107 U.S. 336

2 S.Ct. 672

27 L.Ed. 545


April 16, 1883.

This was a bill in equity filed by Dalles City, a municipal corporation organized under the laws of the state of Oregon, against the Missionary Society of the Methodist Episcopal Church, a corporation.

The complainant was incorporated by an act of the legislature of Oregon passed January 26, 1857, which was afterwards amended by an act passed January 20, 1859. By the last-named act the boundaries of Dalles City were established. Long prior to the passage of said acts of incorporation, to-wit, in the year 1852, a large portion of the land within said boundaries was settled upon and occupied as a town-site for the purposes of business and trade, and not for agriculture, and has been so occupied ever since that time. During the year 1855 the lawfully-constituted authorities of the county of Wasco, within which Dalles City was situate, caused the land so occupied to be surveyed and platted into lots, blocks, streets, and alleys, and the plat thereof to be recorded in the recorder's office of said county. A survey was made by the United States of the lands so occupied as a town-site and such survey was approved on February 4, 1860, and on April 19, 1860, the corporate authorities of Dalles City entered at the land-office of the United States in Oregon City the fractional north-west quarter of section 3, in township 1, of range 13 E., containing 112 acres, in trust for the several use and benefit of the occupants thereof, according to their respective interests. All this was done in pursuance of the act of congress approved May 23, 1844, and of the act of July 17, 1854, (10 St. 305,) by which the provisions of the act first named were extended to the territory of Oregon. The said fractional quarter is the land occupied by Dalles City as a town-site. The corporate authorities paid to the receiver of the land-office $1.25 per acre for said fractional quarter, and Dalles City claimed to have thereby acquired title thereto in trust as aforesaid.

The defendant, the Missionary Society of the Methodist Episcopal Church, claimed to own in fee-simple a tract of land containing 643 acres and 37-100 of an acre, for which a patent was issued to it by the United States on July 9, 1875. The land described in the patent included the fractional quarter to which Dalles City claimed title and of which it was in possession. The bill filed in this case asserted the validity of the title of Dalles City, the complainant, to said fractional quarter, and averred that the patent for 643 acres and 37-100 of an acre, which included said fractional quarter, was improvidently issued to the Missionary Society in violation of the rights of complainant, and prayed for a decree declaring the complainant to be the owner of said fractional quarter in trust for the use and benefit of the owners and occupants thereof, declaring that the defendant held the legal title in trust for the complainant, and directing it to make a conveyance to the complainant therefor, to be held by it in trust for the respective occupants thereof. Upon final hearing the circuit court rendered a decree in favor of the complainant, in accordance with the prayer of the bill. This appeal is prosecuted to reverse that decree.

E. L. Fancher, for appellant.

[Argument of Counsel from 337 intentionally omitted]

Jas. K. Kelly and John H. Mitchell, for appellee.

[Argument of Counsel from page 338 intentionally omitted]


It is c


lear, and does not seem to be disputed, that the title of the appellee to the fractional quarter of land described in the bill is a good and valid title against all the world, unless it be the appellant, the Missionary Society of the Methodist Episcopal Church. The title of appellee was acquired by virtue of an entry made at the proper land-office, in pursuance of the provisions of two acts of congress,—one passed May 23, 1844, (5 St. 657,) and the other July 17, 1854, (10 St. 305.) The controversy in the case arises upon the claim of the appellant, which contends that its title is better and superior to that of the appellee.


The patent from the United States to the Missionary Society of the Methodist Episcopal Church for the lands in controversy was issued by virtue of section 2447 of the Revised Statutes, and, as directed by that section, deciared as follows: 'That this patent shall only operate as a relinquishment of title on the part of the United States, and shall in no manner interfere with any valid adverse right to the same land, nor be construed to preclude a legal investigation and decision by the proper judicial tribunal between adverse claimants to the same land.'


It is, therefore, clear that the patent does not conclude this controversy, and that if the United States had, at the date of the patent, no title to the lands described therein, the patent conveyed none to the defendant. But both parties contend that they had acquired the title of the United States long before the date of the patent. As the appellee is conceded to have prima facie a good title, the appellant is driven to show a better title, independently of the patent. This it has undertaken to do. The only question in the case, therefore, is, has it succeeded in establishing a title to the premises superior to that under which the appellee claims, and by virtue of which it is in possession?


