Brazee v. Schofield

• Citation: 8 S.Ct. 604,31 L.Ed. 484,124 U.S. 495
• Parties: BRAZEE v. SCHOFIELD et al. 1
• Decision Date: 30 January 1888
• Court: U.S. Supreme Court

124 U.S. 495

8 S.Ct. 604

31 L.Ed. 484

BRAZEE v. SCHOFIELD et al.¹

January 30, 1888.

Leander Holmes, for appellant.

Rufus Mallory, for appellees.

FIELD, J.

This case comes before us on appeal from the supreme court of the territory of Washington. The action was brought by the plaintiff below, who is appellant here, for the possession of a tract of land in Clarke county, in that territory, containing about 35 acres, more or less, or which he alleges that he is the owner and entitled to the possession, but which the defendants wrongfully withhold from him, and have done so for the last six years, and of which they have during that time appropriated the rents and profits. The plaintiff, in support of his alleged title to the premises, relies upon conveyances thereof from the heirs of Amos M. Short, in whose name and that of Esther Short, his wife, a patent of the United States was issued on the thirteenth of October, 1877, for a tract of land embracing the premises, in supposed compliance with the act of congress of September 27, 1850, for the protection of settlers in the territory of Oregon. The defendants assert title to the premises through a conveyance thereof of an earlier date by the guardian of one of the said heirs, made under the direction of the probate court of the county after partition had been had between the heirs of their respective interests.

It appears that on the eighth of March, 1848, Amos M. Short, and Esther Short, his wife, settled upon a tract of land in the present county of Clarke and territory of Washington, then constituting part of the territory of Oregon, claiming the same under the laws of the provisional government of the country, which the inhabitants had established as early as 1845. By those laws each settler was entitled to 640 acres, upon complying with certain conditions as to their improvement. On the fourteenth of August, 1848, congress passed an act establishing a government for the territory. 9 St. 323. The fourteenth section recognized and continued in force the laws of the provisional government so far as the same were not incompatible with the constitution of the United States, and the principles and provisions of the act, but all laws making grants of land, or otherwise affecting or incumbering the title to lands, were declared to be void. Afterwards, on September 27, 1850, congress passed an act commonly called the donation act of Oregon, by which the substantial benefits of the laws of the provisional government in the acquisition of titles to lands were secured to settlers. It is entitled 'An act to create the office of surveyor general of the public lands in Oregon, and to provide for the survey and to make donations to settlers of the said public lands.' 9 St. 496. By the fourth section of this act, a grant of land was made to every white settler or occupant of the public lands in Oregon above the age of eighteen years, who was a citizen of the United States, or had made a declaration according to law of his intention to become a citizen, or who should make such declaration on or before the first day of December, 1851, and who was at that time a resident of the territory, or might become a resident before December 1, 1850, and who should reside upon and cultivate the same for four consecutive years, and otherwise conform to the provisions of the act. The grant was of 320 acres of land if the settler was a single man; but if a married man, or if he should become married within one year from the first day of December, 1850, then it was of 640 acres, one-half to himself, and the other half to his wife, to be held by her in her own right, the surveyor general to designate the part inuring to the husband and that to the wife, and enter the same on the records of his office. The section further provided that in all cases where such married persons had complied with the provisions of the act, so as to entitle them to the grant, whether under the late provisional government of Oregon or since, and either should die before the patent was issued, the survivor, and children or heirs of the deceased, should be entitled to his share or interest in equal proportions, except where should otherwise dispose of it by will. By the sixth section the settler was, within three months after survey of the land, or where the survey had been made before the settlement commenced, then within three months from its commencement, to notify the surveyor general of the United States for the territory of the precise tract claimed by him under the act. By the seventh section he was, within twelve months after the survey, or where the survey had been made before the settlement, within that period after its commencement, to prove to the satisfaction of the surveyor general, or of such other officer as might be appointed for that purpose, that the settlement and cultivation required had been commenced, specifying the time of the commencement; and after the expiration of four years from the date of such settlement, whether made under the laws of the provisional government or not, to prove in like manner by two disinterested witnesses the continued residence and cultivation required by the fourth section. Such proof being made, the surveyor general, or other officer appointed for that purpose, was to issue a certificate, setting forth the facts and specifying the land to which the party was entitled, and to return the proof thus taken to t e commissioner of the general land-office, and, if he found no valid objection thereto, a patent was to issue for the land according to the certificate, upon its surrender.

By an act passed on the fourteenth of February, 1853, the donation act was amended, (10 St. c. 69, p. 158,) extending the provisions of the original act to the first of December, 1855, and requiring any person entitled to the benefit of the fourth section of that act, who was a resident in the territory on or prior to December 1, 1850, to file with the surveyor general of the territory, in advance of the time when the public surveys should be extended over the particular land claimed by him, if such surveys had not been previously made, a notice setting forth his claim to the benefits of that section.

The four-years residence and cultivation required of Amos M. Short by the donation act were completed on the eighth of March, 1852. On the ninth of January, 1853, he died intestate, leaving his widow and 10 children surviving him. Letters of administration on his estate were issued to her by the probate court of Clarke county, and she was appointed guardian of the minor children. Subsequently she surrendered her letters of administration, and one S. Burlingame was appointed administrator in her place, she continuing guardian of the minor children, with the exception of one of them, Alfred D. Short, of whom another was appointed guardian. On the fourth of October, 1853, assuming to follow the amendatory act of February 14, 1853, she filed with the surveyor general of the territory the notice in writing required by that act, showing that her deceased husband, by his residence upon and cultivation of the land, had complied with the provisions of the donation act, and as such was entitled to its benefit. On the twenty-sixth of May, 1860, the map of the survey of public lands, including the donation and claim, was approved by the surveyor general, and on the nineteenth of June following the final proof of settlement, residence upon, and cultivation of the land was made, and on the thirty-first of July, 1874, the donation...