463 Reporter's Statement of the Case approximately $4.23. Some of these sales were for less than the legal maximum price of $2.50 per acre, but several sales of large blocks violated the grant both as to the amount of land sold to one individual and as to the price paid.3 By counties, involving only sales in the tribal area, the average price per acre was as follows: Throughout, it is clear that higher prices were obtained where the railroad ignored the acreage restrictions and sold large blocks of land. Actual sales of land in tribal area by settlers, prior to 1875 20. Most of the tribal lands were located in Tillamook, Coos, Curry, and Lincoln Counties. Certified summaries of the first fifty deeds of sale in each of those counties were introduced in evidence. Using only those deeds which disclosed the actual acreage transferred and the consideration paid, and excluding transfers of town lots, the average price per acre for the land so sold in each county was as follows: In the Tillamook County group of deeds, there were three for five acres each at a total consideration of $1,000. Excluding these sales, the remaining 40 transfers would average $3.53 per acre. In this group we have excluded a sale to the United States of 47.30 acres of land for $5,000. 21. The Report of the Commissioner of the General Land Office for November 30, 1854, contains a summary of dis For example: there was one sale in Coos County in 1901 of 12,006.20 acres at $5.00 per acre; another of 208.65 acres at $5.50 per acre; another of 365 acres at $6.00 per acre; another of 27,578.12 acres at $4.53 per acre. Reporter's Statement of the Case 115 C. Cls. posals of public lands, exclusive of California, Oregon, and Washington, which had not yet been proclaimed for sale. The report contains the following statement with respect to the kind of lands selected by settlers: It would be absurd to suppose that all the best lands are first purchased or that all the lands first entered were of the best quality. Our people are eminently social in their habits, and, moreover, naturally congregate together for the advantages of churches, schools, and mutual assistance. The inference is fair, therefore, that except the most worthless class, which was disposed of by the swampland grant, a fair proportion of lands of all qualities have been annually entered, leaving the same relative proportion in each class of lands subject to entry. Moreover, as time elapses and settlements increase and extend, lands comparatively poor and unfruitful become more valuable, because of increased facilities for market, or that the improvements in the neighborhood bring into requisition the peculiar products of those lands. For these reasons, beds of sand and fields of rock or gravel, in the vicinity of growing towns or villages, though unfit for cultivation, are actually more valuable to their owners, on account of the materials for building and improvement obtained from them, than the most productive agricultural lands. 22. With respect to the rough land lying in the Cascade slopes and among the broken spurs of mountains, the Report of the Commissioner of the General Land Office in November 1858 pointed out that while that land was not good for cultivation, it was in great demand among the settlers whose prairie lands lay in the vicinity and who needed the timber for building and fencing purposes. The report concluded that such lands would be surveyed at once and that the work of surveying would be difficult and expensive. In the Commissioner's report for 1859, it was stated— There still remain to be surveyed, west of the Cascade mountains, numerous fractions of townships along the base of the mountains, which, as the population shall increase, will be in demand for timber as well as for settlement. Timber in such locations is generally valuable, and the soil, even high upon the mountains, of a superior quality. 463 Reporter's Statement of the Case Value of tribal land as evidenced by country's natural resources-state of their development in 1855 and up to 1875 Timber 23. In the early days of our colonial history, the forests of our country were generally regarded as inexhaustible and were in many situations considered a liability rather than an asset, since many of the early settlers were interested in the use of the land for agricultural and grazing purposes and the clearing of lands for that purpose was a burdensome and expensive process. That was the attitude of some of the early settlers in Oregon where fires were started by them in the forests as an aid in clearing the land. However, almost from the earliest development of this country the need of timber for homes and local industries as well as for shipbuilding and export was recognized and an early appreciation was had by business interests and others of the value of our timber resources as distinguished from the land itself. From a commercial standpoint the lumber industry in this country had its beginning in Maine, and gradually extended into New York, Pennsylvania, and along the Atlantic seaboard. As the larger supplies of virgin timber were being depleted in these areas, lumbering operations were started in the Lakes region about 1850. Important lumbering operations were started in the Oregon-Washington area about 1890 to 1900. Prior to that time there had been a considerable amount of buying up of large amounts of timberlands in the northwest area for future operations. As shown in finding 17, it was not until 1878 that timber and timberlands could be acquired other than under the homestead and pre-emption laws. 24. With the settlement and development of the Oregon Territory, sawmills were constructed at various places in the Territory prior to 1855 and at least one of these was within the tribal area, namely, one constructed near Port Orford about 1853. Some shipments of lumber were made from the Oregon coast to San Francisco during the period 1850 to 1855, when the latter place was having its rapid development on account of the discovery of gold. The prices obtained for 878641-50-33 Reporter's Statement of the Case 115 C. Cls. such lumber in San Francisco were comparable to prices in recent years. However, because of the relatively small amounts of lumber involved and the conditions under which it was manufactured and sold, these sales are of little help in determining the value of the timber on the tribal lands other than as a recognition at this early date that there was timber of value in the area and that use was beginning to be made of this timber. 25. As shown in finding 3, the tribal lands are in what is known as the Douglas-fir region. The greater part of this area is timberland, much of it consisting of timber of excellent quality. Under the provisions of the McSweeneyMcNary Forest Research Act of 1928 the Secretary of Agriculture caused a forest survey to be made of large portions of Oregon and Washington, which survey included all of these tribal lands. A survey was made of the tribal lands of the Too-too-to-neys and Chetcos in 1933, Coquilles in 1938, and Tillamooks in 1942. The survey showed a classification of the area on an acreage basis and the volume of timber of various types and classes. The area in acres for the four tribes was shown under the several classifications as follows: 1 That part of the Tillamooks' lands lying in Polk and Benton Counties current as of the year 1940. That part of the Coquilles' lands lying in Douglas County current as of the year 1933. The following summary based on Forest Survey Records shows the relationship of the six broad type classifications found on the four tracts at the time the survey was made: The following summary shows the timber volume on the tribal lands at the time of the foregoing forest survey: Trees 16 inches and more diameter at breast height1 1 Trees of hardwood species taken from 12 inches and more diameter at breast height. 'That part of the Tillamooks' lands lying in Polk and Benton counties current as of the year 1940. That part of the Coquilles' lands lying in Douglas county current as of the year 1933. 26. During the period 1855 to the dates the forest surveys referred to in the preceding finding were made, various events occurred and changes took place which affected the stand and character of timber on these lands. Some of these changes and events were forest fires, logging operations, growth of trees, loss of trees through disease, storms, and other causes, and clearing of land for agriculture. With the quantities and classifications of timber known at given dates, such as shown here in finding 14, and with full information of the timber history of these areas from 1855 |