chip 
Member since Jan 12, 2009


Custom Lists

  • Zip.

Stats

Friends

  • No friends yet.
Become My Friend Find friends »
OtherArea: out of town

Recent Comments

Re: “Road rage

NO HOMESTEAD EXIST WITHOUT A FEDERAL ROAD LEADING TO IT AND IN MOST CASES THROUGH IT AND THERE CAN BE SEVERAL FEDERAL ROADS. The road system as we know it had its beginning as Indian trails that were widened to drive live stock down and then for sleds and finally for carts the larger part of freight traveled by water as there were no restrictions. navigability is thought of as the ability to float an object on. this is a limitation placed on at a place and time but in reality it is commerce that sets ownership and limitations and at our present time the movement of water in a river or stream is transport of water its self, this fact is displayed in where roads and power lines cross rivers or creeks. The road or power line of commerce cannot restrict the commerce of the water course as it is first and cannot be restricted by the second. Post roads were declared as those roads where the commerce traversed the colonies along a specified road, funds were allocated to the upkeep of these roads and trails to allow commerce to be carried on with out restrictions of nature or man, as mail was government commerce it was not subject to tole along post roads, as it participated in the upkeep. Courts have ruled that if the vehicles that carried mail also carried freight and persons those commodities were subject to tole if a private road ran along side of the tole road it could not be used to carry mail on as the government had specified which was to be the post road and had assisted in its up keep. The Cumberland road built by General Braddock with the engineering help of George Washington and Thomas Jefferson to push the French off the Ohio River, and was later reconstructed by the U.S. Government to aid in the settlement of the North West Territories those lands laying north and west of the Ohio River. Within a few years the road was deteriorating at a rapid rate as there was no moneys in the U.S. treasure to maintain it the road was given to the prospective states to maintain this was the first and only road constructed solely by the U. S. Government. It was desegrated as a Post road and the states set up tole both on there part for reconstruction and maintenance the case was brought by the state of Pennsylvania against the U.S. Government for tole for the mail stage. In the North West Territories The U.S. Government took a different approach the land was sold to speculators who marketed it to interested parties and for the roads the government gave sections of land along the road to those who would build the road, the roads were only temporary and as soon as title was received for the land the land was sold with out regard for the road this was the same system used for the rail roads only more land involved, some railroads were constructed and once title was received for the land the rails and ties were picked up and the next year laid down in a different spot. Because of the greater abuse inspectors examined the rail roads each year to prevent this from being carried out. As the push west became greater nothing was set up for the roads until the Oregon River Country became the Oregon Territory on August 14, 1848. A debate had raged in both houses of Congress for more than twenty years. December 20, 1824 -- OF DEBATES IN CONGRESS PAGE 14 Occupation of the mouth of Oregon: I know, that it is an opinion much urged, and generally adopted, that we should keep our population as much condensed as possible; that there would be danger in erecting a territory at so great a distance, as protection would be difficult, if not impossible, and that there would be danger of separation; that, in all military operations, the frontier to be protected should be as small as the nature of the case would permit, and that well fortified. Acts of the United States Congress August 14, 1848 No. 154 An act to establish the Territorial government of Oregon. Be it enacted by the Senate and the house of Representatives of the United States of America in Congress assembled, that from and after the passage of this act, all that part of the Territory of the United States which lies west of the summit of the Rocky Mountains, north of the fourty- second degree of north latitude, known as the Territory of Oregon, shall be organized into and constitute a temporary government by the name of the Territory of Oregon: Provided, that nothing in this act contained shall be construed to impair the rights of persons or property now pertaining to the Indians in seid Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to affect the authority of the government of the United States to make any regulation respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent to the government to make if this act had never passed: And provided also, That the title to the land, not exceeding six hundred and forty acres, now occupied as missionary stations among the Indian tribes in said Territory, together with the improvements thereon, be confirmed and established in several religious societies to which said missionary stations respectively belong: And provided further, That nothing in this act contained shall be construed to inhabit the government of the United States from dividing said Territory into two or more Territories, in such manner and at such time as Congress shall deem convenient and proper, or from attaching any portion of said Territory to any State or Territory of the United States. Sec. 6. And be it further enacted, That the legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the constitution and law of the United States; but no law shall be passed interfering with the primary disposal of soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non- residents be taxed higher than the lands or other property of residents. All the laws passed by the legislative assembly shall be submitted to the Congress of the United States, and if disapproved shall be null and of no effect: Approved, August 14, 1848 - The Oregon territorial legislature ( A body constructed of elected representatives of the populace, county commissioners, and a Presidential appointed representative