History of Oregon (Bancroft)/Volume 2/Chapter 10

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3277118History of Oregon, Volume 2 — Chapter 10Frances Fuller Victor




The Donation Law—Its Provisions and Workings—Attitude of Congress—Powers of the Provisional Government—Qualification of Voters—Surveys—Rights of Women and Children—Amendments—Preëmption Privileges—Duties of the Surveyor General—Claimants to Lands of the Hudson's Bay and Puget Sound Companies—Mission Claims—Methodists, Presbyterians, and Catholics—Prominent Land Cases—Litigation in Regard to the Site of Portland—The Rights of Settlers—The Caruthers Claim—The Dalles Town-site Claim—Pretensions of the Methodists—Claims of the Catholics—Advantages and Disadvantages of the Donation System.

A subject which was regarded as of the highest importance after the passage of the donation act of September 27, 1850, was the proper construction of the law as applied to land claims under a variety of circumstances. A large amount of land, including the better portions of the Willamette Valley, had been taken, occupied, and to some extent improved under the provisional government, and its land law; the latter having undergone several changes to adapt it to the convenience and best interests of the people, as I have noted elsewhere.

The provisional legislative assemblies had several times memorialized congress on the subject of confirming their acts, on establishing a territorial government in Oregon, chiefly with regard to preserving the land law intact. Their petition was granted with regard to every other legislative enactment excepting that affecting the titles to lands; and with regard to this, the organic act expressly said that all laws previously passed in any way affecting the title to lands should be null and void, and the legislative assembly should be prohibited from passing any laws interfering with the primary disposal of the soil which belonged to the United States. The first section of that act, however, made an absolute grant to the missionary stations then occupied, of 640 acres, with the improvements thereon.

Thus while the missionary stations, if there were any within the meaning of the act of that time, had an incontrovertible right and title, the settlers, whose means were often all in their claims, had none whatever; and in this condition they were kept for a period of two years, or until the autumn of 1850, when their rights revived under the donation law, whose beneficent provisions all recognized.

This law, which I have not yet fully reviewed, provided in the first place for the survey of the public lands in Oregon. It then proceeded to grant to every white settler or occupant of the public lands, American half-breeds included, over eighteen years of age, and a citizen of the United States, or having declared his intention according to law of becoming such, or who should make such declaration on or before the first day of December 1851, then residing in the territory, or becoming a resident before December 1850—a provision made to include the immigration of that year—640 acres to a married man, half of which was to belong to his wife in her own right, and 320 acres to a single man, or if he should become married within a year from the 1st of December 1850, 320 more to his wife, no patents to issue until after a four years' residence.

At this point for the first time the act took cognizance of the provisional law making the surviving children or heirs of claimants under that law the legal heirs also under the donation law; this provision applying as well to the heirs of aliens who had declared their intention to become naturalized citizens of the United States, but who died before completing their naturalization, as to native-born citizens. The several provisos to this part of the land law declared that the donation should embrace the land actually occupied and cultivated by the settler thereon; that all sales of land made before the issuance of patents should be void; and lastly, that those claiming under the treaty with Great Britain could not claim under the donation act.

Then came another class of beneficiaries. All white male citizens of the United States, or persons who should have made a declaration of their intention to become such, above twenty-one years of age, and emigrating to and settling in Oregon after December 1, 1850, and before December 1, 1853, and all white male American citizens not before provided for who should become twenty-one years of age in the territory between December 1851 and December 1853, and who should comply with the requirements of the law as already stated, should each receive, if single, 160 acres of land, and if married another 160 to his wife, in her own right; or if becoming married within a year after his arrival in the territory, or one year after becoming twenty-one, the same. These were the conditions of the gifts in respect of qualifications and time.

But further, the law required the settler to notify the surveyor general within three months after the survey had been made, where his claim was located; or if the settlement should commence after the survey, then three months after making his claim; and the law required all claims after December 1, 1850, to be bounded by lines running east and west and north and south, and to be taken in compact form. Proof of having commenced settlement and cultivation had to be made to the surveyor general within twelve months after the survey or after settlement. All these terms being complied with, at any time after the expiration of four years from date of settlement the surveyor general might issue a certificate, when, upon the proof being complete, a patent would issue from the commissioner of the general land office to the holder of the claims. The surveyor general was furnished with judicial power to judge of all questions arising under the act; but his judgment was not necessarily final, being preliminary only to a final decision according to the laws of the territory. These were the principal features of the donation law.[1]

In order to be able to settle the various questions which might arise, it was necessary first to decide what constituted naturalization, or how it was impaired. The first case which came up for consideration was that of John McLoughlin, the principal features of which have been given in the history of the Oregon City claim. It was sought in this case to show a flaw in the proceedings on account of the imperfect organization of the courts. In the discussion which followed, and for which Thurston had sought to prepare himself by procuring legal opinions beforehand, considerable alarm was felt among other aliens. S. M. Holderness applied to Judge Pratt, then the only district judge in the territory, on the 17th of May 1850, to know if the proceedings were good in his case, as many others were similarly situated, and it was important to have a precedent established.

Pratt gave it as his opinion that the Clackamas county circuit court, as it existed on the 27th of March 1849, was a competent court, within the meaning of the naturalization laws, in which a declaration of intention by an alien could be legally made as a preparatory step to becoming a citizen of the United States; the naturalization power being vested in congress, which had provided that application might be made to any circuit, district, or territorial court, or to any state court which was a court of record, having a seal and clerk; and the declaration might be made before the clerk of one of the courts as well as before the court itself. The only question was whether the circuit court of Clackamas county, in the district of Oregon, was on the 24th of March, 1849, or about that time, a territorial court of the United States.

Congress alone had authority to make all needful rules and regulations respecting the territory and other property of the United States, and that power was first exercised in Oregon, and an organized government given to it by the congressional act of August 14, 1848. It went into effect, and the territory had a legal existence from and after its passage, and the laws of the United States were at the same time extended over the territory, amongst the others, that of the naturalization of aliens. But it was admitted that the benefits to be derived from proceedings under these laws would be practically valueless unless the machinery of justice was at the same time provided to aid in their administration and enforcement. Congress had not omitted this; but there existed an extraordinary state of things in Oregon which made it unlike other territorial districts at the date of its organization. Unusual means had therefore been provided to meet the emergency. Without waiting to go through the ordinary routine of directing the electing of a legislative body to assemble and frame a code of statutes, laws were at once provided by the adoption of those already furnished to their hand by the necessities of the late provisional government; and in addition to extending the laws of the United States over the territory, it was declared that the laws thus adopted should remain in force until modified or repealed. Congress had thus made its own a system of laws which had been in use by the people before the territory had a legal existence. Among those laws was one creating and establishing certain courts of record in each county, known as circuit courts; and one of those courts composing the circuit was that of the county of Clackamas, which tribunal congress had adopted as a territorial court of the United States. The permanent judicial power provided for in the organic act was not in force, or had not superseded the temporary courts, because it had not at that time entered upon the discharge of its duties, Chief Justice Bryant not assuming the judicial ermine in Oregon until the 23d of May 1849, the cases in question occurring in March.[2] To the point attempted to be made later, that there had been no court because of the irregularity of the judges in convening it, he replied that the court itself did not cease to exist, after being established, because there was no judge to attend to its duties, the clerk continuing in office and in charge of the records.[3]

There had been a contest immediately after the establishment of the territorial government concerning the right of the foreign residents to vote at any election after the first one, for which the organic act had distinctly provided, and a strong effort had been made to declare the alien vote of 1849 illegal. The first territorial legislature, in providing for and regulating general elections and prescribing the qualifications of voters, declared that a foreigner must be duly naturalized before he could vote, the law being one of those adopted from the Iowa statutes. One party, of whom Thurston was the head, supported by the missionary interest, strenuously insisted upon this construction of the 5th section of the organic law, because at the election which made Thurston delegate the foreign-born voters had not supported him, and with him the measures of the missionary class.

