; or to any valid mining claim or possession held under existing laws.

R. S. 2392.

Land that is mineral is subject to location only under the provisions of the mining law, without reference to the relative value of a portion of the tract for town-site purposes.

Kemp v. Starr, 6 Copp's L. O., p. 3.

§ 285. Coal lands can not be included in a town-site entry. 1 Copp's L. O., p. 19; 4 Id., p. 46.

Salt land, more valuable for its salt than for agricultural purposes, may be treated as mineral land.

1 Copp's L. O., p. 19; 4 Id., p. 46.

There must be actual occupancy for the purposes of trade of the tracts filed upon under the town-site acts to exempt the land from the operation of the pre-emption laws.

1 Copp's L. O., p. 6; 4 Id., p. 132.

§ 286. Portland, Oregon.-A patent issued by the corporate

authorities of the city of Portland, in Oregon, in December, 1860, upon an entry made under the town-site act of May 23, 1844, passed no title to the land covered by the donation claim of a person whose right to a patent was perfected previous to such entry, and whose claim was surveyed previously to the act of July 17, 1854, by which the town-site act was for the first time extended (though with qualifications) to Oregon territory. The act of August 14, 1848, organizing the territory, did not extend over the country either the pre-emption act or the townsite act.

Stark v. Starrs, 6 Wall. 402.

§ 287. Officer de Facto.-An incorporated town in Utah was situate on public lands which were duly entered at the proper land office by the mayor, to whom a patent was issued under the act of March 2, 1867 (14 Stat. 541). The legislature of the territory as authorized by that act enacted the requisite rules and regulations for the disposal of lots in the town, and provided that the party who was the original owner of possession or occupant, or was entitled to the possession or occupancy of a lot, should on certain conditions be entitled to a deed therefor from the mayor. A mode whereby contested claims could be determined was prescribed: A., before the lands were entered, was in the possession of a lot and mortgaged it to B., but thereafter remained in possession. In a foreclosure suit, brought in a proper court against A., wherein the process sued out was served by a marshal of the United States for that territory, a decree was rendered, whereunder he, still acting as the ministerial officer of the court, under the decisions of the local courts that he was entitled to do so, made sale of the lot to C. The sale was confirmed by the court, and C. conveyed the lot to D., a non-resident. A. and D. respectively claimed a deed from the mayor. Held, first, that A.'s interest in the lot, before the lands were entered, could be the subject of sale or mortgage; second, that although this court subsequently decided that the marshal could act only where the United States were concerned, his doings in the premises were those of an officer de facto; that by his service of process, the court acquired jurisdiction of the person of A.; that the sale under the decree extinguished A.'s right to the lot, and that D. was entitled to a deed therefor from the mayor.

Hussey v. Smith, 9 Otto, 20.

§ 288. Salt Lake City, Utah.-A., possessed of a lot in the

city of Salt Lake, Utah, died in 1857, leaving a widow and minor children. Under the act of March 2, 1867 (14 Stat. 541), the mayor, November 4, 1871, duly entered, at the proper land office, the land occupied as the site of the city, and received, June 1, 1872, a patent therefor "in trust for the several use and benefit of the occupants thereof according to their respective interests." The legislature of the territory prescribed, by a statute approved February 17, 1869, rules and regulations for the execution of such trusts, and provided that the several lots and parcels within the limits of the land so entered should be conveyed to the rightful owner of possession, occupant, or occupants, or to such person as might be entitled to the occupancy or possession. A. owned a certain lot. Shortly after A.'s death his widow relinquished possession of a part of the lot. She subsequently conveyed another portion thereof and removed. with her children therefrom. Another portion was sold by the administrator of A. to pay taxes assessed and debts incurred by making improvements upon the property after the latter's death. The purchaser paid full value therefor, and has, since December 10, 1869, remained in the exclusive possession thereof. Held,

1. That A., at the time of his death, had, by reason of his possession of the lot, an inchoate right to the benefit of the act of congress, should the lands be entered under its provisions, and that his right to maintain the possession, as against the other inhabitants of the city, descended, under the laws of Utah, to his widow and children.

2. That the withdrawal of the widow and children from parts of the lot, and her voluntary surrender of all control over them, extinguished her right and their rights as to such parts.

