Oregon Historical Quarterly/Volume 11/Financial History of the State of Oregon: Oregon's Public Domain - The Sale of Oregon's Lands
Oregon Historical Society.
[Copyright, 1910, by Oregon Historical Society]
[The Quarterly disavows responsibility for the positions taken by contributors to Its pages.]
FINANCIAL HISTORY OF THE STATE OF OREGON—III
OREGON'S PUBLIC DOMAIN
THE SALE OF OREGON'S LANDS
Selection of Indemnity Lands Merged With Sale of Them.
So far in this sketch of Oregon's experience with its public lands attention has been directed to the steps taken by successive Oregon legislative assemblies and state administrations to secure complete titles to the lands inuring to the state under the different grants by the national government. This initial effort of fully acquiring its public domain, though not necessary in connection with the fundamental portion of the common school grant, was with the other grants quite a distinct phase of the state's management of its landed estate. There was selecting to do, too, of school lands when it came to making up for losses suffered out of the original grant of one-eighteenth of the whole territory of the state.
But the selection of lieu or indemnity lands in compensation to the state for any whole or part of sections sixteen and thirty- six that it failed to get was regularly slurred by the state. The burden of it was shifted as we shall see upon the would-be purchasers. Since the procedure for the selection of these lands was more commonly merged with that of the sale of them the matter will be so handled in this account. It will aid greatly to keep the distinction in mind that the original common school grant, sections 16 and 36 in each surveyed township, and the tide lands, became the property of the state automatically upon the completion of the surveys; but with any of the other grants, the act of Congress granting the lands had to be followed up by steps on the part of the state through which specifically described tracts were designated in accordance with the regulations of the department of the Interior. In the cases of the swamp land grant and the salt springs grant the state was under the necessity merely of identifying definitely the areas claimed.
Comprehensive View of State's Domain as a Whole.— The dilatory and devious proceedings of the state in accomplishing this appropriation to itself of its possessions have been outlined. The query naturally rises now what was done with this social heritage? What have the people realized from it? What has this endowment of theirs come to? It will, I believe, make our thought about these Oregon lands much more satisfactory to have a mental picture as distinct as possible of their salient features as a whole. By far the most extensive and valuable of the state's acquisitions was the common school grant. Two square-mile plats in every township division of six miles square that the surveys blocked out belonged to the people of Oregon as a permanent endowment of their common schools. Evenly distributed as these lands were throughout the length and breadth of the state the value of this grant was proportionate to its extent. It had come to the people of this state for this purpose without any initiative or effort on their part. Their having secured it was not indicative of anything as to the commonwealth's spirit and efficiency.
But while under the sweeping provisions of the original grant to the state all of sections 16 and 36 were set aside for the state, its claim to these parcels of land was made subject to certain prior rights. These preferred claims included those (1) of the United States, if the lands were more valuable for mineral than for agricultural purposes; (2) of settlers who had begun the improvement of them prior to the time of the survey; (3) of the United States if disposed to use them for parts of Indian or forest reservations.
These preferred rights to sections 16 and 36 and to legal subdivisions of them, to which the claims of the state were subject, mi.de great holes in that continuous checkerboard of school land plats tentatively promised the state in the terms of the original grant. Under the working of these several limitations of the rights of the state larger patches were taken out of this endowment for its schools, as originally defined, than was suffered in any other state excepting its sister commonwealths in the Pacific Northwest.
Loss to the state of sections 16 and 36 because of settlement prior to the government survey was greater by far in Oregon than in any other state of the Union as the settlement of the valleys of western Oregon was in progress some ten years before government survey in Oregon began. Furthermore, conditions that caused Uncle Sam to take occasion to retain his hold on the areas covered by these sections 16 and 36 have prevailed to a peculiar degree in Oregon. Indications of mineral wealth are widely scattered throughout the state, numerous Indian tribes have had to be provided for and the many and widely expanded mountainous regions of the state invited extensive reservations for forest and water conservation.
The gaps in the state-wide platting of school lands thus occasioned necessarily took from the state some of the choicest portions of the grant as originally constituted. On the other hand, however, it was open to the state to secure restitution for these losses from its school land grant by selecting the very best of the federal lands available as indemnity or lieu lands.
As already intimated this right of the state to recoup itself in its school land grant through making the best lieu land selections was exercised but not with the spirit and through procedures that indicated a keen appreciation of a public opportunity of such vast proportions as this involved. The records of Oregon's school land policy as we shall see furnish little if any evidence that the mind and heart of the state were stirred by a vision of what might be for all coming generations of Oregon youth if the fullest use was made of the opportunity of securing such large stretches of the best lands of Oregon to be held to yield the richest returns for this sacred public purpose.
An account of the management of the Oregon lands collectively is proposed. So not only the school lands but the state's entire legacy should be brought into the field of view as it were. Through acts of Congress of different dates it was open to the state to secure the following lands:—
- 46,080 acres of University lands,
- 500,000 acres of Internal Improvement lands,
- 6,400 acres of Capitol Building lands,
- Salt Springs lands to the limit of 46,080 acres,
- 90,000 acres of Agricultural College lands,
- Swamp lands for reclamation,
- Tide lands by virtue of jurisdiction.
The locations of the swamp and tide lands were determined by natural conditions. In availing itself of the other grants as well as in the case of the indemnity school lands it had recourse to choicest portions of the public domain. Such was the opportunity the people of Oregon had to secure a magnificent collective possession in lands from the proceeds or returns from which to accumulate large funds for purposes of common school and higher education and for public works.
The outcome realized from this heritage of land depended mainly upon (1) promptness and efficiency in getting the best portions of the state in making its selections; (2) upon adhering to a policy calculated to secure highest returns consistent with the best general development of the resources of the state.
How difficult a task was made of the first phase of this problem in connection with the university, agricultural college and internal improvement grants has already been outlined. In locating none of these lands did the state get tracts of as good a quality as more effective promptness and care would have secured. The salt springs grant was allowed to lapse altogether ; the swamp land selection was attended with a protracted state of loggerheads with the national authorities and prodigious scandal with no* returns whatever for the people. It remained for the selection of the indemnity school lands, as will be brought out, to lead to a situation involving losses of great magnitude and dire disgrace to the state. So far as any one matter could, it tended to render the name Oregon a byword and a hissing.
This Oregon commonwealth thus acquired a patrimony of some 4,000,000 acres of land. About 3,000,000 acres of it were pretty evenly distributed throughout the length and breadth of the state; the remaining portions were located in more or less segregated patches here and there In the western, the south central and the northeastern sections of the state. What controlling ideas determined the policy applied in the disposition of this public estate of the Oregon people?
Controlling Idea in State's Policy — There is no evidence that these lands were ever made a subject of thought as a commonwealth resource. They were of course regarded as a possession having a money value; but there was no discernment of possibilities in them that adapted policies of management might be made to realize. The early governors charged with responsibilities regarding them as the agents of state for securing these grants were not derelict to this duty. At least the successive legislative assemblies were fully notified of the status of the state's grants. The first governor, John Whiteaker, was particularly persistent in his attempts to get the requisite legislative action for selecting the lands. The second during the distracting years of the civil war was faithful but not pushing in this matter; the third was careless; but the fourth, Lafayette Grover, made it the mission of his administration, which began in 1870, that the state should get all the lands coming to it under grants by Congress or by virtue of any other right. Yet the controlling idea in the handling of these lands from the beginning down to the present has been to turn them over for a return to individualistic exploitation. This was wholly natural and normal during the earlier decades, say down to the middle of the eighties. The conditions until then were, as will be pointed out, such that any suggestion of a state policy of leasing or direct public use for any purpose was not deserving of any consideration. Tentative experimentation along these lines was never broached. It would have been too visionary to deserve any attention whatever. But beginning with swamp lands in 1870, and with indemnity school lands in the later eighties, the accumulation of vast holdings out of state lands by individuals and corporations was a most conspicuous proceeding. These were simply to be held idle for speculation. Yet no scheme was ever presented for realizing to the people in their collective capacity this social increment of wealth represented in the enhancing values of these former state holdings. What gains in value there actually were under these circumstances must have been of collective creation and yet the idea of conserving this wealth to the producer of it, and particularly when it was dedicated to the purpose of making a perpetual fund for the education of the youth, had no champion. The concept of an Oregon public as the owner of the wealth represented by these lands, and as having the largest realization of highest social aims dependent upon the best handling of it, was never actively advanced. — if ever entertained. The absence of all traces of what would, in the more recent decades at least, have been a promising and practical idea for the promotion of the common good surely argues the existence hitherto of a fateful warping of the common consciousness of this commonwealth, or simply that it had not arrived in the development of an essential commonwealth faculty. Such obliviousness to a great public interest under conditions giving that interest strongest emphasis and most concrete illustration, betrays a fearful ignorance of what community discernment, purpose and effort may yield for strength and common welfare. The sweeping change wrought in social relations, which change is still going forward at an ever accelerating pace, to which all lines of invention have contributed, make such a lack of the social, community or public point of view an increasingly costly if not now a fatal handicap. This is not saying that Oregon should have gone with headlong precipitancy into the farming or landlord business. It claims only to be a pertinent suggestion provoked by the incessant, uninterrupted and almost rabid intent to sell, to sell immediately and as rapidly as possible, and until this last decade for a nominal price, all its varied holdings of land.
