Trumbull, J.
The appellee, who was complainant in the Court below, claims the right, as the assignee of the original settler, to purchase at the appraisement, a quarter section of canal land, situate -within the corporate limits of the City of Chicago. His right to make the purchase depends upon a proper construction of the legislation of this State, in reference to the Illinois and Michigan Canal, and the lands granted to the State, to aid in its construction. The grant of land equal to one half of five sec.ions in width, on each side of the canal, was made by act of Congress, of March 2, 1827. In 1829, the State of Illinois created “ The Board of Commissioners of the Illinois and Michigan Canal,” and took steps for the construction of -the work, which was prosecuted by the State, at an expense of several millions of dollars, till February 21, 1813, when, the work still being in an unfinished condition, an act was passed for the purpose of procuring a fund for its completion, whereby the canal and canal lands were placed in the hands of trustees.
' Between the time when the Board of Commissioners of the Illinois and Michigan Canal was established, and 1843. various acts were passed in reference to the canal lands and the sale of the same, some of which it becomes necessary to notice.
The act of January 22, 1829, made it the duty of the Commissioners to give notice, and sell the canal land, in half quarter sections, quarter or fractional sections, and also gave them authority to lay off into town lots, such parts of said lands, as they might think proper, and to sell the same.
The seventh section of the act of February 15, 1831, authorized the commissioners to sell canal lands in tracts of forty acres, or to subdivide and sell them in smaller quantities, as they might deem most profitable to the canal fund.
The thirty-second section of the act of January 9, 1836, is as follows: “ The commissioners shall examine the whole canal route, and select such places thereon as may be eligible for town sites, and cause the same to be laid off into town lots, and they shall came the canal lands, in or. near Chicago, suitable therefor, to belaid off into town lots.” Sections thirty-three and four of the same act authorize the sale of lots, and annexed to the thirty-fourth section is this provision: “ Provided, that all persons who may have made improvements upon any of the lots authorized to be sold, shall be permitted to remove such improvement, at any time before the day fixed for the sale of any such improved lots, being responsible for all unnecessary damage done or suffered by said removal.”
Section seven, of the act of March 2, 1837, provides for laying out towns, and for certifying and recording town plats.
Section one, of the act of July 21, 1837, authorizes Commissioners to subdivide and sell a portion of the canal lands in tracts ot not less than forty, nor more than eighty acres.
The act of March 4, 1837, provides for giving permits to all persons residing upon, or cultivating canal lands, to remain upon or to continue to cultivate the same, upon certain conditions; one of which is, that the occupant shall surrender the possession of the lands described in the permit, to the agent of the State, together with all improvements thereon, whenever said lands shall be advertised for sale.
The act of February 26, 1839, imposes penalties upon such persons as occupy or cultivate canal lands, except under permits, after receiving notice, which the agents of the State are required to give. This, and the preceding act, also impose penalties lor trespassers upon canal lands.
The second section of the act of February 1, 1840, requires the Commissioners, in the sale of timber land, to divide it into small lots, not to exceed forty acres in one lot.
It is manifest from the foregoing acts of the legislature, that the Commissioners of the Illinois and Michigan Canal, were authorized in their discretion, to lay out town lots and make sale of town lots, or to subdivide and sell canal lands in tracts of forty acres or less; and it was made their duty, by the act of 1836, to cause the lands, in or near Chicago, suitable therefor, to be laid off into town lots. Thus the law stood at the time of the passage of the act of February 21, 1843. providing for placing the canal and canal lands in the hands of trustees. The eighth section of that act declares, that, “The said Board of Trustees of the Illinois and Michigan Canal, when duly appointed and elected as aforesaid, shall apportion their respective duties among themselves, and so far as is not incompatible with this act, shall possess all the powers and perform all the duties conferred upon the Board of Commissioners of the Illinois and Michigan Canal, by the act entitled, ‘An act for the construction of the Illinois and Michigan Canal,’ approved January ninth, eighteen hundred and thirty-six, and the acts supplementary and amendatory thereto.”
