Territory v. King. TERRITORY OF OREGON, Plaintiff, v. WILLIAM M. KING, Defendant. Agreed Case from Washington. Compensation, fixed by statute for certain services, cannot be increased. A. Campbell, for territory. W. H. Farrar, for defendant. OLNEY, J. This is an agreed case submitted to this court. The facts, as stated, are, that King, one of the commissioners to erect the penitentiary, was chosen by the board as acting commissioner, whose duty it was "to preside at all meetings of the board, and superintend the performance of all contracts for labor and materials which may have been authorized by the board, to see that the terms of each contract are fulfilled, and to do and perform such other duties, pertaining to the erection of said penitentiary, as the board shall direct." For this service the statute provides him a compensation of one hundred dollars a year. It is agreed he performed services as such acting commissioner, by making journeys in search of building rock, and looking after the execution of contracts, worth, including expenses, two hundred and seventy-three dollars more than the compensation fixed by law; which extra compensation has been allowed and paid to him by the board; and this suit is brought to recover it back. The statute having fixed the compensation, it was not competent for the board to increase or diminish it. Judgment for the territory. Territory v. Norris. TERRITORY OF OREGON, Plaintiff, v. SHUBRICK NORRIS, Defendant. Agreed Case from Washington. When the statute required the board of commissioners for erecting a penitentiary to have a secretary, without fixing his salary-Held, That he was entitled to a reasonable compensation for his services. A. Campbell, for territory. W. H. Farrar, for defendant. OLNEY, J. This is an agreed case submitted to this court. The facts, as stated, are, that Norris, one of the commissioners to erect the penitentiary, was chosen by the board as their secretary, and, for his services as such, received from them two hundred and fifty dollars; and this suit is brought to recover it back. The statute requires the board to have a secretary, but makes no provision for his appointment or compensation. The duty to have a secretary implies the power to appoint one, in the absence of all other legal means of procuring the services of such an officer. The duties of a secretary do not appear to be incompatible with those of a member of the board. Both could be performed as effectually by the same person as by different persons; and in neither capacity would he be likely to have views or interests inconsistent with his duties in the other capacity. There is no reason, therefore, why a member of the board could not be employed as secretary. The fund which ought to pay for that service being subject to the order of the board, the power to employ might include power to compensate out of that fund. But, however that may be, the defendant having, according to the agreed statement of facts, received but a reasonable compensation, is entitled to retain it against the territory. By the Court-judgment for defendant. 1 108 1 162 Woodsides v. Rickey. JACOB WOODSIDES, Plaintiff in Error, v. JAMES RICKEY, Defendant in Error. Error to Marion. Courts of the territory have jurisdiction to protect a settler from any invasion of, or actual injury to his claim. RICKEY settled on the public land, under the act of Congress granting lands to settlers in Oregon, upon condition of four years' residence and cultivation, and marked out the boundaries of his claim. Afterwards, an older settler, whose boundary does not appear to have been previously defined, filed in the land-office a notification, covering a part of Rickey's claim. Woodsides, being sued by Rickey in the District Court of Marion County, in an action of trespass, for cutting timber on the disputed tract, defended as the servant of the other claimant, and asked the court to instruct the jury that Rickey, not having filed his notification, could not recover. court refused the instruction, and Rickey had a verdict and judgment to reverse which, this writ of error is prosecuted. Harding & Grover, for plaintiff. Barnum, for defendant. The OLNEY, J. Two propositions have been submitted in the argument: First. That the courts have not jurisdiction to settle conflicting boundaries, that power having been conferred upon the surveyor-general. Second. That one who files his notification within three months after the survey, is entitled to hold against one who does not. Woodsides v. Rickey. Of the abstract question of boundary it is clear the courts have not jurisdiction. A suit cannot be maintained for the mere purpose of deciding such a controversy. But it does not follow that the boundary between claims cannot be investigated by the courts as a means to some other end. If they are competent to do any act, which they cannot do without a knowledge of the true boundary, then the principal power necessarily includes the incidental one. That the settler would have a sufficient standing in a court of equity to restrain adverse claimants, as well as strangers, from committing waste and injury, while his title remains inchoate, cannot be doubted. While in possession, complying with the conditions of the grant, equity will preserve for him, in the event of his success, whatever is in itself valuable, or gives value to the land, as timber, stone, water, and all other incidents and appurtenances, as nature made them. This may be done without inquiring which of two conflicting claimants has the older or better right. It is only necessary that the applicant for such aid is claiming and may succeed in obtaining the land. The injunction is a favorite remedy in this class of cases, since it may be applied with little delay or expense, and be so moulded to the circumstances of each case, as to save the rights of each without impairing the rights of any. But the power of the court to adjudicate a disputed boundary, as a means of affording an action of trespass or ejectment to the older, or otherwise better claimant, is a different question, and must depend on the nature of the settler's right. If it is purely equitable, he must look to the courts of equity alone for protection. If it is also of legal cogniz ance, the courts of law must afford a remedy. The settler's relation to the land is that of an occupant under a contract of purchase. He has accepted the proposition of the government, and entered upon the land in accordance with the terms proposed, and severed it from the body of the public lands by definite boundaries, and is in possession, complying with the conditions of the purchase. Woodsides v. Rickey. In White v. Guirons, Minor, 331, it was held that one who had contracted with the owner to settle on the land and make improvements, and perform certain conditions, and then to have a deed, was entitled to an action for possession against a stranger. In Gilday v. Watson, 2 Sergeant & Rawle, 410, it was held, that a settlement with intent to take the whole of a vacant tract, under a law of Pennsylvania, which entitled the settler to a patent, on proof of compliance with certain conditions, part of which were settlement and improvement, gave the settler legal possession of the whole tract. Occupancy, with a view to obtain a settler's right under the laws of Pennsylvania, has always been regarded as giving the occupant a legal title and possession, to the extent of his survey, though unenclosed, against all persons except the State. This is believed to have been the doctrine of all the colonial proprietors and States, who disposed of lands by this and similar modes, though the dearth of books in this territory renders an investigation of the subject impracticable. It is, however, quite clear upon principle, that when the government, or other owner, contracts with the purchaser that he shall occupy the land in order to entitle himself to a conveyance, the contract gives the right of possession; and actual occupancy under the contract is possession of the entire tract, whether enclosed or not; and this possession and right of possession are exclusive, and sufficient to support an action for trespass, unless the defendant shows a better right. As the settler has possession, and a right to the exclusive possession of his entire claim, it follows that he must have a remedy for any wrongful invasion of it. The surveyor general can only decide the abstract question of right between the claimants. He cannot protect the true owner against wrong-doers. This can be done only by the judicial tribunals. Congress has established the land office and the courts. To the one it has given the power to determine the right, and to the other power to protect the right. It being the right of the settler to be protected in his pos |