No Conception of a Community Interest in These Lands— No spectre of land or other natural monopoly seems to have troubled the thought of the Oregon people in the past and no vision of a good for themselves or their posterity seems to have inspired them. This observation — so far from flattering — is made in introducing this narrative of the state's land policy for the reason that the state's management of its common interests embodied in its land suggests the likelihood, if not certainty, of a similar commonwealth failing with regard to even greater common resources that are being evolved day by day. A state that has exhibited almost up to the present such bald oblivious- ness to common interests will be all too prone to retain laws and institutions that will let slip other and even grander commonwealth opportunities.
The story of the public lands of Oregon is largely a "spilt- milk episode," but it must be realized that wealth and welfare are every day more and more of a social and collective crea- tion, and that laws and institutions fitted for more primitive conditions will cause these new commonwealth resources, less tangible than land yet if possible more vitally important to the public welfare, to be sacrificed. The presentation of a public "spilt-milk episode" of the character of Oregon's public land history while that public is being swept into a new era and is being constituted more and more largely an organic unity should be worth while. With the whole trend of change towards bringing the organizations under the state into com- binations with monopoly powers it behooves the public as such to assert itself. This role is inevitable. The task of prep- aration for it is stupendous beyond comparison. The Oregon public land story affords most elementary yet striking sug- gestions.
Conditions' Peculiar to Early Oregon Affecting Its Land Policy— But enough as to the social significance inhering in a state's policy with a collective possession like that of public lands. Turning now to the special conditions that constrained Oregon to develop the characteristic features of its policy. A glance at a map representing the nature of the surface of the different sections of this country quickly reveals a striking contrast between that of the Mississippi valley and that of the Pacific slope, Yet the actual measure of difference between the two sections in the lay of their lands is hardly suggested by a map. In the Mississippi valley states land is pretty much all-of-a-piece. In the mountainous regions of the West diver- sity is the rule. To say nothing of the possible value of mineral lands, agricultural lands under the conditions of soil and climate of sections of this western region are susceptible of development making them in localities worth hundreds of dollars an acre. Yet other tracts in close proximity are not and probably never will be worth a hundredth part of such values. Then, too, lands still retaining the natural growth of giant forests are in this age of approaching timber famine becoming of astounding value. The experience of the early Oregonians, however, had been with the lands of the Mississippi valley. The level and rolling valley lands of Oregon, productive with ordinary cultivation and the natural rainfall, they could appreciate. These lands had largely passed into private ownership before effective steps were taken to secure state lands under the different grants. Small scattered tracts that had been overlooked by the individual settlers were selected by agents of the state as indemnity school lands. Little expectation was there that the smaller isolated valleys, the timbered mountain slopes and the vast stretches of the semi-arid country east of the Cascade range would yield wealth and be brought into intensive cultivation. Successful farming at the Whitman mission station might have assured them of the productivity of this eastern section of the state, yet there was the isolation with the lack of transportation facilities that nullified the other element of value.
Not until the later sixties and the early seventies when there were considerable accessions of settlers from the devastated regions of the South, and the settlements were extended into the northeastern and south central portions of the state, was the value of the lands of these sections demonstrated so that it occurred to the state administrations that it was worth while to make up the unfilled quota of its University grant, its lapsing Agricultural College grant, its neglected internal improvement and capitol building grants and to identify its swamp and tide lands.
The dilatoriness of the state in getting its lands and the moderate values it put upon those it did get are thus to be accounted for. Lands of any value in the eyes of the early Oregonians were occupied before the government got around to survey them. The worth of lands of types different from those to which they were accustomed had to be demonstrated through actual use. This did not come about until nearly a decade after the admission of the state.
It is unreasonable to pass judgment against a generation whose public officials failed to anticipate the wealth that would have accrued to the state had well-forested areas been appropriated by the state, or areas easily susceptible of irrigation, or those preeminently adapted to fruit culture. The possibilities in such Oregon lands are just now being disclosed. No such tests were required for an equally successful administration of state lands by a Mississippi valley state. Nor did the Oregon community have any example to emulate in the conserving of the public interest in such resources.
Vacant lands have only a prospective or speculative value, based upon anticipated demand and utility. Until the middle of the eighties there lay the unspanned wilderness of a thousand miles and more between the frontier of the Mississippi valley and the Oregon settlement. A shorter but almost equally difficult stretch of wilderness separated the settled portions of Oregon and California. Under these conditions the stream of incoming settlers was naturally thin, not enough to cause a speculative value to be placed upon any considerable body of vacant land. Lands, even if proven productive, especially if there are almost unlimited unoccupied areas of them, have but a nominal value.
Thus the peculiar conditions obtaining in Oregon that necessarily controlled the policy of the state with its lands during the first half of the period of statehood were:
(1) The lands available for selection could not be ap- preciated by the early settlers, their experience had given them no basis from which to anticipate the values they were to have in the future. The lands whose values were seen had been pretty much all appropriated as the beginning of settlement with the right of each family to 640 acres antedated the beginning of the surveys by nearly a decade and a half.
(2) During these early decades the inflow of settlers to then remote and isolated Oregon was slow, affording no basis for a speculative demand for the almost unlimited areas of unoccupied lands.
(3) Furthermore, the separation of the different sections of the state by high and steep mountain ranges, and deep river canyons vetoed such a spreading out of the settlements as took place in the Mississippi valley. Extension of settlement even under these conditions there was into eastern and southern Oregon for the sheep and cattle business on the ranges. But for these purposes the lands for a long time were virtually treated as commons and no sale values created for them.
Princely sums are being received almost every day now by its sister states, Washington and Idaho, in the sales of their lands — timber, fruit and alfalfa lands similar to those Oregon might have selected and retained. To have anticipated such a future for the Oregon state lands, however, under the conditions of this earlier period would have called for more than a prophet's vision. The wonderful possibilities in these lands have all been revealed, — and we might even say, — created, since then. For, the development of transportation facilities, exhaustion of the timber supply of the East, organization of the fruit industry, and progress and prosecution of the work of reclamation of desert lands have all contributed.
Dominant Influence of the National Land Policy Upon the State Policy— There has been yet another condition affecting Oregon's land policy throughout the whole period of statehood. This would probably alone have sufficed to hold the Oregon lands low and have created the belief that they would continue low in value indefinitely in the future. The state with what was comparatively a mere moiety of lands was from the beginning in competition with the national government in the land business within its borders. The national government held nine-tenths of the vacant lands and the state's holdings altogether comprised less than one-tenth. The national government was on the ground with well-organized agencies for carrying out its policy of disposing of all its lands. Reservations out of them for Indian tribes there were throughout this earlier period. But no suggestion had thus far been given the state by the national government of a policy of conservation through reservations of timber lands of water sheds. Steps with this in view were first taken in the nineties, though the idea had been developing for some years before.
