3 Or. 465 | Or. | 1869
The 3d article of the treaty of 1846 provides “in the future appropriation of the territory, south of the forty-ninth parallel of north latitude, as provided in the first article of this treaty, the possessory rights of the Hudson Bay Company, and of all British subjects, who may be already in the occupation of land or other property lawfully acquired within- said territory, shall be respected.” It is claimed that this language was meant to confer titles on the persons, named in this article as British subjects, having possessory rights to land within the territory; for, it is not a mere possession that is here asserted, but a fee simple title. If the treaty only conferred a mere right of possession, then, whenever that possession was abandoned by the occupant, it would cease. It would also determine with the death of the occupant; for a mere title to possession does not descend to heirs; and, if simply personal, cannot be assigned unless it be for a term. In determining this question, it is important that we look at the history of British occupation in this territory, prior to the convention of 1818, between the United States and Great Britain. The United States claimed the country drained by the Columbia river by right of discovery. Great Britain was also claiming the same right to it. The convention of 1818 by the third article provided as follows, to wit: “It is agreed that any country that may be claimed by either party, on the northwest coast of America, westward of the Stony mountains, shall, together with its harbors, bays and creeks, and the navigation of all rivers within the same, be free and open for the term of ten years, from the date of the signature of the present convention, to the vessels, citizens and subjects of the two powers; it being well understood that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country, nor shall it be taken to affect the claims of any other power or state to any part of said country; the only object of the high contracting parties, in- that respect, being to prevent disputes and differences among themselves.” This article was extended in
The treaty of 1846, treated of these lands as they then were; and had the parties intended to raise these possessory rights to a higher title, it would have been so provided. I think these possessory rights w'ould cease on being abandoned, so that the possessor became disseized by his own voluntary failure -to occupy; or, on his death, as such rights would not descend to heirs; and further, I think that as Johnson died before the passage of the Act of Congress of 1850, September 27th, he was not one who could be provided for by that act, as that only provided for persons in esse. Nor do I think it was the intention of the Act of Congress of September 27, 1850, to enlarge the possessory rights, provided for in the treaty,of 1846, but only to recognize them, to the extent that they had been granted, and to exclude those claiming under the treaty, from any benefit under the Donation Law; and all that class of persons, named in the treaty, would have been excluded without this provision, for they are described as British subjects and none but native citizens, or persons who were naturalized, could obtain land under the act of 1850; and when a person becomes naturalized he is no longer a citizen of his former sovereignty, there is a change in his relations to his adopted country; and by the theory of our government he would cease to be a British subject. It was intended that such should not claim under the treaty, and also under the Donation Law; aná. a claim, under the latter, was a surrender of possessory rights under the treaty.
The judgment will be affirmed.
