USA > Oregon > History of Oregon, Vol. II, 1848-1888 > Part 63
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A few months after the act authorizing a road through their country, Huntington, superintendent of Indian affairs, succeeded in treating with the Klamath and Modoc tribes, and a portion of the Shoshones, by
29 WV. H. Hanchett, Martin Blanding, A. W. Patterson, J. G. Gray, E. F. Skinner, Joel Ware, D. M. Risdon, S. Ellsworth, J. B. Underwood, A. S. Patterson, T. Mulhollan, Harvey Small, A. S. Powers, J. L. Bromley, J. H. McClung, Henry Parsons, and B. J. Pengra. Their capital stock was first $30,000, but subsequently raised to $100.000; shares $250 each. For particu- lars, see Pengra's Rept Or. Cent. Military Road, a pamphlet of 63 pages, ad- vertising the enterprise and giving a description of the country. Eugene City Journal, July 14, 21, 28, and Aug. 4, 11, 1866; S. F. Bulletin, Sept. 20, 1865.
653
RESERVATIONS.
which a reservation was set off, of a considerable ex- tent of country between the point where any road crossing the mountains near Diamond peak must strike the plains at their eastern base and Warner's Moun- tain. The right of the government to lay out roads through the reservation was conceded by the Indians, but it was not in contemplation that the government should have the power to grant any of the reserva- tion lands to any company constructing such a road; the treaty having been made before the company was formed. Nevertheless, as the survey of the reserva- tion lands proceeded, which was urged forward to en- able the company to secure its lands, the odd sections along the line of the military road where it crossed the reservation were approved to the state to the extent of over 93,000 acres. The Indians, or their agents, held, very properly, that their lands, secured to them by treaty previous to the survey of the military road, were not public lands from which the state or the company could select; and also that the state would have no right to violate the conditions of the treaty by bring- ing settlers within the limits of the reservation. By an act amendatory of the first act granting the lands to the state, congress indemnified the state, and through the state the company, by allowing the defi- cit to be made up from other odd sections not reserved or appropriated within six miles on each side of the road.3 The Oregon Central Military Road Company, after doing what was necessary to secure their grant, and finding it inconvenient to be taxed as a private corporation on so large an amount of property that had never been made greatly productive, sold its lands to the Pacific Land Company of San Francisco, in 1873,
30 Ind. Aff. Rept, 1874, 75; Cong. Globe, 1866-67, pt iii., app. 179, 39th cong. 2d sess. It would seem from the fact that in 1878-9 a bill was before congress asking for a float on public lands in exchange for those embracedl within the reservation and claimed by the O. C. M. R. Co., that the bill of 1866 was not intended to indemnify for these lands, though the language is such as to lead to that understanding. The bill of 1878-9 did not pass; and if the first is not an indemnity bill, then the Indian lands are in jeopardy. S. F. Chadwick. in Historical Correspondence, MS .; Ashland Tidings, Feb. 14, 1879; S. F. Bulletin, July 11, 1872.
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POLITICAL, INDUSTRIAL, AND INSTITUTIONAL.
and thus this magnificent gift to the state passed with no adequate return into the hands of a foreign private corporation.
In the matter of the swamp-lands, nothing was done to secure them during a period of ten years,21 it being held that the right to them had lapsed through neglect, and Gibbs having had enough to do to secure the other state lands. George L. Woods, who in 1866 succeeded Gibbs as governor, made some further se- lections for school purposes. Not all of his selections had been approved when, in 1870, L. F. Grover was elected governor. The agricultural-college lands which had been selected in the Klamath Lake basin had been declared not subject to private entry by the land- office at Roseburg, within which district the lands lay, and that office had refused to approve the selection. The Oregon delegation in congress procured the pas- sage of an act confirming the selections already made by the state where the lists had been filed in the proper land-office, in all cases where they did not conflict with existing legal rights, and declaring that the re- mainder might be selected from any lands in the state subject to preemption or entry under the laws of the United States; with the qualification that where the lands were of a price fixed by law at the double mini- mum of $2.50, such land should be counted as double the quantity towards satisfying the grant. This was followed by the establishment of another land-office, called the Linkton district, in the Klamath country, and the approval of the agricultural-college selections.32 The internal improvement grant 33 was also fully se-
31 The legislature in 1870 memorialized congress for an extension of time for locating the salt-lands grant. Or. Jour. Sen., 1870, 211; U. S. Misc. Doc., 20, i., 4Ist cong. 3d sess .; but it was permitted to lapse. Message of Gov. Thayer, 1882, 19.
