
    Patterson et als. vs. McCutchen et als.
    
    Persons entitled by law to make extension entries under the act of 1840, ch. 62, have preference over general enterers, for the term of four years from the opening of the land office,, by virtue of the act of 1842, eh. 34.
    This is a petition for a mandamus, which was filed in the Circuit Court of Giles county, by John D., James P., Andrew and Wm. C. McCutehen, against Patterson, the entry-taker for the county of Giles. They were the owners of thirty-five acres of land, lying south and west of the Congressional reservation line, and they owned no more land, by deed, grant or otherwise. Adjoining this tract there lay two other small tracts of fifteen acres each, but on different sides thereof. On the 3d day of July, 1843, John G. Morris entered these small tracts as a general enterer, under the act of 1842, ch. 34. On the 23d day of the same month, the petitioners filed their affidavit with an éntry embracing said land with the entry-taker, and tendered twelve and a half cents per acre for the same to him. These were refused on the ground, that the land had been entered by Morris.
    The petitioners thereupon filed their petition for a mandamus. The defendants Patterson, the entry-taker, and Morris answered. A verdict and judgment upon the pleadings and proof were rendered in favor of the plaintiffs, from which the defendants appealed.
    
      N. S. BrownT for plaintiffs in error.
    This is a controversy between the right of extension and: general entry;, and may be settled by defining the terms, occupant and pre-emptioner.
    1st. These terms are synonymous,» and mean a mere preference right of entry to particular lands. This preference has universally arisen, directly or indirectly, from actual occupancy. One might purchase from another by assignment, but the title must be predicated in the first instance, upon actual occupancy. The legislature after allowing this preference by occupancy, subsequently provided, that such as owned less than .20,0 acres by deed, grant or entry, might extend upon adjacent vacant land, so as to make up the quantity of 200 acres. Thus extension was but another mode of becoming a pre-emptioner, and could be resorted to, only by a present owner, and it was to him a mere privilege, which he might embrace or not. See act of 1829, sections 13 and 14 pamp., page 26, also act of 1825, sec. 10, page 403. ■
    Now, how can such a one be said to be an occupant or pre-cmptioner, as to land that is vacant, absolutely unappropriated, until he has reduced it, by exercising the right of extension? It is the act of extension, that makes him an occupant or pre-emptioner, and not the mere right of extension, which he may never mature. The land in the mean time is vacant and open to the actual occupancy of A, who has no land, and to extension by B, who has a fraction adjacent. It is like treasure trove. The land must be appropriated before it can become the private property of any one. The modes of doing this are different, but alike exclusive when carried out.
    The language of the 5th sec. of the act of 1841-2, (see page 40 pamphlet,) is, “that all persons entitled to any of the vacant and unappropriated land south and west of the Congressional reservation line, as occupant or pre-emption rights, by this or any former acts of the legislature, shall have the preference and priority of entry for the whole term of four years,” &c. Under this section it is, that complainants claim.
    Then are they entitled? Have they occupant or pre-emption rights? Do they belong to the class <of persons that shall enjoy the dispensation of four years? That they do not, seems manifest from the language and provisions of the 28th section of the same act, which provides, “that in all cases where the real or colorable owner of any small tract of land, held by deed, grantor entry, may heretofore have had,-or may hereafter have an extension run out and attached to the same, under the occupant laws of this State, which extension, at the time it was hr shall be made, did, or shall interfere with the land intended, to be appropriated by any bona fide resident settler upon .the adjoining vacant land, who was living on the same at the time such extension was made, &c., such extension shall not prevent such settler from having his claims surveyed, as he originally contemplated,” &c. thus giving the actual occupant the preference, in a contest between him and the extensioner. And by the 9th section of the same act, after the 1st July, 1843, the time within which warrant-holders have a preference, all lands not claimed by occupant or pre-emption rights, are opened to general entry. After that time, the general enterer may exclude the actual occupant, (being first in time,) and a fortiori, he can exclude the right of extension. For if an occupancy actually made, before the act of extension, extinguishes the right of extension, it follows of course, that a general entry, made before the act of extension, and after the time allowed for general entry, as it would take precedence over a subsequent occupancy, so would it take precedence over an act of extension subsequently made, and extinguishes the right of extension.
    This view derives argument from the policy of the legislature in reference to these lands/ That policy was, to encourage and promote settlements by the most expeditious and diffused system, and to permit a dormant right of extension, to bar the settlement of land, as it might do for twenty years, merely because some limited owner of an adjacent acre, might some time or another choose to enlarge, would defeat or retard the very object of these statutes; and so far as the legislation on the subject was a bounty to settlers, it would operate as an unjust distribution.
    It appears, also, that the lands in controversy, are in two detached parcels, and adjoin the land of complainants upon two separate points, so that it requires two extensions to cover them. Can a man exercise more than one extension? The term “an extension,” seems to be uniformly used in the statutes, and seems, therefore, to be restricted to one single act.
    