The opinion of the United States judges being asked, Strong replied to a letter of Thurston's, confirming the position taken by the delegate, that after the first election, until their naturalization was completed, no foreigner could be allowed to vote.[4] The inference was plain; if not allowed to vote, not a citizen; if not a citizen, not entitled to the benefits of the land law. Thurston also procured the expression of a similar opinion from the chairman of the judiciary of the house of representatives, and from the chairman of the committee on territories, which he had published in the Spectator. Under these influences, the legislature of 1850–1 substantially reënacted the Iowa law adopted in 1849, but Deady succeeded in procuring the passage of a proviso giving foreigners who had resided in the country five years prior to that time, and who had declared, as most of them had, their intention of becoming citizens, a right to vote.[5]

The Thurston interest, asserting that congress had not intended to invest the foreign-born inhabitants of Oregon with the privileges of citizens, declared that it was not necessary that the oath to support the government of the United States and the organic act should be taken before a court of record, but might for such purpose be done before a common magistrate. Could they delude the ignorant into making this error, advantage could be taken of it to invalidate subsequent proceedings. But Pratt pointed out that while part of the proceedings, namely, the taking of the oath required, could have been done before a magistrate, the declaration of intention to become a citizen could only be made according to the form and before the court prescribed in the naturalization laws; and that the act of congress setting forth what was necessary to be done to become entitled to the right to vote at the first election in Oregon did not separate them—from which it was plain that congress meant to confer upon the alien population of Oregon the privileges of citizenship without delay, and to cement the population of the territory as it stood when it asked that its provisional laws should be adopted.

The meaning of the 5th section of the organic act should have been plain enough to any but prejudiced minds. In the first place, it required the voter to be a male above the age of twenty-one years, and a resident of the territory at the time of the passage of the act. The qualifications prescribed were, that he should be a citizen of the United States of that age, or that being twenty-one he should have declared on oath his intention to become a citizen, and have taken the oath to support the constitution of the United States and the provisions of the organic act. This gave him the right to vote at the first election, and made him eligible to office; but the qualifications of voters and office-holders at all subsequent elections should be prescribed by the legislative assembly. This did not mean that the legislature should enact laws contrary to this which admitted to citizenship all those who voted at the first election, by the very terms required, namely, to take the oath of allegiance and make a declaration of an intention to assume the duties of an American citizen; but that after having set out on its territorial career under these conditions, it could make such changes as were found necessary or desirable thereafter not in conflict with the organic act. The proof of this position is in the fact that after and not before giving the legislature the privilege, comes the proviso containing the prescribed qualifications of a voter which must go into the territorial laws, the same being those which entitled any white man to vote at the first election. Having once taken those obligations which were forever to make him a citizen of the United States by the organic act, the legislature had no right, though it exercised the assumed power, to disfranchise those who voted at the first election. When in 1852–3 the legislature amended the laws regulating elections, it removed in a final manner the restrictions which the Thurston democracy had placed upon foreign-born residents of the country. By the new law all white male inhabitants over twenty-one years of age, having become naturalized, or having declared their intention to become citizens, and having resided six months in the territory, and in the county fifteen days next preceding the election, were entitled to vote at any election in the territory.

To return to the donation law and its construction. Persons could be found who were doubtful of the meaning of very common words when they came to see them in a congressional act, and who were unable to decide what 'settler' or 'occupant' meant, or how to construe 'improvement' or 'possession.' To help such as these, various legal opinions were submitted through the columns of newspapers; but it was generally found that a settler could be absent from his claim a great deal of his time, and that occupation and improvement were defined in accordance with the means and the convenience of the claimant.[6]

The surveyor-general, who arrived in Oregon in time to begin the surveys of the public lands in October, 1851, had before him a difficult labor.[7] The survey of the Willamette meridian was begun at he upper mouth of the Willamette River, and the base line 7¾ miles south, in order to avoid the Columbia River in extending the base line east to the Cascade Mountains. The intersection of the base and meridian lines was 3½ miles west of the Willamette. The reason given for fixing the point of beginning at this place was because the Indians were friendly on either side of the line for some distance north and south, and a survey in this locality would best accommodate the immediate wants of the settlers.[8] But it was soon found that the nature of the country through which the initial lines were run would make it desirable in order to accommodate the settlers to change the field of operations to the inhabited valleys,[9] three fourths of the meridian line north of the base line passing through a country broken and heavily timbered. The base line east of the meridian to the summit of the Cascade Mountains also passed through a densely timbered country almost entirely unsettled. But on the west side of the meridian line were the Tualatin plains, this section of the country being first to be benefited by the survey.

On the 5th of February, 1852, appeared the first notice to settlers of surveys that had been completed in certain townships, and that the surveyor general was prepared to receive the notifications of their respective claims and to adjust the boundaries thereof, he being made the arbiter and register of all donation claims.[10] At the same time settlers were advised that they must have their claims surveyed and corners established before the government survey was made, in order that they might be able to describe their boundaries by courses, distances, metes, and bounds, and to show where their lines intersected the government lines, claims being generally bounded according to the fancy or convenience of the owner, instead of by the rectangular method adopted in the public surveys.

The privilege of retaining their claims as they had taken them was one that had been asked for by memorial, but which had not been granted without qualification in the land law. Thurston had explained how the letter of the law was to be evaded, and had predicted that the surveyor general would be on the side of the people in this matter.[11] Preston, as had been foreseen, was lenient in allowing irregular boundaries; a map of that portion of Oregon covered by donation claims presenting a curious patchwork of parallelograms with angles obtuse, and triangles with angles of every degree. Another suggestion of the surveyor general was that settlers on filing their notifications, date of settlement, and making proof of citizenship, should state whether they were married;[12] for in the settlement of Oregon and the history of its division among the inhabitants, marriage had been made to assume unusual importance. Contrary to all precedent, the women of this remote region were placed by congress in this respect upon an equality with the men—it may be in acknowledgment of their having earned in the same manner and measure a right to be considered creditors of the government, or the men may have made this arrangement that they through their wives might control more land. It had, it is true, limited this equality to those who were married, or had been married on starting for Oregon,[13] but it was upon the presumption that there were no unmarried women in Oregon, which was near the truth. Men took advantage of the law, and to be able to lord it over a mile square of land married girls no more than children, who as soon as they became wives were entitled to claim half a section in their own right;[14] and girls in order to have this right married without due consideration.

Congress had indeed, in its effort to reward the settlers of Oregon for Americanizing the Pacific coast, refused to consider the probable effects of its bounty upon the future of the country, though it was not unknown what it might be.[15] The Oregon legislature, notwithstanding, continued to ask for additional grants and favors; first in 1851–2, that all white American women over eighteen years of age who were in the territory on the 1st of December 1850, not provided for in the donation act, should be given 320 acres of land; and to all white American women over twenty-one who had arrived in the territory or might arrive between the dates of December 1, 1850, and December 1, 1853, not provided for, 160 acres; no woman to receive more than one donation, or to receive a patent until she had resided four years in the territory.