32 Grover's Message, 1872, p. 12-13; Cong. Globe, 1871-2, app. 702; Zabris- kie's Land Laws, sup. 1877, 27, 73.
33 See Appendix to Governor's Message for 1872, which contains the official correspondence on the confirmation of the state lands, and is an interesting document; also Jackonsville Sentinel from Oct. 14 to Dec. 9, 1871.
655
SWAMP LANDS.
cured to the state during the administration of Gov- ernor Grover.
From the time when the swamp-land grant was supposed to have lapsed through neglect, as decided by Whiteaker, and apparently coincided in by his suc- cessors, up to August 1871, no attention was given to the subject. Grover, however, gave the matter close scrutiny, and discovered that the same act which re- quired the state to select the swamp-lands then sur- veyed within two years from the adjournment of the legislature next following the date of the act, and which requirement had been neglected, also declared that the land thercafter to be surveyed should be chosen within two years from the adjournment of the legislature next following a notice by the secretary of the interior to the governor that the surveys had been completed and confirmed. No such notice having been given, the title of the state to the swamp-lands was held to be intact, and a complete grant and inde- feasible title were vested in the state by the previous acts of congress, which could not be defeated by any failure on the part of the United States to perform an official duty. The small amount of swamp-lands surveyed in 1860, and which were lost by neglect, could not much affect the grant should it never be re- covered.
In pursuance of these views, the legislature of 1870 passed an act providing for the selection and sale of the swamp and overflowed lands of the state.4 This act made it the duty of the land commissioner for Oregon, to wit, the governor, to appoint persons to make the selections of swamp and overflowed lands, and make returns to him, when they would be mapped,
34 The first clause of this sentence is a quotation from a letter of Governor Grover to the secretary of the interior, dated Nov. 9, 1871, a year after the passage of the act, but only three months after ascertaining from W. H. Odell, then surveyor-general and successor to E. L. Applegate, that no correspond- ence whatever was ou file in the surveyor-general's office concerning the swamp-lands. Therefore the legislature must have passed an act in pursu- ance of information received nine months after its passage. See Or. Governor's Message, app., 1872, 21-32; Or. Laws, 1870, 54-7.
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POLITICAL, INDUSTRIAL, AND INSTITUTIONAL.
described, and offered for sale at not less than one dollar per acre; twenty per cent of the purchase money to be paid within ninety days after the publi- cation of a notice of sale, and the remainder when the land had been reclaimed. Reclamation was defined to consist in cultivating on the land in question for three consecutive years either grass, cereals, or vege- tables, on proof of which the remainder of the purchase money could be paid, and a patent to the land ob- tained, provided the reclamation should be made within ten years. No actual survey was required, but only that the tract so purchased should be described by metes and bounds; therefore, the twenty per cent which constituted the first payment was a conjectural amount. The law had other defects, which operated against the disposal of the lands to non-speculative purchasers who desired to obtain patents and have their titles settled at once. It was discovered, also, in the course of a few years, that draining the land, which the law required, destroyed its value. The law simply gave the opportunity to a certain class and number of men to possess themselves of large cattle- ranges without anything like adequate payment.
The intention of the original swamp-land act of congress, passed September 28, 1850, was to enable a state subject to overflow from the Mississippi River to construct levees and drain swamp-lands. The benefits of this grant were afterwards extended to other states, including Oregon. But Oregon had no rivers requiring levees, and, strictly speaking, no swamp-lands. It had, indeed, some small tracts of beaver-dam land, and some more extensive tracts sub- ject to annual overflow, on which the best of wild grasses grew spontaneously. To secure these over- flowed lands, together with others that were not sub- ject to inundation, but could be embraced in metes and bounds, was the purpose of the framers and friends of the swamp-land act of 1870 in the Oregon legisla-
657
LAND SPECULATORS.
ture. 35 It was a flagrant abuse of the trust of the people conferred upon the legislative body, and of the powers conferred upon the officers of the state by the constitution.36 It was a temptation to speculators, who rapidly possessed themselves of extensive tracts, and enriched themselves at the expense of the state, besides retarding settlement.
One effect of the swamp-land act was to bring in conflict with the speculators actual settlers who had squatted upon some unsurveyed portions of these lands, and cultivated them under the homestead law. If it could be proved that the land settled on belonged to the state under the swamp-land act, the settler was liable to eviction. Wherever such a conflict ex- isted, appeal was had to the general land-office, the case was decided upon the evidence, and sometimes worked a hardship, which was contrary to the spirit and intention of the government in granting lands to the state.
