the interior, the commissioner wrote to the surveyor general advising him of such decision, and directing him to furnish that office with a "certified diagram of the claim of said society" as confirmed by the same. In obedience to this direction the surveyor general, on June 17, 1875, certified to the commissioner a diagram of the first of the three surveys, as being a plat of the survey of the Methodist mission claim at The Dalles, and upon this the patent was issued, as appears therefrom. Whatever, then, may be thought of the correctness of the survey, the proposition that the patent was issued without a plat of survey approved by the surveyor general, in the face of these facts, is not tenable.

It is also contended by the plaintiffs that if the defendant is entitled to take under the act as a missionary society at all, the grant should be confined to the land actually occupied by it.

This grant, unlike the one made by the donation act, is not of the 640 acres occupied by the donee, but of the qua retity occupied, not exceeding that number of acres. Still it could not have been the intention of congress in the one ca se more than the other that the occupation of a donee should be limited to his actual enclosure and tillage. The donation act of September 27, 1850, (9 St. 497,) was in this respect a sort of supplement to the act of August 14, 1848, and did for the settlers at large what the former had done for the missionaries. It gave to the settler then residing in the territory, for himself and wife, the section of land which he had resided upon and cultivated for four consecutive years. But this residence and cultivation were not required to include the whole section. In fact, the actual enclosure and cultivation were often confined to a very few acres ; while the remaining portion was only occupied for grazing, and sometimes hardly that.

Very early in the settlement of this country it became a cardinal rule that a settlement on the public lands should not include any more than a section. This was probably sug gested by the terms of the Oregon bill introduced into the senate by Dr. Linn, of Missouri, in 1842, which, among other

things, proposed to give 640 acres of land to each white male inhabitant of the territory over 18 years of age. Prior to this time the missionaries had claimed large areas at their several stations, but as generally there was no one to dispute such claim, it mattered little one way or the other. In December, 1843, the mission at Salem was surveyed and platted at 16 sections. But on July 5, 1843, the people adopted a land law which limited the extent of a claim or settlement to 640 acres, with a proviso that any mission "of a religious character," established before that time, might contain six miles square. Or. Laws 1874, p. 50, n.

Under these circumstances I think the grant to the missionary societies ought to be construed to include 640 acres at each mission station occupied by them; that is, claimed and used by them, according to the circumstances of the time and place, and not in the actual occupation of any one else.

In the case under consideration there does not appear to have been any survey or marking on the ground of the boundaries or limits of the claim until June, 1850. But it was doubtless well understood by the occupants and the Indians that it should extend a certain distance in certain directions, or that it should include certain points or places,-as the improvements, the mill site, etc.,-though I do not think that it was ever expected or intended that it should extend north of the bluff, between which and the river, a distance of about half a mile, were the villages and camping ground of the Indians and voyagers up and down the Columbia river. And this brings me to the consideration of the question whether, upon the evidence, the defendant occupied this mission station so as to be entitled to the grant thereof under the act of August 14, 1848.

The evidence is somewhat meagre, and upon some points contradictory. It consists largely of the testimony of persons deeply in sympathy with the defendant, to facts and circumstances occurring 30 years ago, and scattered over a considerable period of time. The correspondence between the defendant and its agents here concerning the occupation and transfer of this station is not produced. It is presumed

to have been in writing, and within the knowledge and control of the defendant, and therefore the omission to produce it is a matter which must have more or less weight against the defendant, according to the circumstances of the case. Portions of the evidence partake of the character of hearsay, and some of it is decidedly argumentative. In considering it, it will be impossible to ignore the history of the period and place to which it relates. Reading it, then, by this light, and where it is contradictory or obscure supplementing from this source, the material facts about the settlement and occupation of the mission station at The Dalles are these:

it

In the spring of 1838 the Rev. Daniel Lee and Rev. H. K. W. Perkins, under the direction of the Rev. Jason Lee, the superintendent of the defendant in Oregon, established a mission within the limits of the tract described in the patent herein, at a place then called Wascopum. In the fall of the same year it was stocked with cattle from the Wallamet valley. The place was favorably situated for trade and intercourse with the Indians and immigrants from the east-the latter usually, at this point, exchanging their wagons for boats, and often bartering their poor oxen for supplies, such

as fresh beef and the like.