It was also asked that all orphan children of white parents, residing in the territory before the 1st of December, 1850, who did not inherit under the act,[16] should be granted eighty acres each; and that all orphan children whose parents had died in coming to or after arriving in Oregon between 1850 and 1853 should receive forty acres of land each.[17]

Neither of these petitions was granted[18] at the time, while many others were offered by resolution or otherwise. As the period was expiring when lands would be free, it began to be said that the time should be extended, even indefinitely, and that all lands should be free.[19]

There was never, in the history of the world, a better opportunity to test the doctrine of free land, nor anything that came so near realizing it as the settlement of Oregon. Could the government have restricted its donations to the actual cultivators of the soil, and the quantity to the reasonable requirements of the individual farmer, the experiment would have been complete. But since the donation was in the nature of a reward to all classes of emigrants alike, this could not be done, and the compensation had to be ample.

Some persons found it a hardship to be restrained from selling their land for a period of four years, and preferred paying the minimum price of $1.25 an acre to waiting for the expiration of the full term. Accordingly, in February 1853, the donation law was so amended that the surveyor-general might receive this money after two years of settlement in lieu of the remaining two years, the rights of the claimant in the event of his death to descend to his heirs at law as before. By the amendatory act, widows of men who had they lived would have been entitled to claim under the original act were granted all that their husbands would have been entitled to receive had they lived,[20] and their heirs after them.

By this act also the extent of all government reservations was fixed. For magazines, arsenals, dockyards, and other public uses, except for forts, the amount of land was not to exceed twenty acres to each, or at one place, nor for forts more than 640 acres.[21] If in the judgment of the president it should be necessary to include in any reservation the improvements of a settler, their value should be ascertained and paid. The time fixed by this act for the expiration of the privileges of the donation law was April 1855, when all the surveyed public lands left unclaimed should be subject to public sale or private entry, the same as the other public lands of the United States.

The land law of Oregon was again amended in July 1854, in anticipation of the coming into market of the public lands, by extending to Oregon and Washington the preëmption privilege granted September 4, 1841, to the people of the territories, to apply to any unclaimed lands, whether surveyed or not. For the convenience of the later settlers, the time for giving notice to the surveyor general of the time and place of settlement was once more extended to December 1855, or the last moment before the public lands became salable. The act of 1854 declared that the donations thereafter should in no case include a town site or lands settled upon for purposes of business or trade, and not for agriculture; but the legal subdivisions included in such town sites should be subject to the operations of the act of May 23, 1844, "for the relief of citizens of towns upon lands of the United States, under certain circumstances."[22] The proviso to the 4th section of the original act, declaring void all sales of lands before the issue of the patents therefor, was repealed, and sales were declared invalid only where the claimant had not resided four years upon the land. By these terms two subjects which had greatly troubled the land claimants were disposed of; those who had been a long time in the country could sell their lands without waiting for the issuance of their patents, and those who had taken claims and laid out towns upon natural town-sites were left undisturbed.[23] This last amendment to the donation law granted the oft-repeated prayer of the settlers that the orphan children of the earliest immigrants who died before the passage of the act of September 27, 1850, should be allowed grants of land, the donation to this class being 160 acres each. Under this amendment Jason Lee's daughter could claim the small reward of a quarter-section of land for her father's services in colonizing the country. These orphans' claims were to be set off to them by the surveyor general in good agricultural land, and in case of the decease of either of them their rights vested in the survivors of the family. Such was the land law as regarded individuals.

This act, besides, extended to the territory of Washington all the provisions of the Oregon land law, or any of its amendments, and authorized a separate corps of officers for this additional surveying district, whose duties should be the same as those of the surveyor general, register, and receiver of Oregon. It also gave two townships of land each to Oregon and Washington in lieu of the two townships granted by the original act to Oregon for university purposes.

Later, on March 12, 1860, the provisions of the act of September 28, 1850, for aiding in reclaiming the swamp lands of Arkansas, were extended to Oregon, by which the state obtained a large amount of valuable lands, of which gift I shall have something to say hereafter.

From the abstract here given of the donation law at different periods, my reader will be informed not only of the bounty of the government, but of the onerous nature of the duties of the surveyor-general, who was to adjudicate in all matters of dispute or question concerning land titles. His instructions authorized and required him to settle the business of the Oregon City claim by notifying all purchasers, donees, or assigns of lots or parts of lots acquired of McLoughlin previous to March 4, 1849, to present their evidences of title, and have their land surveyed, in order that patents might be issued to them; and this in 1852 was rapidly being done.[24]

His special attention was directed to the third article of the treaty of 1846, between the United States and Great Britain, which provided that in the future appropriation of the territory south of 49° north latitude, the possessory rights[25] of the Hudson's Bay Company, and of all British subjects who should be found already in the occupation of land or other property lawfully acquired, within the said territory, should be respected; and to the fourth article, which declared that the farms, lands, and other property belonging to the Puget Sound Agricultural Company on the north side of the Columbia, should be confirmed to the said company, with the stipulation that in case the situation of these farms and lands should be considered by the United States to be of public and political importance, and the United States government should signify a desire to obtain possession of the whole or any part thereof, the property so required should be transferred to the said government at a proper valuation, to be agreed upon between the parties. The commissioner directed the surveyor-general to call upon claimants under the treaty, or their agents, to present to him the evidence of the rights in which they claimed to be protected by the treaty, and to show him the original localities and boundaries of the same which they held at the date of the treaty; and he was not required to survey in sections or minute subdivisions the land covered by such claims, but only to extend the township lines over them, so as to indicate their relative position and connection with the public domain.

The surveyor-general reported with regard to these claims, that McLoughlin, who had recently become a naturalized citizen of the United States, had given notice September 29, 1852, that he claimed under the treaty of 1846 a tract of land containing 640 acres, which included Oregon City within its boundaries, and that he protested against any act that would disturb his possession, except of the portion sold or granted by him within the limits of the Oregon City claim.[26]

As to the limits of the Hudson's Bay Company's claim in the territory, it was the opinion of chief factor John Ballenden, he said, that no one could state the nature or define the limits of that claim. He called the attention of the general land commissioner, and through him of the government, to the fact that settlers were claiming valuable tracts of land included within the limits of that claimed by the Hudson's Bay and Puget Sound companies, and controversies had arisen not only as to the boundaries, but as to the rights of the companies under the treaty of 1846; and declared that it was extremely desirable that the nature of these rights should be decided upon.[27] To decide upon them himself was something beyond his power, and he recommended, as the legislative assembly, the military commander, and the superintendent of Indian affairs had done, that the rights, whatever they were, of these companies, should be purchased. To this advice, as we know, congress turned a deaf ear, until squatters had left no land to quarrel over. The people knew nothing and cared less about the rights of aliens to the soil of the United States. In the mean time the delay multiplied the evils complained of. Let us take the site of Vancouver as an example. Either it did or it did not belong to the Hudson's Bay Company by the terms of the treaty of 1846. If it did, then it was in the nature of a grant to the company, from the fact that the donation law admitted the right of British subjects to claim under the treaty, by confining them to a single grant of land, and leaving it optional with them whether it should be under the treaty or under the donation law.[28] In one case, however, it limited the amount of land, and in the other it did not. But there was no provision made in the donation law, the organic act, or any where else by which those claiming under the treaty could define their boundaries or have their lands surveyed and set off to them. The United States had simply promised to respect the company's rights to the lands, without inquiring what they were. They had promised also to purchase them, should it be found they were of public or political importance, and to pay a proper valuation, to be agreed upon between the parties. But the citizens of the United States, covering the lands of the Hudson's Bay and Puget Sound Agricultural companies with claims, under the donation law, deprived both companies and the United States of their possession.

