year 1836 or 1837 a missionary station was established by the Missionary Society of the Methodist Episcopal Church, under the superintendence of Rev. Jason Lee, on the land 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 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 twostory dwelling-house, a school-house, which was used also as a church, a store-house with cellar underneath, a barn, some farming land enclosed, and farming utensils.

In August, 1847, Mr. Roberts, being still the superintendent of the station, transferred it to Dr. M. Whitman, a missionary of the 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 mov

able property was subsequently fixed at a fraction over six hundred dollars. This included a large canoe, farming utensils, fanning-mill, some wheat," &c.

Payment of the $600 was made by a draft drawn by Dr. Whitman, dated in September, 1847, upon the American Board. Mr. Roberts, 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 one hundred and forty miles. He left his nephew, Perrin B. Whitman, a youth seventeen years of age, at The Dalles in possession of the buildings which had been occupied by the Methodist missionaries. On Nov. 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 Aug. 11, 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 survey of the six hundred and forty 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 Feb. 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 the appellant is based entirely upon the first section of the act of Aug. 14, 1848, before referred to. This was a public grant. In Dubuque & Pacific Railroad 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. 280; Beaty v. Lessee of Knowler, 4 id. 152; Providence Bank v. Billings, id. 514;

Charles River Bridge v. Warren Bridge, 11 id. 420; Leavenworth, &c. Railroad Co. v. United States, 92 U. S. 733.

The act of Aug. 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. Webster's Dictionary. 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 eleven 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 Aug. 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, 1847, and until the passage of the said act of Aug. 14, 1848, that part of the country was without an organized territorial government under the laws of the United States. The public domain 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 Aug. 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 it 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