1. The Act of Congress approved Sept. 27, 1850, 9 Stat. 498,
commonly known as the Donation Act, granted to each person having
the requisite qualifications the right to settle upon and cultivate
a tract of public land in Oregon not in any case exceeding in
extent one section, or six hundred and forty acres, in order that
he might, upon complying with all the prescribed conditions and
making proof thereof, be entitled to a patent for such tract.
2. The title to the soil does not vest in the settler before the
conditions have been fully performed.
Quaere, does it pass
from the United States until the requisite final proof of their
performance be made?
3. A., an unmarried man, settled, in 1852, upon a half-section
of public land in Oregon, and, after residing thereon less than a
year, died.
Held that he had no devisable interest in the
land.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This is a bill in equity filed by the heirs of the devisee of
James L. Loring, deceased, and the administrator of Loring with the
will annexed, to obtain the legal title to a tract of three hundred
and three acres of land near Portland, Oregon, which, as the
complainants claim, the defendants hold in trust for them. The
facts material to the view we take of the case are as follows:
In the month of April, 1852, Loring, a single man, settled
Page 101 U. S. 504
on the land in dispute with a view to becoming its owner under
the operation of the Oregon Donation Act. 9 Stat. 496. He had all
the qualifications necessary to enable him to take and hold under
the act, but died after a residence on the land of less than a
year, leaving a will, executed in Ohio in 1849, whereby he devised
all his estate remaining after the payment of some small legacies,
to Samuel Parker Hall, then of Cincinnati, Ohio, but now
deceased.
On the death of Loring, Joshua Delay claimed the land as a
settler in behalf of himself and his wife, Sarah Delay, and after a
contest with the representatives of Loring before the officers of
the Land Department, the heirs of the Delays succeeded in obtaining
a patent. Much litigation ensued between them and the heirs of
Loring about the title, but finally all the estate of both these
parties was transferred to the present defendants, in whom it is
now vested, but with full knowledge, before the transfer, of the
claim of the complainants. The theory of the present suit is that
Loring, by his settlement, acquired an estate in the lands which
passed by his will, and that the heirs of the Delays took title
under the patent issued to them in trust for the devisee of Loring
as the real owner of the property. The court below dismissed the
bill for the reason, among others, that Loring had no devisable
estate in the lands when he died, and, consequently, his devisee
took nothing by the will.
The case, therefore, in this aspect, presents the question
directly whether the heirs of a settler under the Oregon Donation
Act, who died before the expiration of the four years' residence
and cultivation required, took by descent from the settler, or as
donees of the United States. If by descent, it is conceded the
settler had a devisable estate. If as donees, he had not.
The sections of the act material to the determination of this
question are the fourth, fifth, sixth, seventh, eighth, and
twelfth. The fourth is as follows:
"SEC. 4. That there shall be, and hereby is, granted to every
white settler or occupant of the public lands, American half-breed
Indians included, above the age of eighteen years, being a citizen
of the United States, or having made a declaration according to
law, of his intention to become a citizen, or who shall make such
declaration on or before the first day of December, eighteen
hundred and
Page 101 U. S. 505
fifty-one, now residing in said territory or who shall become a
resident thereof on or before the first day of December, 1850, and
who shall have resided upon and cultivated the same for four
consecutive years, and shall otherwise conform to the provisions of
this act, the quantity of one-half section or three hundred and
twenty acres of land if a single man, and if a married man or if he
shall become married within one year from the first day of
December, 1850, the quantity of one section, or six hundred and
forty acres, one-half to himself and the other half to his wife, to
be held by her in her own right, and the surveyor general shall
designate the part inuring to the husband and that to the wife and
enter the same on the records of his office, and in all cases where
such married persons have complied with the provisions of this ac,
so as to entitle them to the grant as above provided, whether under
the late provisional government of Oregon or since, and either
shall have died before patent issues, the survivor and children or
heirs of the deceased shall be entitled to the share or interest of
the deceased in equal proportions except where the deceased shall
otherwise dispose of it by testament duly and properly executed
according to the laws of Oregon.
