Page:Federal Reporter, 1st Series, Volume 6.djvu/382

 ■370 FEDERAL REPORTBR. �grant oaly applies to such stations as were occvpied on Au- gust 14, 1848. To occupy is to possess, not constructively but <ictually. The word is of more limited signification than pos- session. It is derived from oh and capio — to lay hold of — and means to possess by having hold of or being actually upon the thing possessed, continuously and exolusively. Therefore, there.can be no such thing as constructive occu- pancy. But when one bas the complete legal title to land, and is therefore entitled to the possession of the same in law, he is deemed to have it. U. S. v. Arredondo, 6 Pet. 743. But prior to August 14, 1848, there could be no such posses- sion of lands in Oregon, because the legal title was in the United States. Occupancy or actual possession was the only interest any one then had in lands in Oregon, and when that •was given up or abandoned, the relation of the party to the land was absolutely terminated, and it was open to occupa^ "tion by the next corner as though the foot of man had never been upon it. Lownsdale v. Citp of Portland, 1 Deady, 1. �Prior to August 14, 1848, the only interest which the de- fendant had in the premises was that of occupancy or actual possession. It therefore could have no constructive posses- sion of the land. If this actual possession or occupancy existed at the passage of the act making the grant, the title of the United States was then and thereby and on that occa- sion vested in the defendant, but not otherwise. The act makes the grant to take effect, not upon an occupation which pre- fleded or followed it, but upon that which was contempora- neous with it. The grant was made upon the condition precedent that the defendant was then in the occupation of the premises. Intention or desire to occupy is of no avail ; and for the want of this occupation there is no excuse or «quivalent. Even taking the view; of the matter sought to be maintained by the defendant, that it was prevented from occupying the premises on August 14, 1848, by Indian hostil- ities, still the case clearly falls within the ruling in Ford y. Kennedy, 1 Or. 166, in whieh it was held that the grant in section 4 of the donation act of 640 acres of land to married persons who had resided npon the samo for four years prior ��� �