Parrish v. Stephens. the title is in the United States. Whatever the effect may be upon the rights of the United States, it is clear that the proprietors might sell and transfer whatever interests they had in the land, and having conveyed them and received compensation therefor, cannot re-possess themselves of such interests at pleasure. Dedication may be made of what a man has, be it much or little, and when made and accepted, binds the maker. So far as the question of dedication is concerned, the former opinion in this case is full enough upon that subject. Courts and juries are bound to decide questions of fact in civil cases according to the preponderance of evidence. Eleven intelligent and unimpeached witnesses testify with more or less pointedness that the levee was held out by the proprietors, and generally regarded as public property, and their testimony is confirmed by the unchanging lines of the map produced in evidence. But two witnesses appear to bolster up the opposite side. Is not the conclusion irresistible, from such an exhibition of proof, that the levee was set apart for public use? Portland was laid out for what it has come to be, the emporium for a large country; and common sense forbids us to suppose that the first proprietors intended that the commercial transactions of such a place should be carried on through the back doors and windows of shops and stores crowded along the water's edge. Public levees are almost as necessary in such towns as public streets. Much reliance is placed by plaintiff upon the case of Irwin v. Dixon et al. 9 How. 25; but the only point decided there is, that no dedication had been made of the land in question, and the evidence clearly supported that conclusion. We think that the cases of Cincinnati v. White, 6 Peters, 431; Barclay et al. v. Howel's Lessee, 6 Peters, 498; New-Orleans v. The United States, 10 Peters, 662; Trustees of Watertown v. Cowen, 4 Paige Ch. Rep. 510, are authorities decisively showing a dedication, where the evidence to the point is as full as it seems to be in this case. DEADY, Justice, dissenting. Application denied. HENRY MARLIN, Plaintiff, v. W. G. T'VAULT, JOHN FLEM- Action on Bond.-Reserved from Washington. 1. The act of Congress of May 23d, 1844, relative to town sites, was never in force, or applicable to the land system in Oregon. 2. Lands upon which there had been the requisite settlement and cultivation under the provisional government, though held as town sites when the act of 27th September, 1850, was passed, may be held as donations under that act. J. K. Kelly, for plaintiff. A. Campbell, for defendants. WILLIAMS, C. J. On the 18th day of February, 1847, defendants made to plaintiff their bond, reciting that plaintiff had conveyed to them a certain land claim in Tuality County, 1 77 1 393 Marlin v. TVault. and received therefor a block of ten lots in the town of Columbia and county of Vancouver, and binding themselves, under the penalty of $1,000, to comply with all the requisites of the act of Congress granting donations of land to settlers in Oregon, so as to acquire title to said block, and then to convey, &c. The declaration avers that defendants have not in any way complied with said law, or obtained and made title to plaintiff according to the stipulations of said bond. Defendants demur, and for cause in the first place say, that at the date of said bond there was no act of Congress granting donations of land to settlers in Oregon. Words “ in presenti” must have a future application where such is the obvious intention of those who use them. Courts proceed upon the presumption that all persons know the law, and we must therefore conclude that the parties to this bond, knowing the law, knew that it did not at that time provide for donating lands to settlers in Oregon. Public history in this territory, of which we may take judicial notice, shows that at the time this bond was made, it was expected that such a law would be enacted by Congress, and upon this understanding we must suppose the parties made their contract. There is an evident grammatical mistake in the phraseology of the bond; but defendants, having received plaintiff's property, ought not to be allowed to defeat his right to an equivalent therefor on any such ground. In the second place, it is said that, between the bringing of this suit on the 21st of October, 1853, and the first day of the ensuing December, defendants had a right to take a claim, and therefore this suit is brought before any complete failure or disability to comply with the bond exists on the part of the defendants. Section 12 of the donation act provides, that persons claiming under such act, by virtue of a settlement and cultivation subsequent to December 1st, 1850, shall first make affidavit "that the land claimed by them is for their own use; that they have made no sale or transfer, or any arrangement or agreement for any sale, transfer or alienation of the same, or by which said land Marlin v. T'Vault. person.' Defendants shall enure to the benefit of any other could not, therefore, make any necessary affidavit to enable them to claim the land by virtue of a settlement, after December 1st, 1850, for they had made arrangement "for the sale of said land, and by which it was to enure to the benefit of another person." In the third place, it is said that plaintiff seeks to make defendants liable for not doing, under the act donating lands to settlers in Oregon, what said act would not allow them to do. Nothing in law prevented defendants from taking the claim prior to the 1st of December, 1850, for the purpose of complying with the bond; and if it had been so taken, and legally held, title thereto might have been acquired for the use of plaintiff. But it is said defendants were not able to perform the obligation of their bond, because town sites cannot be taken and held under the donation act, and a late opinion by the commissioner of the general land office is cited in support of this position. Defendants, it appears, made the plan of a town, which they called Columbia, and sold a block to plaintiff; but there is nothing to show that there ever was a house in said town, or any thing to prevent the cultivation of every foot of the soil on which it was laid out. Imaginary lines, though running at right angles, will in no way interfere with such a settlement and cultivation as the donation act requires, and therefore their existence forms no excuse for the delinquency of defendants. For aught that appears, the land upon which this town was marked out had been taken and used as a farm long before the idea of a town was conceived; if so, the mere mapping it out into blocks and lots can make no difference with the right to hold it under the donation act. Commissioner Wilson places the opinion referred to upon the following grounds: 1st. The act of 14th August, 1848, establishing a territorial government for Oregon, "shuts out" all claims under the territorial laws prior to its enactment. 2d. By said act of Congress, the laws of the United States were declared in force in this territory, so far as the same, or any provision thereof, might be applicable. Marlin v. TVault. 3d. The act of 23d of May, 1844, relative to town sites upon the public lands, being a law of the United States, was put in force here by said act of 1848, so that town sites were to be entered by certain public authorities, and not subject to be held as donation by private persons. 4th. That donations of land, under the act of September 27th, 1850, are only made for agricultural purposes. We propose briefly to examine this opinion, and, relative to the first point on which it rests, have to say, the 14th section of the act establishing a territorial government for Oregon, provides "that all laws heretofore passed in said territory, making grants of land, or otherwise affecting the title to lands, shall be null," &c. Manifestly this provision abrogates any law of the provisional government granting or affecting title to land, but non constat that it repeals all laws regulating the possessory right of settlers, acquired under such government. Prior to the passage of said act, many persons had taken and largely improved claims under the laws of the provisional government; and it must be supposed that Congress did not intend to leave these claims without any legal protection, but simply intended to assert and protect the rights of the United States. Congress did not mean to say that the claim laws of the territory should be void as between the citizens thereof, but that such laws should not bind or encumber the title in the United States. If, then, the act of 1848 does "shut out" all claims, it only shuts out the right as against the United States, and not the right of a settler to hold his claim and improvements against a wrongdoer attempting to dispossess him. Commissioner Wilson takes no notice whatever of those parts of the donation act which expressly recognise and adopt claims made under the laws of the provisional government. If the act of 1848 vacates such claims, as is alleged, the act of 1850 certainly makes them valid; and, so far as there is confliction between the two acts, the provisions of the act of 1850 must, of course, prevail. Section 4 of said act of 1850 grants to those "who shall have resided upon," &c., and also provides that the heirs of settlers |