1. Under the Act of Aug. 14, 1848, c. 177, entitled "An Act to
establish the territorial government of Oregon," a religious
society acquired no title to public lands by reason of its
occupation of them as a missionary station among the Indian tribes
unless such occupation actually existed at that date.
2. Where, therefore, a religious society appropriated certain
lands in the Territory of Oregon, erected improvements thereon, and
occupied them for such a missionary station, but its occupation
ceased before that date and a portion of them, after the townsite
acts took effect, was, pursuant to their provisions, entered and
paid for, and another portion was claimed by a party who had fully
complied with the requirements of the Act of Sept. 27, 1850, c. 76,
commonly called the Donation Act,
held that the society to
which, by reason of such occupation, a patent had been issued held
the title to such portions in trust for the parties claiming
respectively under the donation and the townsite acts.
3. Prior to the said Act of Sept. 27, 1850, no person could, by
entry or preemption settlement, acquire as against the United
States any right or title to public land in Oregon.
Stark v.
Starrs, 6 Wall. 402, cited upon this point and
approved.
This was a bill in equity filed by Dalles City against the
Missionary Society of the Methodist Episcopal Church.
The following facts are disclosed by the pleadings and
evidence:
The complainant was incorporated by an Act of the Legislature of
Oregon passed January 26, 1857, which was afterwards amended by an
Act passed January 20, 1859. By the last-named act, the boundaries
of Dalles City were established. Long prior to the passage of said
acts of incorporation, to-wit, in the year 1852, a large portion of
the land within said boundaries was settled upon and occupied as a
townsite for the purposes of business and trade, and not for
agriculture, and has been so occupied ever since that time. During
the year 1855, the lawfully constituted authorities of the County
of Wasco, within which Dalles City was situate, caused the land so
occupied to be surveyed and platted into lots, blocks, streets, and
alleys, and the plat thereof to be recorded in the recorder's
office of said county. A survey was made by the United States of
the lands so occupied as a townsite, and such survey was approved
on February 4, 1860, and on April 19, 1860, the corporate
authorities of Dalles City entered at the land office of the United
States in Oregon City the fractional northwest quarter of section
three, in township one, of range thirteen east, containing one
hundred and twelve
Page 107 U. S. 337
acres, in trust for the several use and benefit of the occupants
thereof according to their respective interests. All this was done
in pursuance of the Act of Congress approved May 23, 1844, and of
the Act of July 17, 1854, 10 Stat. 305, by which the provisions of
the act first named were extended to the Territory of Oregon. The
said fractional quarter is the land occupied by Dalles City as a
townsite. The corporate authorities paid to the receiver of the
land office $1.25 per acre for said fractional quarter, and Dalles
City claimed to have thereby acquired title thereto in trust as
aforesaid.
The Missionary Society of the Methodist Episcopal Church, a
corporation organized under the laws of the State of New York,
claimed to own in fee simple a tract of land containing six hundred
and forty-three acres and thirty-seven hundredths of an acre, for
which a patent bearing date July 9, 1875, was issued to it by the
United States. The land described in the patent includes the
fractional quarter in question.
The city, by the bill filed in this case, asserts the validity
of its to the fractional quarter and avers that, in violation of
its rights, the patent was improvidently issued to the Missionary
Society. It prays for a decree declaring it to be the owner of the
fractional quarter in trust for the use and benefit of the owners
and occupants thereof and directing the defendant to convey the
legal title in and to the land to the city, to be held by it in
trust for the respective occupants thereof.
The remaining facts are set forth in the opinion of the
Court.
Upon final hearing, the circuit court rendered a decree in favor
of the city in accordance with the prayer of the bill. This appeal
is prosecuted to reverse that decree.
Page 107 U. S. 338
MR. JUSTICE WOODS delivered the opinion of the Court.
