The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-04-04

tate in tai. land. or dis seized thereof? II ths
patent Is evidence the United States did
not COP ey the title to him. but did convey il 70
other persons, viz, his heirs. In the opinion
upon the demurrer to the fi,st DILL OF complaint
fed in the case. ~ Fed, 7oA. stated that @p.e-
sumably only the heirs of strickle9 living at the
date OF the patent we're entitled 20 share 40 ben
encfArfes by that grant, ana they would take BY
purchase - grantees OF the government and not
hy inheritanc: as as, s,s heirs Of ssr;cklsr: In
the source of the title which they claim = an
act Of congress, entitled AN act creating the
ef.ies OF surveyor general OF NE publ: lands in
make donations 10 settlers Of the said public
lands Approved September q, A. D. 1850.
9th Stat. 40 And the net amend..ory
1854. said William A. strickler On.
tered upon said Land BY virtue OF the afore-
ously resided on said land and cultivated the
same until the year 1861, excent when tempor-
nri.y absent by being driven on BY the Indians,
of the said original donation law and the oct
amendatory thereof. whereby the said william
A. stfickier became the equitable owner OF said
United slater: that in the year ls6i said srrick.
Ter died iasestaie, and said Mary stYick Ter and
his brothers and sisters then and thereby by In
hsritAnce became the equitable owners OF said
land: that on November Is, ISL the Tinted
states. under and by virtue of said acts of con.
gress aud the taking, entry, settlement upon.
ana the cultivation Of said land by said William
A. Strickier, ana upon proof having been duly
made OF full com piiance by the said William A.
Stricken with all the requirements of TIE
various acts OF congress heFeiubsfore referred
70, caused 70 DO issued aud delivered patent
70 esld land to the heirs Of said William A.
Stricklef. The pleade- has avoided making q
eiear statement OF the facts in regard 20 6trick-
.ers performances pursuant TO the donation
law. instead Of saying that he resided upon
and cultivated snid land for four consecutive
years. or any definite period, il il only vaguely
n fhAf tNAr It, l.
was not temporarily absent thereiyom ne did
reside u pom and cultivate the Land. No particu-
lars are given ~ to whsc o. py whom toe final
proof vas .aade. Instead Of pleading facts show
ing thai stricKler By fulfilling the law became
entitled 10 the LAND as q grantee hereunder, the
bill AYERS that he confofmed to the require
be became the equitable owner. This il signif-
cant think tho court 10 justified in refusing
10 asEunic that Strick.er ever became grantee
VI the united states, since the bill stops short
OF alleging facts showing that ne performed the
acts necessary TO qualify him as Q grantee, snd
pleads Is . conclusion something quite different
and shows that in fact the Hoyernmeut issued a
patent to other persons.
According 10 the practice OF the land depart
ment, II stricklef had, during his lifetime, fully
perfected his right 20 the land the patent would
nave named him - the grantee; aud, although
not issued until Alter his death, by virtue of tae
&C. OF congress Of May % 1856. entitled IAN act
70 give sfcct 70 patents tor puoic lands issued
In the names OF deceased persons" Stat 81,
sec. 2,443, K g., the title TO the land would have
immured 10. amt become vested in the persons
entitled TO the land according TO the provisions
OF tue donation law. Davenport VS.. Lamb. 10
Wall. Ais II is fair to presume from the tact
that the patent il not issued ia the name of
strickler. that something prerequisite to the is-
his death; and that the patent was issued to his
heirs upon finding by the officers Of the land
department., from proofs. that they were lawful
iy entitled 10 the land. II. in fact, the convey
ance To them Is based upon such . finding. the
land 10 not and never was part oil Stricker's a.