It is provided by the thirtieth section of the same act, that, “none of the lots, lands or water powers, so granted to the said Trustees, shall be sold, until three months after the completion of said canal; the said lots, lands and water powers shall then be offered for sale by the said Trustees at public auction, in lotFand legal subdivisions once or oftener in each year for the four successive years, said sales to be made for cash, or on a credit in the manner prescribed in the act of the ninth of January, eighteen hundred and thirty-six The said lands, lots and water power, before they are offered for sale, as aforesaid, shall,be appraised by three disinterested persons, to be appointed by the judge of the Circuit Court, in which said lands, lots, and water power are situated, who shall take an oath, faithfully and impartially, to discharge the duty of appraisers. Said lands, lots, and water power, when so appraised, shall not be sold for less than the appraisement.”
Annexed to said section, is the following proviso: h That in all cases where improvements were made upon the said canal lands, or lots, previous to the first day of February, eighteen hundred and forty-three, the owner of such improvements shall be entitled to purchase the said lands or lots, in which said improvements arre situated, at an appraisement to be made, as aforesaid, without reference to said improvements.” A subsequent act, passed March 4, 1843, limits the foregoing proviso, to improvements made previous to the first day of December, 1842.
The record shows, that one James H. Scott, previous to December, eighteen hundred and forty-two, made an improvement upon the land in controversy, the N. W. qr. sec. 21, T. 39, N. E. 14, E. of third P. M., by enclosing and cultivating some twenty acres, situated in the north-east quarter of said quarter section; that the complainant, at the time of filing his bill, was the owner of said improvement; that the defendants, on the thirty-first day of August, eighteen hundred and forty^eight, caused said quarter section, (the same being canal land, and situate within the corporate limits of the City of Chicago, as the same are defined by the act of March 4, 1837, incorporating said city;) to be subdivided into lots and blocks, and a plat thereof to be made, which was duly certified, acknowledged, and filed for record, on the 31st of August, 1848; that the canal was completed in May, 1848, and that the defendants, after having caused said quarter section to be appraised, according to the subdivision thereof, had advertised the same for sale, when the complainant offered to tender the money, and do all the acts necessary to complete his purchase, to the entire quarter section at the appraisement; which defendants, waiving the tender, would not allow; but admitted his right of pre-emption to that part of the quarter section, designated upon their plat, as blocks fifty-seven and fifty-eight, within which were embraced all the improvements made by Scott, prior to December, 1842.
The Trustees, under the act of February, 21,1843, so far as related to the laying out of towns, possessed all the powers conferred upon the Board of Commissioners of the Illinois and Michigan Canal, by the act of January ninth, eighteen hundred and thirty-six ; and the thirty-second section of that act, expressly required the Commissioners to cause the canal lands, in or near Chicago suitable therefor, to be laid off into town lots. The tract of land in question was situate near Chicago at that time, and, as we have already seen, was incorporated into the city, by the act of the fourth of March following. That it was suitable for town lots, there can be no question, and it therefore became the duty of the Canal Trustees, to lay it out previous to the sale, unless there was something in the act of 1848, to restrain them for so doing. Suclr the complainant insists was the case; that immediately upon the passage of the law granting the right of pre-emption, Scott became vested with the absolute right to purchase at the appraisement, the entire quarter section, upon which his improvement was situated, and that the Canal Trustees possessed no power after that time, to subdivide it. If the principle contended for be correct, we see no reason for limiting the pre-emption to a quarter section, for with the same propriety it might be extended to a half or even a whole section. It will be observed, that the act allowing the pre-emption, unlike most of the acts of Congress in this respect, does not define its extent. The statute authorizes the owner to purchase the lands upon which his improvements are situated, without determining the number of acres. Literally, therefore, he would be confined to the boundaries of his