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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

by boundaries and never recorded the same, as required by the regulation, until long after the passage of that act, the fourteenth section of which declares 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 Lownsdale v. Parrish, 21 How. 290, that Congress passed no law in any wise affecting title to lands in Oregon till the passage of the act of Sept. 27, 1850, c. 76, 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 voluntarily 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 the 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 Stringfellow v. Cain, 99 U. S. 610, brought up from the Territory of Utah. The act of March 2, 1867, c. 177, "for the relief of the inhabitants of cities and towns upon the public lands," provides that whenever any portion of the public lands of the United States has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the agricultural preemption laws, it shall be lawful for the authorities of the town to enter the lands so settled and occupied in trust for the several use and benefit of the occupants thereof, the execution of which trust to be conducted under such rules as the legislature of the State or Territory may prescribe. Under this act, it was held in that case 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, the rights, which depended-on keeping the possession, were gone.

The appellant contends that the language of the first section of the act of Aug. 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. 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. 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 in the lands in controversy to the appellant.

The decree of the Circuit Court was, therefore, right, and must be


NOTE. — Missionary Society v. Kelly. Missionary Society v. Wait.

Appeals from the Circuit Court of the United States for the District of Oregon.

These cases were submitted at the same time and by the same counsel as was the preceding case.

MR. JUSTICE WOODS delivered the opinion of the court.

These cases were in all respects similar to Missionary Society v. Dalles, supra, p. 336, except that the appellees claimed under a title different from that relied on by Dalles City. So far as the title of the appellant is concerned, they and that case were tried upon the same evidence. It follows, that if the appellees in these cases show an equitable title in themselves, the decree should be affirmed. This they have done. They all claim title under one Winsor D. Bigelow, whose title was derived under the act of Sept. 27, 1850, c. 76, commonly called the Donation Act. This act gave, upon certain conditions, to every white settler upon the public lands, being a citizen of the United States, above the age of eighteen years, a half section of land if he were a single man, and a whole section if he were a married man. The record clearly shows a full compliance by Bigelow with the law, and establishes his right to the lands in controversy, which he afterwards conveyed to the appellees in these cases. The decree of the Circuit Court in each of these cases, which is similar to the decree in that case, is therefore right and should be affirmed; and it is

So ordered

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