Several conditions surrounding the state's holdings would have held the state back from initiating any salutary commonwealth policy had it seriously conceived the idea and cherished any purpose of making the most of its resources in land. The reserved rights of the national government in the lands of the state, the limited extent of the state's holdings and more especially the widely scattered locations of its lands — all these absolutely handicapped the state. The state not only could not have taken the initiative in any far-reaching policy but also was not in position to emulate, without special aid from Congress, any example set by the national government. Under these conditions the verdict to be rendered upon the legislative and administrative features of Oregon's land policy down to the middle of the eighties, to be fair, must concede that they compare favorably with the corresponding features of the policy of the national government with which Oregon was in competition. More than this, the national government was in a tutelar position to the states. Reservation of State Lands Impracticable— Furthermore, any policy applied in Oregon looking towards the holding out of the market its school lands in place, sections 16 and 36, would have involved some results clearly pernicious. It must be remembered that because of the beginnings of settlement more than a decade before the starting of the surveys lands near the population centers were lost to the state. So such a proposed policy would have meant the holding of the outlying lands it did get nearly half of a century to have secured any substantial increments of value. In the meantime such vacant lands — the chances would have been all against improvement of them — intervening between cultivated farms would have caused greater isolation and greater burdens in the building and maintenance of roads and schools. A general blighting influence upon the conditions of country life would have resulted. Further, the interest on a fund accumulated from the sale at a nominal price would have in the course of the decades aggregated an amount probably nearly equal to the enhanced value that could later have been realized.
The Two Periods in Oregon's Land Policy — A Wise Earlier and a Foolish Later Period— The conclusion of the whole matter as to the earlier history of Oregon's lands is that there was little if any basis for a state policy higher than that followed. It is what was done with the Oregon lands in the later period that brings the blush of shame and anger and causes apprehension as to the possibilities of a commonwealth spirit competent for attainment of highest destiny. Though the national government began to give evidence in its policy of nobler ideas and though conditions had so changed in Oregon that the Oregon land laws which before, excepting in connection with the swamp lands, yielded salutary results now bred speculation, fraud and monopoly; yet instead of amending them in the direction of a cure of these evils they were in 1887 m vital points changed in exactly the wrong direction. Then it was that the state began to play its pitiable role.
There have been thus two distinct and contrasted periods in the history of Oregon's land policy. 1887 marks the turning point from the earlier to the later. Again, we find as a subdivision in the earlier a decided balk in legislation and administration that was a fit precursor of the great slump that the second on the whole exhibits. In the later, if it is taken to come down to the present, there has come a decidedly reassuring turn of events, first a temporary recovery and then a lasting one of a much higher plane. In the earlier it was the swamp land act of 1870 with the pusillanimous recognition of claims under it by administrations in the eighties that makes a dark blot upon an otherwise fairly creditable handling of the states resources down to 1887. In the later the state's retrieval of itself was temporary from 1895 to 1899, mainly the work of a worthy state land agent, and permanently since 1903.
As already intimated, it has been Oregon's unwavering aim to get its state lands as rapidly as possible into private hands and under cultivation. Every acre as soon as the state had title, and quite too frequently even when it had only slight basis for expecting to secure it, was on the market. During the earlier decades the price on all except the swamp lands was quite commonly determined by appraisal; later the rule was to sell at a nominal figure (1887 to 1895) ; and more recently, from 1903 on, at a fixed price approximating actual value.
Features of the early laws that indicated an aim to keep the holdings of the individual restricted to areas he could actually cultivate and to bar purchase of lands for speculation were as follows: —
(1) Preference was given to the "actual settler" in reserving lands for his purchase alone for six months, and in giving him the privilege of securing 320 acres while other purchasers could get only 160 acres.
(2) Purchase indirectly by the speculator through a "dummy" was weakly discouraged in the requirement of an affidavit that the purchase was made only for the benefit of purchaser and that no agreement, express or implied, for the sale of it existed. A pious fraud this was and stimulator to wholesale perjury, for in 1878 it was followed up by the right granted to assign the certificates of sale. The assignee could have land deeded to him by the state without limit on paying the amounts due on the certificates he presented.
Oregon began her land business while still a territory. Congress, in providing for the organization of the territory, August 14, 1848, had made the grant for the common schools ; in the first act providing for the survey of lands in Oregon and for making donations to its settlers, known as the "dona- tion land law", the university grant had been made. The first sale of lands by the territory was at a public auction, August 1st, 1854, of some university lands. 1 The sale of common school lands was begun two years later, also to "highest bidder".
The minimum price of the university lands after the first sales in 1854 was fixed at four dollars an acre and retained at that figure during the remainder of the territorial period. 2 This prohibited sales and was part of the tactics for laying the whole matter of establishing a university on the table. The minimum price of the common school lands was placed at two dollars except that lands which had been twice offered at public sale might then be sold at $1.25 an acre. 3 The amount of the university fund accumulated dring the territorial period was $5,793.60. An act of the territorial legislature of 1857 provided for the distribution of the common school fund among the several counties. No reports of county officials are extant giving the condition of the fund at the time of the admission of the state. 4
1 Report of University Land Commissioner, pp. 45-8 App. to H. J. 2 Statutes of Oregon Territory, fifth and sixth regular sessions, pp. 566-7. 3 Laws of Oregon Territory, seventh regular sess., pp. 69-71. 4 Laws of Oregon Territory, ninth regular sess., pp. 43-5During the first half-dozen years under the state govern- ment the public interest in the state's lands received scant attention. Private individuals were able to get an extension of time in the payment of sums due on school lands bought and others secured confirmation of titles to school land tracts. 1 Not until 1864 was there any law prescribing the powers and duties of the constitutional "board of commissioners for the sale of school and university lands and for the investment of the funds arising therefrom". It required another act two years later before this board seemed to be able to take hold of its task. 2
The territorial method of sale to highest bidder, while not wholly discarded when selling was renewed, rarely brought sale prices above the statutory minimum. It was, however, impracticable to fix a uniform price for the lands of the dif- ferent grants. For the swamp and the tide lands not only were special terms of valuations necessary, but also other spe- cial conditions of sale. As the lands of the internal im- provement grant and those of the agricultural college grant were located in solid blocks in widely separated portions of the state with conditions as to altitude, climate and accessibil- ity quite distinct the terms and conditions fixed for the dis- posing of them would advisedly be different from those gov- erning the sale of common school and university lands that lay scattered and close in around the settlements. But as sales and settlement progressed and only scattered remnants of the several grants remained, all becoming about equally accessible, the adoption of fixed and uniform terms for all lands in a free and easy state policy would be quite likely.
Dual Line of Officials and Irresponsibility in Oregon's Land Department— The administrative agency upon which the people of Oregon have relied for the handling of their heritage of public lands is now known as the "state land board". The makers of the state constitution selected the governor, secre- tary of state and state treasurer to constitute this board. They
1 Laws of Oregon Territory, first regular sess., p. 82; pp. 105-6. 2 Acts and Resolutions of Leg. Assem., fourth regular sess., pp. 27-30. also had in mind that the proceeds from all state lands should be devoted only to purposes of education. The internal improvement grant was, subject to the approval by Congress of this step, to be diverted to this purpose. Accordingly this board was in the state constitution designated as "a board of commissioners for the sale of school and university lands and for the investment of funds arising therefrom". This board was subsequently given charge of the work of disposing of the agricultural college lands and of the non-educational grants later accruing to the state. How unfortunate this arrangement proved will appear presently. The volume of land business increased about as the own proper functions of each one of these state officials expanded to engross his attention. Their responsibilities as members of the state land board were shifted to an irresponsible "clerk". Either the land laws and the conditions under which the successive clerks served paralyzed the powers and virtues of these clerks or the state had a long run of exceedingly ill-luck in that line of officials.
While on the subject of the administrative corps for the care of the people's interest in state's public lands, the relation to the state land board and its clerk to the work of another state land official should be mentioned. The governor has from 1862 on been the "land commissioner for the state of Oregon and empowered and directed to locate all the lands to which the state is entitled". He was authorized to employ at first temporarily an agent acquainted with the section of the state in which it was proposed to make selections 1 . From 1878 on there has been a permanent locating agent who in 1895 became known as the "state land agent 2 ". But it has not been the practice of the state to rely upon this official exclusively for the work of selecting state lands. At first county super-
1 The "General Laws" of the first regular session, i860, contain a statute signed by the Speaker of the House and the President of the Senate but not approved by the Governor. This authorizes the Governor to select lands and to employ a suitable person or persons to assist him but makes no provision for their compensation. General Laws, 1862, pp. 105-7.
