
    JOHNSON’S CASE. George W. Johnson v. The United States.
    
      On the Proofs.
    
    
      A settler occupies and cultivates a half section of the public lands at the Cascades of the Columbia . under the “ Oregon donation act.” Aftai' the four years of continuous occupation required by the act, but before he has made proof of the same, the tract is forcibly taken and occupied by military forces of the defendants, A fort is built, but no military reservation is made by the President. The claimant loses his interest in a transportation business, from which he would since have received $200,000, and also loses a large prospective ino'ease in the value of the tract. He offers evidence of arbitrary acts unnecessarily done by a commanding officer, and he seeks to recover the value of the transportation business destroyed and for the depreciation in the property, as well as for its occupation..
    
    I. Under the “ Oregon donation act/' and acts amendatory, (9 Stat. L., p. 496; 10 Id,, 158; 10 Id., 305,) four years* residence and cultivation confer an estate heritable and alienable, ■which cannot be defeated for want of a patent The purpose and intent of the acts are identical with those of the pre-emption acts, and they come within the principle laid down by the Supreme Court in The United States v. Fitzgerald, 15 Peters R., 407.
    Hence the “ military reservation ” contemplated by the “donation act” must be designated by the President before a settler’s rights have accrued, or the government will be liable for the property taken, and not for the mere improvements of the settler.
    II. A military occupation without the knowledge of the President or Secretary of War is not a reservation of public lands in Oregon within the meaning of the “Oregon donation act,” (9 StatL., p. 496.)
    HI. Orders and correspondence of the Secretary of War subsequent to the bringing of an action, are irrelevant evidence. The claimant’s case once instituted cannot be defeated by any subsequent act of the defendants or their officers.
    IV. After the defendants by their surveyor general and other officers have recognized the claimant as a lawful settler, and have received the consideration required by law for a grant, it is too lato for their solicitor to interpose the objection that his settlement was an intrusion and purpresture.
    V. The government is never guilty of tort nor liable for the tortious or unnecessarily arbitrary acts of its officers; nor are such acts an aggravation of damages in an action against the' government.
    VI. The rule for the measure of damages for the temporary occupation of lands by the government is the value of such temporary occupancy at the time of entry, as though the claimant had leased and the government had rented the premises, regard being paid to the nature of the occupancy and to the fact that the government has the option of discontinuing the implied tenancy on any day or of continuing it indefinitely.
    Mr. F. P. Stanton and Mr. B. F. Butler for the claimant:
    The petitioner claims 320 acres of land at the Cascades of the Columbia river, Skamania county, Washington Territory, under the act of Congress approved September 27, 1850.
    The petitioner settled on the land in question in the year 1850, continued to reside upon and cultivate the same for four consecutive years, and otherwise performed every condition required by the act aforesaid in order to become entitled to a grant for the said land.
    In April, 1856, before the lands in Skamania county had been surveyed and before any steps could possibly have been taken by the petitioner to secure his patent under the law aforesaid, the military authorities of the United States took possession of the said land, with the buildings and improvements of the claimant, and forcibly expelled him therefrom. From that time to the present day the land of the petitioner has been held by the government as a military post, and the claimant has been deprived of the use and enjoyment of his property. The petitioner claims compensation for the use of his property by the government, and for his losses caused by breaking up his business and by the depreciation of the value of his property. In his amended petition he also asks the court, if it have the power and jurisdiction, to decree the title to him, or to report a bill to Congress for that purpose, or to grant other suitable relief in the premises.
    The fourth section of the act of September 27, 1850, (9 Stat. L., p. 497,) enacts:
    “That there shall be, and hereby is, granted to every white settler or occupant of the public lands, American half-bred Indians included, above the age of eighteen years, being a citizen of the United States, &c., now residing in said Territory, or who shall become a resident thereof on or before the first day of December, eighteen hundred and fifty, and who shall have resided upon and'cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act, the quantity of one-half section or three hundred and twenty acres of land, if a single man,” &c., &c.
    The seventh section of the law, after specifying the proof to be made by “each person claiming a donation right,” goes to provide for the completion of the title in the following words : “ and upon such proof being made, the surveyor general or other officer appointed by law for that purpose, shall issue certificates under such rules and regulations as may be prescribed by the Commissioner of the General Land Office, setting forth the facts in the case, and specifying the land to which the parties are entitled. And the surveyor general shall return the proof so taken to the office of the Commissioner of the General Land Office, and if the said Commissioner shall find no valid objection thereto, patents' shall issue for the land according to the certificates aforesaid, upon the surrender thereof.”
    The proofs made by the claimant will be found full and complete in every particular, according to the requirements of the act.
    On the 9th and 19th pages of the record will be found the certificate of the register and receiver, usually denominated “ the patent certificate,” as provided for in the 7th section of the act of 1850, as above quoted. It is to be observed that the act of July 17, 1854, (10 Stat. L., p. 305-’6,) in its 6th section, provides for the appointment of the register and receiver to take the place of the surveyor general in the performance of the functions properly belonging to such officers.
    The giving of this certificate by the register and receiver was, in effect, a judicial act. It was the judgment of a special tribunal appointed by law for that purpose. This principle is fully established by the decision of the Supreme Court in the case of Lytle v. The State of Arkansas, (9 How., 333.)
    In these donation claims, however, something in the nature of an appeal was given, for the law provides that the proofs shall be returned to the Commissioner of the General Land Office, and “ jf the said Commissioner shall find no valid objection thereto, patents shall issue for the land according to the certificates aforesaid, upon the surrender thereof.” Evidently this revisory power of the Commissioner was to be exercised in a legal and rational manner — not arbitrarily. This function was judicial, and by the act his decision is made final, for there is no appeal to the Secretary of the Interior.
    How, in this case, the Commissioner of the General Land'Office has pronounced his judgment on the certificate of the register and receiver. He has found no valid objection, nór any other objection, to the certificate. The letter of the Commissioner, dated January 29, 1862, addressed to the Secretary of the Interior, says : “ Johnson’s donation proofs, with the plot of survey of his claim certified by the surveyor general, are found to be regular and satisfactory as to his donation right, and are herewith enclosed.”
    Thus stands the case of the petitioner as to his right under the law. He has fully complied with its terms. He has received his patent certificate, and the Commissioner has found no valid objection to it, or to the proof on which it was founded.
    But the solicitor thinks he finds in the 14th and last section of the act of 1850, some grounds for invalidating the rights of the petitioner as established by the foregoing facts. That section provides that “ such portion of the public lands as may he designated under the authority of the President for forts, magazines, arsenals, &c., shall be reserved and excepted from the operation of this act: Provided, That if it shall be deemed necessary, in the judgment of the President, to include in such reservation the improvements of any settler made previous to the passage of this act, it shall in such case be the duty of the Secretary of War to cause the value of such improvements to be ascertained, and the amount so ascertained shall be paid to the party entitled thereto out of any money not otherwise appropriated.”
    It is apparent that this provision of the law was intended to operate only so long as the conditions of the grant might might remain unfulfilled by the settler. It certainly could not have been designed to take the land from him after he had -done everything required by the act to complete his title. So soon as he had performed his part of the contract and become entitled to a patent, by four years’ residence and cultivation, the land was his, and the government could not take it from him without full compensation for its whole value. The 8th section of the act makes this construction very plain. That section provides that on the death of the settler before the expiration of the four years, his rights shall descend, in equal parts, to his heirs and his widow, and it further stipulates that “ proof of compliance with the conditions of this act up to the time of the death of such settler shall be sufficient to entitle them to the patent.”
    The amendatory act of February 14, 1853, (10 Stat. L., p. 158,) authorizes the settler who has lived on the land for two years to purchase the land at one dollar and a quarter per acre, in lieu of continuing thereon for the remaining two years. The subsequent act of July 17, 1864, (page 305,) reduces the term of residence to one year, after which the settler might substitute payment for his continued residence. The second section of this last-mentioned act authorizes the settler to sell the land before the issue of the patents therefor, “ Provided, No sale shall be considered valid, unless the vendor shall have resided four years upon the land.” This settles the question beyond a doubt ; for if Johnson could have sold the land, he must certainly have been invested with the full ownership.
    The solicitor gives us notice that he will insist upon the second article of the treaty with Great Britain, ratified July 17, 1846, as rendering the land in dispute not subject to private occupation and ownership. That treaty merely provides that the navigation of the Columbia river shall be free and open to the Hudson Bay Company and to all British subjects trading with the same, and that all the usual portages along the line thus described shall, in-like manner, be free and open. This gives merely a right of way, a bare easement for certain purposes, which does not at all interfere with the title of the land.
    The right of the claimant being thus placed beyond all dispute, it remains only to show what he is entitled to receive from the government for the occupation of his land and the ruin of his business. The Constitution forbids that he should be deprived of his property, “ without due process of law.” It also provides that he shall receive “ a just compensation and if there was any real respect for the supreme law of the land, he might well have expected that Congress, in a case involving more than twenty dollars, would have arranged to give him the benefit of a trial by jury. Vanhornés Lessee v. Dor-rance, 2 Dallas, 310 to 314.
    The military authorities took possession of the claimant’s land in 1850, nearly ten years ago. They have held it ever since, and no compensation whatever has been made to him for any part of the severe losses consequent upon his being deprived of his home and his whole property. A pioneer in that distant region, he had struggled through the difficulties of a settlement in a wilderness among the Indians ; he had begun to see the stream of a mighty emigration flowing along by his very door, and he had already built up a large and profitable business, daily increasing, when suddenly all his great opportunities and brilliant prospects were swept away by the inexorable hand of military power.
    The land in dispute is located at the foot of the Cascades, on the north side of the Columbia river. It is described in the testimony as a beautiful bench, between the river and the Cascade mountains, fully commanding the narrow pass through which all the travel and trade of that region is compelled to go. The mountains here constitute a vast barrrier between the country on the Pacific and the golden interior. For several hundred miles above and below this point there is no practicable route through the mountains, except where the Columbia river has forced its way to the ocean.
