USA > Oregon > History of Oregon, Vol. II, 1848-1888 > Part 29
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39 Or. Statesman, Feb. 6, 1855. As the reader has probably noticed, the town-site law was extended to Oregon in July 1834, 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.
4 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. Denni- son's pretensions were similarly founded, and, I believe, Carter's also.
11 Brief in behalf of Stark, Coffin, Lownsdale, and Chapman, 1-24; Or. States- man, Dec. 21, 1858. See also Martin vs T'Vault, 1 Or. 77; Lownsdale vs City of Portland (U. S. D. C.), 1 Or. 380; Chapman vs School District No. 1 et al .; Opin. Justice Deady, C. C. U. S .; Burne vs Lownsd.ile.
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LAND LAWS AND LAND TITLES.
they remain to this time, the city unwilling to pur- chase 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 su- preme 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
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 uuder 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. Ilouse, ISGS, 44-6, 465, but resigned its preten- sions on learning that there were heirs who could claim. During this time an attempt had been made to prove Finice Thomas illegitimate. This fail- ing, A. J. Knott and R. J. Ladd preempted 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; hut 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 in- terest 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 con- testants, by the formation of the South Portland Real Estate Association, which hought up all the conflicting claims and entered into possession. Sub- sequently they sold to Villard.
After the settlement of the suits as ahove, Wrestling Joe hecame incensed with some of the men connected with the settlement, and denied that he was
289
THE DALLES CLAIM.
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 arrange- ments 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 hav- ing 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
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 ou their trial the evidence was so strong that they were acquitted. Soon after, Thomas re- turned to St Louis, where he lived, as before, after the manner of a mendi- cant. See communication by W. C. Johnson, in Portland Or., Feb. 2, IST8. HIST. OR., VOL. II. 19
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LAND LAWS AND LAND TITLES.
elsewhere shown, a catholic mission was maintained there afterward for some years.
From the sale" 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 reser- vation 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 dant- ages for the appropriation of their property, the for- mer 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
44 The price paid by Whitman for the improvements at The Dalles was, according to the testimony of the methodist claimants, $600 iu 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, de- claring 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 uot 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 re- duced the military reservations to a mile square, it happened that, on survey- ing 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 ad- dition 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
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MISSION LANDS.
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 min- isters. 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.49
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 in- fluence was strong enough with the secretary of the interior in 1875 to enlist him in the business of get- ting a deed in fee simple from the government of the land claimed by the missionaries,50 although the prop-
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 Rob- erts had declared the sale to Whitman cancelled in 1849, a formal decd of quitclaim was not obtained till Feb. 28, 1859; and further, that on the 3d of November, 1838, 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, Dee. 4, 1879; Or. Statesman, Aug. 25 and Sept. 8, 1855.
49 U. S. II. Ex. Doc., 1, vol. v. 5, 38th cong. 2d sess .; Land Off. Rept, 1864, 2; Portland Oregonian, Jan. 23, 1865.
50 Portland Advocate, May 6, 1875; Vancouver Register, Ang. 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.
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LAND LAWS AND LAND TITLES.
erty was already covered by a patent under the dona- tion act to W. D. Bigelow, who settled at The Dalles in 1853,51 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 com- plied 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 de- cision by a proper judicial tribunal.
This legal investigation began in the circuit court of Wasco county in September 1877, but was re- moved in the following January to the United States district court, which rendered a decision in October 1879 adverse to the missionary society, and sustain- ing the rights of the town-site owners under the do- nation 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 deci- sion, 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
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 Phoebe 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.
b2 Deady quotes it as 'section 2447 of the R. S.,' and says it was ' taken from the act of Dec. 22, 1854, authorizing the issne of patents iu 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.
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REFLECTIONS.
1848, and who really were in possession at the time of the passage of the organic act, was set aside, ex- cept so far as they were allowed to retain about half an acre for a building spot. So differently is law in- terpreted, 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 re- moval of the mission school to Salem in 1843 pre- vented 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 re- ceived little benefit from them. The American board sold Waiilatpu for $1,000 to Cushing 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 notifica- tion, 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 Perces was notified by Eells that the land he was occupying for agency purposes was claimed by the American board, and a contest arose about sur- veying the land, which was referred to the Indian bureau, Eells forbidding the agent to make any fur- ther improvements.53 But as the law under which
53 Charles Hutchins, the agent referred to, remarks that the missionaries at Lapwai may have acted with discretion in retiring to the Willamette Val- ley, although they were assured of protection by the Nez Percés; but as they had made no demonstration of returning from IS47 to 1862, and had beeu 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 im- provement in this part of the country might have prompted them. Ind. Af. Rept, 1862, 426.
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LAND LAWS AND LAND TITLES.
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 ex- cept 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 or- ganic 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 mis- sion had been abandoned except those of the catho- lics, 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 Van- couver.
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 po- sition 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 survey- ors. About $25,000 was extorted from the farmers in this way, when Preston was removed on their com- plaint, and Charles K. Gardiner of Washington city appointed in his place in November 1853.
Gardiner had not long been in office before he fol- lowed 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
295
PREEMPTION AND PATENTS.
to the United States law for preemption and pur- chase.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 certifi- cate 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
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.
CHAPTER XI.
