dissenting. I think the complainant’s bill shows no equity, and that the decree of peremptory dismissal, given in the district court, ought to be affirmed.
The question turns upon the construction, to be given to the act of May 23, 1844, and as this case is one of great importance, I shall briefly set forth the reasons which compel me to differ from the other members of the court.
No bill in regard to the subject-matter of this action will lie at the suit of the present complainant, unless by the act *348of congress a trust was created in some portion of the town site for the citizens of Denver as a community; or unless the legislature are by that act authorized to create such a trust.
I think that neither of these positions can be maintained.
The act of May 23, 1844 (5 Stats, at Large, 657), was intended to supply a defect in existing pre-emption laws. It is part of a system. It declares, in the opening clause, that, because lands settled upon as a town site are not subject to entry under existing pre-emption laws, therefore this legislation ; it must therefore be supposed to have been inspired by the same reasons of policy, as the several preceding acts in addition and supplement to which it was enacted, that is to say, to encourage actual settlement in the public domain, and it ought not to be taken by intendment that the purpose of congress was to encourage or permit speculation in town sites, or to give special bounties to a few ; or to so provide, that a few or many speculators might engross great tracts of the public domain, the prospective centers of population, which before that act were the common property of all citizens of the United States. The consequences here alluded to .are, I think, the legitimate and almost necessary result of the doctrine of the majority opinion in this case ; for, as I understand that opinion, the first ten men, or a less number, who settle at a frontier post may engross the whole of three hundred and twenty contiguous acres : so much as they severally occupy they may procure to be conveyed to them in severalty, and the residue which no one occupies and in which but for this enactment certainly no one of them, nor all of them collectively, would have any right whatever, is to be sold for their benefit, and they themselves may become the purchasers at nominal prices.
It is not certain of course, that such an abuse of the supposed donation will in any case occur; but it will be exceedingly probable in every case, and the more certain the future of the particular' location and the greater the necessity and the propriety that it should not be engrossed *349by a few for purposes of speculation, the greater is the probability that it will be.
Before I can accede to the doctrine that it was the intent of congress to create a trust so liable to fraud and abuses, and so contrary in its probable results to the spirit of all prior legislation, I must find a clear warrant for it in the words of the act, and I think the words of the act admit of no such interpretation.
The act declares that the entry of the town site shall be made “ in trust for the several use and benefit of the occupants thereof according to their respective interests.”
Now, when ten or twenty or more families or individuals congregate and so form what is termed a town or vill, there is always an occupation of lands in severalty by each of the community ; this is the usage of our race. Generally, I believe, at least in the west, a survey into lots and blocks has preceded or shortly followed the first settlement, in order to precisely mark out and ascertain the bounds and extent of the right and possession of each individual settler, but whether there be such survey or not, I think it may be said invariably, the right and occupation of each settler has been wholly several and separate; there are no common fields as with the early settlers of French and Spanish extraction, but they hold their lands like their goods, each his own, to and for himself.
This habit and usage of severalty in the occupation and ownership of lands was certainly within the knowledge of congress, and from the language used may be inferred to have been in contemplation in the passage of this act; and it was, I think, the several and separate occupancies of the individual settlers, which it was intended to protect and secure.
■ Nor do I think, that it was the intent of the act to extend its benefits beyond this ; for beyond those separate lots and parcels which come within the several occupancy of the individual settlers, every thing is vacant; it cannot be fairly said that, in such case, the community collectively occupy the whole of the town site. An invading army are said to *350occupy the towns and cities of the nation invaded, and each individual settler or inhabitant of the town occupies his own close and premises ; but if this word is ever used to express the residence of the whole population of a town upon the several quarter sections of land upon which it is built, this is not the common and ordinary use of the word, and it is the common and ordinary sense in which the words of the statute are to be received. But the statute limits the trust estate to the several use and benefit of the occupants, according to their respective interests ; beyond the several occupation of the individual settlers as before shown, there is no occupation, and beyond this, no settler has any interest whatever.
It follows then, that, except as to those lots which are actually occupied at the date of the entry, the trust does not then inure. But there is no provision that the land shall revert, nor certainly can the trustee hold it discharged of the trust; the result is, that the trust remains in abeyance until, by subsequent occupations from time to time, the beneficiaries are appointed.
But, in the clause of the act which follows what I have already quoted, it is provided that the execution of the trust “ as to the disposal of the lots in such town, and the proceeds of the sales thereof to be conducted under such rules and regulations as may be prescribed by the legislative authority of the State or territory,” etc.
It is thought that by these words it was contemplated that some portions of the domain shall be sold, and the argument is, that there can be no sale of the occupied lots; that, as to them, the sole duty of the trustee is to convey to the several occupants; that whatever is implied from the words now under consideration, must therefore apply to the unoccupied portions only, and herefrom is deduced a power and duty in the local legislature to direct a sale of these portions, and prescribe the manner of it and the disposition of the proceeds which it is said may be appropriated to any public uses in their discretion.
*351The reasons which compel me to dissent from these conclusions are, briefly, as follows :
The clause of the act now under consideration relates to a matter merely incidental and subordinate to what precedes it. In what precedes this clause, as I have attempted to show, the trust estate is granted, and the trustee and the beneficiaries are appointed, and the several interests of the latter are fixed and determined. What follows relates merely to the execution of the trust; and I take it to be a rule of construction that, where, by statute, a particular thing is clearly granted, and other words follow regulating the mere incidents of the principal thing, such as time, place, manner, etc., the latter word shall not have the effect to 'enlarge or limit what is before granted or prescribed, unless this is necessary to give them effect.
Is it necessary, in order to give effect to this latter clause, to say that there should be a sale of some portion of the several lots within the location ? I think not. In order to every entry of a town site under this act, the minimum price for the lands must first be paid by the trustee, either of his own moneys, or by provision of the State or territorial authorities, or of the citizens of the town or some of them; these moneys, at least it will be agreed, the local legislature may require the occupant to pay to the trustee before he shall be entitled to receive a conveyance; and this is the price which each occupant pays for his several interest and portion. The transaction may, I think, be fairly enough termed a sale, and the moneys paid by the settler to the trustee the proceeds of such sale. Unless the trustee had advanced his own moneys, legislation would be necessary to insure the proper disposition of the proceeds in his hands, and this is, I think, what was intended by the words in question. If, however, I am in error as to the construction to be placed upon these latter words—if it was contemplated that, under the act, there must be a sale of all lots which might in any particular case be unoccupied at the date of the entry— then I am clearly of the opinion that the proceeds must be divided among those who were occupants at the date of the *352entry (or possibly at the inception of the proceedings for entry), and that no other persons are, or can become, entitled to share therein, for the trust is expressly declared to be for the “ several use and benefit of the occupants,” and there is no syllable in the act which negatives or qualifies this intention, or gives color to the idea that a joint use was intended either in the lands or their proceeds.
The city of Denver, therefore, has no interest whatever in these lots or their proceeds, and can have none by any legislation of the territory, for this would be to create a joint use where the statute has prescribed a several one, and a use not alone to the occupants at the date of entry (who, according to the majority opinion in this case, are the sole beneficiaries), but to them and to all who may come after them to the end of time.
I dissent, therefore, from the reasoning of the court, and from so much of the order as directs a modification of the decree which was given in the court below.
Reversed.