, 1854-10-14
Decision of the Supreme Court
relative to Town Sites in Or

OeCISlOIl OI tic supreme OOuIt
relative to Town Sites in Or
egOn.
Henry Marlin
reySHS Action Of debt
W. G. TVault, bond reserved
John Flemming, and from Wash. Co.
Thomas G. Robinson.
On the 18th day of February, ls47, de-
PENDANTS made to plaintiff their bond, reci-
ting that plaintiff had conveyed to them
n certain land in Tuality county, and re-
ceived therefor block Of ten lots in the
town of Columbia, and county Of Vancou-
yer; and binding themselves, under the
penalty Of 81 900, to comply with all the
requisites of the act Of Congress, granting
donations Of land to settlers in Oregon, so
as to acquire title to said block, and then
to convey, &c. The declaration AYERS that
defendants have not in any way complied
with said law, or obtained and made title
10 plaintiff, according 10 the stipulations of
said bond. Defendants denur, and for
cause in the first place say, that at the date
Of said bond there was no Act Of Congress
granting donations Of lands to settlers in
Oregon.
Words Tin prescnti,1 must have future
application, when such is the obvious in
tention Of those who use them. Courts
proceed upon the presumption that all per-
sons know the law, and we must therefore
conclude, that the parties to this bond,
knowing the law, knew that it did not at
that time provide for donating lands to set
tiers in Oregon. Public history, in this
territory, OF which we may take judicial
notice, shows that, at the time this bond
was made, it was expected that such law
would be enacted by Congress, and, upon
this understanding, we must suppose the
parties made their contract. There is On
evident grammatical mistake in the phrase
ology Of tie bond, but defendants, having
received plaintiff s property, ought not to
be allowed to defeat bis right to an equiv
alent therefor, on any such grounds. In
the second place, il is said that, between
the bringing Of this suit, on the 2lst of Oc-
tober, 1858, and the first day Of the ensu-
ing December, defendants had a right to
take o claim, and therefore this suit is
brought before any complete failure or dis
ability to comply with the bond exists on
the part of the defendants. Sec. IL of the
Donation Act, provides, that persons claim
ing under such act, by virtue Of settle
ment and cultivation, subsequent to Dec.
lst, 1850, shall first make affidavit that
the land claimed by them is for their own
use; that they have made no sale or trans
fer or any arrangement or agreement for
any sale, transfer, or alienation Of the same,
or by which said land shall inure to the
benefit Of any other person." Defendants
could not, therefore, make the necessary
affidavit to enable them to hold the land,
by virtue of settlement, after Dec. LIST,
1850, for they had made an arrangement
'for the sale Of such land, and by which it
was to innure to the benefit Of another per-
son."
In the third place, it is said that plain
tiff seeks to make defendants liable for not
doing, under the Act donating la1ds to
settlers in Oregon, what said Act would
mot allow them to do. Nothing in law
nrsFapted defendants from taking the claim
~pri 8 the lst Of December, 1850, for the
PURPOSE of complying with the bond, and
If 1t had been so taken, and legally held,
SiIAC tucEcbO ullBhb uuNC OCCu dCQuueu lOI
the use Of plaintiff But it is said defend
ants were not able to perform the obliga-
tion Of their bond, because town sites can
not be taken and held under the Donation
Act, and late opinion by the Commission
er of the General Land Office is cited in
support of this position. Defendants, it
appears, made the plan of town, which
they called Columbia, and sold block to
plaintiff, but there is nothing to show that
there ever was a house in said town, or
anything TO prevent the cultivation Of eve
ry foot Of the soil, on which it was laid
out. Imaginary lines, though running at
right angles, will in no way interfere with
such settlement and cultivation as the
Donation Act requires, and therefore their
existence forms no excuse for the delin-
qucncy of defendants For ought that ap-
pears the land, upon which this town was
marked out, had been taken and used as q
farm, long before the idea of a town was
eoncoited, if 90, the mere mapping it out