improvements, but such, doubtless, was not the legislative intention. It could never have been the design, in allowing the owner of improvements to purchase the lands on which they were situated, to change or affect in any manner the general system of rectangular surveys, adopted in the srrbdi vision of the public lands. The Trustees were required by the act to sell in lots and legal subdivisions, and as a vendee can only purchase in the manner which his vendor is authorized to sell, it follows that purchasers of canal lands, whether by virtue of pre-emptions or at public sales, can only purchase in lots and legal subdivisions. What, then, is a legal subdivision, such as the Trustees are authorized to sell? [It has heen"argued that resort must be had to the legislation and practice of the general government, in reference to the public lands, to determine this question. Grant it, and what follows ? The acts of Congress provide for the subdivision of the public lands into half quarter, and quarter quarter sections, and expressly authorize sales to be made in subdivisions of forty and eighty. acres. Part 1, Public Lands Laws, &c., 323, 493; ibid, Part 2, 561. The argument that nothing is a legal subdivision, except what has been run off and marked upon the ground as such, in making the public surveys, proves too much; for if it be sound, then a quarter section is not a legal subdivision, it not being the practice, in surveying the public lands, to run round and mark upon the ground the boundaries of any subdivisions less than whole sections. McClintock v. Rogers, 11 Illinois, 295.
A forty acre tract, or a quarter quarter section, is a subdivision of land recognized by act of Congress, and is, therefore, just as much a legal subdivision as a quarter section, or any other subdivision known to the law. The right of the Trustees to offer the canal lands for sale in quarter quarter, half quarter, or quarter sections, as they shall deem best for the interests of the canal fund, is beyond dispute; and the right of pre-emption, as has been already shown, must be limited to the lands on which the improvements are situated, as the trustees are authorized to bring the same into market. If, therefore, the trustees think proper to offer the canal lands for sale, in tracts of forty acres, and one such subdivision, as in this case, embraces all the improvements put upon the land, prior to December, 1842, the owner thereof, would be confined in his right of pre-emption to the quarter quarter section, embracing his improvements, while, if the lands had been offered for sale in tracts of one hundred and sixty acres, his right of pre-emption would have extended to the whole quarter section. The record, in this case, does not show that the Trustees were offering or about to sell the whole quarter section together, and unless such were the fact, the complainant would have no right to purchase the entire quarter, at the appraisement.
The main ground, however, upon which we base our decision is this, that the right of the Trustees to subdivide lands, and lay out town lots, was not intended to be abridged, or in any manner affected, by the proviso to the thirteenth section of the act of February 21, 1843. Although the legislature, by that act, provided for surrendering the canal and canal lands to trustees, yet it was for the express purpose of providing a fund for- the completion of the canal, and upon certain conditions, one of which was, that the canal, and the lands remaining unsold, should revert to the State, whenever the canal debt should be paid. It was always the policy of the State, in disposing of the canal lands, to adopt such a course as would be most likely to benefit the canal fund. Hence the authority given to the Commissioners, from time to time, to subdivide the lands and lay out towns as they should consider would best promote the interest of that fund.
This power, as we have already .seen, unless repealed by the proviso in favor of the owners of improvements, was continued to the Trustees.
Did the legislature intend by that proviso to repeal it ? What claim had the owners of these improvements to legislative favor ? None certainly. If the improvements were made under permits, then it was with the express understanding that the possession, together with all improvements, should be surrendered to the State, whenever the lands should be advertised for sale, if made by trespassers in violation of the laws of the State, their owners would be entitled to sti^ less favor. In no point of view, had they any just claims upon the legislature, and the bestowal of the right of pre-emption upon such persons was purely a bounty, which they had no right to expect, and for which they paid no consideration whatever.
