This is an action brought by the heirs of one Edmund Sylvester to recover a parcel of land patented to him by the United States, under the Oregon donation act of September 27, 1850, chap. 76, 9 Stat. at L. 496, and the amendments to the same. The state took up the defense and alleged that Sylvester settled on the land on February 1, 1850, resided there continuously for more than four years, and then with his wife, the plaintiff Clara Sylvester, by deed of bargain and sale without covenants, conveyed the land to the territory of Washington on January 18, 1855. This conveyance was made in accordance with a territorial act of January 9, 1855, to provide for the seat of government. The state alleged that it and the territory, its predecessor, have been in open and adverse possession ever since, and relied upon the statute of limitations as well as upon the deed. To this defense there is a very verbose reply to the following effect:
The grantor offered the land to the territory as a gift so long as it should be used as a site for the seat of government and the territorial capitol building erected and maintained thereon. The offer was accepted and an act was passed establishing the seat of government there, provided the owners or claimants gave a release of the land. January 9, 1855. Thereupon Sylvester made the above-mentioned deed, which the plaintiffs prefer to call a release, or a quitclaim, as it was called in another territorial act of a few days later, January 28, 1855, accepting the deed. At the time of Sylvester's conveyance he was a claimant, but had not complied with the requirements of the donation act in other respects than the occupation for more than four years. On this ground it is alleged that his deed was void. On July 1, 1858, he made final proof; there was no adverse claim, and on May 3, 1860, a patent was issued to him. He died in 1887, and after the state of Washington had been admitted to the Union, at its request, the plaintiffs executed another deed of the premises; but this deed purported to be made 'upon the express condition that the tract shall be and remain the site of the capitol of Washington, and that, in the event of the location of the capitol elsewhere than upon his tract, these presents shall be null and void.' As a further ground of recovery, it is alleged that the state has ceased to use the tract for the seat of government. Finally, it is alleged that, under the act of Congress of March 2, 1853, chap. 90, 10 Stat. at L. 172, organizing Washington territory, the territory was not authorized or permitted to acquire title to the land in suit. It is added that the statute of limitations did not run, because the plaintiffs could not sue the territory or state until authorized to do so by the act of 1895, chap. 95, p. 188, for the first time.
There was a trial and judgment for the state, which judgment was affirmed by the state supreme court. 46 Wash. 585, 91 Pac. 15. The facts found were substantially those set forth in the pleadings, except that it was held to be proved that Sylvester filed his notification of settlement with the surveyor general of Oregon in February, 1854, before the date of his deed to the territory, although, as has been shown, his final proof and his receipt of a patent were after that date. The plaintiffs specially set up the invalidity of his deed under the Oregon donation act, and the incapacity of the territory to accept it under the act by which it was organized, and claimed title on these grounds. We may assume that the present writ of error is within the jurisdiction of this court. Anderson v. Carkins, 135 U.S. 483, 34 L. ed. 272, 10 Sup. Ct. Rep. 905; Nutt v. Knut, 200 U.S. 12, 50 L. ed. 348, 26 Sup. Ct. Rep. 216. But, on the merits, we are of opinion that the plaintiffs have no case.
We see no ground whatever for the doubt suggested as to the power of the territory to accept the deed. If that power was not incident to the organization, it was implied by § 13 of the organic act, as Congress granted $5,000 for 'the erection of suitable buildings at the seat of government.' For that purpose it was necessary that the territory should control the land, and especially, in a region where land was so cheap as it was in those days, the implied authority cannot be confined to the taking of a lease.