It is clear and does not seem to be disputed that the title of
the appellee to the fractional quarter of land described in the
bill is a good and valid title against all the world except the
appellant, the Missionary Society of the Methodist Episcopal
Church. The title of appellee was acquired by virtue of an entry
made at the
Page 107 U. S. 339
proper land office in pursuance of the provisions of the Act of
May 23, 1844, c. 17, and the Act of July 17, 1854, c. 84. The
controversy in the case arises upon the claim of the appellant,
which contends that its title is better and superior to that of the
appellee.
The patent from the United States to the Missionary Society of
the Methodist Episcopal Church for the lands in controversy was
issued by virtue of sec. 2447 of the Revised Statutes, and, as
directed by that section, declares as follows:
"That this patent shall only operate as a relinquishment of
title on the part of the United States, and shall in no manner
interfere with any valid adverse right to the same land, nor be
construed to preclude a legal investigation and decision by the
proper judicial tribunal between adverse claimants to the same
land."
It is therefore clear that the patent does not conclude this
controversy, and that if the United States had, at the date of the
patent, no title to the lands described therein, the patent
conveyed none to the defendant. But both parties contend that they
had acquired the title of the United States long before the date of
the patent. As the appellee is conceded to have
prima
facie a good title, the appellant is driven to show a better
title independently of the patent. This it has undertaken to do.
The only question in the case, therefore, is has it succeeded in
establishing a title to the premises superior to that under which
the appellee claims and by virtue of which it is in possession?
The appellant asserts title under the provisions of the first
section of an Act of Congress passed August 14, 1848, c. 177,
entitled "An act to establish the territorial government of
Oregon," which, among other things, declared
"That the title to the land, not exceeding six hundred and forty
acres, now occupied as missionary stations among the Indian tribes
in said territory, together with the improvements thereon, be
confirmed and established in the several religious societies to
which said missionary stations respectively belong."
The appellant contends that on August 14, 1848, it was, within
the meaning of the statute, occupying as a missionary station among
the Indian tribes of Oregon the lands now in dispute. Whether this
contention is well founded is the turning point of the
controversy.
It appears from the testimony in the record that in the
Page 107 U. S. 340
year 1836 or 1837, a missionary station was established by the
Missionary Society of the Methodist Episcopal Church, under the
superintendence of the Rev. Jason Lee, on the lands now in
controversy, situate on the Columbia River east of the Cascade
mountains at a place then called Wascopum, but since then known as
the Dalles. In 1844, Lee was succeeded by the Rev. George Gary, who
continued to be the superintendent of the station until July, 1847,
when he was succeeded by Rev. William Roberts. At this time there
were at the station a two-story dwelling house, a school house,
which was used also as a church, a storehouse with cellar
underneath, a barn, some farming lands enclosed, and farming
utensils.
In August, 1847, Mr. Roberts, being still the superintendent of
the station, transferred it to Dr. M. Whitman, who was a missionary
of the Presbyterian Missionary Society, known as the American Board
of Commissioners for Foreign Missions. An account of this transfer
is given in the testimony of Mr. Roberts as follows:
"In August, 1847, I transferred the said station into the hands
of Dr. M. Whitman at the assent of the A.B.C.F.M. The mission
station was placed in his hands on the conditions and with the
understanding that it should be occupied by them for the use and
benefit of the Indians residing in that place and vicinity. For the
movable property they were to pay such an amount as might mutually
be agreed upon. For the station itself they were to give no
compensation, the understanding being all the while that the
mission was to be maintained by them for the use and benefit of the
Indians in a religious point of view, which included the education
of the children, the instruction of the Indian parents in all
matters pertaining to their religious interests and temporal
wellbeing. The reasons for the transfer without compensation were
briefly these: the Methodist mission had but one station east of
the Cascades, and more work in the Willamette than they could well
attend to. The American Board had three stations in the upper
country, and it was quite desirable for them to have the Dalles
also, as it was the key to that entire region, and as an act of
Christian regard and confidence the transfer was thus made."