Provided that no alien
shall be entitled to a patent to land granted by this act until he
shall produce, to the Surveyor General of Oregon record evidence
that his naturalization as a citizen of the United States has been
completed; but if any alien, having made his declaration of an
intention to become a citizen of the United States, after the
passage of this act, shall die before his naturalization shall be
completed, the possessory right acquired by him under the
provisions of this act, shall descend to his heirs at law or pass
to his devisees, to whom, as the case may be, the patent shall
issue.
Provided further that in all cases provided for in
this section, the donation shall embrace the land actually occupied
and cultivated by the settler thereon.
Provided further
that all future contracts by any person or persons entitled to the
benefit of this act for the sale of the land to which he or they
may be entitled under this act before he or they had received a
patent therefor shall be void.
Provided further, however,
that this section shall not be so construed as to allow those
claiming rights under the treaty with Great Britain, relative to
the Oregon Territory, to claim both under this grant and the
treaty, but merely to secure them the election, and confine them to
a single grant of land."
The fifth provides
"That to all white male citizens of the United States . . .
emigrating to and settling in said territory
Page 101 U. S. 506
between the first day of December, 1850, and the first day of
December, 1853, . . . who shall . . . comply with the foregoing
section, and the provisions of this law, there shall be and hereby
is granted the quantity of one quarter section . . . if a single
man, or if married . . . the quantity of one half section. . .
."
Sec. 6 provides that within three months after the survey has
been made, or after the commencement of the settlement, each
settler shall notify the surveyor general of the precise tract
claimed by him, and that the surveyor general shall enter a
description of such claims in a book to be kept by him for that
purpose.
Sec. 7 provides that
"Within twelve months after the survey or settlement, each
person claiming a donation right shall prove to the surveyor
general that the settlement and cultivation have been commenced,
specifying the time of the commencement, and that he shall, after
the expiration of four years from the date of his settlement, prove
in like manner the fact of continued residence and cultivation
required by the fourth section, and upon such proof's being made,
the surveyor general or other officer appointed by law for that
purpose shall issue certificates under such rules and regulations
as may be prescribed by the Commissioner of the General Land Office
setting forth the facts in the case and specifying the land to
which the parties are entitled. And the said surveyor general shall
return the proof so taken to the office of the Commissioner of the
General Land Office, and if the said commissioner shall find no
valid objections thereto, patents shall issue for the land
according to the certificates aforesaid, upon the surrender
thereof."
"SEC. 8. That upon the death of any settler before the
expiration of the four years continued possession required by this
act, all the rights of the deceased under this act shall descend to
the heirs at law of such settler, including the widow, where one is
left, in equal parts, and proof of compliance with the conditions
of this act up to the time of the death of such settler, shall be
sufficient to entitle them to the patent."
Sec. 12 provides that all persons claiming by virtue of
settlement and cultivation commenced subsequently to Dec. 1,
Page 101 U. S. 507
1850, shall make affidavit that the land is for their own use
and cultivation.
The rights of Loring and those who claim under him all depend on
sec. 4. Whatever he took was by virtue of the grant there made. If
that section gave him no devisable estate before the completion of
the required four years' residence and cultivation, he had none.
The other sections may be resorted to if necessary to get at the
meaning of this, but this alone, when its meaning is ascertained,
fixes the limit of the donation made to him.
The anomalous condition of affairs in Oregon Territory when this
act was passed has been heretofore brought to our attention.
Stark v.
Starrs, 6 Wall. 402;
Lamb v.
Davenport, 18 Wall. 307;
Stark v. Starr,
94 U. S. 477;
Barney v. Dolph, 97 U. S. 652. For
many years, the inhabitants had been without any government except
that which they had themselves organized for their own protection.