The object of the law was, to give to owners the benefit of improvements they had made previous to a certain day. The lands and lots were to be appraised, at what it is to be presumed was their true value, without regard to the improvements, and by taking them at the appraisement, the owner secured the benefit of what he had done upon the land, without being subjected to the competition of a public sale, and this was all that the legislature could have intended to bestow. The granting of this privilege was never designed to deprive the Trustees of the power to lay off the canal lands, within the city of Chicago, into town lots, nor to interfere with the general policy of the State, in reference to the sale of said lands. It is not to be presumed, that the legislature would deprive the canal fund of the benefit to arise from laying off, and selling in town lots, a quarter section of land, lying within the city of Chicago, for the purpose of bestowing a gratuity upon one who had no claim to favor, and that too, at the expense of a fund, which it had ever been the policy of the State to guard with peculiar care. To give such a construction to the act of 1843, would be to allow an incidental matter, a mere gratuity, to control, not only the principal thing had in view, but also the general policy of the law. The permission to purchase lands and lots at the appraisement, was manifestly intended as a privilege, to be exercised in subordination to the general law, in reference to the subdivision of lands and bringing them into market.
Such has always been the construction put upon acts of Congress granting pre-emptions, by the officers of the general government. The attorney general, upon being consulted as to what effect a pre-emption right, had upon the surveys of the public lands, replied: “ I am of opinion, that the survey should be made in conformity to the general system established by law, and by the instructions of the department, without any reference whatever to the existence of a pre-emption law, or to the fact that rights have been claimed and established under it.” Public Land Laws, opinions, &c., part 2, 188. In a letter from the treasury department, upon the same subject, it is said: “ If the party does not choose to purchase the tract, because the lines do not suit his convenience, he has not the most distant right to complain, •since he knew when he made his settlement, that the land would be surveyed into sections, by north and south, and east and west lines, and that nothing was promised to him. The law has now granted to him what the laws of the United States have granted no where else, viz: a preference to purchase either a quarter, half, or entire section, including his improvement; and the law is represented as impracticable or unjust, because it does not permit the party, to whom that privilege is granted, to select in a particular manner, the land he would prefer, and because it does not set aside, for his sake, the general system of surveying.” Ibid 694.
This language is peculiarly applicable to the present case. The State of Illinois, by the act of 1848, granted to the owners of improvements on canal lands, what she had never granted before. When Scott made his improvement, he knew that nothing was promised him, and that the quarter section upon which he made it, was within the city of Chicago, and that the law required it should be laid off into town lots, if suitable therefor. He has not, therefore, the least right to complain.
It has been urged as a reason, why the Trustees had not the power to subdivide the land in question into town lots; that the existence of such a power would place every pre-emptor at the mercy of the Trustees, as by laying out a town, and dedicating . the land upon which his improvements were situated, to some public purpose, they would^ totally destroy his right to purchase.It is a sufficient answer to this argument, to say that the record presents no such case; and it will be time enough to determine whether the Trustees can he restrained in the exercise of their powers, when they attempt to abuse them. But the fact that a power may be abused, is no argument to prove its non-existence; if it were, it would not be difficult to prove, that the Trustees have not the power to lay out a town in any instance; for if the power exists, it may be said that it may be abused by dedicating to the public for streets and squares, nine-tenths of all the lands thus laid out, and yet, who ever doubted the power of the Trustees to lay out towns, at suitable points, along the route of the canal.
The act of 1843, did not confer upon Scott a right of pre-emption to a section, a quarter section, or any other definite quantity of land; nor did it give him an immediate right to purchase. He was compelled to wait, till the Canal Trustees should proceed under the law, to have the lands, or such of them as they should think proper, subdivided, appraised, and brought into-market.
Keeping in view the fact, that the act of January 9, 1836, requiring the canal lands, in and near Chicago, to be laid off into-town lots, if suitable therefor, is as much part of the act of February 21, 1843, as if therein incorporated, and this whole case-may be briefly stated thus: The State had undertaken a great public work, and found herself without the immediate means to-accomplish it; for the purpose of raising those means and securing an early completion of the work, she surrenders to trustees, a vast amount of lands and other property, upon certain conditions, one of which is, that they will lay off into town lots, the tract of land in question, for it is shown to be in Chicago, and suitable for town lots; another is, that the lands, lots and water powers, surrendered to them, shall, within a certain time, be exposed to public sale, in lots and legal subdivisions; and a third, that the owners of improvements made upon canal lands or lots-prior to December 1, 1842, shall have the privilege of purchasing the lands or lots on which they are situated at an appraisement made without reference to such improvements. The term lands- and, lots, by itself, is indefinite, but when viewed in connection with the other conditions of the trust, its meaning is obvious.
