USA > Oregon > History of Oregon, Vol. II, 1848-1888 > Part 28
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LAND LAWS AND LAND TITLES.
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 con- firined 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 gov- ernment should signify a desire to obtain possession of the whole or any part thereof, the property so re- quired 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 aud 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 dis-
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 Cor- bett 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. 24 sess .; Cong. Globe, 1871-2, part ii., p. 1179, 42d cong. 2d sess.
277
HUDSON'S BAY COMPANY.
turb 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 fac- tor 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 na- ture of these rights should be decided upon.27 To de- cide upon them himself was something beyond his power, and he recommended, as the legislative assem- bly, 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 com- pany, 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
26 I have already shown that having become an American citizen, McLough- lin could not claim under the treaty. Sec Dendy'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. E.c. Doc. 14, iii. 14-17, 32d cong. 2d sess .; Olympia Columbian, April 9, 1853.
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LAND LAWS AND LAND TITLES.
be under the treaty or under the donation law.29 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 sur- veved 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, squat- ters-on the Hudson's Bay Company's lands was Amos M. Short, who claimed the town site of Van- couver.29 When he first went on the lands, before the treaty, the company put him off. But he per- sisted in returning, and subsequently killed two men to prevent being ejected by process of law. Never- theless, 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 Septem- ber 27, 1850, by delay. In the mean time congress passed the act of the 14th of February, 1853, permit- ting 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
28 Deady's Gen. Laws Or., 1845-64, 86.
"9 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 IS53.
279
VANCOUVER CLAIM.
upon the land. The widow of Short then filed a notification under the new aet, and in order to secure the whole of the 640 acres, which might have been elaimed 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" 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 organie 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
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 recog- nition 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 Cluim 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 Com- pany, 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 dis- pose of these lands pending the "indefinite" rights of the Hudson's Bay Com- pany. We have seen that as to time they were not indefinite, but had a fixed termination in May 1839. 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 iu 1849, 1850, 1833, or 1854 have made such appropriation (for military purposes) and per- manent disposition, and now set it up against its grant to us iu 1848 ?. .. It is
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LAND LAWS AND LAND TITLES.
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 de- partment had always held that the religious establish- ment 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 sim- ilar 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
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 pos- session. 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, cncumbered 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 coug. Ist sess., 1873-4.
34 U. S. H. Ex. Doc., 117, 43d cong. 2d sess.
281
PORTLAND CLAIM.
reported in favor of the mission's right to the land so far ouly 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 sev- eral use and benefit of the inhabitants according to their respective interests. Under an act of the legis- lature the mayor then proceeded to convey to the occupants of lots and blocks the land in their pos- session, according to the congressional law before ad- verted 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, laving 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 con- tinuing 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
33 Cong. Globe, 1876-7, 44; U. S. H. Rept, 189, 44th cong. Ist sess., 1875-6; U. S. II. Com. Rept, i. 249, 44th cong. Ist sess .; Portland Oregorian, Oct. 30, 1869; Rossi, Souvenirs, vi. 60.
282
LAND LAWS AND LAND TITLES.
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, re- siding 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 ex- penses 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 re- turned and asserted his right in the property, a divi- sion 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 neces- sary 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 arrange- ment with Coffin and Chapman with regard to the division of his part of the claim in which they were
35 Lownsdale had previously resided west of this claim, on a creek where he had a tannery, the first iu Oregon to make leather for sale. He paid for the claim in leather. Overland Monthly, i. 36.
283
TEST CASES.
equal owners. The division being agreed upon, it be- came necessary also to make some bargain by which the lots sold on the three several portions of Lowns- dale'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, Chap- man, and Coffin, the first two filed their notifieation 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 de- cided by the surveyor general in favor of Chapman and Coffin, Lownsdale refusing to accept the decision. Stark and the others then appealed to the commis- sioner 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 gov- ernment; 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
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LAND LAWS AND LAND TITLES.
further asserted that the donations were in the na- ture of preemption, 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 sub- divisions 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 possi- ble 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 dona- tion 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 affect- ing the title to land repealed all laws regulating the
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.
285
RIGHTS OF SETTLERS.
possessory rights of settlers. Congress, he said, was aware that many persons had taken and largely im- proved claims under the provisional government, and did not design to leave those claims without legal pro- tection, 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 encum- bered. 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
286
LAND LAWS AND LAND TITLES.
over this territory. The preemption 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 spe- cifically granted the Oregon City claim, leaving all other claims upon the same footing, one with another.
Meanwhile, the citizens of Portland who had pur- chased 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 convey- ances and to Lownsdale and Chapman a part of Cof- fin'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-peti- tion 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 legis- lative assembly for the purchase of the Portland land claim under the town-site law of 1844, before men- tioned, 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
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, 1853-4, 57. They simply extended new facilities to, without imposing any new regu- lations upon, the settlers.
287
TOWN SITE LAWS.
any action in the matter.39 Finally, the city of Port- land 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 ad- justment of titles, but with the understanding and agreement that when their claims should be con- firmed the grantors of titles to town lots should con- firm 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 do- nation claim; nor had the city purchased from her the ground on which Park street, the pride of Port- land, was laid out. To compel the city to do this, a row of small houses was built in the street, where
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