"The amount which Dr. Whitman was to pay for the movable
Page 107 U. S. 341
property was subsequently fixed at a fraction over $600. This
included a large canoe, farming utensils, fanning, mill, some
wheat,"
&c.
Payment of the $600 was made by a draft drawn by Dr. Whitman
dated in September, 1847, upon American Board.
Mr. Roberts, the Rev. Alvin F. Waller, and Mr. Brewer -- the
latter two, up to the date of the transfer, having been in the
occupancy of the mission -- left the station immediately after the
transfer and went down the Columbia River. They carried off their
movable property which had not been sold to Dr. Whitman. Dr.
Whitman, to whom the station had been transferred, remained there a
few days and then returned to his home at Wailatpu, distant about
one hundred and forty miles. He left his nephew, Perring B.
Whitman, a youth seventeen years of age at the Dalles, in
possession of the buildings which had been occupied by the
Methodist missionaries. On November 29, 1847, Dr. Whitman was, with
his family and a number of other persons, murdered by the Cayuse
Indians at his home at Wailatpu. When news of this massacre reached
Perring B. Whitman, he abandoned the Dalles and went down the
Columbia River, leaving no one in the occupancy of the station.
After the transfer of the station by Roberts to Whitman in
August, 1847, the record does not show that any missionary labors
were ever performed at the Dalles, either by the Methodist society
or the American Board, except two or three religious services held
by Mr. Waller in June, 1850, when he went to the Dalles to show Mr.
Roberts the boundaries of the mission claim. After the month of
August, 1847, no person representing the Methodist Missionary
Society, and after December, 1847, no person representing the
American Board, ever occupied the missionary station at the
Dalles.
The reason assigned by the appellant why the American Board
abandoned the station and why possession of it was not resumed by
the Methodist Society was the fear of Indian hostilities.
It follows that on August 14, 1848, when the act to organize the
Territory of Oregon was passed, the station was not in the
occupancy of anyone representing either of the missionary
societies.
Page 107 U. S. 342
About the last of February or the first of March, 1849, Messrs.
Walker, Spaulding, and Eels, three missionaries of the American
Board, delivered a writing to Mr. Roberts in which they "offered
for his acceptance the mission station at Wascopum, near the Grand
Dalles of the Columbia River," and proposed
"that it be retransferred to the Oregon Mission of the Methodist
Episcopal Church in the same manner in which it was received by the
Oregon Mission of the American Board of Commissioners for Foreign
Missions."
The draft given to Mr. Roberts for the movable property at the
Dalles, sold by him to Dr. Whitman in August, 1847, was delivered
up, it having never been paid.
The appellant did not resume missionary work at the Dalles after
this attempt to retransfer, nor did it take possession of the
premises.
In June, 1850, Mr. Roberts returned to the Dalles for the
purpose of making a survey of the six hundred and forty acres which
he proposed to claim for the Missionary Society of the Methodist
Episcopal Church under the act of 1848. He made a survey and had it
recorded.
On Feb. 28, 1859, several years after the lands in controversy
had been entered and paid for by Dalles City, the American Board
delivered to the Missionary Society of the Methodist Episcopal
Church a release of all their right and title to "the property in
the vicinity of the Dalles on the Columbia River, known as the
mission property.'"
The question is presented whether, upon these facts, the
appellant, the Missionary Society of the Methodist Episcopal
Church, has shown a better title to the lands in controversy than
that of Dalles City, the appellee.
The title claimed by appellant is based entirely upon the first
section of the Act of August 14, 1848, before referred to. This was
a public grant. In the case of
Dubuque & Pacific Railroad
Co. v. Litchfield, 23 How. 66, it was said by this
Court, speaking of a public grant of land: "All grants of this
description are strictly construed against the grantees. Nothing
passes but what is conveyed in clear and explicit language."
See also Jackson v.
Lamphire, 3 Pet. 280;
Beaty v.
