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Oregon, the subject of the Register's letter of the 24th March last, and also has examined certain donation claims, covering the town site, and hereinafter designated, which have been preferred under the Oregon Donation Act of 27th September, 1850, (No. 181,) which are treated of in the voluminous documents received at this Office, and discussed in elaborate arguments of counsel, the last of which, (by Mr. Currier,) was received on the 27th ultimo. It appears
1st. That in 1843, Wm. P. Overton, the original claimant, set up a right by possession to six hundred and forty acres, embracing the lands in question.
2d. That, in virtue of a sale he made in that or the year following, the said Wm. P. Overton and A. L. Lovejoy became the joint claimants.
3d. That in 1845, Overton sold his half to F. W. Pettigrove, by which, in that year, (1845,) Lovejoy and Pettigrove became the joint claimants.
4th. That, in the same year, Lovejoy sold his one-half of the claim to Benjamin Stark; so that, later in the same year, (1845,) Pettigrove and Stark became the joint claimants.
5th. It further appears, that in October, 1848, Pettigrove sold his interest to D. H. Lownsdale, who gave to said Pettigrove a bond to make good the title to lots which had been sold by said Pettigrove and Stark.
6th. It further appears, that Job M Namee moved on the Portland claim in the spring of 1846, purchased four lots in the town from Pettigrove, and remained improving these lots until 1847, when he went to Vancouver, and took a section of land adjoining that place, but abandoned it, returned to Portland, and, upon the ground that he had discovered a defect in Pettigrove's title to him for the lots, he recorded, in that year, a claim in his own name, and continued to claim with Pettigrove until 15th February, 1848, when the weight of testimony shows, in the opinion of this Office, that he abandoned the Portland claim, having secured his title as lot holder to the lots he had purchased by the compromise then made with Pettigrove.
This, in regard to M‘Namee, is the judgment of the Surveyor-General in his report of 24th June, 1853, and we affirm it.
7th. We now return to Lownsdale and Stark, and find that, on 30th March, 1849, the former sold the Portland claim to Stephen Coffin, but, on that day, by agreement, Coffin was to procure title, and deed half the claim to Lownsdale; that, on the 13th December, 1849, that agreement was cancelled, and on the same day, by another agreement, D. H. Lownsdale, S. Coffin, and W. W. Chapman, became equal partners in the Portland claim; and,
8th. That on 1st March, 1850, the claim of Stark to one-half was adjusted by Lownsdale setting apart a certain portion of the claim to Stark, and on the 13th April, 1850, Coffin and Chapman ratified that adjustment.
Now, here, March, 1850, we have Stark, Lownsdale, Chapman, and Coffin, the claimants, recognized by the acts of each other.
Congress passed no law in any wise affecting title to lands in the Territory of Oregon, until September, 1850; and, therefore, where a controversy arose, in July, 1850, relating to titles to land, neither party could be said to have a legal title. Consequently, the amount in controversy could not be ascertained, so as to bring the case within the jurisdiction of this court; and there is no question arising under the Constitution or laws of the United States so as to give jurisdiction.—Lownsdale v. Parrish, 2.1 How. 290.
Secretary Ewing decided, on the 8th March, 1850, that Congress had made no provision, (at that time,) for the sale or other disposition of lands in Oregon.
It will be observed that all these proceedings are had prior to the Donation Act of 27th September, 1850.
The 14th section of the Act of 14th August, 1848, (No. 154,) annuls all laws which had been passed by the provisional government as affecting or encumbering the title to the public lands; and then comes the Donation Act of 27th September, 1850, (No. 181,) which justifies us in recognizing settlements within its purview, so whether under the late provisional government, or since;' and so all such settlements, disencumbered from the color of right under grants by acts of the provisional government, are to be dealt with as the said Donation Act of 1850, and its supplements order.
The settlements and acts of the several parties antecedent to this Act of 1850, bind and control their interests respectively, as regards the question of limits.
At that time the wife of a claimant had no right; her right, according to the status of her husband's claim, as agreed upon by him, and his associate claimants, attached upon the passage of said Act of 1850, and no act of hers subsequently could control the location or extent of the several parcels, which had been agreed upon as the locus of each by the parties respectively; and so, following up the matter, we find
9th. That on the 10th March, 1852, Chapman, Coffin, and Lownsdale enter into an agreement, which was designated as an escrow, but which is not, in fact, an instrument of that nature, being merely an agreement, with
" Whereas it has become necessary in order to a compliance with the law of Congress of September 27, 1850, creating the office of Surveyor General of the public land in Oregon, and to provide for the survey, and to make donations to settlers of the said public lands, that the said parties shall designate, before the Surveyor General of Oregon, the precise portion or part of said Portland tract, which each, by agreement with the other, respectively claims, in order that he may obtain a patent therefor from the Government of the United States," &c. Accordingly
10th. On the 11th March, 1852, Lownsdale, No. 88, and Chapman, No. 89, filed their notifications with the Surveyor General, with Diagram E, exhibiting the division of their interest in the Portland claim. Coffin did not then file his notification, because his portion was south of the base line, in township 1 south, range 1, east, not then surveyed; but he filed it, No. 719, on the 19th August, 1852.