      Wright, for defendants in error.
    1. That the remedy by mandamus is proper in such a case as this, is settled and will not be controverted. Act of 1831, ch. 51, (Nich. & Car. Rev. 44S and 449;) B'ourland vs. Tipton & Douglass, 6 Yerg. 438: Crisp vs. Kimble, do. 446: Copeland ei al. vs. Woods et al., 2 Hump. Rep. 330.
    
      2. The question raised below was, whether the right of extension or enlargement given to the owners of small tracts of land created any preference or priority of entry?
    The legislature as early as 1823, in reference to lands north and east of the reservation line, after providing for resident occupants, enacted, that “where any person or persons may be the owner or owners of any piece or parcel of land less than 160 acres, and may have improvements thereon, at or before the passage of this act, such person or persons shall have a preference or priority of entry, for so much of the vacant and unappropriated lands adjoining thereto, which may not be in the actual possession of any other person, as will increase his tract to 160 acres.” Acts of 1S23, ch. 49, sec. 3, p. 58 and 59.
    This act in the same section expressly puts the right of extension upon the same footing as the right of an actual settler. The entries are to be made at 12£ cents per acre, and under like affidavits, &c., as are required in relation to lands south and west of the line. Vide sec. 6. That this act gave a preference of entry to the owners of small pieces of land is beyond cavil. The idea of an occupant or pre-emption right is here distinctly affixed to such claims.
    In relation to lands south and west of the line, the same thing is contained in the following acts, viz: 1825, ch. 39, sec. 16, p. 42: 1827, ch. 29, sections 3, 4 and 5, p. 27 and 28: 1832, ch. 29, sections 5, 6, 7 and 8, p. 42 and 43: acts 1837,-S, ch. 1, sections 2, 3, 6, 8, p. 1 and 3: act 1839-40, ch. 62, sections 2, 10 and 11, p. 144, 145 and 146.
    No one can read these acts and not be convinced that the right of extension is as much a right of occupancy or pre-emption as is the right of the actual settler. Any other construction would make all this legislation vain and idle. The owner of either less or more than 200 acres could make a general entry, and why give the right of extension to those who owned less, unless some superior right or privilege were conferred, that the rest of the world did not possess? The general enterer was never limited in quantity, and yet the owner of less than 200 acres cannot go beyond it: unless, therefore, a superior right is conferred, so far from being bettered, he is really in a worse condition than the rest of mankind.
    And the fact, that the petitioners had not designated their rights of pre-emption upon the plan, can make no difference. The 11th section of the act of 1839-40, p. 145, expressly prohibits any general enterer from intermeddling with any such right, though not laid upon the plan. And it is clear this section embraces the right of extension, for it uses the words “enlarged according to the provisions of this act,” &c..
    These entries, however, were made under the act of 1841-2, ch. 34, p. 39. Under this act the offices of entry-takers, &c., were opened 1st July, 1842, and the 5th section gives to all persons entitled to any of the lands.“as occupant or pre-emption rights, by this or any former acts of the State, the preference or priority of entry for four years from the opening of said land offices,” &c.
    Now, these general terms would of themselves include'all prior “occupant or pre-emption rights,” however created, whether by extension, actual settlement, or otherwise. But the 28th, 29th and 30th sections of the act, in express words, refer to and recognize the right of extension as an occupant or preemption right. And the 5th section does not require any designation on the pl'an. But the 7th section expressly gives the period of two years from the passage of the act (11th January, 1842,) to designate the claim upon the plan, &c.
    3. The only remaining question is, did the petitioners have a right to make two entries, or as many as they pleased, until they enlarged their 35 acres of deeded land to 200 acres? I contend they did. The right to enlarge simply of itself, expressed in general terms, would give such power, unless the right were restricted to one entry only. It would ex vi termini include all the usual means of attaining the end. He has a right to enter until he has 200 acres. How can this be done in many cases, unless he is allowed more entries than one?
    But the 8th section of the act of 1837-8, p. 3, says, the occupant may “enter the same, or any part thereof,” &c. And the 2d section of the act of 1839-40, p. 144, says, “that where any person is now, or may hereafter become the owner by deed, grant, entry, or occupant reservation, of a less quantity than 200 acres, the owner thereof may enlarge the same to any quantity, not exceeding 200 acres."- And the 5th section of the act of 1841-2, p. 40, says, “may enter their claims or any part thereof.” - And the 27th and 29th sections show, that rights of occupancy might in future be created, which did not then exist.
    Now, I contend that these acts do, in express words, authorize more, entries than one. If these heirs had only entered 15-acres, their right to this would be clear. They then would only be the owners of 50 acres, with 15 acres still of vacant land. And why could they not enter it also? Could they not continue to enter, as they were able from time to time, until the whole right were satisfied? Who would be prejudiced by this? Not the State, nor its officers. Besides, the case of Davis vs. Broomfield, 3 Hump. Rep. 174, is authority to show, that an occupant may secure his rights by several entries.
   Turley, J.