2 Laws of Oregon, tenth regular sess., 1878, pp. 41-55intendents were called upon to select indemnity school lands. As early as 1866 intending purchasers, too, were granted the privilege of securing lands at the minimum price for reporting to the governor lands that were approved as indemnity selec- tions 1 . From 1887 to I ^95, though the governor was author- ized to employ a locating agent, the selection of lieu lands as well as the designating of "base" devolved almost if not quite entirely upon the intending purchaser 2 . This arrangement was fraught with fraud and trouble to the state. Though fully exposed by the state land agent Davenport, of 1895- 1899, there was a reversion to the old practices from 1899 to 1903. This dual line of state land officials, with their respective functions, the state land agent representing the governor in selecting and caring for the lands of the state and the state land board for selling them and caring for the proceeds, needs to be clearly kept in mind if the tangled skein of the state's land 1 transactions is to be straightened out.
Sale of Oregon School and University Lands— The sale of Oregon lands by the state land board began in 1867. It was acting under the law of 1866 providing for the sale of school lands. Soon after the passage of this law, the board reports, "numerous applications for the purchase of school lands came in" and, in many instances, from several parties for the same tracts, and it soon became evident the only method to adopt, in justice to the school fund and to the parties desirous of purchasing, would be to offer all the school lands at public sale . . . the minimum price was fixed at $2.00 per acre ; terms one-third down for farming and grazing land, and one-half down for land chiefly valuable for timber, with interest on deferred payments at the rate of ten per cent payable semi- annually. . . " It is noticeable, however, that notwith- standing the method of sale to highest bidder the abstracts of
1 General Laws, fourth regular sess., 1866, pp. 27-30.
2 "Base" or "basis" used in connection with accounts of procedures and transactions pertaining to lieu or indemnity lands designates "those parts of the sixteenth and thirty-sixth sections in each township which have been otherwise appropriated under the laws of the United States, and for which the state is permitted by the general government to take land in lieu." sales that specify the prices received give only comparatively a very few instances in which prices higher than the minimum were secured. 1
It will be remembered that considerable school land and some university land had been sold during the territorial period. Furthermore, the territorial law in force at the time of admission as a state had placed the protection and sale of these lands in the hands of the county superintendents of schools. The same law provided that the funds that had accumulated with the territorial treasurer should be distributed among the several counties in proportion to the number of chil- dren in each county. As the county superintendents were to deposit the proceeds of the sales made by them with their respective county treasurers 1 all the school moneys were when sales began by state board held in the county treasuries. 2
Accordingly the first duty of the state board had been to ascertain definitely what lands had been sold and what tracts still belonged to the state; also the condition of the funds in the several counties had to be inquired into. Though the law had charged the board with the full care of these moneys the board decided to apply to the county treasurers to become their local agents.
The law of 1866 had the following specifications governing the sales :
- (1) Those with rights of pre-emption to any school lands could secure them at $1.25 per acre, in any lawful money of the United States. 3 ~!
- (2) Those who furnished approved lieu land could purchase at $1.25 per acre in gold coin.
- (3) Those who had been applicants under the previous law (of 1864) could complete their purchase under the terms of that law.
- (4) All other purchasers must pay the prices appraised
1 Messages and Documents, 1868, Rept. of Board of Commissioners, etc., pp. 4-37. 2 As there were some notes out, given in part payment on sales made before the passage of this territorial law, and as these were payable to the territorial treasurer, a small sum was in his hands. 3 Gold coin continued to be the current money in Oregon throughout the period of depreciated greenbacks so this provision and others like it necessitated the carrying of two sets of accounts in these land funds. by the county school superintendent, though the board might place a higher value on the land applied for. This class were limited to 320 acres.
In 1868 the law was changed so as to include university lands on the same terms with the common school lands; actual settlers had exclusive right to purchase during first six months and could secure 320 acres. Other purchasers could get 160 acres each if he had not other lands exceeding 320 acres in the aggregate. Small isolated tracts of eighty acres or less were not reserved. All lands should be sold at the price appraised by the county superintendent. The minimum price was made $1.25 in gold coin. From $2.00 per acre, the minimum the board had established, to this lower figure the terms of nearly all the sales fell.
These continued to be the salient features of the law for the sale of school and university lands for the decade from 1868 to 1878. In 1878 the minimum price of these lands was raised again to $2.00. The "actual settler" retained his privilege of being able to get 320 acres when the limit for others was 160. The board was free in determining the value of the lands to use whatever method it chose. An affidavit was required of the purchaser that he was a citizen of the United States, or had declared his intention to become such; that he was a citizen of the state; that with his proposed purchase he would not directly or indirectly have secured from, the state more than 320 acres if a settler, or more than 160 if a "non-settler" ; that the proposed purchase was for the actual use of the applicant, and not for the purposes of speculation; that no contract agreement, "express or implied," had been made for the sale or other disposition of such lands.
These solemn pledges required in the act of 1878 were followed by a "joker". "Certificates of sale" for the lands could be secured from the state on payment of one-third of purchase price, except in case of timbered lands on which a payment of one-half was required. These certificates of sale could be freely assigned and the assignee on payment of the amounts due on the purchase price of the lands represented by each certificate would receive a deed and there was no limit whatever to the number of acres the state would thus deed to him.
The securing of all the lands coming to the state under the different congressional grants had been the zealous aim of the administrations in the early seventies. All the lands acquired were put in charge of the state board. Its task became in- creasingly heavier. The volume of land sales expanded rapidly at the close of this decade. The opening for the speculator in the arrangement for the assignment of the certificates of sales no doubt was a prime factor in securing this result. The minimum price had been raised and the state census gives but a slight increase in population for the first half of the eighties, yet the steady and rapid increase in the sales of its lands was unprecedented for Oregon.
The legislature in the act of 1878 seemed to take cognizance of this undue burden upon the members of the state land board and transferred the actual work to the "clerk of the board," putting him in charge of the records, and giving authority to his acts. What would be more natural than that the routine of this department of the state's affairs should then be neglected by the members of the board ? Its dry and tangled statistics repelled. Under these circumstances if the state had any values in its lands to tempt cupidity, the reign of a high carnival of graft in connection with the sales of these lands may be anticipated.
During the nine years following 1878 the land law was retained unchanged, though the economic conditions affecting land values were being revolutionized. The long-continued isolation from the main part of the country now disappeared through the completion of two transcontinental railway lines reaching Oregon. During these nine years, too, the railway mileage of the state was extended from 300 to nearly 1200 miles. The approaching exhaustion of the lumber supply from the states of the Middle West was anticipated and Oregon's grand forest areas were brought into the market. These then lay largely as national domain available to the state for lieu land selections. These conditions were increas- ing rapidly the stream of immigration into Oregon. In fact, everything tended to create a strong upward trend in the values of vacant lands in Oregon. In the face of these con- ditions, the legislature of 1887 reduced the price of state lands, excepting agricultural college lands, the minimum price of which had been fixed by Congress, to $1.25 per acre. It also increased to 320 acres the amount of land that the non- settler could purchase from the state.
The Infamous Act of 1887.— The brazen plea upon which this robbery of the public interest was perpetrated is betrayed in the title of this act of 1887. "For the Selection and Sale of the State Lands Remaining Unsold" (the italics are mine) was its de- clared purpose. The act not only authorized the state land board to sell all state lands, the price of which it controlled, at $1.25 per acre, but "required" that the board sell them "at the uniform price of $1.25" (the italics are again mine). The strong im- plication in the language of the act "requiring" the board "to sell the remaining unsold" lands was that the state had but a few remnants of culled and comparatively worthless tracts left to dispose of. These had better be sold at any old price and the people relieved of the burden of supporting this use- less branch of the state government.
That this made a specious plea was due to the ingrained state prejudice in favor of individualistic exploitation as the only source of wealth, prosperity and happiness. A public interest at stake in these lands was hardly thought of, and a public agency competent to conserve it was not dreamed of.