The ownership of the soil on which they lived was in dispute
between the United States and Great Britain. Under the operation of
treaty stipulations for a joint occupation of the territory,
extensive settlements had grown up and the people in governing
themselves had adopted land laws which made occupancy the basis of
ownership as between settlers. While waiting for the contesting
sovereign claimants to determine which of the two should be the
acknowledged owner of the soil, they contented themselves with
regulating their rights of occupancy as between each other,
trusting to the bounty of the government under whose sole dominion
they should ultimately fall for a grant of title to the land
itself. The first of these acts was passed in 1844. Laws of Oregon,
1843 to 1849, 77. Under this, only free males over the age of
eighteen who would be entitled to vote if of lawful age, and
widows, were entitled to hold a "claim," save that a married man
under eighteen was not debarred. A claim was also confined to six
hundred and forty acres or less. Permanent improvements and
continuous occupation and cultivation were essential to the
preservation of the rights conferred. Following this was the "Land
Law," contained in the organic law of the provisional government
which went into operation in 1846. Ter.Stat.Oregon (1851), 32, art.
3. This law relaxed somewhat
Page 101 U. S. 508
the stringency of the former act as to actual occupation and
extended the privilege of establishing claims to all residents of
the territory. By the Act of Congress creating a territorial
government for Oregon, approved Aug. 14, 1848, 9 Stat. 323, all
laws theretofore passed in the territory making grants of land or
otherwise affecting or encumbering the title to lands were declared
void, but all other laws in force under the authority of the
provisional government were continued in operation so far as they
were not incompatible with the constitution or the principles and
provisions of that act. All laws passed by the legislative assembly
of the territory were to be submitted to Congress, and if
disapproved were to be null and void. Sec. 6.
Doubts having arisen whether, after the establishment of the
territorial government, the land law of the provisional government
was in force, an Act of the territorial legislature was passed
Sept. 12, 1849, expressly declaring it to be so, and some
additional provisions were made consistent with the title of the
new act, which was "An Act to prevent injuries to the possession of
settlers on public lands." Ter.Laws (1851), 246. By sec. 5 of this
act, it was provided that "land claims shall descend to, and be
inherited by the heirs at law of the claimant in the same manner as
is provided by law for the descent of real estate." On Sept. 26,
1849, "An act respecting wills" was passed by the territorial
legislature. Ter.Stat. (1851) 274. By this act, every person of
twenty-one years of age and upwards of sound mind might, by "last
will, devise all his estate, real, personal, and mixed, and all
interests therein, saving to the widow her dower." Before the
passage of the Act of September 12, if a person died in the lawful
possession of a land claim, it formed part of his personal estate
and was to be disposed of by his executors or administrators for
the benefit of his legal heirs. Laws of Oregon, 1843 to 1849,
61.
It was in the midst of this condition of affairs that the
Donation Act was passed. Congress had the right, on assuming
undisputed dominion over the territory, to confine its bounties to
settlers within just such limits as it chose. The settlers had no
title to the soil, and the legislation under the provisional
government, as well as that by the territorial legislature, had
Page 101 U. S. 509
no other effect than to regulate possessory rights on the public
domain in the absence of congressional interference.
The opening words of sec. 4 are "that there shall be, and hereby
is, granted." This is appropriate language in which to express a
present grant, but as was well remarked by MR. JUSTICE FIELD for
the Court in
Missouri, Kansas & Texas Railway Company v.
Kansas Pacific Railway Company, 97 U. S.
491,
"It is always to be borne in mind in construing a congressional
grant that the act by which it is made is a law as well as a
conveyance, and that such effect must be given to it as will carry
out the intent of Congress."
There cannot be a grant unless there is a grantee, and
consequently there cannot be a present grant unless there is a
present grantee. If, then, the law making the grant indicates a
future grantee and not a present one, the grant will take effect in
the future, and not presently. In all the cases in which we have
given these words the effect of an immediate and present transfer,
it will be found that the law has designated a grantee qualified to
take, according to the terms of the law and actually in existence
at the time. Thus, in
Rutherford v. Greene's
Heirs, 2 Wheat. 196, the grantee was Major General
Greene;
Lessieur v.
Price, 12 How. 59, the State of Missouri; in
United States v.
Arredondo, 6 Pet. 691, Arredondo & Son; in
Fremont v. United
States, 17 How. 542, Alvarado; in
Schulenburg
v. Harriman, 21 Wall. 44, the State of Wisconsin;
in
Leavenworth, Lawrence, & Galveston Railroad Company v.