In 1840 Mr. H. B. Brewer went to reside there as a farmer for the mission. Perkins and Lee left the mission for the east in 1844, and the Rev. A. F. Waller joined it about the same time. Waller and Brewer remained there until the transfer of the station to Whitman, in 1847. In 1844 the Rev. George Gary superseded Jason Lee as superintendent of the Oregon mission. Apparently the society had become dis satisfied with the secular character and cost of the missionary operations, and sent Gary here to bring about a change in this respect. To this end, soon after his arrival in the territory, the various mission stations, except The Dalles, and all the mission property, consisting mainly of large herds of horses and cattle, were disposed of to members of the mission; so that after 1844 the defendant had no "mission among the Indian tribes" in Oregon except at The DallesThereafter the labors of its faithful clerical missionaries, of

whom but a few remained in the country, were devoted to the growing "white settlements" in the Wallamet valley. In the language of one of them: "The finances of the Oregon mission were thus summarily brought to a close, and the mission was not only relieved of a ponderous load, but assumed a decidedly spiritual character." Hines' Oregon, 242.

In July, 1847, Mr. Gary was succeeded as superintendent of the mission by the Rev. William Roberts. Prior to this, and in the spring of that year, Mr. Gary had disposed of nearly all the live stock of the Dalles mission station, and was negotiating with Dr. Whitman for the transfer of the station itself. Mr. Roberts, in continuation of the policy manifested by his predecessor, followed up these negotiations until in August an agreement was made for the abandonment or transfer of the station to Whitman, together with the sale of a canoe, some farming utensils, grain, and household furniture, for the sum of $600; and between September 1 and 10, 1847, Messrs. Waller and Brewer, the agents of the defendant, delivered the possession of the premises to Whitman, who took actual possession thereof, and placed his nephew, Perrin B. Whitman, a youth of 17 years, in charge, while he proceeded to his mission station at Wailatpu.

Dr. Whitman was not a minister, but at the time of the transfer of this station to him it was understood and expected that religious services and instruction would in some way be kept up there for the benefit of the Indians; but there was no legal obligation to that effect, nor did the defendant or its agents have any intention or expectation of returning or occupying the station, if such services and instruction were not furnished or otherwise. In pursuance of the settled policy of the defendant, the station was absolutely and unqualifiedly abandoned to Dr. Whitman, without any reservation or right to resume the possession under any circumstances. Dr. Whitman, whatever his purpose may have been in regard to the Indians, purchased the station primarily for himself and nephew, Perrin B., to whom he promised the west half of it if he would remain and take care of it until the spring, when the former intended to return there and make it his

permanent home. At the time the defendant abandoned this station there were about 70 acres under some kind of enclosure, about one-half of which had been under cultivation. There were six moderate-sized buildings upon the premises, a dwelling, meeting, school, and storehouse, barn and workshop, built of logs, except the dwelling, which was a frame filled in with adobe. The buildings were plain, and constructed mostly with Indian labor, and did not cost to exceed $4,000, at which valuation they were afterwards-on June 16, 1860-paid for by the United States, upon the claim and estimate of the defendant to that effect. See H. of R. Rep. No. 145, 2d Sess. 35th Cong.; 12 St. 44.

On November 29, 1847, Dr. Whitman and others were murdered at Wailatpu, by the Indians of that station, and this was followed by what is known as the Cayuse war, in which the people of Oregon, under the provisional government, undertook to chastise the Cayuse Indians for this massacre. By midsummer of 1848 hostilities had ceased and peace was established, and in the latter part of the summer the troops were withdrawn from the country and returned to their homes.

About December 16th, Perrin B. Whitman, who had remained in charge of the station at The Dalles, being apprehensive of danger, left for the Wallamet valley, taking with him Mr. Alanson Hinman, whom his uncle had sent there from Wailatpu in October as a farmer and housekeeper. A detachment of volunteers soon after occupied the premises, with the permission of said Whitman, and it remained in the possession of the troops of the provisional government until they were withdrawn from the country as stated. Thereafter, the premises remained unoccupied, except occasionally by passing travelers and immigrants, until the spring of 1850, when a military post was established there by the United States, and the premises included in a military reserve.

There never were any Indian hostilities at The Dalles of a general or serious nature, or within 100 miles of the place. The immigrations of 1848 and 1849 came through the country without molestation; and from early in 1848 there