CORPORATION OF CATHOLIC BISHOP OF NESQUALLY
ing no law in this state by which such companies are taxed." Will any one seriously contend that before the passage of this act railroad companies could have successfully resisted the payment of taxes because express companies were not taxed, or that they can now do so because the method of taxation is different? If the rule contended for· by the plaintiff is sound, it must be reciprocal, al.d, if express companies are not liable for the tax because they are not dassified for taxation with railroad companies, and taxed in the same manner, then the railroad companies can object to paying taxes because they are not classified with express companies and taxed by the same method. For purposes of taxation they have no relation to each other, and the method of taxing them may be as widely different as the legislature in its wisdom chooses to make it. The demurrer to the bill is sustained, the temporary injunction dissolved, and the bill dismissed for want of equity.
CORPORATION OF THE CATHOLIC BISHOP OF NESQUALLY (UNITED STATES, Intervenor.)
(Owcuit Oowrt, D. Washtngton, W. D.
GIBBON et al.,
November 8, 1890.)
PtmLIC LANDS-ORGANIC ACT OF OREGON-MISSIONARY STATIONS.
The proviso In the organic act of Oregon territory, confirming titles to the land not exceeding 640 acres then occnpied 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 Oompany 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. (Syllabus by the Oourt.)
In Equity. Whalley, Bronaugh &: Northrup, for plaintiff. P. H. Winston, U. S. Atty., P. a. 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 cODJlidering 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. v.44F.no.5-21
In the case of U.S. v. Jones, 131.V. S. 1, 9 Sup. Ct. Rep. 669, deyided since commenced, the supreme court held,in effect, that a personhl1ving an unquestionable right to a conveyance of title to land: from the government, and wrongfully deprived of it, cannot maintain a suit to C9mpel.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 courtsiQ form of proceeding. And, as this does not come within anY k.nown exception to the general rule that an illjunction to restrain waste by a party in possession, and claiming title adversely to the pl*,intitf, will not be granted, if it had been submitted to me on a demurrer to the complaint, I should probably have held plaintiff could :J;lot obtain either form of relief. A preliminary question as to the of the plaintiff to the ijuit has also been raised legal 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 conrt. ". .'. . The land claimed by plaintiff was, with other land adjoining and surrounding it, occupied by the Hmlson'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 busmess, 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 nowknowlJli as "St. Paul;" in the Willamette valley. At Vancouver they also esta.blishedl 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 thatoompany, and maintained Ii. station there continuously until and subsequent to August 14, 1848. During these years the first twow;ho came were reinforced by other priests, and, except during one or two short intervals, one of the priests resided at Vancouver, and religious and. administered the sacraments, ing to thQi,ntes of his church, among such· of the officers and servants of thQc/?1llpany as Wiere olthe ()atholicJaith, and their 1innilies, and such
CORPORATION OF CATHOLIC BISHOP OF NESQt)ALLY 'IJ. GIBBON.
Indians as were sojourning there or came for religious instruction. In of the services of the priests among its servants and 'their families, the Hudson's Bay Company contributed Ii regular stipend of 8500 per annum for support of the mission, and furnished the resident priest a house to live in, and board .:lr 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 appropriati6rtof the territory sonth of the forty-ninth parallel of north latitUde, as provided in the first article of this treaty, the possessory of the Hudson's Bay Company, and of all British subjects who may in the occupation of the land, or other property lawfully acquired, within the said territory, shall be respected." The law upon which the plaintiff's claim to the land is founded is contained in a proviso to the first seetion of the organic act of Oregon territory, entitled "An act to establish the territorial government of Oregon," approved August 14, 1848, (9 U. S. St. 323,) and reads as follows: .. That the title to the land, not exceeding 640 acres, now occupied as missionary stations among the Indian tribes in said territory, together with the improvements thereon, he confirmed and established in the several religious societies to which said missionary stations respectively belong." In May, 1849, Maj. Hathaway, of the United States army, with a company of soldiers, arrived at Vancouver, and he at once rented buildings for quarters from the Hudson's Bay Company, including