David Josiah Brewer

“ It cannot be doubted that if before he is thus called upon to file his answer the office is burned and the clerk dies, and there is no place or individual at which or with whom his answer can be filed, such accident or omission will not defeat his right to make a defense, or give to the plaintiff a right to take judgment by default. ”

“ Where the accident or omission is not the fault of the party, but of the government, or some official of the government, such accident or omission cannot defeat the right of the individual, and in all that is said in respect to this by the supreme court of the state of Utah we fully agree. ”

“ It is a matter of common knowledge that many go on to the public domain, build cabins, and establish themselves, temporarily at least, as occupants, but having in view simply prospecting for minerals, hunting, trapping, etc., and with no thought of acquiring title to land. ”

“ And if the ruling at times mayoperate against an individual entryman, it does so more frequently against the railroad company in preventing it from claiming rights existing at the time that it in fact definitely locates its line of road.
It will be noticed that the third finding of the register and receiver states that on the 20th day of October the land in dispute contained 'the improvements of a bona fide settler,' which, as they held, also excepted the tract from the grant. ”

“ A practice of allowing such contests would be fraught with the gravest dangers to actual settlers, and would be subversive of the principles upon which the munificent railroad grants are based.'
Still later, in Whitney v. Taylor, 158 U.S. 85, 39 L. ed. 906, 15 Sup. Ct. Rep. 796, in which the validity of a pre-emption entry was challenged as against a railroad grant, we said (94, L. ed. 909, Sup. Ct. Rep. 800) :
'But it is also true that settlement alone, without a declaratory statement, creates no pre-emption right. ”

“ The conditions are very different from those which exist between two individual occupants and claimants of a particular tract, for each is there in possession to watch and know the action of the other, and the question of right is subject to immediate and certain determination. ”

“ Such occupation is often accompanied by buildings and inclosures for housing and care of stock, and sometimes by cultivation of the soil with a view of providing fresh vegetables. These occupants are not in the eye of the law considered as technically trespassers. No individual can interfere with their occupation, or compel them to leave. ”