    The testimony shows that from the nature of the adjacent lands and mountains, and from the character of the river, this was a suitable place for a commercial town of great importance. It was at the head of navigation on the lower Columbia; it had an excellent landing, where vessels from the ocean could discharge their cargoes at all seasons of the year; and on account of the rapids, it was a necessity that all merchandise should be unloaded near this point and transported overland through the pass. Prior to the seizure of this property by the military authorities, in 1856, and immediately after the event, there was considerable demand for portions of it for building purposes. Large sums were offered for lots, and there was every indication that a flourishing town would have been established, if the land had not been appropriated by tile government.
    At a former stage of this cause, before any testimony had been taken by the claimant, we moved the court in his behalf, to admit as testimony Executive Document No. 26, of the second session 37th Congress. On the 11th February, 1861, the House of Representatives passed the resolution requesting “ the Secretary of the Interior to direct the surveyor general of Washington Territory to ascertain the amount of damages suffered by George W. Johnson, the claimant, in consequence of the occupation of his lands in that Territory by the War Department, and report the same to this House, with all the testimony on the subject.” The surveyor general’s report is dated the 9th of September, 1861, and estimates “ the damages sustained by the claimant by the occupation of his donation claim, at the Cascades, at one hundred and twenty thousand dollars.”
    The Commitee of Claims of the House of Representatives, on the 23d January, 1863, reported a bill to pay the amount estimated by the surveyor general, [see Report No. 12, 3d session 37th Congress,] but probably owing to the establishment of this court, the bill for the relief of the claimant nevgr became a law. The report of the committee which accompanied the bill concludes with the following paragraph :
    “ Your committee consider the case of Mr. Johnson one of extreme hardship. At the time his property was seized by the military he was doing a prosperous business, with undoubted prospects for the rapid accumulation of an immense fortune. By its seizure and occupancy by the government his business has been destroyed and the business of citizens forced into an unnatural channel and a rival route created. We think he is entitled to damages; and while we think the testimony would warrant a larger amount, we adopt the estimate of the surveyor general in his report and present a bill for one hundred and twenty thousand dollars, ($120,000,) and recommend its passage.”
    The Deputy Solicitor for the defendants :
    The United States hold certain lands along one of the portages of the lower Cascades of the Columbia river, reserved and excepted in 1856, from the operation of the act approved September 27, 1850, (9 Stat., 497,) and for his alleged ouster the claimant seeks to recover damages. His survey of this tract so reserved, in force of the 14th section of the act “ creating the office of surveyor general of the public lands in Oregon, and to provide for the surveys and to make donations to the settlers of the said public lands,” was not approved, nor was the certificate on final proof issued until the land it described had been for more than three years in the adverse military occupation of the United States. The 14th section of the Oregon donation act enlarged and extended to all reservations, (act of 1853, 10 Stat., 158.)
    When this reservation for military purposes was proclaimed, according to the allegations of this petition, there had been a general uprising of the Indians in this part of Oregon, and these portages had been occupied long enough by them to have the property swept off and the improvements burnt. ( Gross-interrogatories, claimant's record, p. 34 and passim.) All that was open, therefore, for the ascertainment of the Secretary of War, savored rather more of the speculative damages, so strongly urged by the claimant throughout this proceeding, than of any valuation of improvements required by the act donating lands to settlers. But it will be shown that this claimant had not a colora-ble pretext for a title to lands on these portages, and that the Secretary of War, misled by the assumed validity of surveys and entries through the local land offices, was, in fact, making a gratuity to him in the concession of eighteen thousand dollars, by way of remuneration for his supposed losses in business and trade at this point.
    Three years before the Territory of Washington was organized, (10 Stat., 172,) and in advance of any settlements in this part of Oregon, either upon or near these usual portages of the Columbia river, Mr. George L. Johnson, of Nahant, Massachusetts, a casual trader along the coast, thought he might appropriate to himself and his son, not at the time with him, the best portion of the portage lands on the north side of the river, along which the settlers in Oregon had been passing for several successive years. The Columbia river at this point hursts a passage through the mountains, this range being so precipitous that for three hundred miles, with the exception of two or three difficult and obscure trails, blocked up by snows the greater part of the year, these portages on both sides the river, from the first settlement, were, of necessity, the only highways. Oregon had now "been settled long enough to allow of the time necessary to prove a prescription in this regard. (Rust v. Low et al., 6 Mass. B., 97.) These lands at the Cascades were not valuable for agricultural purposes, though there were some garden spots, and holding out the prospect for a town site, it must have been a provokingly doubtful question for a shrewd speculator anxious to make up bis mind as to tbe relative advantages between tbe upper and lower portions. But tbe elder Johnson solved tbe difficulty by making assurance doubly sure. He appropriated six hundred and forty acres at tbe upper end of the north portage for himself, and at the lower end of it be had a like survey, where he made an entry for another six hundred and forty acres in the name of his son, the present claimant. This was done in April, 1850, before the donation law, and it thus appears in proof that out of the 15,000 settlers in the Oregon Territory up to 1849’,who had used these portages as highways on their route through the wilderness, no single one, out of the whole number, had conceived the thought of having such a public right turned to individual advantage. In such case it was, of course, desirable to have some color of law in order to make show of title to these portages, and be prepared to warn off other intruders. Mr. Justin Chenoweth, accompanying the elder Mr. Johnson in his first visit to the lower Cascades, was employed to run out the lands, including a claim of six hundred and forty acres on the same portage, in his own name, and forms of notification, with entries in the temporary office at Oregon City, as in case of actual public lands, were observed by'the elder Johnson for himself, and in the name and behalf of his' son.
    When this attempt was made to forestall the profits from trade and travel over these portages, the chief factor of the Hudson Bay Company, as stated in claimant’s record, ,was still at his trading-post in Vancouver; and the highest white settlement on the Columbia was Dick Howe’s, he being one of the company’s servants, twenty-five miles below the Cascades. It was also one of the noted salmon leaps, where Indians were congregated in large numbers, and whose rights of person and property, till extinguished by treaty, were not to be impaired; for the first section of the act organizing the Territory of Oregon contained this proviso : “Provided, That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians; or to affect the authority of the government of the United States to make any regulations by treaty, law, or otherwise respecting such Indians, their lands, property, or other rights, which it would be competent to the government to make if this act had never passed.” (Act of August 14, 1848, § 1, 9 Stat., 323.) As early as the 5th of July, 1845, the representatives of the people of Oregon, when extemporizing a provisional government, had submitted to the people an organic law, with some rules for designating and recording land claims ; and it was under this law, made void by the 14ih section of the act of 1848, organizing the Territory, that the elder Johnson had surveyed and entered these portage lands. This section of the territorial act had provided that all laws heretofore passed in said Territory, making grants of land, or otherwise affecting or encumbering the title to lands, should be and were thereby declared to be null and void; and th<^U™^jGthe United States were thereby extended over, and declardd^^^^R jorce in, said Territory so far as the same, or any provision'tíj^^^Pnay be applicable. (9 Stat., p. 327.) The Indians on these portages' had claimed and enjoyed the right of carriage of goods over them ; and when it will be seen through the proofs that no special treaty has even to this day extinguished the Indian title just there, while we have treaties with these tribes shingling over nearly the whole of the State of Oregon and Washington Territory, any such action for damages as this of the younger Johnson may be better understood.
    It is proposed to place beyond reasonable doubt the fact that, so far from any such illegal or inequitable ousting of George W. Johnson by the United States, he was hvrnsef an intruder ab initio on these 'portages, and the lands thereon taken in fraud of law and against public right. Nor will it avail this claimant nor any other having foothold there, as alleged individual owner in fee-simple, without legal means or purpose for improving the transit at these points, under franchise, to insist that in 1850 no one was aware of any let or hindrance to such individual appropriation of these highways of necessity. In the somewhat analogous case of a pre-emption right, ignorance of the pre-emp-tioner that land was reserved does not prevent the entry being void ab initio. (Kissel v. St. Louis (Public Schools, 18 How., 19.) The courts of the country are authorized to cancel and avoid patents, if actually issued, when obtained in fraud of law. (Mr. Wirt, as Attorney General, 1 Op., 699.) The mistakes and illegal acts of ministerial officers of the government can hence neither benefit the claimant nor prejudice the rights of these defendants, trustees for the public. It is part of the colonial history of which courts take judicial notice that such carrying places as these on the Columbia river were to be deemed and taken as highways dedicated to the public. The ordinance of 1787 and the treaty stipulations with Great Britain, in 1846, were declaratory only. From the earlier periods of settlement on this continent such was the general understanding, under legal ideas, interpolated upon the common law from the rules of the civil law; and in developing fully the interior regions of so vast a country as the United States of America, this common right of all the people of all the States to the free and uninterrupted use of these lanes and alleys for commerce becomes one of the gravest of questions for judicial interpretation.
    Assumed concessions of a surveyor general of Oregon by any official survey whatever, and the tacit acquiescence of a Secretary of War in the right of the claimant’s possession, are not adjudications of title.
    Even a patent, when obtained, may be vacated Browns's Lessee or Clements et al, 3 How., 668.)
    I. It was in derogation of the ordinance^^^^»1^ and against its letter and spirit, as made applicable to Oregonj^tlie 14th section of the act to establish that territorial government in 1848. The ordinance of 1787 by its 4th article declared “ the carrying places between the Mississippi and the St. Lawrence to be common highways and forever free, as well to the inhabitants of said Territory as to the citizens of the United States and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor;'’ and the act organizing the Territory of Oregon provided “ that the inhabitants of said Territory shall be entitled to enjoy all and singular the rights, privileges, and advantages granted and secured to the people of the United States northwest of the river Ohio by the articles of compact contained in the ordinance for the government of said Territory on the 13th day of July, 1787, and shall be subject to all the conditions, restrictions, and prohibitions in said articles of compact imposed upon the people of said Territory.” (9 Stat., 323.)
    II. It set aside and nullified the supreme law of the land by weakening the provisions of the treaty of limits westward of the Rocky mountains between the United States of America and the British government, concluded June 15, and proclaimed 5th August, 1846, by the second article of which the Columbia river, from a certain point down the main stream to the ocean, was declared to be free sxAopen; and thus precluding the absolute fee-simple, under patents, now alleged in certain individuals, and the exclusive right claimed in this petition as equitably attaching to this plaintiff, till the military reservation was proclaimed, in 1856.
    III. It was a direct interference with the possessory rights of the Indian tribes on and near these portages, whose titles have not yet been extinguished by the treaty arrangements so generally made with other Indians almost everywhere else in Oregon and the Territory of Washington.
    
