Morrison Waite

“ It follows that the appellant is not entitled to the privileges of the act of 1871, and his claim, both under the acts of congress and those of state, has failed. This makes it unnecessary to consider whether the act of 1871 is constitutional. Good or bad, it is of no use to him. The same is true of the claim that the company has no title because at the time the grant was made the land in question was occupied by Mrs. Nix as a pre-emptor. The appellant can recover only on the strength of his own title. If he has no title, it is a matter of no importance how weak that of his adversary may be. ”

“ Only persons over the age of 21 years could become pre-emption settlers. Such is the express provision of the pre-emption act. If, then, his mother, had she been alive, could not have made a pre-emption entry in 1878, he could not. ”

“ He does not pretend that he made a settlement himself before the rights of the railroad company accrued. In fact, he could not have made such a settlement, because he remained a minor until 1857, and the lands were withdrawn from market in 1853, on account of the railroad grant. ”