One of the settlers—or, as they were called, squatters—on the Hudson's Bay Company's lands was Amos M. Short, who claimed the town site of Vancouver.[29] When he first went on the lands, before the treaty, the company put him off. But he persisted in returning, and subsequently killed two men to prevent being ejected by process of law. Nevertheless, when the donation law was passed Short took no steps to file a notification of his claim. Perhaps he was waiting the action of congress with regard to the Hudson's Bay Company's rights. While he waited he died, having lost the benefits of the act of September 27, 1850, by delay. In the mean time congress passed the act of the 14th of February, 1853, permitting all persons who had located or might hereafter locate lands in that territory, in accordance with the provisions of the law of 1850, in lieu of continued occupation, to purchase their claims at the rate of $1.25 an acre, provided they had been two years upon the land. The widow of Short then filed a notification under the new act, and in order to secure the whole of the 640 acres, which might have been claimed under the original donation act, dated the residence of her husband and herself from 1848. But Mrs Short, whose notification was made in October 1853, was still too late to receive the benefit of the new act, as Bishop Blanchet had caused a similar notification to be made in May, claiming 640 acres for the mission of St James[30] out of the indefinite grant to the Hudson's Bay Company. Though the company's rights of occupancy did not expire until 1859, the bishop chose to take the same view held by the American squatters, and claimed possession at Vancouver, where the priests of his church had been simply guests or chaplains, under the clause in the organic act giving missions a mile square of land; and the surveyor general of Washington Territory decided in his favor.[31] No patent was however issued to the catholic church, the question of the Hudson's Bay Company's claim remaining in abeyance, and the decision of the surveyor general being reversed by the commissioner of the general land office, after which an appeal was taken to the secretary of the interior.[32]

The case not being definitely decided, a bill was brought before congress in 1874 for the relief of the catholic mission of St James, and on being referred to the committee on private land claims, the chairman reported that it was the opinion of the committee that the mission was entitled to 640 acres under the act of August 14, 1848, and recommended the passage of the bill, with an amendment saving to the United States the right to remove from the premises any property, buildings, or other improvements it might have upon that portion of the claim covered by the military reservation.[33] But the bill did not pass; and in 1875, a similar bill being under advisement by the committee on private land claims, the secretary of war addressed a letter to the committee, in which he said that the military reservation was valued at a million dollars, and that the claim of the St James mission covered the whole of it; and that the war department had always held that the religious establishment of the claimants was not a missionary station among Indian tribes on the 14th of August 1848, and that the occupancy of the lands in question at that date was not such as the act of congress required. The secretary recommended that the matter go before a court and jury for final adjustment, on the passage of an act providing for the settlement of this and similar claims.[34]

Again in 1876, a bill being before congress whose object was to cause a patent to be issued to the St James mission, the committee on private land claims reported in favor of the mission's right to the land so far only as to amend the bill so as to enable all the adverse claimants to assert their rights before the courts; and recommended that in order to bring the matter into the courts, a patent should be issued to the mission, with an amendment saving the rights of adverse claimants and of the United States to any buildings or fixtures on the land.[35]

After long delays the title was finally settled in November 1874 by the issuance of a patent to Abel G. Tripp, mayor of Vancouver, in trust for the several use and benefit of the inhabitants according to their respective interests. Under an act of the legislature the mayor then proceeded to convey to the occupants of lots and blocks the land in their possession, according to the congressional law before adverted to in reference to town sites.

That a number of land cases should grow out of misunderstandings and misconstructions of the land law was inevitable. Among the more important of the unsettled titles was that to the site of Portland. The reader already knows that in 1843 Overton claimed on the west bank of the Willamette 640 acres, of which soon after he sold half to Lovejoy, and in 1845 the other half to Pettygrove; and that these two jointly improved the claim, laying it off into lots and blocks, some of which they sold to other settlers in the town, who in their turn made improvements.

In 1845, also, Lovejoy sold his half of the claim to Benjamin Stark, who came to Portland this year as supercargo of a vessel, Pettygrove and Stark continuing to hold it together, and to sell lots. In 1848 Pettygrove, Stark being absent, sold his remaining interest to Daniel H. Lownsdale. The land being registered in the name of Pettygrove, Lownsdale laid claim to the whole, including Stark's portion, and filed his claim to the whole with the registrar, residing upon it in Pettygrove's house.[36]

In March 1849 Lownsdale sold his interest in the claim to Stephen Coffin, and immediately repurchased half of it upon an agreement with Coffin that he should undertake to procure a patent from the United States, when the property was to be equally owned, the expenses and profits to be equally divided; or if the agreement should be dissolved by mutual consent, Coffin should convey his half to Lownsdale. The deed of Coffin reserved the rights of all purchasers of lots under Pettygrove, binding the contracting parties to make good their titles when a patent should be obtained. In December of the same year Lownsdale and Coffin sold a third interest in the claim to W. W. Chapman, reserving, as before, the rights of lot owners.

Up to this time there had been no partition of the land; but in the spring of 1850, Stark having returned and asserted his right in the property, a division was agreed to between Stark and Lownsdale, by which each held his portion in severalty, and to confirm titles to purchasers on their separate parcels of land, Stark taking the northern and Lownsdale the southern half of the claim.

Upon the passage of the donation law, with its various requirements and restrictions, it became necessary for each claimant, in order not to relinquish his right to some other, to apply for a title to a definitely described portion of the whole claim. Accordingly, on the 10th of March, 1852, Lownsdale, having been four years in possession, came to an arrangement with Coffin and Chapman with regard to the division of his part of the claim in which they were equal owners. The division being agreed upon, it became necessary also to make some bargain by which the lots sold on the three several portions of Lownsdale's interest might fall with some degree of fairness to the three owners when they came to make deeds after receiving patents; the same being necessary with regard to the lots previously selected by their wives out of their claims, which were exchanged to bring them within the limits agreed upon previous to going before the surveyor general for a certificate. Everything being settled between Lownsdale, Chapman, and Coffin, the first two filed their notification of settlement and claim on the 11th of March, and the latter on the 19th of August.

On the 8th of April Lownsdale, by the advice of A. E. Wait, filed a notification of claim to the whole 640 acres, upon the ground that Job McNamee, who had in 1847 attempted to jump the Portland claim, but had afterward abandoned it, had returned, and was about to file a notification for the whole claim. Lownsdale and Wait excused the dishonesty of the act by the assertion that either of the other two owners could have done the same had they chosen. A controversy arose between Chapman and Coffin on one side and Lownsdale on the other, which was decided by the surveyor general in favor of Chapman and Coffin, Lownsdale refusing to accept the decision. Stark and the others then appealed to the commissioner of the general land office, who gave as his opinion that Portland could not be held as a donation claim: first, because it dated from 1845, and congress did not recognize claims under the provisional government; again, because congress contemplated only agricultural grants; and last, on account of the clause in the organic act which made void all laws of the provisional government affecting the title to land. He also believed the town-site law to be extended to Oregon along with the other United States laws; and further asserted that the donations were in the nature of preëmption, only more liberal.[37]

This decision made the Portland land case more intricate than before, all rights of ownership in the land being disallowed, and there being no reasonable hope that those claiming it could ever acquire any; since if they should be able to hold the land until it came into market, there would still be the danger that any person being settled upon any of the legal subdivisions might claim it, if not sufficiently settled to be organized into a town. Or should the town-site law be resorted to, the town would be parcelled out to the occupants according to the amount occupied by each. Sad ending of golden dreams!

But the commissioner himself pointed out a possible flaw in the argument, in the word 'surveyed,' in the second line of the act of 1844. The lands settled on in Oregon as town sites were not surveyed, which might affect the application of that law. The doubt led to the employment of the judicial talent of the territory in the solution of this legal puzzle, which was not, after all, so difficult as at a cursory glance it had seemed. Chief Justice Williams, in a case brought by Henry Martin against W. G. T'Vault and others, who, having sold town lots in Vancouver in exchange for Martin's land claim, under a bond to comply with the requirements of the expected donation law, and then to convey to Martin by a good and sufficient deed, refused to make good their agreement, reviewed the decision of Commissioner Wilson and Secretary McClelland in a manner that threw much light upon the town-site law, and showed Oregon lawyers capable of dealing with these knotty questions.

