Stark v. Starrs
ERROR to the Supreme Court of Oregon.
A. and L. Starr, asserting themselves to be owners in possession of certain parcels of land in the city of Portland, Oregon, and derived by title from that city, filed a bill in equity in one of the State courts of Oregon, to quiet their title to the land against an ownership set up to it by one Stark, and to have a patent for it which had issued to Stark surrendered. The bill was founded on a statute of Oregon, which provides that 'any person in possession of real property may maintain a suit in equity against another who claims an estate or interest therein adverse to him, for the purpose of determining such claim, estate, or interest.'
The title which the bill asserted to be void, and which it sought to have declared so, arose as follows:
Previously to the treaty with Great Britain, of June 15th, 1846, by which the boundary line between the possessions of that country and the United States, west of the Rocky Mountains, was established, the region known as Oregon was claimed by both countries; and the emigrants there from the United States and from Great Britain held joint possession of the country under the treaty between the two nations, of October 20th, 1818, which was continued in force by the convention of August 6th, 1827.
In 185 , the inhabitants of this Territory established a provisional government for purposes of mutual protection, and to secure peace and prosperity among themselves; and they adopted laws and regulations for their government until such time as the United States should extend their jurisdiction over them.
Under the provisional government each settler was entitled to claim 640 acres of land, upon complying with certain conditions of improvement, &c.
In 1848, Congress established the territorial government of Oregon.  The fourteenth section of the act which did this, recognized and continued in force the laws adopted by the provisional government, and declared that the laws of the United States were extended over the Territory, so far as the same, or any provision thereof, may be applicable; but all laws granting or affecting lands were declared to be void. And Congress itself soon afterwards passed an act on the subject of titles. The act of September 27th, 1850, commonly called the Donation Act of Oregon,  provided (§ 4), that there should be granted to settlers or occupants of the public lands, then residing in the said Territory, or who should become residents thereof on or before the first day of December, 1850, and who should have resided upon and cultivated the same for four consecutive years, and should otherwise conform to the provisions of the act, one-half section, or 320 acres of land, if a single man, and if married, or becoming married within one year from December 1st, 1850, one section, or 640 acres; provided, however, the donation should embrace the land actually occupied and cultivated by the settler on it.
The sixth section of this act required that the settler should notify to the surveyor-general the tract claimed under the law within three months after the survey had been made; and the seventh section provided, that within twelve months after the surveys had been made each person claiming a donation right under the act should prove to the satisfaction of the surveyor-general, the commencement of the settlement and cultivation required; and after the expiration of the four years from the date of such settlement, should prove, in like manner, by two disinterested witnesses, the continued residence and cultivation required by the fourth section of this act. The act went on:
'Upon such proof being made, the surveyor-general, or other officer appointed by law for that purpose, shall issue certificates, under such regulations as may be prescribed by the commissioner of the general land office, setting forth the facts in the case, and specifying the land . . . And the surveyor-general shall return the proof so taken, to the office of the commissioner of the general land office, and if the said commissioner shall find no valid objection thereto, patents shall issue for the land, according to the certificates aforesaid, upon the surrender thereof.'
In professed accordance with these provisions, and the regulations made by the general land office, the defendant, in May, 1852, within three months after the survey of the land had been made, gave to the surveyor-general notice of the tract claimed by him, and within twelve months after the survey proved, to the satisfaction of the surveyor-general, that the settlement and cultivation had been commenced on the 1st of September, 1849, and afterwards on the 10th of September, 1853, proved, in like manner, by two disinterested witnesses, the fact of his continued residence and cultivation for four years, which had previously expired; this having been done in the form and manner usual in the department.
In September, 1853, the surveyor-general issued to the party a donation certificate, reciting the claim of a donation right made by him to a tract of land described; that proof had been made to his satisfaction that the settlement was commenced on the 1st of September, 1849, four years previous to the date thereof, and that the fact of his continued resd ence and cultivation since that period had been established by two disinterested witnesses; and he forwarded the certificate to the commissioner of the general land office, accompanied by the proof of the facts recited, in order that a patent might issue to the claimant for the tract described, provided he found no valid objection thereto. No objection was found by the commissioner except a supposed application to the tract in question of an act of Congress of May 23d, 1844, commonly known as the Town Site Act, the nature of which will appear further on in stating the title on the other side, and which was relied on as in part making that title. The evidence of settlement, &c., was by him considered ample, and the certificate satisfactory; and a patent was issued thereon to Stark, the defendant.
Such was the title-a documentary one-sought to be put aside.
The documentary title of the Starrs, alleged by their bill to be superior to it, will be stated directly. Their bill not only, however, set up title in themselves, alleging it superior to the documentary title as presented by the other side, but it alleged that Stark had not made in point of fact any such settlement and cultivation as he had brought persons to swear to before the commissioner, and that the certificate on which he got this patent, was false, and his patent consequently void. This was a question of fact on which evidence was taken. The answer denied the allegations thus made.
The documentary case of the Starrs was thus:
An act of Congress passed September 4th, 1841,  provides that every person who shall have made a settlement on the public lands 'which have been or shall have been surveyed prior thereto,' shall be authorized to enter any number of acres, not exceeding one hundred and sixty, upon paying the minimum price.