The other main provision in the law of 1887 was a fit companion to that reducing the price and increasing the amount sold to the individual purchaser. Intending pur- chasers of lieu lands, — and these were now the principal re- maining lands of the state, — must name the base — or lands lost to the state out of some section 16 or 36 — in compensation for which the state should select the tract desired. What did this imply but that the individual could do this more expeditiously and skillfully than any agent of the state, though the state alone had secured the data absolutely essential for making such selection, and the possession of which data, with abundant national domain at this time available, made the work of selection exceedingly easy. Here, too, the authors of the plot embodied in the law relied upon the blind prejudice which held that zeal and efficiency in public service in Oregon was unthinkable.
This law caused the loss to the people of Oregon from their school fund millions of dollars; it encouraged perjury, forgery and malfeasance in office. Yet not one vote is recorded against it in either house of the legislature. Its false implication as to the facts pertaining to the unsold state lands remained unchallenged. The legislators seem to have swallowed the hint given in the words, "remaining unsold," as implying that the state had only a remnant of comparatively worthless lands left. Tht school fund accumulated in 1887 was $1,060,000; it is now but little less than $6,000,000. It has been increased almost five-fold through the sale of lands then "remaining unsold/' even though most of those lands were given away for but a small fraction of their real value.
Now who could have been interested in leading the legislature into such a blunder and how would these conspirators profit through their scheme? The lobbying of intending purchasers of state lands would have killed such a measure instantly. Those who had experience in the state's land office were possessed of the necessary knowledge for concocting a scheme; a stupid practice of the state in securing lieu land selections opened an opportunity for graft, and a remorseless cupidity impelled to the devising of the scheme.
That we may see at a glance, and from the inside, as it were, the operations of Oregon's "lieu land ring," let us in imagination take a position in the state's office at Salem with the conditions as they were in 1887. Applications pouring in show the rising demand for Oregon timber lands. The records and maps of the office reveal large areas of them as national domain available for selection as the state's indemnity or lieu lands. It is true, inroads are being made upon these through purchase directly from the national government; but the purchaser is limited to 160 acres and the price is $2.50 an acre. Long lines of greedy speculators coming from afar are thus balked in their desire to accumulate rapidly limitless holdings. What a rush there would be for the state land office on the part of these still unsatisfied purchasers should the state secure these much-desired lands as indemnity lands and offer them for sale on terms more liberal than those of the national government. One should suppose that with this vision of things developing in the state land office it would have occurred to the clerk, or even to members of the board, though they seem not at this time to have an inside view of things taking place in the state's land business, that here was a fine opportunity to be seized in the interest of the school fund. Activity on the part of the state in selecting the lands of wonderful promise and holding them to realize for the public good their full worth would be real public service. Such a suggestion, however, would have been absolutely alien to the thought of a land office official, or for that matter, any other state official of that time. Instead of the idea of the state's getting these lands and of making them yield largest returns for all coming generations of youths of the state, these land office officials did note that it had been more or less the practice of the state to make the intending purchaser of lieu lands furnish the base. And behold, they of the land office — or favorites having access to its records — alone could supply the base which these eager would-be purchasers must have. It is true, citizens of the state with honorable intentions should have been given the necessary information from the records of the office with at most but a nominal charge for the time of the official consumed in the task. If the government should be used for the general welfare and development here was an opportunity. Why did not the law, or the state land board, direct the clerk to furnish the necessary information as to available base to those purchasers whom it would be an advantage for the people of the state to have as land owners? But there was the old obsession that government was but a necessary evil. The less it had in hand the better. The state government had fallen heir to land. It must get rid of it. In selling it to do more than receive the money would have been pernicious activity. It would be usurping an opportunity belonging to< an individual. But remember in this land office base the intending purchaser must have. The records dis- closed it, and the clerk was in charge of them. The law forbade his taking a fee and did not compel him to give the information. A private individual, however, expert with the records had here a rich opportunity for traffic. For this base he could charge a price at least equal to the margin between the national and the state terms for the land. As the state law put the price per acre at half of that of the national government, this trafficker in base could get as much for the base as the state received as its share for the lands. 1 The law of 1887 was simply the scheme to create a good business opportunity for this seller of base. The scheme was simple and neat. Not one conscientious lawmaker in the ninety of the Oregon legislative assembly suspected anything wrong as the bill was read three times in each House. Were they all blind or was it their point of view?
The Trafficker in Base at the State Land Office. — This law of 1887 thus set up in the state land office one or more dispensers of base who preyed upon the innocent purchasers
1 "He (the clerk of the board) can not charge for information concerning state land matters or for letters pertaining to them. It is almost needless to assert the self-evident proposition that he cannot abnegate any of his duties in favor of an outsider and thereby get rid of them for any purpose, and especially to charge persons doing business with the office illegal fees, or to speculate in state lands. All such things go without saying, and yet there is sufficient evidence to establish a moral conviction, all over the state, that the clerks of the state board have been doing just those forbidden things from 1887 to 1895. It is a fact that during the last-mentioned period purchasers of lieu land paid more than the legal rate, $1.25 per acre. In some instances as high as $4 per acre were paid; $1.25 went to the state and the remainder to those in deal". Report of State Land Agent, T. W. Davenport, 1895-1896. and despoiled the children of future generations of their heritage. A scheme that worked so admirably for this purpose must have been devised with this in view. It happened in the years immediately following — and probably foreseen by the conspirators — that the national government created several Indian reservations in Oregon. Sections 16 and 36 would then not be secured by the state as school lands, but become base for lieu land selections. These reservations with the amount of base made available in each were as follows :
1887 — Umatilla Reservation 16,980.03 acres
1888 — Klamath Reservation 63,011.94 "
1889 — Grand Ronde Reservation 6,014.14 "
1889 — Siletz Reservation 10,864.14 "
1891 — Warm Springs Reservation 36,643.66 "
Surely the task of supplying this amount of base to intending purchasers was not an arduous one. The records at the state land office should have shown at a glance also all other base available. Yet "the applicant was compelled to pay from $160 upwards for the very arduous service of designating a like basis from one of the Indian reserves."
Sources of base other than the Indian reservations there were. The state was entitled to sections of full measure. So the deficits in fractional sections became base. The sum of these deficits during the years from 1887 to 1895 amounted to 10,000 acres. But to ascertain the amount of base available in each instance required, instead of a glance at a map, some painstaking calculation. The performance of these computations meant land for the people, but their official at the state land office confined himself strictly to taking in money. This work of computing deficits was left to the trafficker in base. He then had the amounts to disclose for a price. But what would be inevitable under such conditions with such transactions? It would have been more than miraculous if there had not been several thousand acres of baseless base — baseless because of irregularities in computation — sold. Again, the national government retained all school sections mineral in character. There was a procedure for proving the mineral character of them even when not so reported by the surveyors. With this, too, the trafficker in base was busy. It so happened that this procedure for determining the mineral character of school lands was especially susceptible to admitting the freest play in lieu land dickering of the kind for which the Oregon land office was prepared. The national government required only evidence of a prima facie character before authorizing the state to proceed to make selections in lieu of these lands it was likely to lose because of their mineral character. But remember, it was the essence of the Oregon system that all such tasks as securing evidence of the mineral character of school sections should be delegated to private enterprise. Add to this Oregon's precipitancy to sell and the impelling motive for selling that the trafficker in base had, and the commonwealth must necessarily soon find itself in a bedraggled condition for having sold land its original claims upon which having proved baseless. In the first place, the eagerness to prove the mineral character of the lands by an irresponsible go-between in an unworthy relation led to a stretching of the evidence of mineral character. Then the slip- shod organization of the state's agencies for handling its land affairs, — its dual officials, the state land agent and the clerk of the state land board, working without concert, — had under the strong pressure for land and the tempted and tempting influence of the mineral base manipulator resulted in the state's selling nearly two-thirds of such lands twice over and some of it thrice over. In the period from 1887 to 1895 of more than sixty thousand acres of mineral basis upon which lieu lands were sold, only about twenty-six thousand were confirmed to the state; the remaining thousands were cancelled by the general government. The state came to the rescue of these luckless purchasers by furnishing them valid base from the then newly created Cascade forest reservation. Thirty-eight thousand acres were so used.