POLITICS AND PROGRESS.
I853.
LEGISLATIVE PROCEEDINGS-JUDICIAL DISTRICTS-PUBLIC BUILDINGS-TENOR OF LEGISLATION-INSTRUCTIONS TO THE CONGRESSIONAL DELEGATE-HAR. BORS AND SHIPPING-LANE'S CONGRESSIONAL LABORS-CHARGES AGAINST GOVERNOR GAINES-OCEAN MAIL SERVICE-PROTECTION OF OVERLAND IMMIGRANTS-MILITARY ROADS-DIVISION OF THE TERRITORY-FEDERAL APPOINTMENTS-NEW JUDGES AND THEIR DISTRICTS-WHIGS AND DEM- OCRATS-LANE AS GOVERNOR AND DELEGATE-ALONZO A. SKINNER-AN ABLE AND HUMANE MAN-SKETCH OF HIS LIFE AND PUBLIC SERVICES.
I HAVE said nothing about the legislative and po- litical doings of the territory since the summer of 1852, when the assembly met in obedience to a call from Governor Gaines, only to show its contempt by adjourning without entering upon any business.1 At the regular term in December there were present five whigs, three from Clackamas county and two from Yamhill. Only one other county, Umpqua, ran a whig ticket, and that elected a democrat, which promised little comfort for the adherents of Gaines
1 The council was composed of Deady, Garrison, Lovejoy, Hall, and Way- mire of the former legislature, and A. L. Humphry of Benton and Lane counties, Lucius W. Phelps of Linn, and Levi Scott of Umpqua, Douglas, and Jackson. Lancaster, from the north side of the Columbia, was not present. The members of the lower house were J. C. Avery and George E. Cole of Benton; W. T. Matlock, A. E. Wait, and Lot Whitcomb of Clackamas; John A. Anderson of Clatsop and Pacific; F. A. Chenoweth of Clarke and Lewis; Curtis of Douglas; John K. Hardin of Jackson; Thomas N. Aubrey of Lane; James Curl and Royal Cottle of Linn; B. F. Harding, Benjamin Simpson, and Jacob Conser of Marion; H. N. V. Holmes and J. M. Fulker- son of Polk; A. C. Gibbs of Umpqua; John Richardson, F. B. Martin, and John Carey of Yamhill; Benjamin Stark, Milton Tuttle, and Israel Mitchell of Washington. Or. Statesman, July 31, IS52. The officers elected in July held over.
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297
COURT DISTRICTS.
and the federal judges, whose mendacity in denying the validity of the act of 1849, adopting certain of the Revised Statutes of 1843 of Iowa, popularly known as the steamboat code, was the cause of more confusion than their opposition to the location of the seat of government act, also declared to be invalid, because two of them used the Revised Statutes of Iowa of 1838, adopted by the provisional government, in their courts, instead of the later one which the legislative assembly declared to be the law.
As I have before recorded, the legislature of 1851- 2, in order to secure the administration of the laws they enacted, altered the judicial distriets in such a manner that Pratt's district included the greater part of the Willamette Valley. But Pratt's term expired in the autumn of 1852-3, and a new man, C. F. Train, had been appointed in his place, toward whom the democracy were not favorably inclined, simply because he was a whig appointee.3 As Pratt was no longer at hand, and as the business of the courts in the counties assigned to him was too great for a single judge, the legislature in 1852-3 redistricted the ter- ritory, making the 1st district, which belonged to Chief Justice Nelson, comprise the counties of Lane, Umpqua, Douglas, and Jackson; the 2d district, which would be Train's, embrace Clackamas, Marion, Yam- hill, Polk, Benton, and Linn; and the 3d, or Strong's, consist of Washington, Clatsop, Clarke, Lewis, Thurs- ton, Pierce, and Island. By this arrangement Nelson would have been compelled to remain in contact with border life during the remainder of his term had not Deady, who was then president of the council, re- lented so far as to procure the insertion in the act of
2 Amory Holbrook thus named it, meaning it was a carry-all, because it had not been adopted act by act. Says the Or. Statesman, Jan. 8, 1853: 'The code of laws known as the steamboat code, enacted by the legislative assembly, has been and is still disregarded by both of the federal judges in the territory, while the old Iowa blue-book, expressly repealed by the as- sembly, is euforced throughout their districts.'
" The Or. Statesman, Dec. 18, 1852, predicted that he would never come to Oregon, and he never did.
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POLITICS AND PROGRESS.
a section allowing the judges to assign themselves to their districts by mutual agreement, only notifying the secretary of the territory, who should publish the notice before the beginning of March;4 the concession being made on account of the active opposition of the whig members to the bill as it was first drawn, they making it a party question, and several demo- crats joining with them. The law as it was passed also made all writs and recognizances before issued valid, and declared that no proceedings should be deemed erroneous in consequence of the change in the districts. The judges immediately complied with the conditions of the new law, and assigned them- selves to the territory they had formerly occupied.
The former acts concerning the location of the pub- lic buildings of the territory were amended at this term and new boards appointed,5 the governor being declared treasurer of the funds appropriated, without power to expend any portion except upon an order from the several boards constituted by the legisla- ture.6 Here the matter rested until the next term of the legislature.
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