United States, 92 U. S. 733, the
State of Kansas; and, without particularizing further, it may be
said generally that in the swamp land cases and all the internal
improvement grant cases, where for the most part the question has
arisen of late, if a grant has been held to take effect presently,
the state or some corporation, having all the qualifications
specified in the act, has been designated as grantee. In other
words, when an immediate grant was intended an immediate grantee
having all the requisite qualifications was named.
Coming then to the present case, we find that the grantee
designated was any qualified
"settler or occupant of the public lands . . . who shall have
resided upon and cultivated the same for four consecutive years,
and shall otherwise conform to
Page 101 U. S. 510
the provisions of the act."
The grant was not to a settler only, but to a settler who had
completed the four years of residence &c. and had otherwise
conformed to the act. Whenever a settler qualified himself to
become a grantee, he took the grant and his right to a transfer of
the legal title from the United States became vested. But until he
was qualified to take, there was no actual grant of the soil. The
act of Congress made the transfer only when the settler brought
himself within the description of those designated as grantees. A
present right to occupy and maintain possession, so as to acquire a
complete title to the soil, was granted to every white person in
the territory having the other requisite qualifications, but beyond
this, nothing passed until all was done that was necessary to
entitle the occupant to a grant of the land. Whether the fee passed
out of the United States before the claim was "proved up" it is not
necessary now to consider. For the purposes of the present suit, it
is enough to show that the occupant got no title himself beyond
that of a mere right of possession until he had completed his four
years of continued residence and cultivation.
That such was the clear intention of Congress we think is
manifested in many provisions of the act. Thus, where married
persons
"have complied with the provisions of the act, so as to entitle
them to the grant as above provided, whether under the late
provisional government of Oregon or since, and either shall die
before patent issues, the survivor and children or heirs of the
deceased shall be entitled to the share or interest of the deceased
in equal proportions, except where the deceased shall otherwise
dispose of it by testament, duly and properly executed according to
the laws of Oregon."
This evidently related to such married persons as had completed
their four years' residence and cultivation and had done the other
things required in the meantime -- that is to say, had given notice
of the precise tract claimed (sec. 6), and had proved the
commencement of their settlement and cultivation (sec. 7). These
were the provisions to be complied with "so as to entitle them to a
grant." As there could be no grant until there was some person
entitled to receive it, the conclusion would seem to be
irresistible that under this provision, married settlers had no
estate in the land which they could devise by will until, from
being
Page 101 U. S. 511
qualified settlers only, they had become qualified grantees.
Having completed their settlement and nothing remaining to be done
but to get their patent, their estate in the land was one they
could devise by will or which would go to the surviving husband or
wife and children or heirs of a deceased married person. Not so,
however, with the mere possessory rights which preceded a
compliance with the provisions of the act so as to entitle the
settlers to their grant of the land.
Again:
"No alien shall be entitled to a patent for land granted by this
act until he shall produce to the Surveyor General of Oregon record
evidence that his naturalization as a citizen of the United States
has been completed; but if any alien, having made his declaration
of intention to become a citizen of the United States after the
passage of this act, shall die before his naturalization shall be
completed, the possessory right acquired by him under the
provisions of this act shall descend to his heirs at law or pass to
his devisees, to whom, as the case may be, the patent shall
issue."
An alien who had declared his intention to become a citizen or
who should do so before Dec. 1, 1850, was a qualified settler, but
he was not a qualified grantee until he had completed his
naturalization. As no patent could be issued to him before his
naturalization, provision was made for the disposition of the
"possessory right" which one who had declared his intention, after
the passage of the act, could acquire as an authorized settler. By
the requisite residence and cultivation accompanied by the
prescribed preliminary notice and proof of claim and settlement,
the alien settler could perfect his right to a patent as soon as he
completed his naturalization, but until he was in a condition to
"prove up" for a patent, his rights in the land were "possessory"
only.
Another provision is equally significant:
"All future contracts by any person entitled to the benefit of
this act for the sale of the land to which he may be entitled under
this act before he or they have received a patent therefor shall be
void."
This must refer to sales after the necessary residence and
cultivation were complete, because the grant was only to a settler
"who shall have resided upon and cultivated the same for four
consecutive years." This implies continuous residence
Page 101 U. S. 512
and cultivation by the person or persons who make the claim.