      IV. This intrusion of the claimant upon these carrying-places at the lower Cascades of the Columbia river was a purpresture, being, according to Lord Coke, when one encroacheth, and make3 that several to himself which ought to be common to many, (2 Inst., 38,) as in this very case of common highways, when so declared under the ordinance of 1787 above cited, aud when so recognized as “ well understood” in the treaty above mentioned. The repossession of those lands, under the authority of the President of the United States, for forts, magazines, arsenals, dock-yards, and other needful public uses, at these lower Cascades, (the strongest strategic point for military defence on either the coast of th ^-¿Atlantic or of the Pacific within the jurisdiction of the United States,) cannot be confined, in its legal aspect, to the provisions of the act creating the office of surveyor general of public lands in Oregon, and to provide for the survey and make donations to settlers of said public lands, (9 Stat. at Large, 496 ;) but it looks above and beyond that, to a power existing in the federal government — a jus majestaticum, in the peculiar language of the civilians of Europe, as contradistinguished from the yws privatum, or the interest of propriety and franchise, and the jus publicum, or the common interest that all have to resort to and from public ports. (Hale, de Port. Maris., ch. 6.) Such is the wide and beneficent scope of the ordinance of 1787 that under it this species of offence, defined by Coke, against the supreme authority can readily be reached.
    The court will not fail to see, on collating the evidence, how fully the action of the Secretary of War, through the.military board convened at and near this vicinity in Oregon, has been sustained by the evidence adduced in this case for and in behalf of the United States. The board very properly restricted its examination to the actual value at ike time of the alleged wrong done, when making the reservation provided for in the law itself upon bona fide donations. In this the board followed the better rule. Kennedy v. Whitwell, 4 Pick., 466 ; Greenfield v. Levitt, 17 Pick., 3; White v. Webb, 15 Ooun., 502; Hyde v. Stone, 7 Wendell, 454; Hebburny. Sewell, 5; Harry. John, 212; Outton y. Barnes, Litt. Sel. Cas., 137.) The whole burden of the complaint was the failure of the board to estimate prospective profits from a' supposed future town site or from his course of business, liable as it was at any moment to be diverted into other channels. The superior tact and enterprise of Colonel Ruckle threw, for a while, the main transportation business to the Oregon side of the river, with all its fancied physical obstacles. The board herein did not err, for, in the language of Mr. Justice Story, “ After all it would be a calculation upon conjectures, and not upon facts.” {The Schooner Lively, 1 Gallison, 314, 325.)
    It sliould be remembered that it is not strategy against the Indian tribes that alone gives importance to the grand pass of the Columbia river. The lower Cascades are at the head of ocean ship and steam navigation, and, in case of future foreign or civil wars, the map of the United States has no single point where full defences would be more imperatively demanded, being the key to the whole upper country. Such dedication of lands for public purposes as these carrying places under the ordinance of 1787 have been too often adjudicated in the Supreme Court to be set aside now under any colorable pretext of the Oregon donation law. It is also necessary to cite the following: Town of Paulett v. Clark, 9 Cranch, p. 331; McConnell v. The Trustees of Lexington, 12 Wheat., pp. 585, 586; Beatty v. Kurtz, 2 Peters, 570 ; City of Cincinnati v. White’s Lessee, 6 Peters, p. 485. In 1856 it became necessary for the government to hold these portages by way of military defence, and to establish a permanent post thereon. There was no wrong purposed or perpetrated, and the very-thing required by the law to which the claimant owed his colorable right to be on these lands at all was promptly done. Iiis damages were assessed, and at a time when he had no improvements; the good will, the only thing left to be valued, was rated at $18,000 by the military board, acting in behalf of the Secretaiy of War. This report of the board, made in pursuance of the act of 27th September, 1850, commonly called the Oregon donation law; is as inseparably interwoven with the claimant’s case before this court as the notification to register and receiver of Washington Territory, on which he has to base all of title he has, and on which he so much relies. Both grow out of the express provisions of the same act in entire misapprehension of its legal force and effect, when this is made to apply to lands already reserved. The officers constituting the board werelegally bound, on the assumption of abona fide ownership, to make a report on valuation of improvements, and the reference of one written instrument to another virtually incorporates the latter. Hence the evidence taken in a formal way before the board, from which the report, in force of the act of 1850, is elucidated, becomes legally incorporated therewith, under the principle laid down by Lord Eldon, C. J., in Smart v. Brujean, 6 Yes., 565. Nor was it essential to the reception of evidence of this nature that the inquiry should have been made through some judicial authority, or even by means of witnesses examined under oath. If made by competent authority in behalf of the public and on a subjeet-mattef of public in
      
