concurring:
I concur in the opinion that even assuming the land taken by the appellant to have been part of a street of Virginia city, the respondent was entitled to compensation for the injury sustained by him as owner of the land contiguous to the cut. I think, however, there is a still more satisfactory reason for affirming the decision of the district court. It appears from the evidence that the land embracing the so-called street was occupied, inclosed and built upon by the respondent or his grantors years before any map of Virginia city was filed in the land-office. When this proceeding was instituted, no street had ever been opened through the land so occupied by the respondent. It is very doubtful, from the evidence, if any survey of this part of the city had ever been made; all that appears with any degree of certainty is that various streets had been platted on a map, and the map some time in the year 1865, recorded in the county recorder’s office, and copies filed, one.in the local land-office at Carson, and another in the general land-office at Washington. The streets, as platted on the map, run through the inclosure and house of the respondent. The map was filed in the land-office by the direction of the board of aider-men of Virginia city, in assumed conformity to the town site act of congress of July 1,1864. (E. S., sec. 2382 etseq.) I think, however, no authority can be found in that act or anywhere for what the board of aldermen attempted to do. Conceding that they had power to act in the premises at all, which is doubtful, I am entirely satisfied that they had no right to lay out imaginary streets running through valuable improvements, and by that simple process deprive citizens of their property without any compensation. The bare statement of such a proposition seems to me to demonstrate its absurdity.
It may be, and probably is true, that the respondent has not, and that his grantors have never had, any rights in the land inclosed and improved by them that congress might not disregard in favor of another donee; but they had rights which the subordinate officers of the land department, and *101more especially the board of aldermen of Virginia city, could not disregard. (See Yosemite Valley case, and cases cited, 15 Wal. 78.) They were occupying the land and had improved it, and the size of the tract Avas no impediment to their right of pre-emption. (E. S., sec. 2385.) In my opinion the respondent had a right of pre-emption in the Avliole tract occupied by him at the date when this proceeding was instituted. It appears that he or his grantor has a claim pending in the United States land-office for the whole tract, and his claim is superior, under any reasonable construction of the acts of congress, to the claim of Virginia city or the people of the state to the streets platted on the official map after his right of pre-emption had accrued. To say that congress may deprive him of his equitable right of preemption is wholly beside the purpose. There is no presumption that congress will do so, and certainly no one else can. In fact, it is not pretended that any one besides the board of aldermen of Virginia city has attempted to do so. All that appears to have been done in the land-office is to file certain applications for lots as they are laid down on the map, and the application of respondent’s grantor, Avhicli, though it refers to the map as a means of description, that being necessary, distinctly contests the claim of the city by demanding a patent for the Avhole tract, including those parts of the so-called streets embraced Avithin it. There has been no decision of any officer of the government in favor of the right of the city authorities to extend streets through improved lots, and in view of the provisions of the United States law, it is impossible to believe that such a decision Avill ever be made.
My conclusion is that the city of Virginia had no title to or control over the land taken by the appellant, and that the resolution of -the board of aldermen was of no effect. The respondent having been in possession Avith a right of preemption, is entitled to be fully compensated for the land condemned and the resulting injury to the contiguous land.
I concur in the order of affirmance.