, 1854-06-24
Decision of the Portland Land
Claim.
GENERAL LAND OFFICE, !
April 9th. 1854

Sir Under date of 9th June, 1858,
the Surveyor General of Oregon, trans
mitted to this Office, mass of testimony
and arguments, in relation to the conflict
ing claims to the land covered by the site
of the town of Portland, in that Territory
under the donation clause of the Act Of
2Sth September, 1850, with his opinion
thereon.
Before considering the question pre-
sented in these cases, the point 70 be
determined upon, was, whether land oc-
cupied as a town site, or for purposes of
trade and commerce, prior to the Act of
2Sth Sept, 1850, was subject to donation
under that Act? Ny own opinion is, that
land so occupied is not subject to such do
nation, and from that decision the Hon.
Joseph Lane, Delegate from Oregon, has
requested an appeal to you, that this ques-
ton of vital moment to that Territory,
may be settled by the highest executive au-
thority.
From the report of the Surveyor Gener-
al, it appears that the town, now city of
Portland, was laid ont in ls45.
BY the l4th section of the Act of 18th
August, l848, Ito establish the Territorial
government of Oregon" (yol. 8, Stats at
large, $685. it is enacted, that "all laws
heretofore passed, in said Territory ma
king grants Of land, or otherwise affect
ing or eucumbering the title to lands,
shall be and are hereby declared to be
null and void" This effectually shuts out
all claims under the Territorial laws, prior
to this act of Congress.
In the same section, and Immediately af-
ter the words above quoted, it is enacted
that "the laws of the United States are
hereby extended over, and declared to be
" in force in said Territory, so far as the
same, or any provisions thereof may be
applicable" Among the laws Of the Uni
ted States then in force, was the act Of
23d May 1874, 'for the relief Of the citi-
"zens of towns upon the lands of the Uni
ted States, under certain circumstances"
(Stats at large, vol. 5, page 657. So
far then as this law was applicable, it was
extended over this Territory, by the Act
of lS4S. The only question that can be
raised in connection with this view of the
case, is on the word Surveyed" in the Cd
line Of this Act 1t provides That when
"ever any portion Of the Surveyed" pub
lie lands, hos been or shall be settled up-
on, as town site, and therefore not
subject to entry under the existing pre-
emption laws" &c. Are settlements of
this character, on VHsHrreyed public lands,
provided for by this Actl .... ...l
In my opinion, lands settled upon as a
town site, or for purposes of trade and
commerce, whether such settlements were
made prior to- during, or after their sur
vey, are subject to the operations Of this
law, as soon as they shaw have been sur
veyed, so that they can be designated, and
entered by their proper and technical des-
cription. Suppose case where part of
the settlements were made before the sur
vey, and part after, the land would be sub
ject to the Act of 1874, and all the settlers
would receive like benefits from it; and
hence the settler prior to the survey, and
Of course the settlements prior thereto, are
not excluded from the benefits of this act.
II will not, Of course. be supposed that
these remarks apply to cases where persons
have obtained valid claims to lands, and
subsequently lay of aportion or the whole
as town site. There could be no objec-
tion to such q course, because when the
town site was laid of, or the settlements
made, for purposes Of trade and commerce,
the lands would not be public, but private
property, and Of course not subject to the
operations Of the Act of 1874.
The fact is, that this Act Of 1874, ex-
tends to the dwellers on the public lands
in towns and cities, the same rights and
privileges to the extent Of their possessions,
as are granted to agriculturists by the pre-
emption laws, and the object Of both, Is
manifestly to protect the bona-6de settlers,
from spectators, and with paternal care,
secure them their homes, at reasonable
rates.
The negative side Of this question Is al
so clear to my mind, that is, that the pub
lie lands in Oregon, settled upon and occu-
pied as town sites, or for trade and com
merce, independently Of the Act Of 1874,
above considered, are not subject to do
nation under the Act of 2sth Sept 1851,
(Stat's at large, vol. 8, p. 897.)
The donation made by the Act Of 1850,
are agricultural grants, made to induce set
Elements in that far distant region. They
are in the nature Of prescriptions, more
liberal as to price and quantity, bnt in 9TH
er respects, containing almost the identical
words of the presumption Act of lS4l,
(vol. 8, Stats at large, page 355.) 1t is
true that the Act Of ls4l, in terms, ex-
cludes town sites, and lands settled upon
for purposes of trade, but that was only
sanctioning and carrying out, by Legislative
enactments, the construction that had been
previously given to the pre-em ption Act
Of 1880 and 1884, Under these earlier
and general pre-emption laws, it was held,
that town property was not subject to their
provisions. Taking then the whole scope