Lessee of Knowler, 4 Pet. 152;
Providence
Bank v. Billings, 4 Pet. 514;
Page 107 U. S. 343
Charles River Bridge v. Warren
Bridge, 11 Pet. 420;
Leavenworth &c.
Railroad Co. v. United States, 92 U. S.
733.
The Act of August 14, 1848, confirms and establishes title to
land occupied at the date of the act as missionary stations among
the Indian tribes. The words are "now occupied." To occupy means to
hold in possession; to hold or keep for use, as to occupy an
apartment. Webster's Dictionary. The appellant contends that this
act confers title on it for lands which it did not occupy at the
date of the act but which it had voluntarily abandoned eleven
months before, and the occupancy of which it never resumed either
for missionary or any other purposes. Not even a liberal
construction would support such a claim.
But the appellant, conceding that it was not in the actual
occupancy of the premises either as a missionary station or
otherwise at the date of the passage of the act, nevertheless
insists that, being in actual occupancy in August, 1847, it
transferred its rights therein to the American Board on condition
that the latter society should maintain a mission there for the
benefit of the Indians, and that, as the American Board failed to
maintain such a mission and abandoned the premises, the rights of
the appellant reverted to it, and it therefore had a constructive
possession when the Act of August 14, 1848, was passed, which
brought it within the meaning of the act.
We do not think this contention can be sustained. In the first
place, it cannot be fairly inferred from the testimony in the
record that the transfer of the missionary station was a
conditional one, and that it was any part of the contract that the
rights of the appellant should revert to it if the condition were
broken. It is plain that the transfer was absolute. Doubtless it
was the expectation of the appellant that the transferee would
conduct upon the premises a mission for the religious benefit of
the Indians, and such, doubtless, was the purpose of the American
Board. But it does not appear to have been any part of the contract
that, if the American Board failed to carry on such a mission, the
appellant should resume possession.
But, conceding that such was the understanding between the
Page 107 U. S. 344
parties, there is still a fatal obstacle to any claim on the
part of the appellant. When the appellant was in the occupancy of
the premises in controversy, and when it made the transfer of
possession in August, in controversy, and when it made the transfer
of possession in August, 1847, and until the passage of the Act of
August 14, 1848, "to establish the territorial government of
Oregon," that part of the country was without an organized
territorial government under the laws of the United States. The
public domain which was included within the Territory of Oregon by
the act just mentioned had not then been surveyed, nor was it open
to settlement, preemption, or entry.
Stark v.
Starrs, 6 Wall. 402. The title was in the United
States, subject to the possessory Indian title to portions of the
territory, and there was no law by which any person or company
could acquire title from the government. All persons therefore who
settled upon the public lands acquired no rights thereby as against
the government. They were merely tenants by sufferance. The most
they could claim was the right of actual occupancy as against other
settlers. Such an occupant could yield his right of actual
possession to another settler, but he could convey no other
interest in the land. If he abandoned the land and another settler
occupied it, the former lost all right to the possession. If he
transferred the possession to another and the transferee abandoned
the land, the first possessor could claim no right in the land
unless he again took actual possession. In short, the settler had
no right as against the government, and no rights under the laws of
the United States as against anyone else to the possession of the
land in his actual occupancy, except and only so long as such
occupancy continued.
It is true that before the passage of the Act of August 14,
1848, to organize a territorial government for Oregon, the people
of that territory had, in June and July, 1845, met by their
delegates in convention, and adopted laws and regulations for their
government "until such time," as they declared, "as the United
States of America extend jurisdiction over us." In this plan of
government, it was provided that anyone wishing to establish a
claim to land should designate the extent of his claim by line
marks and have it recorded in the office of the territorial
recorder. The appellant cannot derive any title from this
regulation, for it never defined the extent of its claim
Page 107 U. S. 345
by boundaries and never recorded the same, as required by the
regulation, until long after the passage of the Act of August 14,
1848, "to organize a territorial government for Oregon." That act
in its fourteenth section declared as follows:
"All laws heretofore passed in said territory making grants of
land, or otherwise affecting or encumbering the title to lands,
shall be, and are hereby declared to be, null and void."