      terest, it is sufficient. (Green v. Hewitt, Peake’s N. P. C., 182. Peake’s Evidence, 3d edition, 87.) In Tooher v. The Duke of Bedford, (Burr, 146, 148,) the return to a commission out of the exchequer was evidence, and the depositions taken under the commission and return were held to be admissible but not conclusive. This report of the Secretary of War, in pursuance of 14th section of Oregon donation act, becomes evidence throughout.
    Mr. Norton, United States Solicitor, concluded the argument for the defendauts.
    Mr. B. F. Butler in reply :
    Claimant’s title to the land maintains itself.
    1st. He occupied, improved, aud cultivated it from July 15, 1850, till the spring of 1856, continuously, as a home and place of business, when driven away by the Indians. He was afterwards kept off by the military.
    2d. He had taken every precaution to survey, notify, and record his claim according to the territorial laws of Oregon.
    3d. He had notified, perfected, and made good his claim according to the donation act of September 27, 1850, and the supplemental act of 1853.
    4th. No laches are imputed to him, and the proper officers of the United States, charged with the duty of making and recording the proper certificates, have each and all taken the action required of them by law to perfect the evidence of title, and no officer has found any valid objection to the proofs of his title, or suggested a doubt as to his “ conformity” with every provision of the act.
    Having become a resident of Oregon Territory before the 1st day of December, 1850, to wit, on the 15th of July preceding, the claimant had resided upon and cultivated the locus de quo for more than four consecutive years; he had conformed in all things to the provisions of the act of 1850, according to the official certificates of every officer charged with the duty of protecting the government lands from intrusion and improper entry, and upon the undisputed testimony of every witness, in consideration whereof the act of Congress, section 4, granted to him, a “ white settler and citizen of the United States, 320 acres of land,” within the boundaries indicated by his claim, and confirmed by the survey of the surveyor general.
    
      This grant is claimant's title. Concessi is the operative term in all muniments of title, and nowhere more so than in solemn legislative acts of government.
    The patent, when issued, will only be evidence to others of this title.
    This title is both an equitable and a legal one, accompanied by possession; is a contract upon full consideration not to be impaired or defeated, even by legislation of the United States, much less by the intrusion of a captain in the army of the United States.
    His land may now be taken under the right of eminent domain, but only on the receipt of the fullest equivalents.
    It is submitted, therefore, that the President himself, even under the act of 1850, 14th section, could not have declared a military reservation of Johnson’s land without remuneration.
    If it should be decided that, by the force of the act, he could do so, then we claim the act giving such power in so far would be unconstitutional, in that—
    1st. It impairs a grant made to the citizen, upon a sufficient and valid consideration paid by him. .
    2d. It authorizes the taking of private property by the government for public use, without providing any measure for, or means of, obtaining a just compensation therefor by the party injured.
    However this may be, the act, being in derogation of private right, is to be strictly construed.
    “ Such portions of the public lands as may be designated under the authority of the President for forts, &c., shall be reserved and excepted •from the operation of this act.”
    This clearly looks to reservations from occupation and entry and .patent by the authority of the President prior to settlement. This •view is strengthened by the proviso :
    “ Provided, If it shall be deemed necessary, in th§ judgment of the 'President, to include in such reservation the improvements of any settler made prior to the passage of this act, it shall be the duty of the .'Secretary of War to cause to be ascertained,” &c.
    'The first observation upon this is, that the act only gives the right to reserve “public lands,” under the authority of the President, not (private lands, to which a title has been acquired by the citizen, and in case of improvements by a settler, with an inchoate title to lands, such improvements could be taken only upon the. judgment of the President, and then a mode of compensation is provided.
    Therefore, quacamque via, we are entitled to the “ authority of the President” before the land can bo reserved, if we have an inchoate .title, and his “judgment” before our improvements can be taken.
    
      We respectfully insist, therefore, that in no event can our land be taken in this mode, if we have a full right to a title to it under the law.
    Being entitled to the exercise of the President’s authority before we could he disturbed even in a possessory right' to our land, and to his ‘‘judgment” in case of the taking of our improvements, we are met with the great fact. The case finds the exercise of neither the one nor the other.
    
    The only evidence of authority for military reservation is the order of Captain Winder, put in proof by claimant before the military commission, and never returned by them. (Evidence for United States, pages 50 and 52.) It does not appear that this was approved even by the department commander. General Wright says, (Claimant’s Evidence, page 22,) that he laid off “a small reservation and erected block-houses to keep open his line of communication while operating against the Indians.” “ In 1S61 troops were withdrawn, and an agent of the quartermaster placed in charge of the buildings.”
    This is all the proof upon this point of the authority, save the letter of General Canby, after this claim is before this court.
    The case is put upon two distinct grounds :
    1st. That the Indian title in the locus has not been extinguished.
    2d. That by assurances in various forms there is a right of transit in the public over the land in question.
    It would seem to be sufficient to meet the first claim of the United States to say that they are estopped by their acts in pais, inconsistent with the claim, from setting it up.
    The government has granted patents and made assurance of title to all the land both above and below Johnson’s, upon the very “ portages and salmon leaps” on both sides of the river, which are equally within the supposed Indian title.
    It drove off the Indians from this land in 185(1, and has kept them off ever since.
    The second claim of right of transit, whether by a portage round rapids in a navigable river, secured by treaty with Great Britain to its subjects, or a way guaranteed to the inhabitants of the western Territories by the ordinance of ’87, as extended by the several territorial acts, or a way acquired by the public by prescription and use, or by dedication by the sovereign owner to the public, each and all resolve themselves upon the argument into a claim of a public common highway over the locus, bounded and described either by the treaties or grants, or by the use made of it, as limiting its extent, with a proper and sufficient landing place to reach such highway from the river.
    
