We are of the opinion, that in order to show a prior right to purchase any of the lands designated in the act, a copy of which appears in the statement accompanying the question certified, the claimant should prove that he is a settler at least within the enclosure which embraces the land which is made subject to sale.
The words, "within the enclosure of any bona fide settler and resident of the State," found in the proviso, when applied to the subject matter of the act, are somewhat difficult of construction.
A settler in any particular locality means any one who has taken up his permanent abode in that locality; and the words in question, therefore, admit of three constructions: first, they may include all persons who have taken up their abode upon any landed property in the State, *Page 673 with the intention of making it their permanent residence; in the second place, they may be restricted to those who have settled upon lands adjacent to those which are designated in the statute; and in the third, they may embrace only those who have settled upon the designated lands and have enclosed them.
But the word "settlers" is ordinarily applied to those who first come to a country or section of a country either partially or wholly uninhabited, and who make their residence there. We may speak of the early settlers of a long inhabited country, but the term is hardly applicable to any other class of residents of such a country.
It seems to us, therefore, that its was not intended to embrace within the meaning of the term all the bona fide inhabitants of the State who have purchased and made their home upon any landed property in the State.
It is not appropriate to speak of the inhabitants of a city as settlers in a city; nor of those who have purchased and taken up their abode upon lands in a section of a country already settled as settlers in such country. Besides, in the sense indicated, the word "settler" is hardly more restricted than the word "resident," and we can see no reason why the Legislature should have desired to give to persons who lived upon lands remote from the land to be purchased a right which it denied to other residents of the State, who were in other respects similarly situated with regard to the property to be disposed of.
Indeed we see no very good reason why all persons who owned enclosed lands adjoining any of the vacant tracts which were authorized to be sold by the act, and who had enclosed such vacant tracts believing them to be their own, should not have been placed upon an equal footing with respect to the prior right of purchase.
The principle underlying the preference would seem to be the natural equity of saving to the party who had improved the land the benefits of his expenditure upon it. And yet the Legislature may have thought that those who lived upon land adjacent to that to be sold, and who had innocently enclosed the latter, were entitled to more consideration than those who resided elsewhere.
At all events, we think, that looking to the ordinary use of the word "settler," and applying it to the subject matter of the act, it refers to the word "enclosure," and not to the word "State," as found in the proviso; and that the intention was to give the preference to a settler within the enclosure, and not to any settler in the State. Whether or not the proviso should not be construed in a still more restricted sense, is a question not involved in that certified for our decision, and we give no opinion upon it.
Delivered May 14, 1894. *Page 674