Judge Williams denied that that portion of the organic act which repealed all territorial laws affecting the title to land repealed all laws regulating the possessory rights of settlers. Congress, be said, was aware that many persons had taken and largely improved claims under the provisional government, and did not design to leave those claims without legal protection, but simply to assert the rights of the United States; did not mean to say that the claim laws of the territory should be void as between citizen and citizen, but that the United States title should not be encumbered. He argued that if the act of 1848 vacated such claims, the act of 1850 made them valid, by granting to those who had resided upon their claims, and by protecting the rights of their heirs, in the case of their demise before the issuance of patents. The surveyor general was expressly required to issue certificates, upon the proper proof of settlement and cultivation, "whether made under the provisional government or not." He declared untenable the proposition that land occupied as a town site prior to 1850 was not subject to donation under the act. A man might settle upon a claim in 1850, and in 1852 lay it out into a town site; but the surveyor general could not refuse him a certificate, so long as he had continued to reside upon and cultivate any part of it.

The rights of settlers before 1850 and after were placed upon precisely the same footing, and therefore if a claim were taken in 1847, and laid off in town lots in 1849, supposing the law to have been complied with in other respects, the claimant would have the same rights as if he had gone upon the land after the passage of the donation law. The surveyor general could not say to an applicant who had complied with the law that he had forfeited his right by attempting to build up a town. A settler had a right to admit persons to occupy under him or to exclude them; and if he admitted them—such action not being against the public good—it ought not to prejudice his claim.

Judge Williams further held that the town-site law of 1844 was not applicable to Oregon, and that the land laws of the United States had not been extended over this territory. The preëmption law had never been in force in Oregon; there were no land districts or land offices established.[38] No claims had ever been taken with reference to such a law, nor had any one ever thought of being governed by them in Oregon. And as to town sites, while the California land law excepted them from private entry, the organic act of Oregon excepted only salt and mineral lands, and said nothing about town sites; while the act of 1850 specifically granted the Oregon City claim, leaving all other claims upon the same footing, one with another.

Meanwhile, the citizens of Portland who had purchased lots were in a state of bewilderment as to their titles. They knew of whom they had purchased; but since the apportionment of the surveyor general, which made over to Coffin a part of Lownsdale's conveyances and to Lownsdale and Chapman a part of Coffin's conveyances, they knew not where to look for titles. To use the words of one concerned, a 'three days' protracted meeting' of the citizens had been held to devise ways and means of obtaining titles to their lots. They finally memorialized congress to pass a special act, exempting the town site of Portland from the provisions of the donation act, which failed to meet with approval, being opposed by a counter-petition of the proprietors; though whether it would have succeeded without the opposition was unknown.

In the winter of 1854–5 a bill was before the legislative assembly for the purchase of the Portland land claim under the town-site law of 1844, before mentioned, Portland having become incorporated in 1851, and having an extent of two miles on the river by one mile west from it. Coffin and Chapman opposed the bill, and the legislature adjourned without taking any action in the matter.[39] Finally, the city of Portland was allowed to enter 320 acres under the town-site law in 1860, some individual claims under the same being disallowed.[40]

The decision rendered by the general land office in 1858 was that the claims of Stark, Chapman, and Coffin were good, under their several notifications; that Lownsdale's was good under his first notification; and that where the claims of these parties conflicted with the town-site entry of 320 acres their titles should be secured through the town authorities under the provisions of the act of 1844, and the supplementary act of 1854 relating to town sites.[41]

On the demise of Lownsdale, not long after, his heirs at law attempted to lay claim to certain lots in Portland which had been sold previous to the adjustment of titles, but with the understanding and agreement that when their claims should be confirmed the grantors of titles to town lots should confirm the title of the grantees. The validity of the titles obtained from Stark, Lownsdale, Coffin, and Chapman, whether confirmed or not, was sustained by the courts. A case different from either of these was one in which the heirs of Mrs Lownsdale proved that she had never dedicated to the public use in streets or otherwise a portion of her part of the donation claim; nor had the city purchased from her the ground on which Park street, the pride of Portland, was laid out. To compel the city to do this, a row of small houses was built in the street, where they remain to this time, the city unwilling to purchase at the present value, and the owners determined not to make a present of the land to the public.[42] There was likewise a suit for the Portland levee, which had been dedicated to the use of the public. The supreme court decided that it belonged to the town; but Deady reversed the decision, on the ground that at the time the former decision was rendered the land did not belong to the city, but to Coffin, Chapman, and Lownsdale.[43]

Advantage was sought to be taken by some of that clause in the donation law which declared that no laws passed by the provisional legislature interfering with the primary disposal of the soil should be valid. But the courts held, very properly, that it had not been the intention of congress to interfere with the arrangements already made between the settlers as to the disposal of their claims, but that on the contrary the organic law of the territory distinctly said that all bonds and obligations valid under the laws of the provisional government, not in conflict with the laws of the United States, were to be valid under the territorial laws till altered by the legislature, and that the owners of town sites who had promised deeds were legally bound to furnish them on obtaining the title to the land. And the courts also decided that taxes should be paid on land claims before the patents issued, because by the act of September 27, 1850, the land was the property in fee simple of every claimant who had fulfilled the conditions of the law.

A question arose concerning the right of a man having an Indian woman for a wife to hold 640 acres of land, which was decided by the courts that he could so hold.

The Dalles town-site claim was involved in doubt and litigation down to a recent period, or during a term of twenty-three years. That the methodists first settled at this point as missionaries is known to the reader; also that in 1847 they sold it to Whitman, who was in possession during the Cayuse war, which drove all the white population out of the country. Thus the first claim was methodist, transferred to the presbyterians, and finally abandoned. But, as I have elsewhere shown, a catholic mission was maintained there afterward for some years.

From the sale[44] and abandonment of the Dalles mission to June 1850 there was no protestant mission at that place; but subsequent to the passage of the donation law, and notwithstanding the military reservation of the previous month of May, an attempt was made to revive the methodist claim in that year by surveying and making a claim which took in the old mission site; and in 1854 their agent, Thomas H. Pearne, notified the surveyor general of the fact.[45] In the interim, however, a town had grown up at this place, and certain private individuals and the town officers opposed the pretensions of the methodists. And it would seem from the action of the military authorities at an earlier date that either they differed from the methodist society as to their rights, or were willing to give them an opportunity to recover damages for the appropriation of their property, the former mission premises being located about in the centre of the reservation.

When the amended land law in 1853 reduced the military reservations in Oregon to a mile square, the reserve as laid out still took something more than half of the claim as surveyed by the methodists in 1850.[46] For this the society, by its agent, brought a claim against the government for $20,000 for the land, and later of $4,000 for the improvements, which in their best days had been sold to Whitman for $600. Congress, by the advice of Major G. J. Raines, then in command at Fort Dalles, and through the efforts of politicians who knew the strength of the society, allowed both claims;[47] and it would have been seemly if this liberal indemnity for a false claim had satisfied the greed of that ever-hungry body of Christian ministers. But they still laid claim to every foot of ground which by their survey of 1850 fell without the boundaries of the military reserve, taking enough on every side of it to make up half of a legal mission donation.[48]

The case came before three successive surveyor-generals and the land commissioners,[49] and was each time decided against the missionary society, until, as I have said, congress was induced to pay damages to the amount of $24,000, in the expectation, no doubt, that this would settle the claims of the missionaries forever. Instead of this, however, the methodist influence was strong enough with the secretary of the interior in 1875 to enlist him in the business of getting a deed in fee simple from the government of the land claimed by the missionaries,[50] although the property was already covered by a patent under the donation act to W. D. Bigelow, who settled at The Dalles in 1858,[51] and a deed under the town-site act. But by Judge Deady this patent was held of no effect, because the section of the statutes under which it was issued imposed conditions which were not complied with, namely, that the grant could only be made upon a survey approved by the surveyor general and found correct by the commissioner, neither of which could be maintained, as both had rejected the claim. And in any case, under the statute,[52] such a patent could operate only as a relinquishment of title on the part of the United States, and could not interfere with any valid adverse right like that of Bigelow or Dalles City, nor preclude legal investigation and decision by a proper judicial tribunal.