      It is not claimed that there is any description of the width of such way in either the treaty or grant, except so far as may he gathered from the words, “carrying places are to be common highways,” in the ordinance of 1787.
    We are therefore remitted to the evidence of user, and dedication as to the extent of the way.
    It is claimed hy the argument (Deft’s Brief, page 3) that prior to the occupation of Johnson the way was hut an Indian trail for the carriage of goods hy them. That he enlarged it to a “wagon road.” That after 1856 the government built a military practicable wagon road over this land, which has since remained. That the landing place was only used to the extent of a single wharf boat, and that was furnished and kept up by Johnson.
    This is the only evidence as to the width or use of the way or landing.
    The claimant admits that a public common highway of reasonable width and a suitable landing exists upon his land, and although a servitude and an easement common to all, yet it makes the largest element of value to his land.
    No authority has been shown, as indeed there cannot he one found, that such a servitude or easement is inconsistent with the fullest ownership of the fee.
    It has been the settled law as well of England as this country, sustained hy an unvarying current of authorities since the case of Good-title dem. Chester v. Alher, l Burrow R., 133, (1747,) that ejectment will be for land wholly covered by a highway.
    To hold that the case would be different as to a way of necessity, or convenience, along the hanks of a river, would be to unsettle riparian titles upon every large river, as there are almost always such ways upon their banks.
    But it is said that Johnson’s claim is purpresture, and, therefore, void.
    That is a mixed question of fact and law.
    
      Infact, J ohnson made thelandin g practicable by a wharf b oat; opened the wagon road around the Cascades, and made it his business to aid all who came to transport themselves and luggage around the falls. There is not the slightest evidence that J ohnson ever hindered or obstructed, either in person or specially, by any enclosure or erection, the fullest use of the portage and way.
    
      In law, a purpresture, from the Norman French your pris, is an encroachment by some structure, fence or ditch, upon any land over which there is a common right of passage, pasturage or estovas— which hinders its free use.
    How can it be said that a title, by patent even, granted to the claimant of the land, did or could hinder or obstruct any person in the free use of the public passage there. How can a paper title beayw-presture ?
    
    The only evidence of purpresture shown in the case is upon the part of the United States, by its officers. See answer to 11th int. Claimant’s Evidence, page 28 : “ They built a high fence over the whole landing, and forbid any one going there without a written permit.”
    The court then, if we are right, will be brought to the question of remuneration for the injury sustained.
    What are the elements of such injury 1 Whether we take as the basis of assessment the “ value of the improvement,” as for land duly reserved from a settler, provided for by the donation act, or look at the conduct of the military after the necessity ceased as an unwarranted intrusion, the compensation to the party injured ought to be the same; or, in other words, either the full compensation which is given whenever private property is taken for public use, or the ample damages which the law accords to a party injured by trespass.
    The true rule would seem to be that the value to the claimant of his location, if he had not been disturbed by the military, is to be given him.
    This value is composed: 1st. Of the business actually being done upon the laud at the time. 2d. Of the prospective increase of that business. 3d. Of the increase of value which such business would bring to the land itself for new uses — for business or other purposes.
    In a word, his are all the advantages of his location — the result of his sagacity and enterprise.
   ‘Nott, J.,

delivered the opinion of the court :

This is an action brought to recover #2,000,000, together with certain unliquidated damages, being for the military occupation of the claimant’s land by the defendants. The facts are as follows :

In July, 1850, George W. Johnson, a young man between eighteen and nineteen years of age, settled upon a half-section or 320 acres of unoccupied public lands in the Territory of Oregon, on the northern bank of the Columbia river. The tract had been chosen for him by his father with rare sagacity, for it was situated at the foot of the Cascades and at the head of ocean navigation, while it embraced tlie only level ground near tlie portage not subjected to overflow, and covered the only route for a railway among tlie mountains which there rise from the waters of the river.

“ In the summer of 1850, after his arrival there,” says an unusually intelligent witness, “Mr. Johnson erected a zinc building, which had been brought from San Francisco, and commenced clearing off a piece of land, procuring rails for the purpose of enclosing a lot of ground for agricultural purposes. During that season and the next he put under cultivation several acres of land, erected a corral, planted fruit trees, and made other improvements towards making a residence and home. In the spring of 1853 he erected a two-story frame building, with an L attached. This building he occupied as a store and hotel.”

The claimant continued to reside upon and cultivate the tract, so that in the spring of 1856 “ he had,” in the words of another witness, “ a fine orchard, I judge, of one hundred and fifty trees, and an enclosure for a garden for vegetables, &c., another enclosure of about six or eight acres arranged for stock, which was the most profitable use it could he put to, and a good range for cattle. He also raised potatoes for sale.”

But the claimant had also built up the business of his store and hotel so that it yielded him $3,000 fer annum, and had made himself a partner in a transportation company, whose business during that year paid to him $5,000. By this time the tract had become of great supposed value as the site of a future town, and as the terminus of a projected railway.

In April, 1856, the brilliant prospects of the claimant were ended, and a long train of disappointments and troubles, reaching to the present time, began. The Indians, then in a state of armed hostility to the United States, burnt and destroyed his buildings, “ leaving only the floating wharf boat with the -warehouse attached,” and during the latter part of the same month the forces of the United States arrived to take possession of his entire tract, and hold it from that time as a military reservation. When this action was commenced that military occupancy had not ceased, nor had the claimant received from the government any remuneration for his loss.

But the losses of the claimant went still further. The transportation business at the portage of the Cascades was controlled and owned by two persons, of which the claimant was one. His tract, which furnished both the route and the depot for the business on the north side of the Columbia, was regarded by his partner as his capital. When it was lost to the claimant his share in the transportation company went with it.

The claim has been twice investigated during the seven years that have elapsed since the occupation of the defendants began — once by a military board, sitting by order of General Harney, then commanding the depaitment of Oregon, andonee by the surveyor general of Washington Territory, acting under the authority of a resolution of the House of Representatives; but nothing has ever been paid to the claimant. It is perhaps needless to say that neither of these investigations conclude this court.

At the time when the defendants entered upon the tract, the claimant had given to the surveyor general of Oregon the “notification of settlement on •public lands not yet surveyed” required by the act 14th February, 1853, (10 Stat. L., 158,) and he had resided upon and cultiva!ed the tract for four years, as required by the “ donation act,” 27th September, 1850, (9 Stat. L., p. 496;) but he had not received a patent from the General Land Office, nor had the register and receiver of public lands in the Territory certified to the Commissioner of the Land Office the facts entitling him to a patent, nor had he made final proof of his continued residence as required by the act. His title, therefore, at the time of the defendant’s entry, rested entirely upon his four years’ continued residence and cultivation, and previous notification. Since that time and before the bringing of this action the claimant has made final proof to the satisfaction of the register and receiver, and they have transmitted the proper certificate to the Com missioner of the General Land Office; but the commissioner has refused to issue a patent, alleging that the government had a right to make a military reservation of the tract, and that the claimant is entitled only to the value of his improvements, to be ascertained by the Secretary of War. This brings up the intent and meaning of the donation act, and involves an examination and construction of that statute on which the claimant’s rights depend.