The legislature of 1872 urged the Oregon delega- tion to secure an early confirmation of title, no patent, however, being required to give the state a title to what it absolutely owned by law of congress. It also passed an act to provide for the sale of another class
35 It was said that some of the members who took an active part in the passage of the bill had prepared their notices and maps to seize the valuable portions of the swamp-lands before voting on it. Two members made out their maps covering the same ground, and it depended on precedence in filing notices who should secure it. One of them called on the secretary after night- fall to file his notice and maps, but was told that the governor had not yet signed the bill, on which he retired, satisfied that on the morning he could repeat his application successfully. The bill was signed by the governor that evening, and his rival, who was more persistent, immediately presented his notice and maps, which being filed at once, secured the coveted land to him. Jacksonville Sentinel, Dec. 16, 1871; Sarramento Union, Jan. 15, 1872. See remarks on swamp-lands, in Gov. Chadwick's Message, 1878, 35-40.
36 The board of swamp-land commissioners consisted of L. F. Grover, gov- ernor, S. F. Chadwick, secretary, L. Fleischner, treasurer, and T. H. Cann, elerk of the state land department. Section 6 of the swamp-land law de- clares that, 'as the state is likely to suffer loss by further delay in taking pos- session of the swamp-lands within its limits, this act shall take effect and be in force from and after its approval by the governor; provided, that in case the office of commissioner of lands is not created by law, the provisions of this act shall be executed by the board of commissioners for the sale of school and university lands'-that is, the above-named officers of the state. Or. Laws, 1870, 56-7.
HIST. OR., VOL. II. 42
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POLITICAL, INDUSTRIAL, AND INSTITUTIONAL.
of overflowed lands on the sea-shore; and another act appropriating ten per cent of all moneys received from the sale of swamp, overflowed, and tide lands to the school fund.
The swamp-lands which offered the greatest induee- ment to speculators were found in the Klamath Lake basin, which was partially surveyed in 1858. A re- survey in 1872 gave a greatly increased amount of swamp-land, and changed the character of the surveys materially.37 This was owing to a decision of the supreme court of the United States, that the shores of navigable waters, and the soils under them, were not granted by the constitution to the United States, but were reserved to the states respectively.38 The amount seleeted and surveyed as swamp-land in 1874 was nearly 167,000 aeres. In 1876 it was over 300,- 000, with a large amount remaining unsurveyed. A considerable proportion of these selections were made in the Linkton district, about Lower Klamath, Tule Goose, and Clear lakes, and about the other numerous lakes in south-eastern Oregon, and they led finally to the settling-up of that whole region with stock-raisers, who, when they have exhausted the natural grasses, will dispose of their immense possessions to small farm- ers who will eultivate the soil after purchasing the lands at a considerable advance on the price paid by the present owners.
As late as 1884, swindling schemes on a vast scale were still being attempted.39 The history of the land grants shows that the intention of congress was to benefit the state, and encourage immigration, but these benefits were all diverted, bringing incalculable injury to the community. Seldom was a demand of the legislature refused.40 In 1864 congress passed an act
37 Or. Laws, 1872, 129-33, 220-21, 128-9; U. S. Sen. Misc. Doc., 22, 42d cong. 3d sess; Portland Oregoninn, Jan. 27, 1873; Rept Sec. Int., 1873, 223-35, 257-93. 38 See Or. Legisl. Docs, 1874, p. 17-18; S. F. Examiner, Oct. 18, 1874; Salem Mercury, Feb. 5, 1875; Albany State Rights Democrat, Jan. 22, 1875. 39 See S. F. Chronicle, Feb. 29, 1884.
40 In 1864 the U. S. senate com. on land grants refused a grant of land to construct a road from Portland to The Dalles. Sen. Com. Rept, 34, 38th cong. lst sess.
659
DONATION CLAIMS.
amending the act of September 27, 1850, commonly called the donation law, so as to protect settlers who had failed to file the required notice, and allowing them to make up their deficiencies in former grants. A large amount of land was taken up under this act.41 In the same manner the state was indemnified for the school lands settled upon previous to the passage of the act donating the sixteenth and thirty-sixth sec- tions for the support of schools. In 1876 congress passed an act for the relief of those persons whose donation claims had been taken without compensation for military reservations, which reservations were afterward abandoned as useless. The settlers who bad continued to reside on such lands were granted patents the same as if no interruption to their title had occurred.