The division among them was agreed upon fully, by them, and must stand, according to the Surveyor General's Report of 24th June, 1853, which we affirm, and, consequently, we reject Lownsdale's claim, under
city entry, and the location of Stark, Chapman and Coffin.
11th. We have thus determined to recognize the division and locus for
First. Lownsdale, according to notification No. 88, dated 11th March, 1852, for which no certificate has yet issued on account of his protest against the Surveyor General's decision of 1853.
Second. For Chapman, notification No. 89, for whom, and in consideration of his payment, under Act of 14th February, 1853, (No. 218, certificate No. 68 has been issued by Surveyor-General.
Third. For Coffin, notification No. 719, for whom, under said act of 1850, and in consideration of a payment under said Act of 1853, the Surveyor General has issued his certificate, No. 67. And,
Fourth. For Stark, notification No. 328, to whom Surveyor General has issued his certificate, No, 69, under his decision of 24th June, 1853, on proof of settlement, and continuous residence for four years.
12th. We decide against the M‘Namee claim, for reasons referred to under 6th head, affirming the Surveyor General's decision, to this effect, of 24th June, 1853.
13th. Samuel Speer, notification No. 7989, filed in 1854, “ for a tract of land which he thinks may be vacant.” The description given in the unsigned notification, carries it over the entries made by the city. This may be an error in the description, in using east for, west, in the second course named, for he disclaims interference with the city claim, and describes his claim as lying west of the city reservation of three hundred and twenty acres.
If this claim lies east of his first mentioned line, it falls upon the city entries; if west, upon other claims. The lands he thinks may be vacant," are not so.
The Register and Receiver decided against the claim, and we, regarding it as destitute of merit, affirm that decision.
The present claim of M‘Namee not being recognized, by reason of his having been more properly a lot holder, than a rural donation claimant, and also in consideration of his subsequent abandonment of the Portland donation claim, and the claim of Speer being rejected as destitute of merit, the premises in question, so far as donation claim, under the Act of 27th September 1850, is concerned, is narrowed down to the claims of Stark, Lownsdale, Chapman and Coffin, according to their several locations, as determined pursuant to their own acts, by the Surveyor General.
14th. The matter next requiring consideration, is the right of the “Portland City,” which interferes with the locations aforesaid, of Stark, Lownsdale, Chapman, and Coffin, under the Act of 23d May, 1844, "for the relief of the citizens of towns upon the lands of the United States under certain circumstances.”
The testimony shows that the town or city of Portland was laid out in 1845. The aforesaid Act of 230 May, 1844, (No. 79, contemplates “relief of the citizens of towns of the United States.” That law is as general and comprehensive as language can well make it. The town of Portland is recognized as in existence in 1845; and as the 14th section of the Act of 14th August, 1848, (No. 154,) establishing "the Territorial government of Oregon,” declared the laws of the United States extended over,” and sin force in said Territory, so far as the same or any provision thereof may be applicable;” and as there was the town of Portland then existing, (1815,) and the Town-site law necessarily was applicable, it is difficult to resist the correctness of the decision of my predecessor, of the 17th April, 1854, as affirmed by the Secretary of the Interior, that the said Act of 1844 did apply and was extended to Oregon by the aforesaid Act of 1848. The subsequent Act of 17th July, 1854, in express terms extending and enlarging said act, may be regarded as affirming the decision, for it is quite clear that upon well settled general principles, a town-site would not be liable to rural donation or pre-emptions, even in the absence of statute law to that effect.
By the aforesaid action, however, of my predecessor, as affirmed by the late Secretary of the Interior, the question is res adjudicata.
Pursuant to this decision, the corporate authorities” of the incorporated city of Portland, on the 1st February, 1858, entered certain tracts containing three hundred and six, eighty-one hundredths acres, in a compact form. Receipt No. 19, of the Receiver at Oregon City.