The pre-emptor cannot purchase till the trustees are authorized to sell, and before proceeding to sell, it is made their duty to subdivide the land in question, into town lots, and cause them to be appraised, then, and not before, the pre-emptor has the privilege of purchasing such lots as embrace his improvements, at the appraisement. He cannot purchase the entire quarter section, as land, because the exercise of such a privilege would be inconsistent with those conditions of the trust which require it to be subdivided and sold in lots, and it is the duty of the Court, if practicable, so to construe the whole law, that all its provisions may have effect.
In our opinion, the subdivision of the land, in controversy, made by the Board of Trustees, on the 31st of August, 1848, was legal, and it follows as a consequence, that the complainant’s right of pre-emption extends only to the lots as they have been .laid out, which embrace the improvements made by Scott, prior to December, 1842. The record shows that his right to this extent, was admitted by the trustees; possibly, therefore, there may be no absolute necessity for passing upon the other questions presented by the record, but, as they have been fully argued, and the whole matter is now before the Court, it may save future, litigation to express an opinion upon some of them, and make a final disposition of the case. v
It is made a question in the case, whether Scott entered upon the land in question, under the authority of a permit, or as a trespasser without authority. In our view, it is immaterial in which capacity he entered. The law is sufficiently comprehensive in its terms, to embrace all classes of persons who made improvements previous to the time limited by the act; and it is unreasonable to suppose, that the legislature could have intended to bestow theiright of pre-emption-upon those who had made improvements in violation of law, and withhold the same privilege from those whose improvements were made under its sanction.
It has also been insisted, that the right to purchase at the appraisement, is a personal privilege, of which the owner of the improvements, at the date of the act, can alone avail himself. The language of the statute is general, and not confined to the owner at any particular time; and for the same reason that the words, “ lands and lots,” have been construed to mean the lands and lots as subdivided at the time of the sale, the word “ owner” must be understood to refer to the owner at that time. The act of March 4, 1843, was not designed to limit the right of pre-emption to a different class of persons, but simply to abridge the time within which the improvements must have been made. If, as complainant insists, the right of pre-emption to lands and lots, as subdivided at the passage of the act of 1843, became absolutely fixed and vested by that act, it would follow that the right would also be fixed and vested in the then owner, and as the law makes no provision for its transfer, he alone could avail himself of its benefits. We have, however, given a different construction to the law, and are disposed to hold, that the owner of the improvements, at the time the lands are brought into market, has the right to make the purchase. Some other questions, of minor importance, were raised on the argument, which it is not deemed necessary to notice particularly.
The decree of the Cook County Court of Common Pleas will be set aside, and a decree entered in this Court, allowing the complainant to purchase at the appraisement, all of the lots included in blocks number fifty-seven, and fifty-eight, as the same have been laid off by said trustees, it appearing, from the record, that the improvements made by Scott, previous to December, 1842, extended upon some part of all of said lots ; but as it was complainant’s own fault, that he did not make the purchase in September, 1848,. and as the credit allowed upon sales made at that time, will expire on the first of September next; the complainant will now be required to pay to said Trustees the full amount of the appraisement of said lots, on or before the first day of September, 1851, and upon the receipt of the money, the Trustees will be required to execute to the complainant, a conveyance for the same. In case of a failure to pay for said lots within the time limited, the complainant will be for ever after-wards, barred of his right of pre-emption to said lots.
As the record does not show the appellants to have been at all in fault, the appellee will be required to pay the costs both in this Court and the Court below.
Decree reversed.