The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-01-09

territory through Thicn fnat riyer flows, by
Lewis & Clarke, and the establishment OF the
first POSTS and settlements in said territory by
citizens of the United states
This was the position assumed by the political
department OF the government, and its action Is
binding on the courts. foster & Elam vs. Nell
son, Peters, p IS.
We assert the proposition as sound beyond any
legitimate contention, that thus acquired the
United states took the fee in these lands and
thereafter held them subject only to its own
laws, then or thereafter TO be enacted. and that
these laws alone constitute the criterion by
which their status at the time OF appellants Sc
lection is 10 be determined How stands this
law The ownership OF anything, by nations or
individuals. carries with il the common incl
dent OF alienability. This is so, not because
some law specifically declares IL, bat because no
law distinctly forbids il. The inherent charae-
fer Of The thing in question embraces the rJoyycr
Ii is just much an incident OF property as the
right OF use or enjoyment II may be stated as
elementary law that everything capable OF
ownership is the lawful subject OF transfer IN
less some direct and positive prohibition is pre-
scribed by competent authority. And in this
respect the United States occupies precisely the
position of the individual citizen, save only as
limited by the constitution, and the laws en-
acted Hereunder. Add TO what has already
been said the further conceded fact, that moth
ing in either the constitution or statutes pro-
hibits alienation OF the particular species of
property here N question, and IL follows upon
general principles that such property, SO long as
owned by the United States. is the subject of
full and unlimited transfer by any lawful gov
ernment agency, established for such purpose.
which the right Of disposition by the United
States OF lands of this class IN territory has
ever been called into question. and that was by
a state court oil no high standing. That right OF
disposition has been freely exercised by the fed
erai government Tor years, and has gone I'M
questioned. except in the one instance referred
TO. and in the ease at bar. In this state alone
thousands of acres of such lands are now held
under patents from the United states. The
greater part OF townships 81 north, range east,
west meridian; . north range east, west me
ridian: 81 north. range east west meridian, and
"a north range and 1 east, west meridian, are
tide lands which have been surveyed and pat.
ented b. the United States under the homestead
and pre-eIn ption laws. In the field notes OF the
surveys OF these townships PIP le0-l97, vol -
field notes OF Washington territory, Seattle dis
trict, the land is Ges cribed as
Land, tide prairie, subject to overflow at high
water two &, four feet.
Under the townsite act OF March 3. 1863, 10
United States stat at large p. 55i, the president
was authorized to reserve from the public lands,
whether surveyed or unsuryeyed, t0wnsit1s on
the shores OF harbors, etc. In pursuance OF this
act the president did reserve the TOWNSHIP of
Port Angeles, in this state, TO the line OF low
water, and caused the same 10 be surveyed, aud
plated more than 100 lots below high water
marx, which lots were sold and patented by the
United states.
Several of the original donation claims on Pu-
get sound extend below the line OF ordinary
high tide, notably the Maynard claim, adjacent
to the land in controversy. The surveyed and
patented lines of this claim extend far beyond
the meander lines, and included some twenty
five or thirty acres of tide hats. good portion
OF which is still unreclaimed and covered by
diurnal tides. These are matters OF public no
toriety as well as public record
Further than this the state of Washington, in
its constitution, expressly recognizes that the
United States have made grants Of lands OF this
class. and that such grants were within the
powers of the federal government TO make.
Section 2, Article XVII of the constitution,
says:
THE state OF Washington diselaims all title in
and claim to. all tide. swamp and oyeriowed
lands patented By the United States Provided,
the same is not impeaehed for fraud"
We think it must be conceded that at the time
of the selection made by appellant, during the
territorial period. the JUS dIsponsadf OF lands OF
this class was in the United states. That being
true, were they of the class of lands which
Valentine or his legal representatives were en-
titled 10 select in satisfaction of his grant As
we have shown, this being grant for considers
ton, we entitled to have il literally con-
strued in favor of the grantee. The act itself
shows what class OF lands were to be excepted
out OF its operations.