The fourth section of the act of 27th September, 1850, provided for two classes of donees : 1st, for those who were already “ occupants” of public land in Oregon; and second, for those settlers who might become residents within the Territory before the first day of December next ensuing. The grant is specifically pledged to those “ who shall have resided upon and cultivated the same for four consecutive years,” and is not confined to -those “who shall” thereafter reside and cultivate. The act goes further and provides that where “ married persons have complied with the provisions of this act, so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon or since,” and either shall have died, the survivor shall be entitled to his share equally with the children, so that there can be no possible doubt that the donations were for the benefit of those who had already settled, as well as for those who might thereafter avail themselves of the benefits of the act.

There then being these two classes of beneficiaries created by the fourth section, the fourteenth section provides “ that such portions of the public lands as may he designated under the authotity of the President of the United States for forts, magazines, arsenals, dock-yards, and other needful public uses, shall be reserved and excepted from the operation of this act.” If the act had stopped there it is evident that those settlers who had already made improvements on lands which should be 11 designated under the authority of the President” for forts and other public uses, would lose their work and be left without redress. The act therefore goes further and says : “ Provided, That if it shall be deemed necessary, in the judgment of the President, to include in any such reservation the improvements of any settler, made previous to the passage of this act, it shall, in such case, be the duty of the Secretary of War to cause the value of such improvements to be ascertained, and the amount so ascertained shall be paid to the party entitled thereto.” The latter part of the section was therefore not a restraining, hut an enabling act, providing compensation for those who had settled upon the public lands without procuring a title, and who at common law were intruders making improvements in their own wrong upon the estate of another.,

It seems to have been supposed by Congress that the lands to be reserved for public uses would be designated by the President immediately after the passage of the act. At any rate no provision was made for reimbursing those settlers who should thereafter settle upon lands which should subsequently be reserved for public uses, and it was left questionable whether the right to reserve could be defeated by the instantaneous entry and occupation of a settler, or whether the reservation by the government would oust the settler from his inchoate estate, and leave him without remuneration for the improvements he had made upon the faith of this donation act. Accordingly this omission seems to have been provided for by the ninth section of the act 14 February, 1853, (10 Stat. L., p. 158,) which first enacts : “ That all reservations heretofore as well as hereafter made in pursuance, of the fourteenth section of the act, to which this is an amendment,” shall be limited to certain specified amounts; and then adds, “ Provided, That if it shall be deemed necessary, in the judgment of theDresident, to include in any such reservation the improvements of any settler made previous to such reservation, it shall, in such case, be the duty of the Secretary of War to cause the value of such improvements to be ascertained,” &e., as before enacted. This section was therefore in the strictest sense in pari materia with the fourteenth section of the previous act; and instead of being intended as a perpetual limitation or condition running with the land, was a part of the same beneficent design which inspired the act of 1850. In other words, this proviso was not intended to impose, upon the fee to be granted to the settler, a perpetual right of re-entry on the part of the government, but to secure him from loss or injury by reason of the omission already pointed out.

Such being our construction of the act, the question arises, When does, this right of reservation cease; or when does the settler acquire an ownership and title under the law ? The Supreme Court has answered the question in the case of The United States v. Fitzgerald, 15 Peters, 407, where it is held that a petitory action (in the nature of ejectment) could not be maintained against a pre-emptioner who had made proof of his possession according to law and paid the purchase money, but from whom the Secretary of the Treasury had withheld a patent; and where the court expressly says: “ no reservation or appropriation of the land, made after the right of the defendants accrued under the act 17 June, 1834, could defeat that right.”

A distinction has been suggested between the case of Fitzgerald and the case at bar. The decision of the Supreme Court related to the aet 29 May, 1830, (4 Stat. L, p. 420,) which was a pre-emption act, and exacted money from the settler; whereas under the Oregon act no money was exacted, and the grant was termed a donation. But there are several reasons for holding that, under the Oregon or “donation aet,” the settler acquired an equitable title by virtue of his four years’ residence and cultivation, and for saying that the decision of the Supreme Court is decisive and obligatory here.

In the first place the payment of money was only a part of the consideration given by the grantee under the pre-emption acts. There, as here, he was required to occupy and cultivate; there the grant was restricted to even a smaller tract than was here given, and the policy and chief end of the statute, as of this, was to foster the advance of civilization into the uninhabited and useless portion of the national domain. The “donation act” was only an advance on the same line of national policy, and the patent which it promised was not a naked gift, but a grant upon a present consideration, received and accepted by the grantor. This consideration was just as valid and binding upon the government as the other; for in the eye of the law services are as sufficient a consideration to support a grant as money, or as services and money.

In the second place tile statute does not provide in terms that the final proof of residence shall he a condition precedent to ownership or limit the time within which such proof may be made. On the contrary, it expressly provides (section 7) that after the settler has proved to the satisfaction of the surveyor general that the settlement and cultivation required by the act “had been commenced,” he may prove, “in like manner, by two disinterested witnesses, the fact of continued residence and cultivation,” at any time a¡fter the expiration of four years from the date of such settlement” With respect to the proof that the settlement and cultivation “had been commenced,” this latitude did not exist; for there the statute required the proof should he made within twelve months from the time of the survey or from the time of the settlement. The statute, therefore, seems to treat the four years’ residence and cultivation as a full compliance with the conditions to the grant, and the final proofs, the certificate of the surveyor general and the patent of the Commissioner, as the muniments of the legal title.

In the third place, the statute provides, (section 8 :) “ that upon the death of any settler before the expiration of the four years' continued possession, all the rights of the deceased shall descend to the heirs at law,” hut it makes no provision for those settlers who should die after “ the four years’ continued possession,” and before a patent should have issued or other steps been taken. It could not have been intended to provide for the descent of an inchoate right in the one case, and to withhold it in the other. Hence Congress must have regarded the rights of the settler who had completed his period of possession as complete, needing no statutory aid, and descending like other estates in land to the proper heirs who might present the final proofs and receive the patent.

In the fourth place, the amendatory act of 1853, section 8, in like manner provides that in case of the death of a widow, “prior to the expiration of the four years’ continued possession,” all of her rights shall “inure unto and be vested m her heirs at law,” while, in like manner, it makes no provision to preserve and transmit her rights; after the'expiration of “the four years’ continued possession;” and before the final proof should be made or the patent be received.

In the fifth place, the act of 1850, section 4, declared all future contracts for the sale of land, before the settler had received a patent tlierefor, void, leaving him thereby with an estate or interest in realty, which he might devise, but could not alienate. But by the act July 17, 1854, (10 Stat. L., p. 305, sec. 2,) Congress removed this restriction upon alienation by repealing the provision in the act of 1850, with an express proviso that no sale should be valid unless the vendor should have resided four years upon the land, and thereby made these estates or interests alienable as they had previously been heritable.

In the sixth place, the act of 1850, section 9, also provides that no claim to a donation right shall attach to any tract or parcel of land reserved for governmental purposes, “unless the residence and cultivation thereof shall have commenced previous to the selection or reservation of the same for such 'purposes,” by which the statute seems to recognize the precise construction that we here to give to its general provisions, and to authorize and legalize a claim where the occupation of the settler was prior, in time, to the reservation of the government.

But, in addition to the legal conclusion which we here reach, we are of the opinion that, as a matter of fact, no military reservation was ever made or intended to bo made by the government; nor has the government yet determined whether it will continue the occupation that at present exists. That occupation was commenced by a military officer engaged in the petty Indian hostilities that existed in Oregon in 1856, without the knowledge of the President, the Secretary o? War, or any high officer of the government. The story of its occupation is briefly detailed by General Wright, commanding the department of the Pacific, and is as follows :

“ In the spring of 1856, when I was in command of the United States troops operating against hostile Indians in Oregon and Washington Territorios, I found it necessary, to preserve my line of communication, to establish a garrison on the Washington side of the Columbia river, at the foot of the Cascades. ■ A small reservation was laid off, and block-houses erected. The post thus established, and known as Fort Cascades, was occupied until 1861, when the troops were temporarily withdrawn and the buildings and grounds placed under charge of an agent of the Quartermaster department.”