According to the act of admission, five per cent of the net proceeds of sales of all public lands lying within the state which should be sold after the admission of the state, after deducting the expenses incident to the sales, was granted to the state for the construction of public roads and improvements. The first and only public improvement made with this fund was the con- struction of a canal and locks at the falls of the Wil- lamette River opposite Oregon City, begun in 1870 and completed in 1872. After this use of a portion of the public-improvement fund, the five-per-cent fund was diverted from the uses indicated by law, and by consent of congress converted to the common-school fund, to prevent its being appropriated to local schemes of less importance to the state. 42
4] Zabriskie's Land Laws, 636-7; Portland Or. Herald, Feb. 28, 1871; Sec. Int. Rept, 77-86, 44th cong. Ist sess.
42 Or. Laws, 1870, 14; Governor's Message, app., 1872, 73-4; Deady's Hist. Or., MS., 52; Portland Standard, Jan. 7, 1881. The first embezzle- ment of public money in Oregon was from the five-per-cent fund, amounting to 85,424.25. The drafts were stolen by Sam. E. May, secretary of state, and applied to his own use. Or. Governor's Message, app., 79-113; Woods' Recol- lections, MS., 7-9. It was this crime that brought ruin on Jesse Applegate, one of the bondsmen, whose home was sold at forced sale in 1883, after long litigation. S. E. May was a young man of good talents and fine personal ap- pearance, though with a skin as dark as his character, and which might easily have belonged to a mulatto or mestizo.
660
POLITICAL, INDUSTRIAL, AND INSTITUTIONAL.
The same disposition was made of the fund arising from the sale of the 500,000 acres to which the state was entitled on admission, by the act of September 4, 1841. When the state was organized, the framers of the constitution offered to take this grant in addition to the common-school lands, instead of for public im- provements ; but on accepting the Oregon constitu- tion, congress said nothing concerning this method of appropriating the lands, from which it was doubtful whether the law of congress or the law of the state should govern in this case. But as the lands belonged absolutely to the state, it was finally decided to devote them to school purposes.
By 1885 half of the 500,000-acre grant was sold, and the remainder, most of which was in eastern Ore- gon, was, some time previous, offered at two dollars an acre. From this, and the sale of the sixteenth and thirty-sixth sections, the five-per-cent fund, money accruing from escheats, forfeitures, and all other sources provided by law, the school fund amounted in 1881 to about $600,000, which was loaned on real estate security at ten per cent per annum. The number of acres actually appropriated by congress for common schools amounted to 3,250,000, of which about 500,- 000 had been sold, the minimum price being $1.25 an acre.#3
The legislature of 1868 passed an act creating a board of commissioners for the location of the 90,000 acres appropriated by congress for agricultural col- leges, and to establish such a college. By this act a school already existing at the town of Corvallis was adopted as the Agricultural College, in which students sent under the provision of the act should receive a
43 Portland Standard, Jan. 7, 1881. The fund does not seem proportioned to the amount of land. At the lowest price fixed by law, the lands sold must have aggregated $925,000 up to the date just mentioned. Out of this, after taking the cost of the canal and locks at Oregon City, $200,000, there would be a considerable amount to be accounted for more than should be credited to the account of expenses. But the figures are drawn from the best authority obtainable.
661
SCHOOL LANDS.
collegiate education in connection with an agricultural one. Each state senator was authorized to select one student, not less than sixteen years of age, who should be entitled to two years' tuition in this college ; and the president of the college was permitted to draw upon the state treasurer for eleven dollars and twenty- five cents per quarter for each student so attending; the money to be refunded out of the proceeds of the agricultural lands when selected.
This was done because the act of congress making grants for the establishment of state colleges of agriculture required these schools to be in operation in 1867. The time was subsequently extended five years. Meanwhile the board of commissioners, John F. Miller, I. HI. Douthit, and J. C. Avery, proceeded # to locate the agricultural-college lands, chiefly in Lake county. In 1881, 23,000 acres had been sold at $2.50 an aere, giving a fund of $60,000 for the sup- port of the agricultural department of this school.