This legal investigation began in the circuit court of Wasco county in September 1877, but was removed in the following January to the United States district court, which rendered a decision in October 1879 adverse to the missionary society, and sustaining the rights of the town-site owners under the donation and town-site laws, founded upon a thorough examination of the history and evidence in the case. The mission then appealed to the U. S. supreme court, which, in 1883, finally affirmed Deady's decision, and The Dalles, which had been under this cloud for a quarter of a century, was at length enabled to give a clear title to its property.

The claim made by the catholics at The Dalles in 1848, and who really were in possession at the time of the passage of the organic act, was set aside, except so far as they were allowed to retain about half an acre for a building spot. So differently is law interpreted, according to whether its advocates are governed by its strict construction, by popular clamor, or by equity and common sense.

In the case of the original 'old mission' of the methodist church in the Willamette Valley, the removal of the mission school to Salem in 1843 prevented title. The land on which Salem now stands would have come under the law had not the mission school been discontinued in 1844; and the same may be said of all the several stations, that they had been abandoned before 1850.

As to the grants to protestant missions, they received little benefit from them. The American board sold Waiilatpu for $1,000 to Gushing Eells, as I have before mentioned. It was not a town site, and there was no quarrel over it. An attempt by the catholics to claim under the donation law at Walla Walla was a failure through neglect to make the proper notification, as I have also stated elsewhere. No notice of the privilege to claim at Lapwai was taken until 1862, when the Indian agent of Washington Territory for the Nez Percés was notified by Eells that the land he was occupying for agency purposes was claimed by the American board, and a contest arose about surveying the land, which was referred to the Indian bureau, Eells forbidding the agent to make any further improvements.[53] But as the law under which the missions could claim required actual occupancy at the time of its passage, none of the lands resided upon by the presbyterians were granted to the board except the Waiilatpu claim from which the occupants were excluded by violence and death. Thus, of all the land which the missionaries had taken so much trouble to secure to their societies, and which the organic act was intended to convey, only the blood-stained soil of Whitman's station was ever confirmed to the church, because before 1848 every Indian mission had been abandoned except those of the catholics, who failed to manage well enough to have their claims acknowledged where they might have done so, and who committed the blunder of attempting to seize the land of the Hudson's Bay Company at Vancouver.

Great as was the bounty of the government, it was not an unmixed blessing. It developed rapacity in some places, and encouraged slothful habits among some by giving them more than they could care for, and allowing them to hope for riches from the sale of their unused acres. The people, too, soon fell out with the surveyor-general for taking advantage of his position to exact illegal fees for surveying their claims prior to the public survey, Preston requiring them to bear this expense, and to employ his corps of surveyors. About $25,000 was extorted from the farmers in this way, when Preston was removed on their complaint, and Charles K. Gardiner of Washington city appointed in his place in November 1853.

Gardiner had not long been in office before he followed Preston's example. The people protested and threatened, and Gardiner was obliged to yield. Both the beneficiaries and the federal officer knew that an appeal to the general land office would result in the people having their will in any matters pertaining to their donation. The donation privileges expired in 1855, after which time the public lands were subject to the United States law for premption and purchase.[54] On the admission of Oregon as a state in 1859, out of eight thousand land claims filed in the registrar's office in Oregon City, only about one eighth had been forwarded to Washington for patent, owing to the neglect of the government to furnish clerks to the registrar, who could issue no more than one certificate daily. Fees not being allowed, this officer could not afford to hire assistants. But in 1862 fees were allowed, and the work progressed more satisfactorily, though it is doubtful if ten years afterward all the donation patents had been issued.[55]

