Philip Pendleton Barbour

“ They must have known, for it was part of the public history of the country, that a military post had been long established at Fort Dearborn; and was at the date of the law occupied as such by the troops of the United States. They seem therefore to have been studious to use language of so comprehensive a kind, in the exemption from the right of pre-emption, as to embrace every description of reservation and appropriation which had been previously made for public purposes. ”

“ One class of cases to be excepted is where an act of Congress grants land, as is sometimes done in words of present grant. But we need not go into these exceptions. The general rule is what we have stated; and it applies as well to pre-emptions as to other purchases of public lands. Thus it will appear by the very act of 1836 which we have been examining, that patents are to issue in pre-emption cases. This then being the case, and this suit having been in effect against the United States ”

“ That was a conflict between two patentees, both claiming under the United States. The elder patent was founded upon a certificate of the Register of the land office west of Pearl river. The junior patent was issued on a certificate of the board of Commissioners west of Pearl river. The Court below instructed the jury that the junior patent of the plaintiff in ejectment, emanating upon a certificate for a donation claim prior in date to the patent under which the defendant claimed, would overreach the elder patent of the defendant, and in point of law, prevail against it. ”

“ Since the military post was reoccupied by the United States troops in 1832, as before stated, to wit, before the first day of May, 1834, the United States built a lighthouse upon part of the land, and have kept constantly enclosed and cultivated for the use of the said garrison at least twenty acres of said land. The United States troops, by order and consent of the government, have also used and occupied various other government lands near and adjoining the quarter section of land. ”

“ The ground of the claim is the right of Beaubean as a settler, to a pre-emption under the act of the 19th June, 1834, entitled, 'An act to revive an act granting pre-emption rights to settlers on the public lands, passed 29th of May, 1830.' Now, as this act gives to the persons claiming under it the benefits and privileges provided by the act of 1830, which it revives we must look to this last act in order to ascertain what are those benefits and privileges, or, in other words, what is the character of the pre-emption right thus claimed, and on what lands the claim is allowed to operate. ”

“ Now this is appropriation, for that is nothing more nor less than setting apart the thing for some particular use. But it is said that this appropriation must be made by authority of law. We think that the appropriation in this case, was made by authority of law. As far back as the year 1798, see act of May 3d of that year, vol. iii. ”