T. W. Davenport, the state land agent, during the period of respite from 1895 to 1899, in his two biennial reports explained how the chicanery of fraud carried on under the auspices of the state had traduced its fair name ; nevertheless, there was a lapse again, and to an even lower condition of debauchery, in the state land transactions during the four years from 1899 to 1903. There was the same old lack of co-operation between the state land agent and the clerk of the land board. The former used the same sections in the lists sent to Washington as mineral lands, in lieu of which indemnity lands were applied for, that the latter had sold as accepted state lands. There was about the same proportion of this reselling as had occurred in the preceding period. Experience costly to the state left no impression with them. 1 But more than that, villainies of a deeper dye were being consummated in connection with the state land office. The state officials were not accomplices exactly. They were simply content to ply their old customary task of receiving the moneys. The fact that the sums repre- sented but a small fraction of the value of the lands for which they were being exchanged and the fact that those who were getting these lands in lots of thousands of acres had bought the names on the applications and assignments they used — to these conditions those state officials were hardened. What a travesty of public service was theirs ! 2
A fine "culture fluid" this Oregon land law, and the con- firmed policy of the state with its lands, proved for the breed-
1 "Here was the condition of things on the ist day of January, 1903: About 50,000 acres of land had been sold in place by the State, while the same lands had been adjudicated as mineral by the local land offices, and the Executive of the State, through his State Land Agent, had selected indemnity lands in lieu thereof, and these indemnity lands had been likewise sold, so that the State had practically sold the same land twice. In addition to this, many of the alleged mineral lands had been used twice as bases for indemnity selections, so that in such cases the State had practically sold the same lands as often as three times to as many different individuals. Of the 70,000 acres, therefore, adjudicated as mineral and used as bases for indemnity selection, only about 20,000 acres are in such condition that the State can fairly and in good faith attempt to have the selections made in lieu thereof patented to the State". Governor Geo. E. Chamberlain's Message to the 23rd Legislative Assembly, 1905, p. 28.
2 The following is from testimony given at the recent Binger Hermann trial at Portland, Oregon, January 19, 1910, by one of the leading lieu land operators:
"Everybody understood that I was to get the lands (school sections unsold in what was expected to be included in the Blue Mountain Forest Reservation when created) in the usual way. I was to go down in the slums of the North End and pay men to sign applications, then deposit them at the land office and ing of all sorts of frauds and conspiracies. It offered prizes that attracted the arch-land speculators from all parts of the country. National law and national administration governing the disposition of public lands in Oregon were but a shade better at this time than the state's. Frauds of gigantic proportions were possible only because national and state laws were equally ill-adapted to conserve the common weal and because officials of both governments were equally pliable. Conspiracies were formed to induce the national authorities to create forest reservations, the conspirators having in view only the inclusion of school sections which they had bought solely for the purpose of being thus included and later exchanged for carefully selected timber lands. Such a scheme could be consummated only through the use of the state and the national laws, so to speak, dovetailed together. The ridiculously easy terms on which the lands could be gotten from the state made feasible the first step and the equally absurd provision of the national law under which land utterly worthless could be exchanged for the best of the public domain, in virtually unlimited quantities, was the means of completing the steal. Nothing that Oregon ever did, however, was quite so> rank or the means of so large inroads upon the public domain for private advantage as the railway lieu land act of Congress in 1897.
But returning to Oregon's delinquencies. The supineness of its land office officials encouraged the most bare-faced forms of fraud. In 1898 an armful of applications, covering 40,000
pay 25 cents an acre on the lands. — ■ — - — - — had been interested with me more than once on that sort of thing. I had made deals with — and also. "The way I did it was to hunt up fellows who were well acquainted. They would bring in a lot of men and I would ask them if they had ever bought school lands. If they had not bought lands, I would ask them if they wanted to earn a dollar by signing their names to an application and an assignment. They always did. Usually I would not have applications to go around. At one time I got about 50 applications in this way for and at another time furnished — ' a batch for his use. It cost them $i for each application, besides ex- penses of drinks". A former under-clerk of the state land office when asked whether he had entertained suspicion that fraud wa9 connected with the filing of such bunches of applications, admitted that he had; but as he was only a clerk in the office he thought it not his business to confide his fears to the land board. H'e was instructed by the clerk at the head of the board, he said "to receive and file all applications presented so long as they were filled out properly and acknowledged- When pressed to say whether or not the land board knew of the frauds practiced in the state and whether it winked at the evasions of the law, he could answer only, "I can't say". acres of school lands in the Cascade forest reservation, were one day presented at the state land office by the agents of the most notorious firm of land thieves. These applications for lands, if accepted, would take from the state at $1.25 per acre all the lands which it was about to secure the right to exchange for others to be sold at $2.50 per acre. These applications, too, were without doubt nearly all obtained through fraud, the signers of the applications, and of the assignments of the corresponding certificates of sale to be obtained from the state, having been given a dollar or two for their names. This constituted, of course, the grossest violation of the spirit of the law. Of all these things, which would seem revolting to any one, the officials were cognizant, and yet these applications were accepted; certificates of sale were issued which were later exchanged for deeds. And these lands thus secured in a job lot from the state were exchanged for some of the best timber lands in Oregon and neighboring states. 1 Land thieves who found that they could palm off on the Oregon land office officials names that cost them a dollar apiece would naturally try forgery next, and had forged signatures accepted on appli- cations covering more than 100,000 acres before detected. 2 This Oregon school lieu land situation bred yet another species of fraud. The certificates of sale issued by the state on the
1 "In 1898 Hon. T. W. Davenport, who was then State Land Agent, took up the matter^ (of securing to the state the right to exchange its unsold surveyed school sections in the Cascade Reservation as base for indemnity selections) with the Oregon delegation in Congress and was succeeding in having a bill passed allowing selections to be made in lieu of these surveyed lands. One day, while in the State Land Office, he found the agents of Benson and Hyde with an armful of applications covering the 40,000 acres of surveyed lands. He pro- tested against the sale and explained to the Board that these lands which were to be sold for $1.25 per acre could in a short time be used as base for selections which were selling for $2.50 per acre, but his protest was of no avail and the lands were sold. "These applications were nearly all bogus but they were accepted by the Board and certificates issued. The lands were later deeded to Benson and Hyde and exchanged by them for some of the best timber lands in this and adjoining States". Report of State Land Agent, 1905-1906, p. 16.
2 Marion County, Oregon, Grand Jury in its counsel to the state land board, April 28, 1905, said: "After an examination of the applications to purchase land (then on file in the state land office) we are of the opinion that those covered by the attached list and amounting 'to about 500,000 acres are nearly all fraudulent and should be fully investigated by your body before deeds are issued." (This matter had been brought to the attention of the grand jury at the instigation of Governor Chamberlain.) Report of State Land Agent, 1 905-1906, pp. 4-7. acceptance of an application for land, and the making of a small fractional payment, had from an early day been made transferable. This was not in accordance with the spirit of the affidavit required of the purchaser to the effect that "purchase is for actual use of applicant" and that "no contract . . has been made for the sale or other disposition" of it. So generally, however, were these certificates of sale of Oregon lieu land selections huckstered about the country that other lieu land operators conceived the idea that it would be a lucrative business to counterfeit them. This was done and they were sold to an extent that some 50,000 acres were covered by them.
At the opening of 1903, George E. Chamberlain assumed the governor's chair. With him as president of the state land board and Oswald West, his appointee, as state land agent, the administration of the state's land affairs was characterized by a sense of responsibility for the public welfare rather than that of deference to private greed. With the unity and co-operation of the two branches of the state's land department order and system was for the first time realized in its records. Frauds were exposed and reparation made as far as possible for former duplicate sales. The legislature responded and the price of the remaining state lands was raised and the land board used its discretion so that the state has since received full market value for all lands sold. As there were only scattered fragments left, nothing more could be done.
Had there been any lively purpose cherished to be fulfilled by means of these public resources, things would have been different. Had they figured in any vision of the future to be realized by the commonwealth, the land laws would have had point and the administrative officials would have been inspired with zeal for the common good. On the contrary, there were not even the conditions of fair play maintained. Instead of making such opportunities as there were in lands offered cheaply, public and manifest, to the toiler, who was producing the wealth of the state, these prizes were so held out of sight that only the professional social parasite could avail himself of them.