  1. See U. S. H. Ex. Doc. ii., vol. ii. pt iii. 5–8, 32d cong. 1st sess.; Deady's Or. Laws, 1845–64, 84–90; Deady's Or. Gen. Laws, 1843, 72, 63–75.
  2. In Pratt's opinion on the location of the seat of government, he reiterates this belief, and says that both he and Bryant held that 'no power existed by which the supreme court could be legally held before the seat of government was established.' Or. Statesman, Jan. 6, 1852. According to this belief, the proceedings of the district courts were illegal for nearly two years.
  3. Or. Spectator, May 22, 1851.
  4. Or. Spectator, Nov. 28, 1850.
  5. Deady says he had a 'hard fight.' The proviso was meant, and was understood to mean, the restoration to McLoughlin, and the British subjects who had always lived in the country, of the elective franchise. Hist. Or., MS., 81.
  6. See Home Missionary, vol. 24, 156. Thornton held that there was such a thing as implied residence, and that a man might be a resident by the residence of his agent; and cited Kent's Com., 77. Also that a claimant whose dwelling was not on the land, but who improved it by the application of his personal labor, or that of his hired man, or member of his family, could demand a patent at the expiration of four years. See opinion of J. Q. Thornton in Or. Spectator, Jan. 16, 1851. It is significant that in these discussions and opinions in which Thornton took a prominent part at the time, he laid no claim to the authorship of the land law. To do this was an afterthought. Mrs Odell, in her Biography of Thurston, MS., 28, remarks upon this.
  7. Cong. Globe, app., 1852–3, vol. xxvii. 331, 32d cong. 2d sess.; U. S. H. Ex. Doc. 2, vol. ii. pt iii. 5–8, 32d cong. 1st sess. The survey was conducted on the method of base and meridian lines, and triangulations from fixed stations to all prominent objects within the range of the theodolite, by means of which relative distances were obtained, together with a general knowledge of the country, in advance of the linear surveys. Id.
  8. Rept of Preston in U. S. H. Ex. Doc. 52, 1851–2, v. 23, 31st cong. 1st sess. It was done by Thurston's advice. See Cong. Globe, 1849–50, xxi. pt ii. 1077, 31st cong. 1st sess.
  9. William Ives was the contractor for the survey of the base line and Willamette meridian north of it; and James Freeman of the Willamette meridian south of it, as far as the Umpqua Valley.
  10. The first surveys advertised were of township 1 north, range 1 east; townships 7 and 8 south, range 1 west; and township 7 south, range 3 and 4 west. The oldest patents issued for donation claims are those in Washington county, unless the Oregon City lots may be older. See Or. Spectator, Feb. 10, 1852.
  11. Letter to the Electors of Oregon, 8.
  12. Portland Oregonian, Feb. 7, 1852.
  13. 'As respects grants of land, they will be placed upon the same footing as male citizens, provided that such widows were in this country before December 1, 1850, and are of American birth.' Or. Spectator, May 8, 1851. Thurston in his Letter to the Electors remarks that this feature of the donation act was a popular one in congress, and that he thought it just.
  14. It has been decided that the words 'single man' included an unmarried woman. 7 Wall., 219. See Deady's Gen. Laws Or., 1843–72. But I do not see how under that construction a woman could be prevented holding as a 'single man' first and as a married woman afterward, because the patent to her husband, as a married man, would include 640 acres, 320 of which would be hers.
  15. 'They said it would be injurious to the country schools, by preventing the country from being thickly settled; that it would retard the agricultural growth of the country; and though it would meet the case of many deserving men, it would open the door to frauds and speculations by all means to be avoided.' Thurston's Letter to the Electors of Oregon, 8; Beadle's Undev. West, 762–3; Home Missionary, vol. 26, p. 45.
  16. Those whose parents had died in Oregon before the passage of the law did not come under the requirements of the donation act; nor those whose parents had died upon the road to Oregon. As they could not inherit, a direct grant was asked.
  17. Or. Statesman, Dec. 16, 1851.
  18. Heirs of settlers in Oregon who died prior to Sept. 27, 1850, cannot inherit or hold land by virtue of the residence and cultivation of their ancestors. Ford vs Kennedy, 1 Or. 166. The daughter of Jason Lee was portionless, while the children of later comers inherited.
  19. See Or. Statesman, Nov. 6, 1853. A resolution offered in the assembly of 1852–3 asked that the land east of the Cascade mountains should be immediately surveyed, and sold at the minimum price, in quantities not exceeding 640 acres to each purchaser; the money to be applied to the construction of that portion of the contemplated Pacific railroad west of the Rocky Mountains. This was the first practical suggestion of the Oregon legislature concerning the overland railroad, and appropriated all or nearly all the land in Oregon to the use of Oregon, the western portion except that north of the Columbia being to a great extent claimed.
  20. See previous note 13. The surveyor general had before so construed the law.
  21. This was a great relief to the immigration at The Dalles, where the military had taken up ten miles square of land, thereby greatly inconveniencing travellers by depriving their stock of a range anywhere near the usual place of embarkation on the Columbia.
  22. This act provided that when any of the surveyed public lands had been occupied as a town site, and was not therefore subject to entry under the existing laws, in case the town were incorporated, the judges of the county court for that county should enter it at the proper land office, at the minimum price, for the several use and benefit of the occupants thereof according to their respective interests, the proceeds of the sales of lots to be disposed of according to rules and regulations prescribed by the legislature; but the land must be entered prior to the commencement of the public sale of the body of land in which the town site was included. See note on p. 72, Gen. Laws Or.
  23. Many patents never issued. It was held by the courts that the law actually invested the claimant who had complied with its requirements with the ownership of the land, and that the patent was simply evidence which did not affect the title. Deady's Scraps, 5.
  24. U. S. H. Ex. Doc. 52, v. 25, 32d cong. 1st sess.
  25. This subject came up in a peculiar shape as late as 1871, when H. W. Corbett was in the U. S. senate. A case had to be decided in the courts of Oregon in 1870, where certain persons claimed under William Johnson, who before the treaty of 1846 settled upon a tract of land south of Portland. But Johnson died before the land law was passed, and the courts decided that in this case Johnson had first lost his possessory rights by abandoning the claim; by dying before the donation law was passed, he was not provided for in that act, and therefore had no title either under the treaty or the land law by which his heirs could hold. This raised a question of law with regard to the heirs of British residents of Oregon before the treaty of 1846; and Corbett introduced a bill in the senate to extend the rights of citizenship to half-breeds born within the territory of Oregon previous to 1846, and now subject to the jurisdiction of the United States, which was passed. Sup. Court Decisions, Or. Laws, 1870, 227–9; Cong. Globe, 1871–2, app. 730, 42d cong. 2d sess.; Cong. Globe, 1871–2, part ii., p. 1179, 42d cong. 2d sess.
  26. I have already shown that having become an American citizen, McLoughlin could not claim under the treaty. See Deady's Or. Laws, 1845–64, 56–7. McLoughlin was led to commit this error by the efforts of his foes to destroy his citizenship.
  27. U. S. H. Ex. Doc. 14, iii. 14–17, 32d cong. 2d sess.; Olympia Columbian, April 9, 1853.
  28. Deady's Gen. Laws Or., 1845–64, 86.
  29. I have given a part of Short's history on page 793 of vol. i. He was drowned when the Vandalia was wrecked, in January 1853.
  30. Says Roberts: 'Even the catholics tried to get the land at Vancouver… In the face of the 11th section of the donation law, by which people were precluded from interfering with the company's lands, how could Short, the Roman catholics, and others do as they did?' Recollections, MS., 90, 93.
  31. The papers show that the mission notification was on file before any claims were asserted to contiguous lands. It is the oldest claim. Its recognition is coeval with the organization of Oregon, and was a positive grant more than two years before any American settler could acquire an interest in or title to unoccupied public lands. Report of Surveyor General, in Claim of St James Mission, 21; Olympia Standard, April 5, 1862.
  32. The council employed for the mission furnished elaborate arguments on the side of the United States, as against the rights of the Hudson's Bay Company, one of the most striking of which is the following: 'The fundamental objection to our claim is, that the United States could not in good faith dispose of these lands pending the "indefinite" rights of the Hudson's Bay Company. We have seen that as to time they were not indefinite, but had a fixed termination in May 1859. But either way, how can the United States at the same time deny their right to appropriate or dispose of the lands permanently, only respecting the possessory rights of the company, and yet in 1849, 1850, 1853, or 1854 have made such appropriation (for military purposes) and permanent disposition, and now set it up against its grant to us in 1848? … It is said that the United States had title to the lands, yet it could not dispose of them absolutely in præsenti, so that the grantee could demand immediate possession. Granted, so far as the Hudson's Bay Company was upon these lands with its possessory rights, those rights must be respected. But how does this admission derogate from the right to grant such title as the United States then had, which was the proprietary right, encumbered only by a temporary right of possession, for limited and special purpose?' The arguments and evidence in this case are published in a pamphlet called Claim of the St James Mission, Vancouver, W. T., to 640 acres of Land, from which the above is quoted.
  33. U. S. H. Rept., 630, 43d cong. 1st sess., 1873–4.
  34. U. S. H. Ex. Doc., 117, 43d cong. 2d sess.
  35. Cong. Globe, 1876–7, 44; U. S. H. Rept, 189, 44th cong. 1st sess., 1875–6; U. S. H. Com. Rept, i. 249, 44th cong. 1st sess.; Portland Oregonian, Oct. 40, 1869; Rossi, Souvenirs, vi. 60.
  36. Lownsdale had previously resided west of this claim, on a creek where he had a tannery, the first in Oregon to make leather for sale. He paid for the claim in leather. Overland Monthly, i. 36.
  37. Or. Statesman, June 6, 1854; Olympia Pioneer and Democrat, June 24, 1854; Portland Oregonian, June 10, 1854. See also Brief on behalf of Stark, Coffin, and Chapman, prepared by S. S. Baxter.
  38. Two land districts were established in February 1855, Willamette and Umpqua, but the duties of officers appointed were by act declared to be 'the same as are now prescribed by law for other land offices, and for the surveyor general of Oregon, so far as they apply to such offices.' Or. Statutes, 1858–4, 57. They simply extended new facilities to, without imposing any new regulations upon, the settlers.
  39. Or. Statesman, Feb. 6, 1855. As the reader has probably noticed, the town-site law was extended to Oregon in July 1854, but did not apply to claims already taken, consequently would not apply to Portland. See also Dec. Sup. Ct, relative to Town Sites in Or.; Or. Statesman, Aug. 8, 1875; Or. S. C. Repts, 1853–4.
  40. A. P. Dennison, and one Spear, made claims which were disallowed. The latter's pretensions arose from having leased some land between 1850 and 1853, and believing that he could claim as a resident under that act. Dennison's pretensions were similarly founded, and, I believe, Carter's also.
  41. Brief in behalf of Stark, Coffin, Lownsdale, and Chapman, 1–24; Or. Statesman, Dec. 21, 1858. See also Martin vs T'Vault, 1 Or. 77; Lownsdale vs City of Portland (U. C. D. C.), 1 Or. 380; Chapman vs. School District No. 1 et al.; Opin. Justice Deady, C. C. U. S.; Burke vs Lownsdale.
  42. Lownsdale died in April 1862. His widow was Nancy Gillihan, to whom he was married about 1850.
  43. Apropos of the history of Portland land titles: there came to Oregon with the immigration of 1847 a woman, commonly believed to be a widow, calling herself Mrs Elizabeth Caruthers, and with her, Finice Caruthers, her son. They settled on land adjoining Portland on the south, and when the donation law of 1850 was passed, the woman entered her part of the claim under the name of Elizabeth Thomas, explaining that she had married one Thomas, in Tennessee, who had left her, and who she heard had died in 1821. She preferred for certain reasons to be known by her maiden name of Caruthers. She was allowed to claim 320 acres, and her son 320, making a full donation claim. A house was built on the line between the two portions, in which both claimants lived. In due time both 'proved up' and obtained their certificates from the land office. About 1857 Mrs Caruthers-Thomas died; and in 1860 Finice, her son, died. As he was her sole heir, the whole 640 acres belonged to him. Leaving no will, and being without family, the estate was administered upon and settled.