3. That under the territorial statute an occupant of a lot could sell and convey his possessory right therein before the lands were so entered.

4. That the purchaser from the administrator is entitled to a conveyance from the mayor.

5. That the widow and children are entitled to a deed from the mayor, conveying to them according to their respective interests, that part of the lot whereof they were in possession at the time the lands were entered.

Stringfellow v. Cain, 9 Otto, 610.

§ 288a. Deed from Trustee Void.-A trustee of a town site upon public lands has no judicial power, and can not execute a deed of town lot to an applicant who has complied strictly with the law. The party must be either in possession of or entitled

to the possession of the premises. And a deed to an unclaimed lot in a town site is void, if the trustee has executed the same without advertising that it would be sold at public sale.

Edwards v. Tracy, 2 Mont. 48.

§ 289. Meaning of the Word "Occupant."-In the case of Hussy v. Smith, the supreme court of Utah held that an "occupant," within the meaning of the town-site law, is one who is a settler or resident of the town, and in the bona fide actual possession of the lot at the time the entry is made.

1 Utah, 129.

But in the case of Lechler v. Chapin, the court hold a different rule, to wit: that there is nothing in the act of congress which limits the proof on the part of claimants to their interest in the land, at the time of entry thereof in the land office. If the land at that time is vacant, it is subject to location and occupancy by any person at any time prior to the issuance of patent. The act of congress is the paramount law, which the legislature of a state can not change.

12 Nev. 65.

In the case of Clifford v. McClellan, 1 Col. 370, it was held that the legislature had power to fix a period within which the claim of every beneficiary should be asserted.

In the case of Georgetown v. Glaze, it was held that the corporation could maintain a bill to correct an abuse of the trust affecting the common interest of all the beneficiaries, but could not interfere between individual applicants. The act of the legislature of California in reference to town sites is constitutional.

Ricks v. Reed, 19 Cal. 551.

§ 290. The Municipal Pre-emption Act of May 23, 1844, confers a right upon the corporate authorities or county judges to purchase the land forming a town site at the minimum government price for the benefit of the inhabitants thereof, before the commencement of the public sale of the body of the land in which the town is included; and if such right be not exercised, such lands with the general mass are offered for sale to the public. The lands in controversy were not reserved from sale by the laws of the United States, nor by the president, and consequently were subject to location by the state of California under her laws, and the patent of the state property issued to the plaintiff.

Dall v. Meader, 16 Cal. 295.

The act of the legislature of Michigan, approved February 9, 1853, in reference to the town site of Ontonagon is unconstitutional and void.

6 Mich. 193.

The act of congress approved May 23, 1844 (5 Stat. 657), ontemplates only such towns, cities, and villages as are in possession of and exercising the power of a local or municipal government.

Clark, Trustee, etc., v. Fay, 20 Wis. 478.

A trustee under the legislative act of Nebraska in reference to town sites, in deciding who are entitled to lots under the rust created by the congressional law, acts in a judicial capacity according to the supreme court of that state.

Tierney et al. v. Cornell, 3 Neb. 267.

Any state law which undertakes to dispose of the trust otherwise than as is prescribed by the act of congress is inoperative and void.

Town Co. v. Maris, 11 Kan. 128.

Any contract made by one of the occupants of a town site with a third person that the probate judge shall not enter the land under the town-site law of congress is illegal and void.

12 Kan. 62.

§ 291. Parties in Pari Delictu.—Where both parties to a contract which is void as against public policy are equally at fault, the law will leave them where it finds them. If the contract be executory it will not enforce it, nor award damages for its breach. If already executed it will not restore the price paid nor the property delivered. So where a town company, the occupants, and all interested in the town site made a contract with a county to deed it certain lots on the town site, providing the county seat was located at the town, and afterwards the county seat was so located and the lots deeded: held, that neither the town company, the occupants, the parties interested in the town site, nor one claiming under them, could avoid the deed or recover the land.

Setter v. Alvy, 15 Kan. 157.

§ 291a. Finality of Decisions.-In the case of Leech v. Ranch, it was held that the state courts have nothing to do with the question as to whether a town-site entry was properly or improperly made, as to whether sufficient or legal proof was made to authorize such entry, nor as to whether there was any proof at all.