Page:The History of Oregon Bancroft 1888.djvu/303

Rh possessory rights of settlers. Congress, be said, was aware that many persons had taken and largely improved claims under the provisional government, and did not design to leave those claims without legal protection, but simply to assert the rights of the United States; did not mean to say that the claim laws of the territory should be void as between citizen and citizen, but that the United States title should not be encumbered. He argued that if the act of 1848 vacated such claims, the act of 1850 made them valid, by granting to those who had resided upon their claims, and by protecting the rights of their heirs, in the case of their demise before the issuance of patents. The surveyor general was expressly required to issue certificates, upon the proper proof of settlement and cultivation, "whether made under the provisional government or not." He declared untenable the proposition that land occupied as a town site prior to 1850 was not subject to donation under the act. A man might settle upon a claim in 1850, and in 1852 lay it out into a town site; but the surveyor general could not refuse him a certificate, so long as he had continued to reside upon and cultivate any part of it.

The rights of settlers before 1850 and after were placed upon precisely the same footing, and therefore if a claim were taken in 1847, and laid off in town lots in 1849, supposing the law to have been complied with in other respects, the claimant would have the same rights as if he had gone upon the land after the passage of the donation law. The surveyor general could not say to an applicant who had complied with the law that he had forfeited his right by attempting to build up a town. A settler had a right to admit persons to occupy under him or to exclude them; and if he admitted them—such action not being against the public good—it ought not to prejudice his claim.

Judge Williams further held that the town-site law of 1844 was not applicable to Oregon, and that the land laws of the United States had not been extended