Of the state-university lands, about 16,000 acres re- mained unsold in 1885 of the 46.000 acres belonging to this institution. This remainder, located in the Willamette Valley, was held at two dollars an aere. An act locating the state university at Eugene City was passed by the legislature of 1872. The people of Lane county, in consideration of the location being made in their midst, made a gift to the state of the grounds necessary, and the building erected upon it,
# No building was erected, nor was the location of the college secured to Corvallis. By simply adopting the Corvallis institution as it stood, a great difficulty was removed, and expense saved, while the land grant was secured. Twenty-two students were entered in 1868. In 1871 the people of Benton co. presented 35 acres of land to the college to make a farm, on which the agricul- tural students labored a short time each day of the school-week, receiving com- pensation therefor. Wheat and fruit were cultivated on the farm; fertilizers are tested, and soils analyzed. Lectures are given on meteorology, botany, fruit-culture, chemistry, and assaying. The building was enlarged, and the apparatus increased from time to time, with collections of minerals. The farm was valued at $5,000, the buildings at $6,000. In IS76 about 100 students took the agricultural course, all of whom were required to perform a small amount of labor on the farm, and to practise a military drill. The state makes an annual appropriation of $5,000 toward the current cxpenses of the college. Dept Agric. Rept, 1871-2, 325; 1875, 397, 492; Or. Lawx, 1868, 40-41; Or. Legisl. Docs, 1870, app. 12-16; Or. Liwos, 1872, 133-5; Govern- or's Message, 1872, 12-13; Portland West Shore, Oct. 1880.
662
POLITICAL, INDUSTRIAL, AND INSTITUTIONAL.
amounting in value to $52,000. The university school was opened in 1876, when the fund arising from the sale of its lands reached $75,000, nearly $10,000 of which sum arose from sales of the Oregon City claim, previous to the legislative act which restored that prop- erty to the heirs of John McLoughlin. 45
The land appropriated to the erection of public buildings having been all sold and the funds applied to these purposes, there remained, in 1885, unsold of the state lands of the above classes some three mil- lion aeres, then held at from $1.25 to $2.50 an acre, besides such of the swamp-lands as might revert to the state, the tide and overflowed lands of the sea-shore, and the salt-springs land. Owing to the greater ease with which the level lands were cultivated, the prairies were first selected, both by private claimants and government agents.46 The principal amount of the state lands still unsold in 1885 were the brush lands of the foot-hills and ridges of western Oregon, the timbered lands of the mountains, and the high table- lands of eastern Oregon, which, compared with the fertile and level valley lands of the state, were once esteemed comparatively valueless. This, however, was a hasty conclusion. The brush lands, when cleared, proved to be superior fruit lands; the high plateaus of eastern Oregon, owing to a clayey soil not found in the valleys, produced excellent wheat crops, and the timbered lands were prospectively valuable for lumber. In fact, it became necessary for the gov- ernment, in 1878, to impose a fine of from $100 to $1,000 for trespassing on the forest lands, for their protection from milling companies with no right to the timber. At the same time the government of-
45 Or. Laws, 1872, 47-53, 96-7; Nash's Or., 162; Victor's Or., 178. Much information may be gleaned concerning the status of schools and the condition of the public funds from Or. School Land Sales Rept, 1872; Or. Legisl. Docs, 1868, doc. 4. 41-3.
46 I find the principal statements here set down collected by the clerk of the board of land commissioners, M. E. P. McCormac, for the Portland Stan- dard, Jan. 7, 1881; Ashland Tidings, Jan. 29, 1877; Sac. Union, Ja.1. 15, 1872; S. F. Post, Sept. 9, 1873.
663
CIVIL CODE.
fered to sell its timber, in tracts of 160 acres, at $2.50 an acre; and lands containing stone quarries at the same price. The total number of acres of timber in the state is estimated at 761,000, or a little over thirty-one per cent of the whole area.
As it became a known fact that the cultivation of timber tended to produce a moisture which was lack- ing in the climate and soil of the high central plains, congress passed an act by the provisions of which a quarter-section of land might be taken up, and on a certain portion of it being planted with timber, a pat- ent might be obtained to the whole. Under this act, passed in 1873 and amended in 1874, between 18,000 and 19,000 acres were claimed in the year ending July 1, 1878, chiefly in eastern Oregon; while in the same year, under the homestead act, nearly 86,000 acres were taken up," the whole amount of govern- ment land taken in Oregon in 1878 being 139,597 acres. The rapid settlement of the country at this period, together with the absorption of the public lands by railroad grants, seems likely soon to termi- nate the possessory rights of the government in Ore- gon, the claims of settlers still keeping in advance of the United States surveys.
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