Who Owns Oregon's Land?

[This essay is part of a multi-essay set exploring the distribution of the public domain in Oregon, the life of CES Wood and the legal cases and issues surrounding one of the major companies--the Willamette Valley and Cascade Mountain Road Company]

Ever since I went to the memorial service of a friend five days ago and the name of the famous, long-lived Oregon lawyer CES Wood (1842-1944) came up in conversations with people, I have been interested in trying to get to the bottom of the issue of his representation of Lazard Freres, a New York-based investment house, over a period of more than 20 years, from about 1887-1910. It was his largest and most influential client, and the fees earned from them (more than $1,000,000) brought him from middling to comfortable circumstances. One might even say his representation lasted longer than 23 years, since the complete payout of his fee earned over those years wasn't complete until the 1920's and, on one occasion, in the mid-1910s, he had to enter into negotiations just to make sure that the deal he brokered for Lazard Freres actually would be consummated. The "deal" which I mention was the May 1910 sale of around 860,000 acres of land owned by LF, which was originally owned by the Willamette Valley and Cascade Mountain Wagon Road Company, to an investment conglomerate headed by the St. Paul (MN)-based interests of James Hill, the railroad man.

But when I learned that the fee was earned for the sale of such a Road, it opened up cans of worms and such a complex set of issues that would have made Pandora blush. That is, the sale of the Road invited me to consider the issue of the origin of the road, the nature of other roads subsidized by the federal government in Oregon, the dates of incorporation of the various companies, the sufficiency of the road construction, the legal challenges to the construction of the roads, and the nature of Wood's legal representation. But since the road was built and the legal challenges were mounted at the time when Oregon was undergoing massive timber frauds, the simple question of how Wood earned his legal fee also opened the issue of how public lands were, in fact, distributed in Oregon.

In the next few (or several) essays, I will go into the history of the Willamette Valley Road; here I will write a preliminary essay on the disposition of the public domain in Oregon.

Oregon's Public Domain

I write this essay because I have harbored a misconception for years that centered on the following question: "At statehood (exactly 143 years ago today!) who owned Oregon's land?" I thought, naively, for many years, that "Well, the State of Oregon owned the land, except perhaps for some acres that the federal government held back for its purposes." In fact, as I will now show, Oregon, upon becoming a state, owned ZERO acres beyond what was specifically GRANTED to it. The grant of land to Oregon happened in section 4 of an Act of Congress (Feb. 14, 1859; 11 Statutes at Large 383). That grant, in fact included 4,329,445 acres out of a total acreage of 61,664,000 in the State. That is, the federal government granted the State Oregon about 7% of the land within its borders. In the remainder of this essay I will quote relevant sections from the statute and then show how, when all was said and done, the public domain in Oregon was divided.

The Statute

The Act of Feb. 14, 1859 provided that the following land, in section 4, would become property of the State of Oregon:

(1) "sections numbered 16 and 36 in every township of public lands in said state....for the use of schools." Since there are 640 acres in a section, this meant that 1280 acres in each township (6 miles square) would belong to the state. If this is multiplied by the number of townships in Oregon, one comes to about 4 million acres.

(2) "that 72 sections of land shall be set apart and reserved for the use and support of a state university."

(3) "that ten entire sections of land...shall be granted to said state for the purpose of completing the public buildings...at the seat of government."

(4) "that all salt springs within said state, not exceeding 12 in number, wiht six sections of land adjoining....shall be granted to said state."

A Few Additional Lands--Adding It Up

As O'Callaghan shows in his work on the disposition of Oregon's public domain, in addition to these lands, the State was also given 500,000 acres for internal improvements under an 1841 Congressional Act,as well as 286,108 acres of swamplands. Thesum of all these lands came to the 4.329 million acres. But then there is a clause in the same section of the law that said:

"That the foregoing propositions, hereinbefore offered, on the condition that the people of Oregon shall provide by an ordinance..that said state shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations congress may find necessary for securing the title in said soil to bona fide purchasers thereof..."

I am not absolutely sure of the meaning of this, but it seems to suggest that the "rest" of the land is for the Congress to dispose of, and that Oregon agrees not to object to that distribution. The notion of congress "securing the title" to various lands probably suggests the process of what is euphemistically called the "extinguishment of Indian title" to the land, which was pursued fairly vigorously in the 30 or so years following statehood.

In another instance (the State of Idaho, which achieved statehood in 1890), there was a provision in its state constitution whereby the people of Idaho basically gave up all their land to the federal government. The provision reads (Art. 21, sec. 19):

"And the people of the State of Idaho agree and declare that we forever disclaim all right and title to the unapprpriated public lands lying within the boundaries thereof...and until the title thereto shall have been extinguished by the United States..."

I also discovered that the State of Nevada, in its 1864 Enabling Act, had to disclaim the land in almost identical language that Idaho had to use a generation later. It seems, then, that the "language" of disclaiming changed slightly after Oregon became a state--but the result was the same. The federal government owns it ALL, unless it grants it back to you. This is a very interesting twist to the Tenth Amendment, which purports to grant to the States and the People everything that isn't specifically granted to the United States. In a sense, these "reverse grants" to the United States completely reversed the meaning of the Tenth Amendment or, in other words, completely reversed the philosophy of that Amendment. Who says the federal government had little power in the 19th century (which is the common approach to the federal gov't in that day)? It appears extremely powerful indeed.

The Rest of Oregon's Acres

So, if Oregon has 61,664,000 acres within its boundaries, how were these all distributed by the federal government? Piecing together figures from "The Report of the Public Lands Commission" (1905), printed in "Senate Documents," 586h Congress, 3rd Session, No. 189, we have the following:

1. Homestead Act Acres-- 11,097,982. This website, however, has Oregon receiving 10,513,945 acres under the 1862 Act, representing 62,926 homesteads. Oregon's acres represented 17% of the land within the state's borders.

2. Sales--6,432,445 Acres. I don't know what this includes--perhaps a subject for further study!

3. Grant to State--4,329,445 Acres. We have just discussed this, and it was given by virtue of the 1859 law.

4. Donation Claims--2,614,082 Acres. This represents more than 7,400 donation land claims filed under the 1850 Donation Land Claim Act. The duration of the Act was very short (about five years), and so this represented the "engine" to get Oregon going even before statehood.

5. Wagon Road Grants--2,490,890 Acres. My other essays will discuss these acres, since the Willamette Valley and Cascade Mountain Road Company controlled more than 33% of these.

6. Railroad Grants--1,588,532 Acres. I don't understand these fully (yet) because it seems that some accounts I have read assumed a much larger grant to the railroads. But let's stop on that one.

7. Miscellaneous--992,921 Acres.

Of course, this leaves a whopping 32,000,000 acres, give or take 100,000 acres, which are not accounted for. So, who owns them? You guessed it. The federal government. Just over 53% of the land within the borders of Oregon is still owned/controlled by the federal government.

Conclusion

So, now that we are clear on the basic contours of land ownership in Oregon, let's turn to the area that affected Wood--our subject--the Wagon road grants, in the next essay.

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