part orthe building used as the Catholic church, and, with the consent of said company, established a military camp upon the land now in dispute. A camp and garrison for the United States troops has been continously, from that time to the present, maintained thpre, and, except n small portion thereof, all of said land hafl been occupied and used for that purpose. In October, 1850, C<.ol. Loring, U. S. A., the commanding officer of the United States troops at Vancouver, issued a proclamation creating a military reservation for use of the government of the United States, four miles square, with defined boundaries, including this land now claimed by the Catholic Church, and declaring said reservation to be subject only to the temporary possessory rights of the Hudson's Bay Company, guarantied by treaty; and also giving public notice that all improvements within the limits of the reservation would be appraised, and payment therefor recommended. May 16, 1853, the Catholic Church, for the first time, asserted its claim to this land by filing a notice thereof with the surveyor general of Oregon territory, in which notice the boundaries of the 640 acres claimed were attempted to be defined. On the 28thdny of the same month, and again on December31, 1853, amended notices were filed for the purpose of changing the boundanes. ber 8, 1854, the commanding officer at Vancouver, Col. Bonneville, pursuant to instructions from the secretary of war, and in conformity to an act of congress, approved February 14, 1853, limiting the extent of military reservations to 640 acres, by a general .order reduced the
reservation to that extent, and caused the same to be surveyed and the new boundaries to. be marked; and about the same time caused the buildings, and the improvements on the reservation, including the Catholic church, to be appraised by a board of military officers. After the extinguishment of the Hudson's Bay Company's possessory right to the land, by limitation of time, in 1859, upoIYapplication made · in behalf of the Catholic Church, the commissioner of the general landoffice directed the surveyor general of Washington territory to survey the land claimed as a missionary station. Thereupon protests against the allowancfl of the mission claim, and divers adverse claims to the same land, were filed, and the commissioner of the general land-office then ordered the surveyor general to investigate the matter fully, and make a special report, which was done, that officer assuming the power to adjudicate and determine the questions, both of fact and law, involved; and he, decided in favor of the validity of the mission claim. This decision was reversed by the commissioner of the general land-office. An appeal was then taken to the secretary of the interior, and the final decision of the matter in the department of the interior was rendered by the secretary, March 11, 1872, allowing the claim, and authorizing the issuance of a patent for a small piece of land, less than half an acre in extent, upon which the building used as a church was situated, and rejecting it as to every other part of the land claimed. On the 15th of' January, 1878, the president approved a final survey and plat of the military reservation, and confirmed the previous action of the war department, and declared said reservation to be duly set apart for military purposes. The government has purchased from the Hudson's Bay Company, and paid it for all the buildings and improvements of a permanent character which said company erected or made upon the land, including the Catholic church. And, prior to the commencement of this suit, everything necessary to constitute this land a government reserve for military purposes was formally and completely done. In the argument counsel for the plaintiff' has insisted that the decision of the secretary of the interior is conclusive as to the facts in the case. I think, however, that, as congress has not conferred any authority upon the department to take proofs or decide any question concerning the grants made for missionary stations by the statute above cited, the court is not bound by said decision, and it must find the facts, in an independent way, from the testimony given upon the trial and the exhibits introduced. It is assumed in the brief and argument of counsel for the plaintiff . that the question of chief importance in the case is whether there was a station upon this land on the 14th day of August, 1848. ADd tbe contention is that if a missionary station existed there em that day, then, by the said act of congress, a right to the full quantity of 640 acres passed to and became vested in the society which the plaintiff represents, subject only to the incumbrance of the Hudson's Bay Company's temporary right ·of possession. This assumption is based upon the supposition that congress intended by this act to make
CORPORATION OF CATHOLIC BISHOP OF NESQUALLY V.
