Altschul v. State

• Decision Date: 20 October 1914
• Parties: ALTSCHUL v. STATE.
• Court: Oregon Supreme Court

144 P. 124

72 Or. 591

ALTSCHUL v. STATE.

Supreme Court of Oregon

October 20, 1914

Department 2.

Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge.

Suit by Charles Altschul against the State. From a decree for plaintiff, defendant appeals. Reversed, and suit dismissed.

This is a suit to determine an adverse claim to real property. The circuit court overruled a general demurrer to the complaint and as the defendant declined to plead further, entered a final decree according to the prayer of the complaint, to the effect that the state has no beneficial interest in the lands in question, requiring the state land board to convey to the plaintiff all the state's right, title, interest, and estate in the premises, with the condition that in the event such conveyance should not be executed the decree should stand in place thereof, and finally enjoined the state from asserting any claim to the premises adverse to the plaintiff. From this decree the defendant has appealed.

James W. Crawford, of Salem (A. M. Crawford, Atty. Gen on the brief), for the State. C. E. S. Wood and Walter Asher both of Portland, for respondent.

BURNETT J. (after stating the facts as above).

By Act Cong. July 5, 1866, c. 174, found in 14 U.S. St. at Large, p 89, it was enacted:

"That there be, and hereby is, granted to the state of Oregon, to aid in the construction of a military wagon road from Albany, Oregon, by way of Canyon City, and the most feasible pass in Cascade Range of mountains, to the eastern boundary of the state alternate sections of public lands, designated by odd numbers, three sections per mile to be selected within six miles of said road."

In section 2 of that enactment it is stated:

"That the said lands hereby granted to said state shall be disposed of by the Legislature thereof for the purpose aforesaid, and for no other."

By the act of October 24, 1866 (L. 1866, pp. 58, 60), the legislative assembly of the state of Oregon recited in full the act of Congress to which allusion has been made, and proceeded to enact the following:

"That there is hereby granted to the Willamette Valley and Cascade Mountain Wagon Road Company, all lands, right of way, rights, privileges and immunities heretofore granted or pledged to this state by the act of Congress, in this act heretofore recited, for the purpose of aiding said company in constructing the road mentioned and described in said act of Congress, upon the conditions and limitations therein prescribed. There is also hereby granted and pledged to said company all moneys, lands, rights, privileges and immunities which may be hereafter granted to this state to aid in the construction of such road for the purposes and upon the conditions and limitations mentioned in said act of Congress, or which may be mentioned in any further grants of money or lands to aid in constructing such road."

Still further, by Act June 18, 1874, c. 308, found in part 3, 18 U.S. St. at Large, p. 80, Congress, declaring by preamble that certain lands had been granted to the state of Oregon to aid in the construction of military wagon roads in said state, and that there existed no law providing for the issuing of formal patents for said lands, enacted:

"That in all cases when the roads in aid of the construction of which said lands were granted are shown by the certificate of the Governor of the state of Oregon, as in said acts provided, to have been constructed and completed, patents for said lands shall issue in due form to the state of Oregon as fast as the same shall, under said grants, be selected and certified, unless the state of Oregon shall by public act have transferred its interests in said lands to any corporation or corporations, in which case the patents shall issue from the General Land Office to such corporation or corporations upon their payment of the necessary expenses thereof."

The complaint avers, in substance, that the plaintiff is the successor in interest of the grantee of the state under the act of October 24, 1866; that in compliance with and in fulfillment of the provisions of the grant the United States government had issued 23 patents conveying, as the realty comprising said grant, a large amount of land; that all except the first of these patents were issued direct to the grantee of the state under the act mentioned, but that by some clerical error the first one was issued to the state of Oregon for the use and benefit of the "Willamette Valley and Cascade Mountain Military Road Company of said state and its assigns." Under this condition of affairs the legislative assembly of the state of Oregon passed the act of February 28, 1913, which in a lengthy preamble narrated the history of the lands substantially as here set down, and enacted a law as follows:

"Leave is hereby given to Charles Altschul, his heirs, personal representatives, successors in interest or assigns, to institute and prosecute to conclusion a suit in equity against the state of Oregon, to determine the interest of said state in the lands covered by and described in said patent of the United States to the state of Oregon, dated June 19, 1876, and executed under the great seal of the United States by the President, U.S. Grant, by D. D. Cone, Secretary. Such suit shall be instituted in the circuit court of the state of Oregon for the county of Multnomah; and such parties may be joined therein and such issues of law and of fact raised and adjudicated as may be necessary for a complete determination of the title of said

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