delivered the following opinion of the court.

The facts of this casé, as the same appear from the case agreed, and the petition which is made a part thereof, are, that John D McCutchen,, James P. McCutchen, Andrew McCutchen, and Wm. C. McCutchen, were the owners of thirty-five acres of land, in the county of Giles, south and west of the Congressional line, in fee simple, that there were two small portions of vacant land, of 15 acres each, adjoining the same, but on different sides thereof; that they on the 31st day of July, 1843, filed in the entry-taker's office of Giles county, entries accompanied with the proper affidavits, and twelve and one-half cents per acre, the legal price for the entries, but which were refused by the entry-taker, because one John G. Morris had previously, to wit, on the 3d day of July, 1843, entered the same lands, as general enterer, under the provisions of the act of 1842, ch. 34. And the question now is, whether these entries are good and available in law against those proposed to-be made by the McCutchens, as an extension of their thirty-five acre tract, and involves the question, as to what extent occupants and owners, of a less quantity ofland than two hundred acres, are protected against general enterers, and entitled to preference over them. By the provisions of the 5th section of the act of 1842, ch. 34, “All persons entitled to any of the vacant and unappropriated lands, south and west of the Congressional reservation line, as occupant or pre-emption rights, by this or any of the former acts of the legislature of this State shall have the preference and priority of entry for the whole space of four years from, the opening of said land office, and may at any time, within the term of four years, enter their claims, or any part thereof, by paying to the entry-taker twelve and one-half cents per acre, which shall be received in such currency, as is by law received in payment of taxes.”

By the provisions of the second section, the land offices for the reception of entries under the act, are directed to be opened on the 1st day of July ensuing its passage, viz, 1st July, 1843. The entries of the petitioners were therefore tendered within due time, ií'they are protected by the provisions of the statute against general entries. We have seen that the statute protects all occupant or pre-emption rights, whether guarantied by that or any other statute, against the general enterer for four years.

By the provisions of the 2d section of the act of 1840, ch. 62, “All persons who were then, or might thereafter become the owner by deed, grant, entry, or occupant reservation, of a less quantity than two hundred acres of 1 and, are authorized to enlarge the same to two hundred acres.”

That this right of extension, is a right of pre-emption, cannot be denied, for (to test the word pre-emption by its derivation) it means a right of previous purchase — being derived from the lathi word pre-mpíio, a previous purchase. This pre-emption right of the petitioners is clearly protected by the words of the statute of 1842, for the space of four years from the date of its passage; and they having tendered their entries for the land in dispute, with the formalities required, the same should have been received by the entry-taker, notwithstanding the previous entry by a general enterer, his entry being void, under the provisions of the statute, as having been made at too early a period.

We, therefore, affirm the judgment of the Circuit Court, making the mandamus upon the entry-taker, at the prayer of the petitioners, peremptory.  