Altschul v. State

• Court: Supreme Court of Oregon
• Writing for the Court: BURNETT, J. (after stating the facts as above).
• Citation: 144 P. 124,72 Or. 591
• Decision Date: 20 October 1914
• Parties: ALTSCHUL v. STATE.

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.

[72 Or. 593] 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 [72 Or. 594] 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

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