An act of May 23d, 1844, entitled 'An act for the relief of the citizens of towns upon the lands of the United States under certain circumstances'  (the act already mentioned as the Town Site Act), provides as follows:
'Whenever any portion of the surveyed public lands has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the existing pre-emption laws, it shall be lawful, in case such town shall be incorporated, for the corporate authorities . . . to enter at the proper land office and at the minimum price, the land so settled and occupied,' &c.
On the 17th of July, 1854, Congress enacted that donations thereafter to be surveyed in Oregon Territory, claimed under the Donation Act of September 27th, 1850, should in no case include a town site or lands settled upon for purposes of business or trade and not for agriculture, and that all legal subdivisions included in whole or in part in such town sites or settled upon for purposes of business or trade and not for agriculture, should be subject to the operations of the Town Site Act of May 23d, 1844; whether such settlements were made before or after the surveys.
On the 1st of February, 1858, and while the claim of Stark was pending before the commissioner, the corporate authorities of the city of Portland made an entry under the Town Site Act of May 23d, 1844, of lands within the city limits to the extent of 307 49/100 acres, which included the premises in controversy, in trust for the several use and benefit of the occupants thereof, and presented to the commissioner a certificate of the register of the land office, in Oregon, of their having made full payment for the same. The commissioner accordingly issued a patent to them.
The patent to the city authorities was dated 7th December, 1860; that to Stark the day following; it having been intended that they should be issued on the same day. Each contained reciprocal reservations in favor of the rights conveyed by the other.
The court in which the bill was filed, granted the relief prayed for, and the Supreme Court of the State of Oregon having affirmd their decree, the case was now here under the twenty-fifth section of the Judiciary Act.
Messrs. M. Blair and F. A. Dick, for Stark, plaintiff in error:
1. The patent to the city was absolutely void-the act of 1844, under which it issued, not being in force in Oregon until after July 17th, 1854. The act of 1844 is but amendatory of the pre-emption law of 1841, which contains the provision upon which the act of 1844 operates. It applies only to surveyed lands, which are excepted from operation of the pre-emption law. But the pre-emption law was not in force in Oregon in 1850. There were not only no surveyed lands there at that date, but Congress had, in the donation law of 1850, made more liberal provision for settlers than even by the pre-emption act. The law of 1844 was inapplicable, from the condition of things in Oregon when the act of 1848, establishing the territorial government, or when the donation law of 1850, was passed.
2. If the Town Site Act was not in force in Oregon in 1853, the patent to the authorities of Portland is a nullity, and the defendants in error have no title of any description of which a court of justice can take cognizance. Mere possession of public land will not enable the party to maintain a suit against any one, especially not against persons holding possession under title derived from the proper officers of the government. The patent to Stark and the regularity of proceedings preliminary to it cannot, therefore, be here called in question. 
3. In this view we need not discuss the issue of fact.
Mr. Wills, contra:
1. This is a suit in equity to quiet title, brought under a statute which allows any person in possession to maintain such a suit. Under any circumstances of title, the Starrs being in possession may maintain it.
2. Was the Town Site Act of 1844 in force in Oregon prior to the enactment of the donation law of 1850, by virtue of the fourteenth section of the act of August 14th, 1848, organizing the Territory of Oregon?
Unless the land laws of the United States, including the Town Site Act, were extended by the act to the Territory of Oregon, we have this anomaly, that by this law all land titles then existing were made null, and in a law organizing that Territory and providing for its settlement no means were provided whereby incipient title to lands could be acquired from the United States, their sole proprietor. The land laws of the United States in themselves, were as applicable to Oregon as to any other Territory of the United States; and that they were needed is demonstrated by the fact, that no other means was provided whereby title to land could be acquired in the Territory.
3. But if the Town Site Act was not extended to Oregon before the passage of the act of July 17th, 1854, certainly it was in force after the date of that law. Both patents were issued after the passage of that act, and at a time when the operation of the Town Site Act in that Territory cannot be disputed. If, then, Stark had not complied with the terms of the Donation Act, under which his patent was issued, it was void as against the prior patent issued to the city of Portland, under the act of 1844, at a time when the latter act was in force. This leads to the question of fact in the case. Our right in an equity proceeding, to go behind the patent and make the inquiry, is settled by numerous cases, especially by Garland v. Wynn,  and Lindsey v. Hawes. 
[The counsel then argued the point of fact on the evidence; a matter, however, which the court did not reach in its opn ion, the case being decided on the other ground.]
Mr. Justice FIELD delivered the opinion of the court.
^1 9 Stat. at Large, 323.
^2 9 Id. 496.
^3 § 10; 5 Stat. at Large, 455.
^4 5 Id. 657.
^5 Burgess v. Gray, 16 Howard, 65; Wilcox v. Jackson, 13 Peters, 511; Miller v. Kerr, 7 Wheaton, 1; Patterson v. Winn, 11 Id. 384; Polk's Lessee v. Wendell, 9 Cranch, 99; Bodley v. Taylor, 5 Id. 191; Easton v. Salisbury, 21 Howard, 426.
^6 20 Howard 6.
^7 2 Black, 554; and see State of Minnesota v. Bachelder, 1 Wallace, 111 115.