mineral lands. Having thus declared exeep
tons, according to every recognized rule OF In
depreciation OF statutes all other lands which IL
had the power TO grant are Included, ON the
principle a.Expressso aHfEs est ercinsio Gferius"
| lBroome's legal maxims, American ed, p. sos
Endlieh on Interpretation of Statutes, ed, p
Congress having placed express restrictions
| upon the power OF selection, the presumption is
| that having expressed some, 1t expressed all OF
| the restrictions intended
The complaint AYERS directly that the land Sc
| lected is non mineral in character
The complaint also AYERS that the land is IN
appropriated, in this. s.that liz has never been
set apart by the United States for any particular
use. This is substantially the language used by
the supreme court OF the tinted States in dstin-
ing the meaning OF the word appropriated" in
connection with the public lands. lWilcox VS..
Jackson, Is Peters. 512-
The complaint also alleges that the said tract
was unoccupied. in this, "that the said tract
or any portion thereof was not in the possession
OF any, person claiming or intending to claim
( any title thereto, under or in pursuance of any
statute Of the United States, aud that the In
guished.'
This we contend is a good and sufficient
pleading that the land ar the time of our selec-
ton was unoceupied within the meaning of the
act OF congress The occupation therein referred
10 must be lawful occupation. Ii clearly was
not the intention of congress that the casual in
trusion OF a naked tre>passer could defeat the
operation OF the grant Mere occupancy aud
Improvement OF the public lands, no matter
how long continued, gives no vested right there
in as against the United States any purchaser
from them. SPARKS Pierce, lis US, 4ts jour
dan vs. Barrett, Howard, 169: Burgess VS..
Gray, Is Howard -; Frisbie Whitney, 9 Wal
lace, ls7; Gibson vs.. Choutean, Is Wallace. a2:
oaksmith ys. johnson, 9e Z. $, AS; Morrow VS..
Whitney. a5 [. 5. ISL; Defenbaeh VS.. Haw %
Z. =. 46Tl
There are two classes of occupation of public
lands which are lawful, even although there be
no appropriation. one is the occupation OF I'M
surveyed lands by settler under the general
land laws. This occupation, while lawful. con-
purchase, should the land ever be thrown open
70 entry. II does not prevent the United States
from granting the land to another. IFrisbie VS..
Whitney. Q Wallace, ISL
The other is the Indian right of occupancy.
Until this is extinguished, no grant OF lands can
take effect. Fletcher vs.. Peck, 6 Cianch. D. s.;
Leayenworth vs. United States, 81 Z. :. PIP 7Ss-
742.l
+ 4 fair construction OF this grant would be that
congress intended by the words .'unoccupied.
lands not in the possession OF either OF these
two classes OF legal occupants. Were not this
reservation made IL would have bsen in the
power OF Valentine 10 select, in satisfaction of
his grant, farms on unsarFeyed lands, with val
liable Improvements made IN good faith by in
tending pre-eIn ptors or homes leaders Under
the decision IN Frlsbie Whitney, sapTa, in
the absence OF such proviso, their occupation
could not have defeated his right TO select for
there had been appropriation OF the land by
competent authority, and mere occupancy. even
As settler in good faith. conferred en- them no
vested right But this limitation IN the grant
ing act protected these lawful oecupants, and
was undoubtedly inserted there for that express
purpose. But II would be strained ard unfair
Interpretation OF the act 10 hold that the mere
Intrusion on a portion OF the public domain, OF
laWtesS trsTs3sser. without title or eaJgscIty TO
make title, would operate TO defeat n grant
where the government had received, accepted
and retained full and more than adequate con-
SIderatI0n therefor
We think the complaint herein sufficiently
states thst the land was unoccupied and unsrl
proprlated st The time II was selected
IL may be urged thSt SrTellant's title did not
attach because the land was unSnrTeyed al the
time OF selection and until surveyed there could
he no precision ~ tAe selection. The grant TO
Valentine permits the selection OF unsnrvevexi
lands in satisfaction thereof, the only limitation
being that iii unsUrveysd when taken TO con
form, when surveyed, 10 the general system of
this requirement. is simply that the scrip locator
must MAKE his selection ~ land in what VIII De