Oregon's Wagon Road Grants

[*This is part of a series of essays dealing with the disposition of Oregon's public domain, the life and work of CES Wood and the legal issues surrounding the Willamette Valley and Cascade Mountain Road Company, owned by Lazard Freres, CES Wood's client for many years.]

In the ten years following Oregon's achievement of statehood on Feb. 14, 1859, the federal government granted to Oregon 2,490,890 acres for the construction of five Wagon roads. In all cases the state turned around and gave the privilege of construction, along with massive land grants that went with them, to private companies. This act by the state enabled a few individuals to become enormously weathly, while many others claimed that those who became wealthy didn't even do the minimal work they were supposed to perform in order to fulfill the terms of their original contracts. These conflicting claims led to massive lawsuits beginning in 1889 (why so late? I will get to that!), resulting in at least three US Supreme Court decisions, before title was ultimately vested in the large conglomerates or wealthy individuals who bought up the roads in the intervening years. For example, the Willamette Valley and Cascade Mountain Road Company, representing more than 1/3 of all these acres, was sold to Lazard Freres, the New York-based investment house, in 1879. The Dalles Military Road Company was sold in 1876 for $125,000 to a Mr. Edward Martin of San Francisco, an Irishman who had started the Hibernia bank in that city a decade or so earlier. The remainder of this essay will lay out the basic timeline to understand how the Wagon road grants worked.

The Five Companies

Five Wagon road companies received grants from the State of Oregon to build their roads, ranging from about 100 miles in length to almost 450 miles in length (from Albany OR, over the Cascades, wending through Eastern Oregon to the Idaho border--the Willamette Valley and Cascade Mtn. Road Company--henceforth "WV"). Because the "big three" claimed 80% of the acreage, my sole focus will be on the Dalles Military Wagon Road Company, the WV, and the Oregon Central Military Wagon Road. The first went from the Dalles (the "the" in The Dalles was not capitalized in those days...) to a point opposite Ft. Boise in Idaho Territory. The WV went to the Idaho border by way of Canyon City, a thriving Eastern Oregon city at this time, and the Oregon Central route went via Diamond Peak to the Eastern border of Oregon.

A Snapshot of One Timeline--the Dalles Military Road

Before focusing on the WV, which ended up being a client of CES Wood, the attorney that got me focused on this project in the first place, it might be helpful to go through a quick chronology of one of the other companies, so that one can get an overview of the issues and problems. In his 1951 Stanford University dissertation on the "Disposition of the Public Domain in Oregon," Jerry O'Callaghan calls the Dalles grant the most fraudulent of them all (p.54). The timeline was as follows:

1. February 2, 1867 (14 US Statutes at Large, ch. 77, p. 409), a grant from the US to Oregon for construction of the road. The language, which follows the Central Oregon grant but differs in an important particular from the WV grant (which is ignored by almost all scholars) is for "alternate sections of public lands, designated by odd numbers, to the extent of three sections in width on each side of said road." This meant that for every mile of road constructed and completed, the company would get three sections of land (the total of three odd-numbered sections derived from three miles to one side and three to the other side of the road. That is, for the six miles/sections, there will be three odd-numbered sections and three even-numbered sections). It is an immense grant of land, comprising nearly 2000 acres for one mile of construction. When one considers that a case can be made that the company, for more than 80% of this route, did nothing more than place a stake in the ground and lighly shear sagebrush along the way, claiming thereby to have constructed up to 30 miles of road in one day, the rewards reaped were enormous. The statute required there to be a certification by the Governor within five years of the successful completion of the project. What constituted successful completion? That was a legal issue beginning in 1889; the statute only provided that "the road be constructed of such width, gradation and bridges, as to permit the regular use as a wagon road" (Sec. 3). The grant for this road ultimately came to 550,000 acres.

2. Oct. 20, 1868. The Oregon State Legislature re-granted the land to the company, in this case the Dalles company.

3. June 23, 1869. Governor Woods accepted completion of the road. Just think--in less than 8 months, through a cold Oregon winter, he was certifying that 350 or so miles of road was completed. Any red flags? Later the federal government estimated that $6,000 was spent by the company on improvements for the entire road.

4. January 12, 1870. Governor notifies the Secretary of the Interior of the completion of the road.

5. June 18, 1874. Congress passes an act authorizing the issuance of patents for the land to the company

6. December 18, 1874. Commissioner of the General Land Office of the US withdraws from sale the appropriate sections "earned" by the Dalles road company.

7. May 31, 1876. The road company sells the lands to Edward Martin of San Francisco for $125,000.

8. Late 1870s grumbling begins in earnest when landowners along the route complained that the road was not in fact improved and that the investments they made in their lands were now worthless, since there really was no road at all near their lands. As I will show in more detail in my discussion of the WV route, Congress heavily got into the issue in the early 1880s, before concluding about 1883 that Congress itself had no authority to act against the road sellers or owners. Only the executive did, it said.

9. Under the only Democratic President elected between Abraham Lincoln and Woodrow Wilson, President Grover Cleveland urged the Congress in 1888 to pass a law requiring the US Attorney General to sue the various owners of the three major Oregon roads for fraud and other issues in the completion of the roads.

10. March 1889, statute passes authorizing the suits

11. 1890 Suits in the US District Court of Oregon filed by the US Government (the suit against the Dalles company, for example, was argued by Lewis McArthur, who had previously served on the Oregon Supreme Court and was to be the father of two generations of McArthur's who put out the now-classic volume on Oregon Geographic Names). The cases were all dismissed--i.e., the defendants won.

1891. The cases were all appealed, and they eventually made it to the US Supreme Court, which overturned the District court decisions and said that after the defendants put in their case, the government should have a chance to reply, by submitting evidence of fraud or other things that were alleged--in the district court cases, the government was not given that opportunity.

1892. The cases come back to the US District Court of Oregon. They also are dismissed, but there are two different lines of attack in the cases (more about that later). The WV case didn't get decided until Dec. 1892, and there was no appeal of this to the US Supreme Court because the other two cases were decided very early in 1892, were appealed right away to the US Supreme Court and were decided early in March 1893.

1893 In two cases, in March 1893, the US Supreme Court held that the successor buyers of the companies (the Dalles and Central Oregon) were bona fide purchasers for value, without notice of any kind of fraud, and therefore their title to the road was unimpeachable.

Conclusion

Now that the basic contours of one of the roads has been presented, let's turn in the next few essays to examination of the particulars of the WV grant, the grant that Wood so carefully nurtured beginning in 1887, for a good portion of his legal career.

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