, 1854-10-14

opinion referred to upon the following
grounds =
LIST. The Act of 18th August, 1s4S,
establishing a territorial government for
Oregon shuts OUT all claims under the
territorial laws, prior to its enactment.
I'd. 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.
Sd. The Act of 23d of May 1874, rel
ative to town sites upon the public lands,
being law of the United States was put
inforce here by said Act Of ls4s, SO that
town sites were to be entered by certain
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 opin-
ion, and relative to the lst point on which
it rests, have TO say The l4ih section of
the Act establishing Territorial Govern
ment 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. Mani
feStly this provision abrogatcs any law of
the provisional Government granting or
affecting title TO land, but non coustat that
it repeals all laws regulating the posses
sorry 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 pro-
lection, 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 be-
tween the citizens thereof, but that such
laws should not bind or cucumber the title
in the United States. If, then, the Act of
lS48 does shut out" all claims, it only
shuts out the right as against the United
States, and not the right of u settler to
hold his claim, and improvements against
q wrong-doer, attempting to dispossess him.
Commissioner Wilson takes no notice what
ever Of those parts Of the Donation Act
which especially recognize and adopt claims
made under the laws of the Provisional
Government. If the Act of lS4S vacates
such claims, as is alleged. the Act Of 1850
certainly makes them valid, and, so far as
there is any conAiction between the two
Acts, the provisions of the Act of 1850
must Of course prevail, Sec. 4 of said Act
of 1850, grants to those "who shall have
resided upon" &c; and, also, provides
that the heirs Of settlers, dying before pat
ent issues, shall inherit, whether such dece-
dents complied with the law under the
late Provisional Government, or y
Sec. I of said Act expressly requires the
Surveyor General to issue certificates upon
the necessary proof Of settlement and cul-
tivation, whether made under the laws Of
the Provisional Government, or not."-
Whatever effect, therefore, the Act of
lS4S may have had upon claims made pri-
or to that time, the Act of 1850 clearly
saves and protects them, and, for the pur-
pose Of obtaining q certificate, makes resi-
dence and cul ltivation under the Provision
al Government, just as good as residence
and cultivation under the Congressional
Government. No man can fall into a
greater mistake, than TO suppose that the
Surveyor General of this territory, in ad-
justing the rights of settlers to lands here,
is bound to ignore oil rights acquired un-
der the laws Of the Provisional Govern
ment. When Mr.. Wilson says that "land
occupied as town site, or for purposes Of
trade, prior to the Act of 1850, is not sub
ject to donation under that act" he lays
down proposition which cannot be main
tanned. Suppose that on the LIST day Of
october, 1850, after the passage Of the
Donation Act, qualified person settles
upon and cultivatcs claim, till October
1900, and then changes it to town site,
can the Surveyor General, for that reason,
refuse to give him certificate, when the
residence upon, and cultivation of any part
OF said claim are continued by such person
as long as said Act requires? Clearly
not, as every man Of common sense must
see. Now let it be remembered that the
Act of 1850, so far as this point is con-
cerned, puts the right of those who set
tied before its passage, and the right of
IuOoC WIZ oGlllou dllGIhuIuS, upon pre-
cisely the same footing, so that whatever
would not invalidate settlement, made af-
ter such Act took effect, would not invali-
date settlement made prior to that time
If this augmentation be correct, it follows,
that if said qualified person had made his
settlement in lS419 aud laid of town in
lS49, (residing And cutivating, as the
above supposed case,) his rights under the
donation law would be exactly the same as
in that case. Suppose a settler to have
taken a claim of $40 acres, in ls45, and
to have resided upon, and cultivated, it
for four consecutive years, and then in
IS49, to have laid it off into town in
which he continues to reside when such
settler applies for a certificate, would it be
the duty Of the Surveyor General to say to
him, it is true you have complied with the
law in every respect, but you have forfeit
ed everything, in attempting to build up
town, for 'land occupied as a town site,
prior to the Act of 1880 is not subicct TO