The appellant asserts title under the provisions of the first section of an act of congress passed August 14, 1848, entitled 'An act to establish the territorial government of Oregon,' (9 St. 323.) This section, among other things, declared 'that the title to the land, not exceeding 640 acres, now occupied as missionary stations among the Indian tribes in said territory, together with the improvements thereon, be confirmed and established in the several religious societies to which said missionary stations respectively belong.' The appellant contends that on August 14, 1848, it was, within the meaning of the statute, occupying as a missionary station among the Indian tribes of Oregon the lands now in dispute. Whether this contention is well founded is the turning point of the controversy.


It appears from the testimony in the record that in the year 1836 or 1837 a missionary station was established by the Missionary Society of the Methodist Episcopal Church, under the superintendence of the Rev. Jason Lee, on the lands now in controversy, situate on the Columbia river, east of the Cascade mountains, at a place then called Wascopum, but since then known as the Dalles. In 1844 Lee was succeeded by the Rev. George Gary, who continued to be the superintendent of the station until July, 1847, when he was succeeded by Rev. William Roberts. At this time there were at the station a two-story dwelling-house, a school-house, which was used also as a church, a store-house, with cellar underneath, a barn, some farming lands inclosed, and farming utensils.


In August, 1847, Mr. Roberts, being still the superintendent of the station, transferred it to Dr. M. Whitman, who was a missionary of the Presbyterian Missionary Society, known as the American Board of Commissioners for Foreign Missions. An account of this transfer is given in the testimony of Mr. Roberts, as follows:


'In August, 1847, I transferred the said station into the hands of Dr. M. Whitman, at the assent of the A. B. C. F. M. The mission station was placed in his hands on the conditions and with the understanding that it should be occupied by them for the use and benefit of the Indians residing in that place and vicinity. For the movable property they were to pay such an amount as might mutually be agreed upon. For the station itself they were to give no compensation, the understanding being all the while that the mission was to be maintained by them for the use and benefit of the Indians, in a religious point of view, which included the education of the children, the instruction of the Indian parents in all matters pertaining to their religious interests and temporal well-being. The reasons for the transfer without compensation were briefly these: The Methodist mission had but one station east of the Cascades, and more work in the Willamette than they could well attend to. The American Board had three stations in the upper country, and it was quite desirable for them to have the Dalles also, as it was the key to that entire region, and as an act of Christian regard and confidence the transfer was thus made.'


'The amount which Dr. Whitman was to pay for the movable property was subsequently fixed at a fraction over $600. This included a large canoe farming utensils, fanning-mill, some wheat,' etc.


Payment of the $600 was made by a draft drawn by Dr. Whitman, dated in September, 1847, upon American Board. Mr. Roberts, the Rev. Alvin F. Waller, and Mr. Brewer—the latter two, up to the date of the transfer, having been in the occupancy of the mission left the station immediately after the transfer and went down the Columbia river. They carried off their movable property which had not been sold to Dr. Whitman. Dr. Whitman, to whom the station had been transferred, remained there a few days and then returned to his home at Wailatpu, distant about 140 miles. He left his nephew, Perrin B. Whitman, a youth 17 years of age, at the Dalles, in possession of the buildings which had been occupied by the Methodist missionaries. On November 29, 1847, Dr. Whitman was, with his family and a number of other persons, murdered by the Cayuse Indians at his home at Wailatpu. When news of this massacre reached Perrin B. Whitman, he abandoned the Dalles and went down the Columbia river, leaving no one in the occupancy of the station. After the transfer of the station by Roberts to Whitman in August, 1847, the record does not show that any missionary labors were ever performed at the Dalles, either by the Methodist society or the American Board, except two or three religious services held by Mr. Waller, in June, 1850, when he went to the Dalles to show Mr. Roberts the boundaries of the mission claim. After the month of August, 1847, no person representing the Methodist Missionary Society, and after December, 1847, no person representing the American Board, ever occupied the missionary station at the Dalles. The reason assigned by the appellant why the American Board abandoned the station and why possession of it was not resumed by the Methodist Society was the fear of Indian hostilities. It follows that on August 14, 1848, when the act to organize the territory of Oregon was passed, the station was not in the occupancy of any one representing either of the missionary societies.