To sum up the course of the state's policy with its school and university lands: They were at first sold to the highest bidder with a minimum price of $2.00 per acre, except for the pre-emptor, the actual settler and the purchaser of lieu lands that he himself had selected. These secured their lands for $1.25 per acre. Later the method of appraisal, usually by the county superintendent, was used with a minimum price of $1.25 per acre. This held during the decade from 1868 to 1878. Then the minimum was again raised to $2.00. Though the method of appraisal was adhered to down to 1887, it seems to have been a perfunctory proceeding, as only a very few small lots were sold at a figure higher than the minimum price. In 1887, just when vacant lands in Oregon were coming into demand, the price for all lands, that could be lowered by the legislature, was fixed at $1.25 per acre. The state board was "required" to sell at that price. Up to this time the actual settler had the preference. Throughout the whole period the intent expressed in the law was for the limitation of holdings to 320 acres. However, the facility of assignment of the certificates provided for in 1878 and the provision for deeding without limit to an assignee made the preceding limitation of the amount that could be purchased by any citizen only a hollow mockery. And more than that, it stimulated perjury so that it prevailed to a frightful degree, and subornation to this perjury became a vocation in the state.
The special features that characterized the policy of the state with its lands other than those of the common school and university grants will now be noticed.
Agricultural College Lands. Though Congress had made this grant in 1862, not until 1868 did a special commission in Oregon take steps to locate them. By 1872 the prospects of the final approval of their selections in the Klamath lake country were such that the sale of the lands was placed in the hands of the Board of Commissioners for the Sale of School and University Lands. Congress had fixed the minimum price at $2.50 per acre and the state provided that "no person owning more than 320 acres of land in this state, by any other right, shall be entitled to purchase under the provisions of this Act." The sale of the Agricultural College lands was conducted under these provisions, except that in 1887 the 320-aere limit was made to apply only to the amount that might be purchased from the state. The disbursement of the interest income of the fund accumulated from the sales of these lands began in 1879.
The Internal Improvement Grant. As the proceeds of this grant, and not merely the interest income from the funds accumulated, were at the disposal of the state, this grant seemed to appeal to the Oregon legislative assemblies. Instead of dilatory neglect, action too precipitant was taken in connection with it. The legislature of 1860 anticipated rights to specific lands under this grant before claims to any had been sanctioned through ratification by the national authorities of selections made by the state. An act was passed entitled "to provide for the possessory and pre-emptory rights of 500,000 acres of land donated to the state." The purpose of the enactment was to secure to any applicant, a citizen or one who had declared his intention, the right to pre-empt a tract of from 40 to 320 acres of unsurveyed land, not saline or mineral in character, with the view of having the state select such pre-empted claim as part of its 500,000-acre grant. In return for the state's intervention to secure the pre-emption it was to be paid annually an amount equal to ten per cent on a $1.25 per acre valuation as interest. When the United States survey of it was made the pre-emptor was to pay the state for the land as part of its selected 500,000 acres, However, the state authorities were soon apprised that the national government would not recognize the rights of such claimant under state law against claims to the same tracts that might be established under the national land laws. But aside from this little jolt the state had no trouble in getting possession of lands to fill this grant.
The selections were mainly in Union, Baker and Umatilla counties. In 1868 the price of all state lands in eastern Oregon was fixed at $1.25 in currency to pre-emptors and $1.25 in coin to other purchasers. No person was to get more than would make his purchases from the state exceed 320 acres. The purchase, too, must inure only to his own benefit.
These eastern Oregon state lands had ready sale at these nominal figures and easy terms ; in ten years all but about ten per cent had been disposed of. The application of the proceeds from the sale of the lands of the internal improvement grant will be referred to in a special discussion later of the application of the funds derived from the different grants.
The Swamp Land Grant. The state's headlong hurry — once conscious of having a swamp land grant — in opening its sale of swamp lands before it had established its right to any specific tracts caused it no end of trouble. The legislative assembly of 1860, when requested by the Department of the Interior to indicate whether it would abide by the field notes of the surveys' for designating the swamp lands to which the state was entitled or whether it preferred to furnish evidence through its own agents as to the swampy character of lands it claimed, did not deign to give a reply, — at least no response was forthcoming. After the lapse of just a decade an Oregon legislature did wake up on this matter. It became apprehensive that lands which the state might claim as swamp lands were being disposed of by the United States under homestead and pre-emption laws. Accordingly an act was passed at this session "providing for the selection and sale of the swamp and overflowed lands belonging to the state of Oregon." By the terms of this law the governor, as commissioner of lands, or his deputies, were "to proceed as soon as practicable to select in the field all the lands rendered unfit for cultivation by inundation or overflow." Such selected lands were then to be advertised in a newspaper in each county and sold "at a price not less than one dollar per acre in gold coin." The procedure for selection and appropriation by the state provided for in this act amounted to the seizure of such lands as the agent of the state designated as swampy in character without so much as saying "by your leave" to the national authorities. It must be said, however, to the credit of this legislature that it did recognize the obligation, carried in the grant, of reclamation through drainage of the lands selected. There was a measure of justification also* for this summary procedure for the seizure of lands that might be considered swampy in character. The surveys in Oregon were being carried on without any note being made of swamp lands; and further, the courts, national as well as state, had decided in effect that the title of the state -to the swamp lands within the state became vested on the 12th day of March, i860, when the grant was extended by law of Congress to Oregon. And, moreover, the determination immediately of the prior right of the state to certain lands was one of considerable practical importance, as railroads with their grants of alternate sections along their lines were appropriating them. Settlers claiming under national law were occupying others out of which the state felt it was deprived of some revenue.
Not until 1874 did the legislature elect a mode of identification of the swamp lands satisfactory to the authorities of the national government. Then for the first time proper officers of the state "were instructed to furnish the Department of the Interior such evidence, and in such manner, of the swampy character of these lands as the said Department shall prescribe." Meanwhile the selection and sale of these lands had been in progress under the law of 1870. The procedure under this law, it will be remembered, ignored the national authorities. In selling the lands under the law of 1870 it was provided that a payment of 20 per cent of the price should accompany the application and the purchaser was to have ten years in which to reclaim by drainage. There was no specification as (to what should constitute reclamation except that "successful cultivation in either grass, the cereals or vegetables for three years" shall be considered as full reclamation. This was no doubt intended to be construed as satisfied through pasturing it or cutting the wild grass on it during the dry season. The land grabbers under it were most likely the authors of the measure.
This law of 1870 was by state administrations viewed as in force for nineteen years. Though in 1878 the terms upon which swamp lands could be bought were radically changed, the claims of those who had taken the first step toward purchase under the law of 1870 were recognized until 1887. A tangled and most disreputable state of things was developed. I will note first the progress of the depredations of the swamp land brigands (though "swamp angel" was the actual appellation) up to 1878. Up to this date some $43,000 had been paid in as the 20 per cent installment by purchasers of swamp lands. A little more than half of this sum had been expended as expenses of selecting swamp lands and in reimbursing purchasers to whom titles could not be given. Five hundred sixty-two thousand acres had been selected by state agents as swamp lands. There were on file in the office of the state board applications for purchase as swamp lands "a large lot of lands" that had not then been selected; there were also on file applications for "about one million acres" that had not even been surveyed. On the other hand, there had actually been approved to the state as swamp lands 2000 acres in all. At the same time the governor was counselling in his message to the legislature that the state stand by its guns, so to speak. He held that there could be no question as to the right of the state to sell these lands (all selected by the state officials) at once and unconditionally. For the state to require reclamation was, from his point of view, imposing "upon the purchaser an entirely useless expense," and the state need not require reclamation unless it chose to do so. The fact that in the terms of the grant by Congress only "swamp and overflowed lands, made unfit thereby for cultivation" were turned over to the state; and the further fact that "the proceeds of said lands, whether by sale or direct appropriation in kind, shall be applied exclusively as far as necessary to the end of the reclaiming of said lands" — these conditions in the grant cut no figure in the policy advised by the Oregon governor. Why should they ? Oregon's "swamp lands" would be spoiled by drainage — that selected by her agents "was of such a character that drainage would destroy its value entirely." Then, too, the courts seem to have held that the state could not be compelled to apply the proceeds from its grant to reclamation. A state official in charge of the matter of selection taking such a position would naturally not make much progress with the national government towards perfecting the title of the state to its swamp lands.