a grant of part of the public domain as a mere gift or contribution from the nation to the cause of religion; or, if not as a gift purely, then, as a. grant in consideration of the good done by missionaries among the Indian tribes of Oregon. I am convinced, however, that the purpose of the act was not to make a gift, nor to reward meritorious efforts in the missionary service, but rather to recognize the just claims of a few people, who had incidentally, in connection with missionary labor, by their toil created property, whereby the material interests of the nation were affected and greatly benefited, and to protect their natural rights to the property so created by confirming to them the legal title thereto. It is to be presumed that in legislating for Oregon, congress was influenced by existing facts which were then generally well known. It was a fact .well known, at the time of the passage of this statute, that missionary had been established and were then maintained among the Indian tribes at several places in Oregon territory by different denominations of ChriSt tians; that said missionary stations occupied land upon which they had erected dwelling-houses, school-houses, churches, barns, and mills, and, in connection therewith, gardens and fields were cultivated, all of which were necessary to the success of the missions, and for the support and comfort of the missionaries and their families. The missionaries were mostly loyal citizens of the United States; they were the pioneers of immigration j they aided in establishing the provisional government of" Oregon; and they were helpers in securing this country for this nation. Failure or neglect on the part of the government to make good the titles of the first American inhabitants of the country to the land, made valuable by their labor, would have been base ingratitude. To do what congress did-that is, confirm to the several societies the titles to the land occupied by their respective missionary stations, with the ments thereon made by their servants, the missionaries-was simply justice. In this view of the matter the appropriateness of the somewhat peculiM phraseology of the statute becomes apparent. The form of conveying title by confirming instead of granting the same harmonizes with the idea of a pre-existing equitable right, and an already acquired possession; the word "occupied"-a synonym for possessed, covered, filled -is an appropriate word to use for the purpose of identifying land in actual possession and use. The seemingly vague and loose expression, "religious ,societies," applicable as well to Jewish, Mormon, or Buddhist as to Christian organizations, which in the act serves to designate the grantees, can be very well understood, and becomes definite, when it is considered that at that time the missionary stations were prominent points in Oregon territory. Their existence and occupancy of land was so well known that the taking of proof to establish these facts must have been regarded by congress as a work of supererogation. The entire frame of the act clearly indicates that congress intended to grant specific lands to certain well-known institutions. These considerations make it necessary to give the word "occupied" its full force and meaning, and excludes the idea that the occupancy of a tenant or guest, or any occupancy in subserviency to the right of another, could suffice to support a claim
toa grant: under this statute. As the Catholic missionaries did not im'prove the land claimed in this suit, nor occupy it, except by permission from and in subordination to the Hudson's Bay' Company, it is impossible for me to conclude that congress intended to or did the valuable buildings andimprovements on this land whichthatcompany owned to the church, a conclusion not to be escaped from if the land covered by those improvements was granted. The supreme court of the United States, in the .case of Society v. Dalles, 107 U. S. 336,2 Sup. Ct. Rep. 672, construed this act as a grant of only the land actually occupied as a station among the Indian tribes. Another view that may be taken of the case is this: If the act is not to be regarded as a grl)nt of specific land, capable of being identified by the description the act, then it must be a floating grunt, and a grantee under it could acquire no vested right to any particular tract until a selection had been made, and the boundaries of the granted premises ascertained and established. No steps tending towards this end were taken until after the land now claimed had been appropriated and duly set apart for governmental use. It was then too late. The rights of the United States to this land as a miiitary reservation are older, and for that reason, if for no other, superior in equity to the claim of the plaintiff. Findings may be prepared in accordance with this opinion, and a decree will be entered .in' favor of the defendants.
(Oilrcu/tt Oourt, D. 0010'1'000. December 20, 1890.)
AO'rIONS ON CONTRACT-PLEADING-COMPLAINT.
A written contract provided that in consideration of $800. as well as for the services rendered, S. agreed to pay plaintiff a commission of 10 per centum of the cash that might be received for a certain mine, on a sale thereof, and also to deliver to plaintiff "all certificates of shares of stock that may be received in payment for the said * * * mine, over and above the amount of such shares at the price at which I may aceept the same as will make the net price received by me for the said mine In an action against S. and other persons, the complaint alleged that the mine had been sold by S. for $200,000 in cash, and $800,000 in stock, and averred thatplainti!! was entitled to recover from defendants his proportion of both cash and stocks. The complaint showed that the consideration from plaintiff for the contract was about $1,llOO, but did not set forth any of the negotiations or the understanding of the parties as to the agreement. that a demurrer to the complaint would be sustained, a8 the meaning of the agreement did not su1llciently appear.
At Law. Ruling on demurrer. T. A. GrefJn, for plaintiff. Willard TeUer, for defendants.
HALLET'i', J., (oraUy.) William B. Sipes brought suit against;J. Fenton' Seymour, Ellen R. Seymour, and William G. Pell, on a contract whi'ch I will read: