Corporation of the Catholic Bishop of Nesqually v. Gibbon

• Decision Date: 03 November 1890
• Parties: CORPORATION OF THE CATHOLIC BISHOP OF NESQUALLY v. GIBBON et al., (UNITED STATES, Intervenor.)
• Court: United States Circuit Court, District of Washington

44 F. 321

CORPORATION OF THE CATHOLIC BISHOP OF NESQUALLY v. GIBBON et al., (UNITED STATES, Intervenor.)

United States Circuit Court, D. Washington, Western Division.

November 3, 1890

Syllabus by the Court

The proviso in the organic act of Oregon territory, confirming titles to the land not exceeding 640 acres then occupied as missionary stations among the Indian tribes, in the religious societies to which said missionary stations respectively belonged, must be construed as a grant of only the specific lands which were at the date of the act so occupied exclusively, and not in subserviency to another's right.

The land in possession of the Hudson's Bay Company at the date of said act, and to which said company had a legal possessory right for a definite period, was not granted by said act, although priests of the Roman Catholic Church, by permission of said company, then had and maintained a missionary station thereon.

Whalley Bronaugh & Northrup, for plaintiff.

P. H Winston, U.S. Atty., P. C. Sullivan, Asst. U.S. Atty., and W H. White, for defendants and intervenor.

HANFORD J.

The plaintiff, in behalf of the Roman Catholic Church, which he represents, seeks, by this suit, primarily to try the title to a tract of 430 acres of land in possession of the United States government, and occupied as a military reservation at Vancouver, in this state, and to obtain a declaratory judgment in his favor as the equitable owner, in trust for the church, of said property; and, incidentally, to obtain an injunction to prevent the commission of waste upon the premises. I wish to have it understood that in considering the merits of the plaintiff's claim I have not overlooked the very important question as to the power of the court in this suit to grant any part of the relief prayed for.

In the case of U.S. v. Jones, 131 U.S. 1, 9 S.Ct. 669, decided since this case was commenced, the supreme court held, in effect, that a person having an unquestionable right to a conveyance of title to land from the government, and wrongfully deprived of it, cannot maintain a suit to compel such a conveyance. I think that, under existing laws, a disputed claim of a mere right to have a conveyance of title from the United States cannot, consistently with that decision, be litigated in the courts in any form of proceeding. And, as this case does not come within any known exception to the general rule that an injunction to restrain waste by a party in possession, and claiming title adversely to the plaintiff, will not be granted, if it had been submitted to me on a demurrer to the complaint, I should probably have held that the plaintiff could not obtain either form of relief. A preliminary question as to the legal capacity of the plaintiff to maintain the suit has also been raised by counsel; but, as much time and labor has been spent in taking testimony, and in the argument on the merits, I have determined to pass by these questions and rest my decision on the facts and the law affecting the validity of the claim of the Catholic Church to this land. I do so in order that on appeal the whole case can be at once taken to the supreme court.

The land claimed by plaintiff was, with other land adjoining and surrounding it, occupied by the Hudson's Bay Company as a site for a fort, trading post, and farm, and was the metropolitan establishment of that company on the Pacific coast from about the year 1825 until it was occupied by United States troops in May, 1849. In so occupying the land, and in carrying on its trading business, the company was operating under a charter and license from the sovereign of England. The license to trade with the Indians west of the Rocky mountains, including the right to occupy said premises, was granted to the company in 1838, and was for a definite period of 21 years, and expired May 30, 1859. In the year 1838, two priests of the Roman Catholic Church came to Vancouver, under commission from the bishop of Quebec, to perform the duties of priests generally, and to serve as missionaries among the Indian inhabitants of the region. Their superior, the bishop of Quebec, instructed them to establish their principal residence at some point on the Cowlitz river, and they did so, taking possession of land for the purpose which was theretofore unoccupied, except by the Indians. They also established a missionary station upon unoccupied land at a place now known as 'St. Paul,' in the Willamette valley. At Vancouver they also established a missionary station, with the consent of the Hudson's Bay Company, upon the land now claimed, which, as before stated, was then occupied by that company, and maintained a station there continuously until and subsequent to August 14, 1848. During these years the first two who came were reinforced by other priests, and, except during one or two short intervals, one of the priests resided at Vancouver, and there held religious services, and administered the sacraments, according to the rites of his church, among such of the officers and servants of the company as were of the Catholic faith, and their families, and such Indians as were sojourning there or came for religious instruction. In consideration of the services of the priests among its servants and their families, the Hudson's Bay Company contributed a regular stipend of $500 per annum for support of the mission, and furnished the resident priest a house to live in, and board or rations, and also provided a building for use as a chapel. In the treaty of 1846 between the United States and Great Britain, the Hudson's Bay Company's possessory right to the land for the unexpired part of said period of 21 years was recognized and guarantied by the following clause in the third article:

'In the future appropriation of the territory south of the forty-ninth parallel of north latitude, as provided in the first article of this treaty, the possessory rights of the Hudson's

...