Passing on now to a glimpse of the swamp land situation in the eighties. During Governor Thayer's administration (1878- 1882) the state and national authorities got together for the first time in the making of swamp land selections. With agents working in harmony on the field and in the examination of the lists of earlier selections, the approval of nearly a quarter of a million acres was secured by the end of 1882 — some twenty- two years after the extension of the grant to Oregon. There are strange things to relate in the swamp land history during the eighties. Under the law of 1870 there was no limit to the number of acres that would be sold to any purchaser. The law of 1878 did limit the number to 320 acres, but did not take effect, in the opinion of the state land boards, to hinder the consummation of previous sales if there had been so much as an application of the most indefinite character made prior to 1879. At any rate, the reports of the state land board for the early eighties show that it was honoring applications made under the law of 1870, issuing certificates of sales and receiving payments on such sales — even the initial 20 per cent installment. The report of the state board of its sale of swamp lands during the biennial period, 1880-2, is certainly unique : "But one certificate of sale for swamp lands has been issued by the present Board, to wit : Certificate of Sale No. 123, bearing date July 26, 1880, issued to H. C. Owens for certain tracts of swamp lands, amounting in the aggregate to 55,185.36 acres." The board goes on to assert that the applications of Mr. Owens were regularly made prior to the passage of the act of 1878 and in accordance with the requirements of the act of 1870. These applications of Mr. Owens must therefore have been among that "large lot" of unselected, or more probably among the "million acres of the unsurveyed." Mr. Owens then could hold his initial payment in reserve until his selections of swamp lands were surveyed and later selected by the agent of the state as swamp lands. The records show that up to 1887, without having paid a cent, he stood as recognized prior claimant for nearly half a million acres of land as soon as they might be ready to be sold. On that 55,000-acre lot received in 1880 he paid the required 20 per cent of the purchase price in warrants, issued under an act of 1876, which made warrants against a wagon road appropriation — principal and interest — receivable in payment of swamp lands. The state, as will be explained in connection with the discussion of the disposition of the proceeds from its different grants, indulged in some "frenzied" financiering with anticipated swamp land funds.
Before proceeding further with the "Mr. Owens" transactions with the state in swamp land purchases, he should be identified as merely the tool of a foreign syndicate that was up to this date and for a few years longer succeeding admirably towards accumulating for a song from the State of Oregon a domain of royal proportions. During the next two years, from 1880 to 1882;, Mr. Owens did not have quite a monopoly of swamp land purchases in Oregon. Still he was not interferred with to any considerable extent. During this period additional certificates of sale, for amounts exceeding 1,000 acres to an individual, were issued as follows :
- H. C. Owens, 67,326.32 acres,
- W. B. Todhunter, 34,859.42 acres.
- J. N. Vance, 6,400 acres.
During the next biennial period — 1882- 1884 — Mr. Owens' hunger for swamp lands was particularly ravenous. It took an additional 362,267.77 acres to appease it. Others were developing considerable capacity in this line, taking from 20,000 to 30,000 acres each.
But there was a limit to the line of Oregon's official consciences that would brook such a state of things. It was an evil day for the swamp land grabber when Governor Pennoyer assumed the duties of his office. The state land board under him for the first time took the position that all certificates of sale for larger amounts than 320 acres, issued subsequently to 1878 were void. In the interpretation of laws those conserving public interests should have an equally liberal construction with those formulated wholly for the advantage of private interests. The legislature of 1887 supported the land board in its position, enacting that all certificates of sale for swamp lands "on which the twenty per centum of the purchase price was not paid prior to January 17, 1879," were to be held void. The money paid on the void certificates was ordered repaid. Large tracts, however, amounting to tens of thousands of acres, had been secured through payment made prior to 1879. The interest of the small holder and actual settler were regularly protected. Thus the legislature of 1887, that was so remiss in its lieu land legislation, exhibited conspicuous virtue in the swamp land matter. And this same Pennoyer administration that so virtuously came to the rescue of the public interests in swamp lands, countenanced most shameless chicanery in lieu land transactions.
The Tide Lands. In its policy with its tide lands the state has exhibited the same ultra-individualistic attitude as with its other holdings. No trace of any appreciation of future monopolies to grow out of the possession of them is to be found. Nothing to show an inkling of how abhorrent to public interest such private monopoly may be. Governor Grover in the early seventies, with his characteristic alertness in pressing for the realization by the state of all its rights in the public domain, first called attention to its valid right to all lands lying between the limits of ebb and flood tides. He estimated that there were half-a-million acres of such land in Oregon. The public surveys up to that time had been extended over the salt marshes and had been approved by the general govern- ment land office, so that the tide lands were being disposed of to homestead and pre-emption claimants. In response to the governor's suggestion the legislature asserted its right to these lands and provided for the disposal of them on terms similar to those governing the sale of school lands, excepting that persons owning abutting lands were given the exclusive right to purchase for a period at first one and then three years. The lands were to be sold upon appraisal. The minimum price at first was $1.25 per acre; six years later, 1878, it was raised to $2.00. In 1907 the minimum was raised to $5.00 per acre. The land board was at this time first given the discretion to lease.
A final word of comment upon Oregon's land policy as a whole. Sale to highest bidder, on easy terms, in small lots and to the actual user of all lands in connection with which no oppres- sive monopoly can arise, is always justifiable. These conditions characterized Oregon's land policy, excepting its swamp land sales, down to 1887. In three connections, however, did pecu- liarly iniquitous practices develop in the administration by Oregon of its public domain.
(1) The first had to do with the selection and sale of swamp lands. Four hundred eighty-five thousand seven hun- dred seventy-nine and eighty-five one-hundredth acres of these were sold to one man, at least, certificates of sale covering this amount were issued to one party by the successive land boards. STATE LAND SALES PROCEEDS FOR THE SEVERAL FUNDS BY BIENNIAL PERIODS
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|Population of State|
- See Quarterly of Oregon Historical Society, Vol. X, pp. 367-371.
- Oregon Historical Quarterly, Vol. X, pp. 371-394.
- Governor's^ Message to Legislative Assembly, first sess., 1859, House Journal p. 27. Governor's Message to Legislative Assembly, first regular sess., i860; Senate Journal pp. 26-7. Governor's Message to Legislative Assembly, second regular sess., 1862, app. to House Journal p. 5.
- Governor's Message to Legislative Assembly, third sess., 1864, app. to House Journal p. 5. Report of Board of Commissioners for the Sale of School Lands, 1868, Messages and Documents pp. 3-4; 21-48.
- Governor's Message to Legislative Assembly, seventh sess., 1872, Messages and Documents pp. 10-21. Governor's Message to Legislative Assembly, eighth sess., 1874, Messages and Documents pp. 10-26.
- Governor Whiteaker in his message to the Legislative Assembly in its first session, July 8, 1859, after enumerating the grants to the state, said: "Although this grant appears liberal and generous, yet, it may be difficult to find lands in any of the valleys west of the Cascade range of mountains of a desirable quality, unoccupied, subject to be located. . . ..." H. J. p. 27.
- Governor Gibbs in his message to the Legislative Assembly in its third regular session, September 15, 1864, in commenting on the condition of the Agricultural College grant, said: "As will more fully appear hereafter, there is great difficulty in finding lands subject to location in this state. I have considered it of paramount importance to first select lands for the benefit of common schools. Enough of that class has not yet been found to make up the amount to which the state is entitled, therefore no lands have yet been selected for the benefit of the agricultural college." Appendix to H. J., p. 5.
- The board interpreted this as still requiring an appraisal, which it deprecated. See Report of Board of Commissioners, 1882, p. 4.
- Ibid, pp. 7-12.
- General Laws, 1868, pp. 40-41.
- In 1899 these lands that had been subject to sale for a period of twenty-five years were ordered to be sold at a uniform price of $1.25 per acre.
- General Laws, 1870, pp. 54-57.
- General Laws, 1874, House Joint Resolution II, p. 241.
- Report of School Land Commissioners, 1878, p. 80.
- Governor's Message, 1878, pp. 35-40.
- The Report of the state land board list only 228,867.59 acres, but Governor Pennoyer's list contains items that sum up the figures given. House Journal, 1887, pp. 242-4.
- The sum in the State Treasury -- the main portion of the fund was at this time distributed among the counties. The figures for 1866-1868 include not only sales, but also sums reported by different county treasurers as accumulated with them up to that time.