About the last of February or the first of March, 1849, Messrs. Walker, Spaulding, and Eels, three missionaries of the American Board, delivered a writing to Mr. Roberts in which they 'offered for his acceptance the mission station at Wascopum, near the Grand Dalles of the Columbia river,' and proposed 'that it be retransferred to the Oregon Mission of the Methodist Episcopal Church in the same manner in which it was received by the Oregon Mission of the American Board of Commissioners for Foreign Missions.' The draft given to Mr. Roberts for the movable property at the Dalles, sold by him to Dr. Whitman in August, 1847, was delivered up, it having never been paid. The appellant did not resume missionary work at the Dalles after this attempt to retransfer, nor did it take possession of the premises. In June, 1850, Mr. Roberts returned to the Dalles for the purpose of making a survery of the 640 acres which he proposed to claim for the Missionary Society of the Methodist Episcopal Church under the act of 1848. He made a survey and had it recorded. On February 28, 1859, several years after the lands in controversy had been entered and paid for by Dalles City, the American Board delivered to the Missionary Society of the Methodist Episcopal Church a release of all their right and title to 'the property in the vicinity of the Dalles on the Columbia river, known as the 'mission property."


The question is presented whether, upon these facts, the appellant, the Missionary Society of the Methodist Episcopal Church, has shown a better title to the lands in controversy than that of Dalles City, the appellee. The title claimed by appellant is based entirely upon the first section of the act of August 14, 1848, before referred to. This was a public grant. In the case of Dubuque & P. R. Co. v. Litchfield, 23 How. 66, it was said by this court, speaking of a public grant of land: 'All grants of this description are strictly construed against the grantees. Nothing passes but what is conveyed in clear and explicit language.' See, also, Jackson v. Lamphire, 3 Pet. 289; Beaty v. Lessee of Knowler, 4 Pet. 165; Providence Bank v. Billings, Id. 514; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Leavenworth, ect., R. Co. v. U. S. 92 U. S. 733.


The act of August 14, 1848, confirms and establishes title to land occupied at the date of the act as missionary stations among the Indian tribes. The words are 'now occupied.' To occupy means to hold in possession; to hold or keep for use; as, to occupy an apartment. Webst. Dict. The appellant contends that this act confers title on it for lands which it did not occupy at the date of the act, but which it had voluntarily abandoned 11 months before, and the occupancy of which it never resumed, either for missionary or any other purposes. Not even a liberal construction would support such a claim. But the appellant, conceding that it was not in the actual occupancy of the premises, either as a missionary station or otherwise, at the date of the passage of the act, nevertheless insists that, being in actual occupancy in August, 1847, it transferred its rights therein to the American Board, on condition that the latter society should maintain a mission there for the benefit of the Indians, and that, as the American Board failed to maintain such a mission and abandoned the premises, the rights of the appellant reverted to it, and it, therefore, had a constructive possession when the act of August 14, 1848, was passed, which brought it within the meaning of the act. We do not think this contention can be sustained. In the first place, it cannot be fairly inferred from the testimony in the record that the transfer of the missionary station was a conditional one, and that it was any part of the contract that the rights of the appellant should revert to it if the condition were broken. It is plain that the transfer was absolute. Doubtless it was the expectation of the appellant that the transferee would conduct upon the premises a mission for the religious benefit of the Indians, and such, doubtless, was the purpose of the American Board. But it does not appear to have been any part of the contract that, if the American Board failed to carry on such a mission, the appellant should resume possession.


But, conceding that such was the understanding between the parties, there is still a fatal obstacle to any claim on the part of the appellant. When the appellant was in the occupancy of the premises in controversy, and when it made the transfer of possession in August, in controversy, and when it made the transfer of possession in August, 1847, and until the passage of the act of August 14, 1848, 'to establish the territorial government of Oregon,' that part of the country was without an organized territorial government under the laws of the United States. The public domain which was included within the territory of Oregon by the act just mentioned had not then been surveyed, nor was it open to settlement, pre-emption, or entry. Stark v. Starrs, 6 Wall. 402. The title was in the United States, subject to the possessory Indian title to portions of the territory, and there was no law by which any person or company could acquire title from the government. All persons, therefore, who settled upon the public lands acquired no rights thereby as against the government. They were merely tenants by sufferance. The most they could claim was the right of actual occupancy as against other settlers. Such an occupant could yield his right of actual possession to another settler. but he could convey no other interest in the land. If he abandoned the land and another settler occupied it, the former lost all right to the possession. If he transferred the possession to another and the transferee abandoned the land, the first possessor could claim no right in the land unless he again took actual possession. In short, the settler had no right as against the government, and no rights under the laws of the United States as against any one else to the possession of the land in his actual occupancy, except and only so long as such occupancy continued.