Up to the time of the commencement of this action there is nothing to show that the subject of this reservation ever received a thought from the President, or from any officer authorized to speak for him. There are, indeed, certain documents printed in the record, consisting of communications and reports from officers in the War Department, which may indicate, if not establish, a recent determination of the Secretary of War to retain the post at the Cascades and make it permanent; but this determination, if it exists, and all of the communications which indicate it, are subsequent to the bringing of this action. The claimant’s case, once instituted, cannot be defeated by any subsequent act of the defendants or their officers, and we, therefore, reject all of these documents as irrelevant. When they are rejected there is no evidence to show that this portion of the public lands was ever designated under the authority of the President for any public use ; and there is the most satisfactory evidence to show that it was not.

These are the grounds upon which, in the opinion of the court, the defence must rest. The learned Deputy Solicitor has, indeed, addressed to the court an argument replete with authorities and legal erudition to show that, instead of there being an “ illegal or inequitable ousting of George W. Johnson by the United States, he was himself an intruder ah initio on these •portages, and the lands thereon taken in fraud of law and against public right.” This argument shows, by the ordinance of 1787, “ the carrying places between the Mississippi and the St. Lawrence to he common highways and forever free, as well for the inhabitants of said Territory as to the citizens of the United States and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor,” and that the act organizing the Territory of Oregon provided that “ the inhabitants of said Territory shall be entitled to enjoy all and singular the rights, privileges, and advantages granted and secured to the people of the United States northwest of the river Ohio by the articles of compact contained in the ordinance for the government of said Territory, on the 13th day of July, 1787, and shall be subject to all the conditions, restrictions, and prohibitions in said articles of contract imposed upon the people of said Territory.” (9 Stat., 323.)

The argument then contends that the claim “ set aside and nullified the supreme law of the land by weakening the provisions of the treaty of limits westward of the Rocky mountains between the United States of America and the British government, concluded June 15th and proclaimed 5th August, 1S46, by thesecond article of which the Columbia river, from a certain point down the main stream to the ocean, was declared to be free and open.” And it insists that the occupation of the claimant “ was a direct interference with the possessory rights of the Indian tribes on and near these portages, whose titles have not yet been extinguished by the treaty arrangements so generally made with other Indians almost everywhere else in Oregon and the Territory of Washington.” And finally, that this intrusion of the claimant upon these carrying places at the lower Cascades of the Columbia was a pur-presture.

We aie of the opinion that the most of these objections are objections which might be possessed of great power if addressed to the legislative authority, hut that when addressed to a judicial body they are necessarily overridden and destroyed by the clear terms of the “ donation act.” The last objection, indeed, would have great force if the claimant had attempted to exact a royalty for the use of the portage at the Cascades. But the defence taken by the learned Deputy Solicitor is not the defence taken by the government; and when the government has so long resisted the claimant clearly upon other grounds— has held out to him inducements for a settlement — has received the consideration required by law for a grant, and has otherwise treated him as a lawful settler, this objection that he was an intruder upon the portages cannot be interposed now.

When the right of the claimant to recover is established, it becomes a question of some doubt and interest as to what is the nature of his action and what should be the measure of his damages. Both by the prayer of his petition and the argument of his counsel he has treated the entry of the government as a trespass upon his land; and he has also given evidence of certain arbitrary and unnecessary acts of one of the military commanders, as apparently an aggravation of his damages. To any one familiar with the decisions of this court it is needless to say that here the claimant has mistaken his rights. This court has again and again held to the principle of the common law that the government cannot be sued in actions sounding in tort, nor made liable for the tortious acts of its officers. If a military officer left the path of his official duty to vex or oppress the claimant, he thereby became liable to the claimant, and might have been sued like all ministerial officers.

But the court has also held to the principle of the common law that the republic does no wrong, and to the provision of the Constitution, “ nor shall private property he taken for public use without just com-pensationand, by virtue of these, it always has been- held that a party might recover upon the implied contract as though the property had been acquired under an agreement of purchase, leaving the price undetermined.

.Regarding this, then, as an action.on an implied contract, we must determine what it is which the government has taken. The claimant has given evidence of the value of the fee, and insists that it is the measure of his damages. The court is of a different opinion. We think that there is nothing to show such an intent on the part of the government or to establish anything beyond the temporary occupation already pointed out. We therefore think that the measure of the damages most be limited to the value of this temporary occupancy, as though''Jhe"'claimant_had leased and the government had rentecL.the premises, regard being paid to the nature of the occupancy and to the fact that the government had the option of discontinuing the implied tenancy on any day or of retaining it indefinitely. This also is the rule which courts have adopted as the measures of damages in actions for mesne profits, and the only rule which ‘can be made applicable to the case. We therefore must assume that at the time of the entry upon the premises the claimant was willing to lease and the government was willing to rent the premises with the rights and privileges and upon the conditions before enumerated at the fair or market value of an annual rent; and we must regard the claimant as bringing his action to recover this rent for the seven years_preceding the commencement „of his notion. The 'amount thus found may be regarded in futui e as the established and agreed rent of the premises so long as the government shall elect to occupy under the implied lease. What the value of this annual rent was in 1856 we will now proceed to inquire.

The tract, as has been said, consists of 320 acres, and has a frontage on the river of 61 chains and 15 links. The same intelligent witness who has before been quoted, (Daniel F. Bradford,) thus describes it:

“ The land claimed by Mr. Jolmson is situated on the Columbia river, about 160 miles from its mouth, at what is known as the Cascades of the Columbia, being the head of ship navigation. It has a water front of one-half mile on the liver, running back so as to take in 320 acres of land. I have traced the lines on the upper and lower sides until it reached the mountains, but have never been on the back line or the corners in the mountain. The interval of land between the mountains and the river, being the flat part of Mr. J ohn-son’s claim, embraces about three-eighths of the whole. It is nearly half a mile from the river to the mountain. On the river front of this claim, excepting a few hundred feet on the west line, is a bold bank above the high waters of the spring and summer freshets. Being at the foot of the rapids, the river makes a current or eddy up stream beyond the tail of the rapids, making it a safe and commodious landing for vessels and steamboats, the river at this place being not far from three-quarters of a mile in width. About three-eighths of the claim lying on the river, as above described, is a level plateau; the balance is broken and mountainous. The level portion, as before described, is good, arable land, and all fine pasturage — I mean the whole claim is fine pasturage. The foot-hills at this point rise gradually into the mountains.”

Under the resolution of the House of Representatives, passed 11th February, 1861, James Tilton, surveyor general of Washington Territory, estimated the claimant’s damages; and on the 9th September, 1861, reports : “I find it difficult to estimate the amount of damages from these elements ; but from a residence of over seven years in the Territory, and a knowledge of the increase of population, and the fact that the Cascades of the Columbia are the best portage between the ocean and the vast interior, I know of no tract of land in Washington Territory which possesses such natural advantages for trade and commerce as the claim of George W. Johnson. I therefore estimate the amount of damages sustained by the said George W. Johnson, by the occupation of his donation claim at the Cascades, at $120,000.”

