concurring:
The law under which this controversy is conducted (Stat. 1869, p. 68; Stat. 1871, p. 123) requires the town-site trustee to give public notice of the receipt of the patent, and provides that all claims to town lots which are not presented within six months after the first publication of such notice shall be forever barred. It does not require or authorize the trustee to take or to demand any proofs of the validity of the claims presented, but seems to contemplate that, except in case of adverse claims to the same lot or parcel of laud, he shall at the expiration of the time for filing claims, as a matter of course, convey to all persons the lots or parcels claimed by them respectively.
In case of a contest, provision is made for litigating the adverse claims in the courts, and when the case is finally decided, the result is io be certified to the trustee, who is required to convey tho title to the prevailing party.
It seems to me impossible to reconcile these provisions *75of the law with the theory of the appellant that it was the intention of the Nevada legislature to confine the right of pre-emption to those who were occupants within the town-site at the date of the entry. It is true the language quoted in the opinion of the court, from section 2 of the act, taken by itself, does warrant that construction. But that language, so construed, is repugnant to the provisions above referred to, prescribing rules for the guidance of the trustee. If it had been intended to confine the right of pre-emption to those who were occupants at the date of the entry, surely some provision would have been made for the taking of proofs of such occupancy by the trustees in uncontested cases, and it would not have been assumed, as it seems to have been, that, in all contested cases, some one of the contestants must necessarily prevail and thereby become entitled to a conveyance from the trustees. Under the law as it stands, all that is required of the claimant of any lot is that, he shall, within six months of the first publication of a notice of the receipt of the patent, sign a statement in writing containing a correct description of the particular parcel or parcels which he claims to be entitled to receive, and deliver the same to the trustee. If his claim is not contested within the time allowed for filing claims, there is no provision for any other proceedings whatever, and it follows necessarily that the trustee must make deeds, as a matter of course, in uncontested cases, or else that he may arbitrarily demand proofs and .compel claimants who have fulfilled every requirement of the statute to resort to the courts for the means of compelling him to act. I cannot believe that the legislature intended to invest the trustee with any such arbitrary discretion. On the contrary, the whole idea of the law seems to have been this: All claimants must file their applications within a certain time. Those which are not filed within a certain timo shall be forever barred. Consequently, in cases where there is no contest, as no one but the claimant is interested in the matter, he ought to have his deed without further trouble or expense; and in'eases where there is a contest, as no one is interested in the matter except the contestants, that one who shows the • best *76right, as among themselves, to the occupancy of the premises, should prevail and get his deed. This conclusion is inevitable, if I have correctly apprehended the provisions of the law with respect to contests between adverse claimants; for no such contingency as a failure on the part of all the claimants appears to have been contemplated, although it is obvious that, of several claimants of the same parcel, no one of them might be able to prove an occupancy by himself or his predecessors at the date of the entry.
This very case affords a striking illustration of the absurd results which would follow from the construction of the law contended for by the appellant. The respondent, by his grantors and predecessors, Avas in possession of the lot in controversy long before the issuance of the patent, but not at the date of the entry of the toAvn site. The appellant had occupied, but, according to the proof, had abandoned, the premises long before* the entry. There is no possible construction of the laAvs of congress or of this state under Avhich he Avould be entitled to a deed, and yet if his position is tenable the respondent cannot prevail in the contest, and, because the respondent cannot prevail, he must. This result is brought about in the following manner: The respondent, being the actual present occupant of the disputed premises, was naturally the first to apply for a deed. The appellant subsequently filed his adverse claim. Under the statute the contest Avas transferred to the district court, and there, by express provision of the laAv, the first claimant Avas plaintiff, the second claimant defendant. The plaintiff filed a complaint setting out the particulars of his claim, and the defendant demurred. If his construction of the law is correct, his demurrer should have been sustained, and, as the plaintiff could not have amended, there would have been nothing for the court to do except to give judgment for the defendant and certify the result to the trustee, who, under the law, must have given him a deed, although he had not shown, and never could have shoAvn, any right to it Avhatever. This, it seems to me, is a complete reductio ad absurdum. It never could have been intended that a contestant Avithout the shadoAV of a claim to a lot, should *77obtain a deed for it, merely because tbe occupant and first applicant for a deed could not plead or prove an occupancy antedating the entry. There is, in my opinion, no other sensible construction of the law than that above indicated: that, when there is but one claim filed within the time allowed for that purpose, as all other claims are forever barred, the claimant who has filed his application shall receive his deed, as a matter of course, and when more than one claim has been filed, the courts to which the contest is transferred have only to try the right of occupancy as between the contestants. By the terms of the law, all other rights are barred by the failure to file claims in time, and as there is no right anywhere superior to that of the contestants, it is only reasonable that the most meritorious of them should prevail.
To reconcile the language of section 2 of the act to this view of its general scope and intent, it is only necessary to suppose that that language is to be limited in its application to cases in which there was an occupation at the date of the entry, and that it does not apply to cases in which the land was vacant and unoccupied at that date.
It will be seen that I have thus far confined myself to a discussion of the state law, without referring to the terms or the construction of the act of congress. I have done so for the reason that the appellant bases his argument exclusively upon the provisions of the state law, and because, as above stated, there is no possible construction of the law of congress under which he could have claimed the right to a deed from the trustee. But the law of congress is undoubtedly the paramount law, and must be allowed a controlling force so far as its provisions extend. It allows the entry and purchase of town-sites in trust for the “occupants.” The wmrd “occupants” as used in the act of congress must have some definite meaning, and it is of great practical importance wdietlier it shall be construed to include those only who were occupying at the date of the entry, or to extend to those who commenced occupying at any time thereafter. In the opinion of the court, and of the district judge, it includes all who occupy before the issuance of the patent. *78This conclusion, however, is opposed to the decision in the Minnesota cases referred to in the opinion of the court and to the intimations of opinion contained in the Michigan and Kansas cases. The result of those cases seems to be that the rights of occupants of town-sites all relate to the date of the entry; that all parcels of land occupied at that date must go to the occupants, their heirs and assigns, and that the unoccupied parcels within the town-site at the date of the entry belong to the town, as a community. To my mind neither of these opposing views is perfectly satisfactory, and, as it appears to me to be unnecessary to decide the question in order to reach a conclusion in this case, I prefer, so far as I am concerned, to leave it undecided until a case arises in which it is necessarily involved. Eor the purposes of this case it is sufficient to say that, under the state law, the plaintiff was entitled to prevail. The defendant had no rights under the law of congress; and, if the town community or any other person had or have any rights under that law superior to those of the plaintiff, they are not in question here and are not concluded by the decision in favor of the plaintiff. If the result is to give him a deed for a lot that belongs to the community of Silver city, the defendant at least has no right to complain.
Eor these reasons I concur in affirming the judgment.