There is no provision by which the possession of one can be added
to that of another so as to complete the requisite term. The grant
was to the occupant who had himself conformed to the provisions of
the act. The sale of a possessory right could have no other effect
than that of an abandonment of the settler's "claim" and a grant to
the purchaser of the right to enter upon the abandoned lands and
begin a new settlement of his own.
This intention is even more distinctly shown in sec. 5, which,
being
in pari materia with sec. 4, may be resorted to as
in some degree showing the meaning of both sections. There, the
language is, "that to all white male citizens . . . who shall in
all other respects comply with the foregoing section, . . . there
shall be and hereby is granted," &c. This indicates clearly
that there was to be no grant except to persons who, by complying
with the provisions of the act, had qualified themselves to
take.
We conclude, therefore, that under sec. 4, there was no grant of
the land to a settler until he had qualified himself to take as
grantee by completing his four years of residence and cultivation
and performing such other acts in the mean time as the statute
required in order to protect his claim and keep it alive. Down to
that time, he was an authorized settler on the public lands, but
not a grantee. His rights in the land were statutory only, and
cannot be extended beyond the just interpretation of the language
Congress has used to make known its will.
This brings us to the consideration of sec. 8, which, in
substance, provided that if a settler died before the expiration of
the required four years' continued possession, all his rights
should descend to his heir at law, including his widow, if he left
one, and that proof of his compliance with the conditions of the
act up to the time of his death should be sufficient to entitle
them to the patent.
Here is a plain indication that the right of the settler before
the expiration of his four years' continued possession was
something less than a title in fee to the land, for the provision
is not that the land shall descend, but the settler's rights only.
Had it been supposed that the title was already in the settler,
subject only to defeasance if the conditions subsequent to the
Page 101 U. S. 513
grant should not be performed, we cannot but think that
provision would have been made for a transfer of the land free of
the conditions, instead of only the settler's rights. The object of
Congress undoubtedly was to allow a settler's heirs to succeed to
his possessions and thus keep his rights alive. But for some such
provision, all rights of the settler would have been lost by his
death. As the law required full four years' residence by the person
who claimed the grant if no provision and been made for a
continuance of his possession the land would have become vacant on
his death and open for a new settlement by a new settler if the law
authorizing new settlements still remained in force. Hence it was
provided that the possessory rights of a deceased settler should go
to his heirs, and that they might get the land on making the
requisite proof, without further residence and cultivation of their
own. Their title to the land was to come not from their deceased
ancestors, but from the United States. The title, it is true, was
granted to them by reason of the possessory rights of their
ancestor, but these were rights which he could not transfer and
which passed to them under the statute without any act of his. On
his death, his heirs became qualified grantees. Whether they took
immediately on his death or after proof of his compliance with the
provisions of the act while in life need not be decided. It is
enough for this case that when their ancestor died, he had nothing
in the land which he could transmit to them, and that what they
afterwards got came from the United States, and not from him. All
his rights in the land were dependant on his completion of the four
years' possession, but in consideration of what he had done,
Congress made his heirs the special objects of its bounty if he
died before his own grant had been secured. We attach no importance
to the word "descend," as used in this section. In sec. 4, the word
selected to convey substantially the same idea was "entitled." The
thing done was to give the heirs of a settler the benefit of his
rights and to designate them as the recipients of the bounty of the
government, instead of him.
We have not overlooked the fact that by the territorial
enactments of Oregon, a settler's claim might descend to his heirs
as real estate, and that his possessory rights might be disposed
of
Page 101 U. S. 514
by will. But all these enactments are in conflict with the act
of Congress, and therefore inoperative. The heirs of the settler
took only such title as Congress gave them. The territorial
government could not add to or take from that grant. It is not
contended that under the act of Congress, a settler might devise
his interest in the land unless the fee passed to him before his
death.
It follows from this that Loring, at the time of his death, had
no devisable estate in the land, and that the heirs of his devisee
cannot maintain this suit. This makes it unnecessary to consider
any of the questions that have been argued.
Decree affirmed.