Referring to this act, this Court declared in the case of
Lownsdale v.
Parrish, 21 How. 290, that Congress passed no law
in anywise affecting title to lands in Oregon till the passage of
the Act of September 27, 1850, c. 76, and that prior to that date
no one could acquire any title to or interest in the public lands
in that territory.
It follows that there could be no constructive possession of the
public lands. When therefore in August, 1847, the appellant
voluntary abandoned its possession of the lands in controversy to
another missionary society it lost every shadow of claim thereto.
Its right was a mere possessory right, without other title. It had
no rights which it could reserve. When the American Board, in
December, 1847, abandoned the lands in controversy the appellant
had no rights therein. The reasons which induced the abandonment of
the lands by the missionary societies, whether a new policy on the
part of the appellant, or fear of the Indians on the part of the
American Board, are entirely immaterial. When the lands were
abandoned for any reason all right in them was lost, and they were
open to the occupancy of anyone who might choose to take and hold
them.
The method adopted by the appellant to turn over the station to
the American Board by an actual transfer of possession was as
effectual as any could be. It could be done only by yielding the
actual occupancy, and this could not be effected by a written
transfer. It could be accomplished only by the going out of one
party and the going in of the other.
If the appellant had, in August, 1847, executed the most formal
deed, conveying the lands to the American board, and had stipulated
therein that on failure of the latter to maintain a mission thereon
for the benefit of the Indians, or upon its abandonment of the
lands, all the rights of appellant should revert to it, and it
should be entitled to resume immediate
Page 107 U. S. 346
possession, such a writing would have been inoperative and
futile. The appellant had no rights in the land which it could
convey, and no rights which it could reserve.
These views are supported by the case of
Stringfellow v.
Cain, 99 U. S. 610,
brought up from the Territory of Utah. The Act of March 2, 1867, c.
177, "for the relief of inhabitants of cities and towns upon the
public lands," provides that whenever any portion of the public
lands of the United States had been settled upon as a townsite, and
were for that reason not subject to entry, it should be lawful for
the authorities of the town to enter the lands as settled upon in
trust for the several use and benefit of the occupants thereof, the
execution of which trust was to be conducted under such rules as
the legislature of the state or territory might prescribe. Under
this act, it was held in the case cited that where a party had been
in the occupancy of a lot, but prior to the passage of the act
voluntarily withdrew therefrom and gave it up to others, her
rights, which depended on keeping the possession, were gone.
The appellant contends that the language of the first section of
the Act of August 14, 1848, under which it claims, implies that it
had some title to the lands in question before the act was passed.
It places stress on the words "that the title to the lands be
confirmed and established in the several religious societies to
which said missionary stations respectively belong," and says there
must have been some previous title which could be confirmed and
established.
We have seen that it was not possible to acquire any title as
against the United States before the passage of this act. If,
therefore, the force is to be given to the words of the statute
which the appellant claims for them, they must refer to the
possessory title under the regulations above mentioned of the
provisional government. But no steps, as we have seen, were taken
by appellant to establish its claim under those regulations. It had
simply settled upon the public domain as a tenant by sufferance,
without authority of any law or regulation of any government, and
had done no act by which it could acquire any claim of title.
Whatever therefore may have been
Page 107 U. S. 347
the case with other missionary societies, the appellant had no
title of any kind which could be confirmed and established by the
Act of August 14, 1848. The American Board was in no better
position.
Neither of the societies acquired any title under the act of
1848. The writing executed in 1849 by Messrs. Walker, Spaulding,
and Eels, and the release made by the American Board to the
appellant in 1859, after Dalles City had entered and paid for the
land, and the patent of the United States in 1875, which was a mere
release, conveyed no rights to the appellant in the lands in
controversy to the appellant.
The decree of the circuit court was therefore right, and must
be
Affirmed.