    So valuable a property was not long without claimants. The state claimed it as an escheat, Or. Jour. House, 1868, 44–6, 465, but resigned its pretensions on learning that there were heirs who could claim. During this time an attempt had been made to prove Finice Thomas illegitimate. This failing, A. J. Knott and R. J. Ladd preëmpted the land left by Mrs Thomas, on the ground that being a woman she could not take under the donation act. Knott and Ladd obtained patents to the land; but they were subsequently set aside by the U. S. sup. ct, which held that a woman was a man in legal parlance, and that Mrs Thomas' claim was good.

    Meantime agitation brought to the surface new facts. There were men in Oregon who had known the husband in Tennessee and Missouri, and who believed him still alive. Two who had known Thomas, or as he was called, Wrestling Joe, were sent to St Louis, accompanied by a lawyer, to discover the owner of south Portland. He was found, his identity established, his interest in the property purchased for the parties conducting the search, and he was brought to Oregon to aid in establishing the right of the purchasers. In Oregon were found a number of persons who recognized and identified him as Wrestling Joe of the Missouri frontier, though old and feeble. He was a man not likely to be forgotten or mistaken, and had a remarkable scar on his face. In 1872 a case was brought to trial before a jury, who on the evidence decided that the man brought to Oregon was Joe Thomas. Soon after, and pending an appeal to the sup. ct, a compromise was effected with the contestants, by the formation of the South Portland Real Estate Association, which bought up all the conflicting claims and entered into possession. Subsequently they sold to Villard.

    After the settlement of the suits as above, Wrestling Joe became incensed with some of the men connected with the settlement, and denied that he was that person, asserting that his name was John C. Nixon, and that all he had testified to before was false. This led to the indictment and arrest of the men who went to St Louis to find and identify Thomas, but on their trial the evidence was so strong that they were acquitted. Soon after, Thomas returned to St Louis, where he lived, as before, after the manner of a mendicant. See communication by W. C. Johnson, in Portland Or., Feb. 2, 1878.

  44. The price paid by Whitman for the improvements at The Dalles was, according to the testimony of the methodist claimants, $600 in a draft on the American board, the agreement being cancelled in 1849 by a surrender of the draft.
  45. The superintendent of the M. E. mission, William Roberts, advertised in the Spectator of Jan. 10, 1850, that he designed to reoccupy the place, declaring that the society had only withdrawn from it for fear of the Indians, though every one could know that when the mission was sold the war had not yet broken out. The Indians were, however, ill-tempered and defiant, as I have related. See Fulton's Eastern Oregon, MS., 8.
  46. Fulton describes the boundaries as follows: 'When the government reduced the military reservations to a mile square, it happened that, on surveying the land so as to bring the fort in the proper position with regard to the boundaries, a strip of land was left nearly a quarter of a mile in width next the river, which was not covered by the reserve. To this strip of land the mission returned, upon the pretence that as it was not included in the military reservation, for which they had received $24,000, it was still theirs. In addition to the river front, there was also a strip of land on the east side of the reserve which was brought by the government survey within the section that would have been the mission claim if adhered to as originally occupied. This also they claimed, managing so well that to make out their section they went all around the reserve.' Eastern Or., MS., 3–5.
  47. Bill passed in June 1860. See remarks upon it by Or. Statesman, April 26, 1859; Id., March 15, 1859; Ind. Aff. Rept, 1854, 284–6.
  48. They made another point—that Waller had left The Dalles and taken land at Salem, where he had but half a claim, which he wanted to fill up at The Dalles. Fulton's Eastern Or., MS., 7. Deady says notwithstanding that Roberts had declared the sale to Whitman cancelled in 1849, a formal deed of quitclaim was not obtained till Feb. 28, 1859; and further, that on the 3d of November, 1858, Walker and Eells, professing to act for the American board, had conveyed the premises to M. M. McCarver and Samuel L. White, subject only to the military reservation. Portland Oregonian, Dec. 4, 1879; Or. Statesman, Aug. 25 and Sept. 8, 1855.
  49. U. S. H. Ex. Doc., 1, vol. v. 5, 38th cong. 2s sess.; Land Off. Rept, 1864, 2; Portland Oregonian, Jan. 23, 1865.
  50. Portland Advocate, May 6, 1875; Vancouver Register, Aug. 6, 1875; N. Y. Methodist, in Walla Walla Statesman, May 1, 1875. Fulton says James K. Kelly told him that Delano had himself been a methodist minister, which may account for the strong interest in this case. Eastern Or., MS., 6.
  51. Bigelow sold and conveyed, Dec. 9, 1862, an undivided third interest in 27 acres of his claim to James K. Kelly and Aaron E. Wait; and Dec. 12, 1864, also conveyed to Orlando Humason the remaining two thirds of this tract. Humason died in Sept. 1875, leaving the property to his widow Phœbe Humason, who became one of three in a suit against the missionary society. See The Dalles Meth. Miss. Claim Cases, 5, a pamphlet of 22 pp. Bigelow also conveyed to Kelly and Wait 46 town lots on the hill part of the town, known as Bluff addition to Dalles City. Id.
  52. Deady quotes it as 'section 2447 of the R. S.,' and says it was 'taken from the act of Dec. 22, 1854, authorizing the issue of patents in certain cases, and only applies where there has been a grant by statute without a provision for the issue of a patent,' which could not be affirmed in this case.
  53. Charles Hutchins, the agent referred to, remarks that the missionaries at Lapwai may have acted with discretion in retiring to the Willamette Valley, although they were assured of protection by the Nez Percés; but as they had made no demonstration of returning from 1847 to 1862, and had been engaged in other pursuits, it was suggestive of the thought that it was the value of the improvements made upon the land that prompted them to put in their claim at this time. He could have added that the general improvement in this part of the country might have prompted them. Ind. Aff. Rept, 1862, 426.
  54. In 1856 John S. Zieber was appointed surveyor general, and held the office until 1859, when W. W. Chapman was appointed. In 1861 he gave way to B. J. Pengra, and he in turn to E. L. Applegate, who was followed by W. H. Odell, Ben. Simpson, and J. C. Tolman, all Oregon men.
  55. Land Off. Rept, 1858, 33, 1863, 21–2; Or. Argus, Sept. 11, 1858; S. F. Bulletin, Jan. 28, 1864.