of the US Government, the Governor, all on the US payroll and subject to strict compliance of the United States Congress) in June 31,1851 constructed and passed a law called Territorial Roads, setting aside all existing roads and trails for public use with a width of 60 feet,( this was the required diameter of a circle needed to turn a team and wagon around without trespass) and any roads or trails created in the future to be covered under this same law. They were to remain in title to the federal government in perpetuum. The county commissioners were directed to survey, mark , establish mile posts, and record all existing roads and trails, and all that would be opened in the future, and to maintain that record. The acts of location and monumenting were to be carried out by the County Surveyor under the direction of the County Commissioners, both members of the Governing court, being able to give and take oaths, and in this case they are representatives of the Congress of the United States. It is the County Surveyor who is responsible for location, marking and keeping a record. It is also the Road supervisors duty to keep competent records, and the sworn duty of Commissioners and the Land surveyor to protect the public trust. Surveyors by oath or by licensors are given special privileges in interpreting the law, and are judged by a court of law, and not by peers. The applications of mathematics is not enough. There must be an understanding of all land laws and an asserted effort to enforce. And it is the duty of the Court to determine the appropriate application of the law. TERRITORIAL ROADS An Act, to define the manner of locating Territorial Roads. Sec. 1. To be laid out within one year from the passage of the act authorizing the same. 2. Mode specified. 3. Certified return of survey and plat required. 4. Returned and recorded in office of secretaryalso, in clerks office of each county. 5. Expense paid by counties. 6. Width of roads established. 7. No part of expense paid by Territory, except the road from Astoria to Wallamet valley. 9. Road from Whites Ferry to Aquina Bay. 10. Act in force from passage. Section 1. Be it enacted by the Legislative Assembly of Oregon Territory, That all territorial roads to be hereafter located and established within this Territory, shall be viewed, surveyed, and established, and returns made thereof, agreeably to the provisions of this act, within one year from the passage of the act by which said road or roads may be granted, or authorized to be laid out, respectively. Sec. 2. The commissioners appointed to locate and establish any territorial road, shall cause the same to be correctly surveyed, and marked from the beginning, throughout the whole distance, by setting stakes in the prairie, at three hundred yards distance, and blazing trees in the timber; they shall establish mile-posts, which shall be marked with a marking iron, in regular progression, from the beginning to the termination of said road. Sec. 3. The commissioners and surveyor of each road, shall make a certified return of the survey and plat of the whole length of said road, specifying, in said return, the width, depth, and course of all streams, the position of all swamps and marshes, and the face of the country generally; noting when timber and when prairie, and the distance said road shall have been located in each county. Sec. 4. Said return and plat shall be signed by a majority of the commissioners, and the surveyor of said road, and forwarded to the secretary of the Territory, within sixty days after the view and survey of the same, to be by him recorded and preserved; they shall also, within sixty days as aforesaid, deposit in the office of the clerk of the Board of county commissioners of each county through which said road shall be laid, a return and plat as aforesaid, of so much of said road as shall be laid out and established in said county, to be there recorded as aforesaid. Sec. 5. Said commissioners shall, after the completion of the survey of any road as aforesaid, make out a certified account of all services rendered, as well by the surveyor and other hands, as themselves; charging each county through which said road may have been laid, a proportion of the expense, agreeably to the number of days employed thereon; and the Board of commissioners of said county shall audit and settle the same. Sec. 6. All territorial roads authorized to be laid out by any law of this territory, and not yet commenced, shall be laid out in the manner prescribed in this act; and the commissioners shall comply with all the regulations herein contained. And further, The established width of all territorial roads shall be sixty feet. Sec. 7. When any road shall have been located and established agreeably to the provisions of this act, the same shall be and remain a public highway, and shall be opened and worked by the counties through which it shall be laid, as county roads are; and no part of the expense of laying out, and establishing any territorial road, or the damages sustained by any person or persons in consequence of laying out any territorial road, shall be paid out of the territorial treasury: Provided, That the expenses of locating and establishing the territorial road from Astoria to Wallamet Valley shall be paid out of the territorial treasury. Sec. 8. The Act entitled An Act to locate a territorial road from Whites Ferry to the Aquina Bay, is not to be included in the provisions of this act. Sec. 9. This act to take effect, and be in force, from and after its passage. Passed the House of Representatives, January 31st, 1851. Passed the Council, February 4th, 1851. Under section 3, Article IV, of the Constitution, Congress governs all the territory of the United States. Congress can acquire territory by purchase or by treaty, and then can enact laws for its government. The Supreme Court of the United States, in American Insurance Co. V. Canter (1 Peters, 511), said: In legislating for the Territories Congress exercises the combined powers of the General and of the State government. The right to govern the territories of the United States is the inevitable consequence of the right to acquire territory. (Dred Scott v. Sandford, 19 How., 393; American Insurance Co. v. Canter, 1 Pet., 