It is true that before the passage of the act of August 14, 1848, to organize a territorial government for Oregon, the people of that territory had, in June and July, 1845, met by their delegates in convention, and adopted laws and regulations for their government 'until such time,' as they declared, 'as the United States of America extend jurisdiction over us.' In this plan of government if was provided that any one wishing to establish a claim to land should designate the extent of his claim by line marks and have it recorded in the office of the territorial recorder. The appellant cannot derive any title from this regulation, for it never defined the extent of its claim by boundaries and never recorded the same, as required by the regulation, until long after the passage of the act of August 14, 1848, 'to organize a territorial government for Oregon.' That act in its fourteenth section declared as follows: 'All laws heretofore passed in said territory making grants of land, or otherwise affecting or incumbering the title to lands, shall be, and are hereby declared to be, null and void.'


Referring to this act, this court declared in the case of Lownsdale v. Parrish, 21 How. 293, that congress passed no law in anywise affecting title to lands in Oregon till the passage of the act of September 27, 1850, and that prior to that date no one could acquire any title to or interest in the public lands in that territory. It follows that there could be no constructive possession of the public lands. When, therefore, in August, 1847, the appellant voluntary abandoned its possession of the lands in controversy to another missionary society it lost every shadow of claim thereto. Its right was a mere possessory right, without other title. It had no rights which it could reserve. When the American Board, in December, 1847, abandoned the lands in controversy the appellant had no rights therein. The reasons which induced the abandonment of the lands by the missionary societies whether a new policy on the part of the appellant, or fear of the Indians on the part of the American Board—are entirely immaterial. When the lands were abandoned for any reason all right in them was lost, and they were open to the occupancy of any one who might choose to take and hold them. The method adopted by the appellant to turn over the station to the American Board by an actual transfer of possession was as effectual as any could be. It could be done only by yielding the actual occupancy, and this could not be effected by a written transfer. It could be accomplished only by the going out of one party and the going in of the other. If the appellant had, in August, 1847, executed the most formal deed, conveying the lands to the American board, and had stipulated therein that on failure of the latter to maintain a mission thereon for the benefit of the Indians, or upon its abandonment of the lands, all the rights of appellant should revert to it, and it should be entitled to resume immediate possession, such a writing would have been inoperative and futile. The appellant had no rights in the land which it could convey, and no rights which it could reserve.


These views are supported by the case of Stringfellow v. Cain, 99 U. S. 610, brought up from the territory of Utah. The act of March 2, 1867, 'for the relief of inhabitants of cities and towns upon the public lands,' (14 St. 541,) provided that whenever any portion of the public lands of the United States had been settled upon as a townsite, and were for that reason not subject to entry, it should be lawful for the authorities of the town to enter the lands as settled upon in trust for the several use and benefit of the occupants thereof, the execution of which trust was to be conducted under such rules as the legislature of the state or territory might prescribe. Under this act, it was held in the case cited that where a party had been in the occupancy of a lot, but prior to the passage of the act voluntarily withdrew therefrom and gave it up to others, her rights, which depended on keeping the possession, were gone.


The appellant contends that the language of the first section of the act of August 14, 1848, under which it claims, implies that it had some title to the lands in question before the act was passed. It places stress on the words 'that the title to the lands be confirmed and established in the several religious societies to which said missionary stations respectively belong,' and says there must have been some previous title which could be confirmed and established.


We have seen that it was not possible to acquire any title as against the United States before the passage of this act. If, therefore, the force is to be given to the words of the statute which the appellant claims for them, they must refer to the possessory title under the regulations above mentioned of the provisional government. But no steps, as we have seen, were taken by appellant to establish its claim under those regulations. It had simply settled upon the public domain as a tenant by sufferance, without authority of any law or regulation of any government, and had done no act by which it could acquire any claim of title. Whatever, therefore, may have been the case with other missionary societies, the appellant had no title of any kind which could be confirmed and established by the act of August 14, 1848. The American Board was in no better position.


Neither of the societies acquired any title under the act of 1848. The writing executed in 1849 by Messrs. Walker, Spaulding, and Eels, and the release made by the American Board to the appellant in 1859, after Dalles City had entered and paid for the land, and the patent of the United States in 1875, which was a mere release, conveyed no rights to the appellant in the lands in controversy.


The decree of the circuit court was, therefore, right, and must be affirmed.


S. C. 6 Fed. Rep. 356, affirmed.

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