This entry, subject to revision in regard to conforming with the lines of the public surveys, and correct area, interferes with the locations of the donation claims of Stark, Lownsdale, Chapman, and Coffin; yet, so far, and
in all things affecting the rights, as lotholders, of those parties, or either of them, or of their vendees, reaching back to the inception of town title, and including all bona fide lotholders, it affirms their titles in directing that the entry shall be "in trust, for the several use and benefit of the occupants thereof according to their respective interests.”
So that, in carrying into effect the decision of 1854, in regard to the town site of Portland under the Act of 1844, we recognize and patent the premises for the benefit of all lawful bona fide lotholders, and propose an express reservation in the patent certificate, and patent yet to be issued for it, of any valid claims which may exist in virtue of the several donations of Stark, Lownsdale, Chapman, and Coffin, and so, in the issuing of patents to them, we propose they shall bear even date, and simultaneous delivery, and contemplate a like saving clause in regard to the town site entry, and accordingly render this as our decision in this respect in regard to all of them.
Very respectfully, your obedient servant,
Thos. A. HENDRICKS, Commissioner. Register and Receiver,
Oregon City, Oregon Territory.
No. 496. The mere act of town authorities in including land within the incorporated
limits of a town, there being no town improvements thereon, will not exclude the same from Pre-emption.*
DEPARTMENT OF THE INTERIOR,
November 5, 1858. The papers submitted to this Department by your letter of the 18th of August last, in the case involving the claim by pre-emption of John G. Hays, to a certain tract of land in the South Platte District, Nebraska Territory, contested by certain parties claiming to be lotholders in the town of Plattsmouth, are herewith returned.
The act of the Nebraska Legislature, incorporating the City of Plattsmouth, enacts, that all the territory included within the geographical limits of said city, together with all additions that may be made thereto, is declared to be a city, &c. The geographical limits of Plattsmouth can only be considered as embracing the land entered or subject to entry under the Act of 1844 ; and the act of the town authorities in making additions thereto of adjacent public lands, by simply surveying the same into streets, &c., and platting it, will not be recognized or allowed. Your conclusion, therefore, that the mere act of including the land within the limits of the incorporation of the town, would not exclude it from pre-emption, there being no town improvements thereon, is just and correct. From a consideration of the facts of the case, I am satisfied that your decision in favor of the right of said Hays, is in accordance with law, and the same is hereby affirmed.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
* This decision explained in case of Omaha v. Harback, October 8, 1859. (No. 500.)
Act of 1841.
November 5, 1858. Your letter of the 27th of September last, and the accompanying papers pertaining to the pre-emption claim of Miles C. Seldon to a certain tract of land embraced within the corporate limits of Nebraska City, have been considered.
Said tract appears to have been “ designated upon the plat of said city," and made a part thereof by the act of incorporation, and to have been occupied and settled upon, as a part of the town. While these facts would establish no claim or right on the part of the town authorities thereto, they would be sufficient, in view of the words employed in the act of incorporation, to exclude it from agricultural pre-emption under the clause of the Act of 1841, which provides that no sections or fractions of sections included within the limits of any incorporated town shall be liable to entry under the provisions” of said act; provided, the plat of the city had been actually made and completed, prior to the passage of said act of incorporation.
But the improvements of said Seldon were not of such a character as would entitle him to pre-empt the land he claims. Your decision, adverse to his right, is accordingly hereby affirmed, and the papers are herewith returned.
J. THOMPSON, Secretary. Commissioner of the General Land Office.
No. 498. Lands adjoining a town, which may be occupied for Town purposes, are but out-lots of said town, and not subject to entry by a new name.
DEPARTMENT OF THE INTERIOR,
April 13, 1859. I have examined and considered the case of pre-emption, received with your letter of 24th January last, wherein the Clay City Company, James Minchell, David Beebe, and others, are claimants, to enter a certain tract of land, subject to sale at Nebraska City, and the papers are now returned.
The separate rights of those claimants who signed the petition for the incorporation of Clay City, became thereby merged in the city claim. By that act, each of the signers admitted, by clear implication, that his object was not to acquire the land for his own exclusive use and benefit.” The town site claim, under the Act of 23d May, 1844, is invalid. First, Because the so-called “ Clay City” is not a city or town. At most, even if the land was built upon, and occupied for town purposes, the fractions of sections which it embraced, would be but out-lots of the adjoining town. Second, The improvements are not of such a character as to indicate actual town occupancy; and the town claimants, with one or two exceptions, do not inhabit the so-called town. Your rejection of the claim of said town proprietors is hereby approved.
The said parties, Minchell and Beebe, have likewise entirely failed to establish any valid right of pre-emption to the land in controversy, under their original settlement and filing. The proof does not show that their inhabitancy and improvement of the lands claimed by them, was such as