The father of the claimant testifies : “The annual rent would have been worth $20,000 in 1856.” He also says: “One man, named Foster, wanted to purchase three blocks. * * * He was willing to pay $2,000 for one block; the others he wanted for a less price. The blocks were to be 200 feet square. * * * Later, near the time the military took the land, the claimant let one acre, about 75 rods from the steamboat landing, to a firm named Wilson & Hamilton, for which they were -to pay a monthly rent, at the rate of $625 per annum. They had paid two or three months’ rent when the military took possession.”

Bradford, the vice-president of the Oregon Steam Navigation Company, and the owner of a similar though less valuable claim above the Cascades, and the former partner of the claimant, testifies : “ The amount paid me by the company for the rights conveyed to them on the Cascades, including the royalty, as above stated, has already amounted to over $200,000 in coin. My price was $100,000 in cash for these privileges, but the company preferred to give me $20,000 in cash, and the royalty for five years, which has already yielded me more than $200,000, as before stated.”

Apart from these profits, derived from a business of which his land was the substantial capital, Bradford testifies to the value of the land itself as follows: “,The actual value of that property of Mr. Johnson in 1856, before it was occupied by the military, was not less than $100,000. I base that sum upon applications and offers which had been made to me for portions of my claim and his. I testified in 1861 in this case that the prospective value of Mr. Johnson’s claim was not less than $300,000, and the rapid settlement of the upper country fully confirms the testimony I gave at that time. In August, 1859, J was authorized by capitalists in the city of Boston, in connection with myself, to offer Mr. Johnson $10,000 for one-half acre of land on Mr. Johnson’s claim that I might select, provided the government would release the land. I made the offer in good faith, and left it open six months for him to obtain the release from government.”

The only remaining witness whose testimony is valuable to show the actual market value of the property is Charles M. Carter, a lawyer residing in Portland, Oregon; and he says that he cannot make a definite estimate, but that if it had been his, he would not have taken $200,000 for it, though he might not have given that amount.

The evidence produced by the defendants goes to the opposite extreme. The strongest and best informed witness produced on their behalf is Chief Justice Williams, of Oregon. He testifies that he was attorney for the Oregon Steam Navigation Company, from its organization up to 1863, and in that capacity had much to do with the transaction of their business about the Cascades; that he has knowledge of the value of lands on the opposite side of the river; that an entire claim was purchased by one Ruckel for $8,000 ; that for parts of other claims he paid $4,000 or $5,000 more; that on the Washington side of the river the company purchased eighty acres for $800; that there were sales of other parcels, varying from $1,000 to $5,000 each; that he drew a deed to the company from one Bishop, the consideration of which was not more than $2,000 ; and he finally says : “I have heretofore expressed the opinion, and still entertain it — derived from my knowledge of the value of lands in Oregon and Washington — that Johnson’s claim, prior to I860, was not worth more than ten thousand dollars.”

But the witness does not show the particular locality or characteristics of the various lots referred to, nor does he deny the assertion of the claimant’s witnesses, that the Johnson and Bradford claims embraced nearly all the level land on that side of the river, and that the mountain land was nearly valueless for any purpose.

The next strongest witness for the defendants is General Ingalls, chief quartermaster in Oregon, and a member of a military board appointed to investigate the value of this very property in 1860. He testifies : “ I had an ample opportunity to know the value of Johnson’s claim, and am now of the opinion that no man could have been found in 1860 who would have really gtven $10,000 for his claim. In my own private opinion it was not worth two-thirds of that sum.”

The next witness in importance is Inspector General Hardie, who was in command at Fort Cascades three years after the military occupation began. He says: “Although the claim was upon the main line of communication between the Upper and Lower Columbia, and, for military and commercial considerations, an important point, still the progress of settlement aboye the Cascades was so slow, Indian difficulties above so threatening, especially in view of the want of the knowledge of resources subsequently develoq/ed, as to render real estate on the ‘portage of no very great value ; certainly nothing like the value it has subsequently acquired. In my judgment, this is the great highway of the Upper Columbia and its tributaries, and Oregon and Washington Territories. The topographical advantage of the place is its adaptation for transit from the upper to the lower Cascades, and the railroad enhances this advantage. In 1860 I think eighteen thousand dollars would have been a fair remuneration for Johnson’s entire claim.”

The defendants also have produced as witnesses, Hon. James H. D. Henderson and Hon. John B,. McBride, representatives in Congress from Oregon. Neither of these gentlemen professes to have an accurate knowledge of the value of the property in 1856, but the one thinks that $10,000 would have been a “fair price,” and the other, that $50,000 would have been “ a very high price.” Perhaps the facts are best summed up by the Hon. James W. Nesmith in 1856, in command of the territorial troops at the Cascades, and since senator in Congress, when he testifies: “I have heard the place valued at all prices — from $5,000 to $500,000.”

After a careful examination of the evidence, we agree that the value of the occupation, taking into account the fact that the government possessed the privilege of continuing it indefinitely or of terminating it without notice and at any time, was $6,500 per annum, payable annually. For the fraction of a year, between the 30th April, 1863, and the day on which this action was brought, we think the government should not be vexed now, but that it properly belongs to the rent of the current year.

The judgment of the court is, that the claimant recover, for seven years’ occupation of his tract, at the rate of $6,500 per annum, amounting to the sum of $45.500.

LoRiNG, J.,

dissenting :

In this case a military reservation was laid off upon the land in April, 1856, by the officer then commanding the troops of the United States in that quarter, and it bas been ever since in the possession of the military authorities ; and the reservation supported by this continuous possession has, since this litigation arose, been approved by the Secretary of War, whose action is in legal effect the action of the President. These facts, I think, establish the military reservation upon the land.

The commencement of the petitioner’s residence and cultivation was on July 15, 1850, and, therefore, previous to the donation act of September 27, 1850. (9 Stat., 496.) The evidence of such commencement of residence was filed October 29, 1853. The completion of the petitioner’s four years’ residence and cultivation was on July 15, 1854, and the evidence of it was filed September 1, 1859 — three years after the reservation was made. In August, 1861, five years after the reservation, a donation certificate was sent by the register of the land office for Washington Territory to the Commissioner of the General Land Office, who refused the patent because of the military reservation. These are the facts in evidence which seem to me material.

The donation act of 27th September, 1850, section 4, (9 Slat, 496,) vests title in settlers on the public lands, “ who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act,” and those provisions are that the settler shall—

1st. File evidence of the commencement of his residence.

2d. That he shall file the evidence of the completion of his four years’ consecutive residence, &c. When he has complied with all the provisions of the act he has an equitable title, because he has paid its price. He is then entitled to a patent, and if he gets it he has the legal title. But until he has complied with all the provisions of the act, he has no title, equitable or legal, and the lands remain public lands,” and as such by the 14th section of the act of 1850 subject to military reservations on'the terms prescribed by that section and the 8th section of the amendatory act of February 14, 1853. (10 Stat., 158.)

On the evidence, the petitioner had not filed his ‘evidence of four years’ consecutive residence, &c., when the reservation was made in April, 1856. He had not, therefore, complied with or fulfilled the provisions of the act, on which his title was conditioned by the act, and he had then no title, equitable or legal; and I think that, by the military reservation made then, as above stated, the lands were, in the words of the 14th section of the act of 1850, then “reserved and excepted” — that is, taken and withdrawn from “ the operation” of the act, so that the title of tlie petitioner could not be completed after-wards, and that the fee of the land remained in the United States, discharged of the act, and as if that had never been passed. And, consequently, I think that the petitioner did not own the land during the time for which he claims, and that his only right is, on the statutes cited, to compensation for his improvements at the time ofthe reservation, to be ascertained by the Secretary of War, and not here. (6 Attorney General’s Opinions, p. 156.)

I think the defendants entitled to judgment.  