511 U. S. v. Gratiot, 14 Pet., 526.). Congress possesses the absolute power of governing and legislating for the Territories, and may give a Territorial court jurisdiction over a suit brought by or against a citizen of a Territory. (Sere v. Pitot, 6 Cranch., 332). The power to govern the Territories subject to the Constitution is in Congress. It may do it mediately or immediately, either by the creation of a Territorial government with power to legislate for the Territory, subject to such restraints and limitations as Congress may impose upon it, or by the passage of laws directly operating upon the Territory, without the intervention of a subordinate government. (Edwards v. Panama, 1 Oregon, 418.). A Territorial government is the only mode by which the purchasers and occupants of land beyond the limits of any State can be protected in their rights of person and property. Hence the implied power of Congress to establish such a government. ( U. S. V. Railroad Bridge Co., 6 McLean, 517; U. S. v. Gratiot, 14 Pet., 526; State v. Navigation Co., 11 Mart., 309). The power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. It is therefore the duty of Congress to establish a government over the people in a Territory. The form of government to be establish necessarily rest in the discretion of Congress. Some form of civil authority is absolutely necessary to organize and preserve civilized society and prepare it to become a State, and what is the best form must always depend on the condition of the Territory at the time, and the choice of the mode must depend upon the exercise of a discretionary power by Congress, acting within the scope of its constitutional authority. (Dred Scott v. Sanford, 19 How., 393.). When Congress enacted the Homestead law 1862, there is clear evidence that this law was well understood and accepted, as the patentee was only required to describe the claim by the legal subdivision as the roads were secured under the 1851 law. No homestead could be claimed without residence and residence requires access. The time required for proving a homestead claim was five years, the road had been established as it was driven well before the claim. every homestead has a federal road leading to it and probably through it making it impossible to have a land locked parcel. Roads recorded in the field notes and shown on plat maps were those that existed before the plat was open to Homesteading and are Federal by the above law and sixty feet wide. In 1866 and 1867 the US Government Ratified and signed Land Treaties and Settlement Acts with more than a twenty seven Indian Tribes to prevent intrusion on these newly created Reservations. The Thirty-Ninth Congress in dealing with the mining laws enacted by its citizens in the Mexican state of California now a state of the United States and now used in the state of Nevada added the Territorial Road law with restrictions. This placed all laws governing federal lands under the jurisdiction of the Congress as stated Under section 3, Article IV, of the Constitution. On the 26th day of July in 1866 Congress enacted Revised Statute 2477 Sess. I. Chapter 262 Revised Statute 2477 Sess. I. Chapter 262 sec.8 The right of way for the construction of highways over public land, not reserved for public, uses is hereby granted . (records written by Horse Greeley at the time of the singing of this bill show no commas in the stated law they have been added later by type setters and change the meaning of the law - if parsing were to be added it should read ( The right of way for the construction of highways over public land not reserved for public uses is hereby granted ) ) This new wording restricts the 1851 law relied on up to this date and protected the newly created Reservations from intrusion by homesteaders. At this time the only reserved lands were those of the Military certainly not public and those newly established for the Indians again not public. This addition did not replace the 1851 law as it makes no mention of the existing law, but confirms the spirit of the law as stated in this 1845 case. (The United States, Plaintiffs, v. William H. Freeman) Statutes in pari materia should be taken into consideration in construing a law. If a thing contained in a subsequent statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute, And if it can be gathered from a subsequent statute in pari materia what meaning the legislature attached to the words of a former statute, this will amount to a legislative declaration of its meaning, and will govern the construction of the first statute. The meaning of the legislature may be extended beyond the precise words used in the law, from the reason or motive upon which the legislature proceeded, from the end in view, or the purpose which was designed; the limitation of the rule being that to extend the meaning to any case, not included within the words, the case must be shown to come within the same reason upon which the law-maker proceeded, and not a like reason.

Posted by chip on 01/12/2009 at 6:04 PM

Re: “Rules of the road

Revised Statute 2477 Sess. I. Chapter 262 sec.8 The right of way for the construction of highways over public land, not reserved for public, uses is hereby granted . (records written by Horse Greeley at the time of the singing of this bill show no commas in the stated law they have been added later by type setters and change the meaning of the law - if parsing were to be added it should read ( The right of way for the construction of highways over public land not reserved for public uses is hereby granted ) ) This new wording restricts the 1851 law relied on up to this date and protected the newly created Reservations from intrusion by homesteaders. At this time the only reserved lands were those of the Military certainly not public and those newly established for the Indians again not public. This addition did not replace the 1851 law as it makes no mention of the existing law, but confirms the spirit of the law as stated in this 1845 case.

Posted by chip on 01/12/2009 at 12:26 PM

Favorite Places

  • None.
Find places »

Saved Events

  • Nada.
Find events »

Saved Stories

  • Nope.
Find stories »

All content © Copyright 2017, The Colorado Springs Independent

Website powered by Foundation