sets. and the title can not be affected by decree
OF distribution In probate court proceedings
upon his estate. No matter what the facts may
be in reality, the decision of the land depart
ment IN regard thereto il controlling and de-
termtnaftve OF rights under the donation law,
as well ~ under other laws of the United States
relating TO the acquisition OF titles to pubic
land. Vance vs.. Burbank. 1ol U. g.. 5il COun-
sci Tor She cOmplainants have argued that Strick-
Ter, by residing upon and cuitivating the land,
- alleged in the BILL perfected his right with
out making the final proof required By the act,
patent to his heirs. the title Of the heirs il by
descent from SlYickler and subject to be defeated
II q sale Of the land should be found necessary
in the course OF administration OF Strickler's
estste; that IL TO say, the title passes by virtue
OF the donation law ITSELF and vested in the set
tier immediately upon completion of the pre-
scribed Jour years residence and cultlva-
tisn and that final proof aud the issuance Of q
patent are not necessary to work transfer of
title from the United states to the grantee And
au.horities have been cited: Hall vs.. Russell,
l0l U. s.. j0S; koeder W. Fouts. 81 Psc. Rep, 49,
Proebstel va Hogue, IS Fed. Rep, SSl; Biakesly
oOrsgon, 45S; Love Va Love. Oregon, q; Code
OF Washington territory, 1881, sec. 5ol. will
refer to these In reverse order. Section 55l Of
the Code OF Washington territory 10 . legisla-
tive attempt to prescribe q rule OF construction
10 b. applied to the donation law in actions to
recover possession of real propsrey, If either
Part: party elaine the property a. rs don.s OF the
control the construction Oh congressional
grant of public land by an Enactment or the ter
ritorial legislature must be futile Tor the reason
that the Legislature was without power 70 add
to or take from the grant Answering similar
argument Chief Justice Waite, in the opinion of
the supreme court of the United states in the
case OF Hall Va Russell, supra, says 1--WE have
not overlooked the fact that by tho territorial
enactments of Oregon a settler 5 Claim might
descend 10 his heirs as real estate. aud that his
possessory rights might be disposed of by Will.
But all these enactments are in conflict with
the act OF congress and therefore imperative
Inc heirs OF the settler took only such title as
congress gave them. The territorial govern
ment could not add 20 or take from that grant"
In Love VS.. Love the facts were that the land
in dispute was taken as donation claim BY .
cultivated the same for over tour years. Before
making nnai proof the husband died intestate,
leaving two children. The widow made the re-
Quired proofs ana thereupon q patent was
issued. By this the widow took one-half the
land in her own right, and the court decided
that by virtue OF the provisions oil the fourth sec
W
o. the husbands half "by survivorship.' and
also entitled by virtue of the laws of Oregon to
dover in the other two-thirds OF the husbands
halt The decisiou is irreconcilaoly inconsis:-
ent with itself. as well as with the law. The
claim having originated In l>os, the rights OF the
parties were founded upon the NTH section OF
the act, and the provisions OF :he fourth section
were not applicable The decision gives effect
that part of the fourth section relating to the
descent of the rights OF a married person dying
before the ISSUANCE OF a patent Dy awarding
20 Mira Love share in her husbands half of the
donation 'hy authorship, Notwithstanding
that IL expressly holds that the rights OF parties
under said fourth section are by the smsndasory
act OF July L. isI 10 stat. 800. 50 far modified
as 10 subject the land 10 tue local laws OF Ore
gon. and 10 cause them TO descend under such
local laws La othe. words, the court decided
that the rules OF descent prescribed by the Or
egou statute had been substituted for the pro-
visions OF sald fourth section affecting the
rights OF deceased settlers prior 70 ;nc death OF
Lave but nevertheless awarded % his w.dow
mart OF his part OF the Donation conformaDiy to
The abroxated prov i.ioDs of said fourth section.
The rea son assigned Tor awarding dover 10 MIS-.
Love is that - grant TO settler under the do
nation &C, grant in present. OF sn estate in
fee," and in the opinion il il asserted that the
sup.e;ne court of the United states so held in
the case of Barney vs.. Dospa. =. U. ;. co. On
tao contrary, the opinion OF CaleI justice
Waite in that case Is perfectly harmonious with
his opintar ia The later case OF Hall rs Russell,
SUPRA in yhich Il is expressly held that the act
cannot lie construed as grant IN present., aud
t1ist beyond a present rigat TO occupy ana main
tain possession as 10 acquire compete title
TO me soi,, nothing passed ~ virtue OF the act
until al aax done thai Mss necessary TO snGtIe
the settler 81 a grant OF The ,aDd
The decision in Mckay vs. Freeman, so Tar As
il Touches the uuestion under consideration, sp-
pcars to have teea based upon statute OF Ore
gon giving y legislative construction OF the DO
naiioa law similar "a section sol Of the code OF
VI Washington territory. For reasons stea.y