years of earnest entreaty by the settlers, after a provisional government had been formed, and after the whole people of the United States at the presidential election of 1844 had overwhelmingly voted for immediate war unless our title was conceded clear up to the Alaska line—after all this, the Polk administration pottered along as if dickering for a barrel of potatoes, while the Americans in Oregon were risking everything to save the country for the Union.
The Oregon provisional government had done all in its power to hasten a settlement and give assurance of security for land titles. But it had no authority in the matter. Its laws were not the acts of a recognized state or nation. And even if Great Britain was ousted from the country, congress might not ratify or maintain the laws, or the grants of land by the provisional government, but displace all such provisional proceedings as premature and inoperative.
That was the legal phase of the case. The real facts of the case show the townsite proprietors to be actuated by the highest sense of honor and fair dealing. To fortify possession with every possible defence against insecurity of title, and guarantee to purchasers of lots in the new town—make assurance double sure—Lownsdale, Coffin and Chapman entered into the most solemn and carefully prepared written contracts, to secure in any event all the title they could get from the United States, and convey the same to the purchasers of lots; binding themselves jointly and severally, in large bonds to make such deeds.
But as the titles to all the lands obtained and sold by the townsite proprietors have long since been quieted and settled, the matter can be of interest only in a general and historical sense, and in no way as a technical legal question. And as the decisions of United States judges, Sawyer and Deady, deal with the broad principles of justice on which the town was founded in its anomalous legal surroundings, the important parts of those decisions will be given. Says Judge Sawyer (First Sawyer, Rep. p. 619):
"It is a matter of public history, of which the court can take notice, that Oregon was settled while the sovereignty of the country was still in dispute between the United States and Great Britain; that subsequently a provisional government was organized and put in operation by the people, without any authority of the sovereign powers; that laws were passed temporarily regulating and protecting claims made upon public lands; and that afterwards, the territorial government was established under the authority of congress and put in operation long before there was any law or means by which the real title to any portion of land in Oregon could be obtained. The title to the lands in Oregon were vested in the United States from the moment that the right of sovereignty was acquired, and the first law that was passed, by which the title in fee could in any way be acquired from the government, was the said Act of September 10, 1850, called the Donation Act. Long before that time, however, an organized community had existed; lands had been taken up and improved; towns laid out, established and built up, having a considerable population and a growing commerce. It was necessary, in the nature of things, that some right of property should be recognized in lands, in the dealings of the people among themselves, and laws were adopted by the provisional government regulating the subject. Tracts of land were taken up, and claimed by the settlers within the limits, as to quantity allowed; towns laid off, and lands and town lots sold and conveyed from one to another, in all respects as though the parties owned the fee, except that every party dealing with the lands, necessarily knew that he did not, and could not, under the existing laws obtain the fee from the real proprietor.
"But between man and man, possession is evidence of title in fee, as against everybody but the true owner. The law protects in his possession the party who has once possessed himself of, and appropriated to his use a piece of unoccupied land, until he has lost his possession and right of possession by abandonment, as against everybody but the true owner. Such possession and right of possession are recognized as property by the common law, and the right is protected and enforced by the courts. * * * Prior appropriation is the origin of all titles.
