"Mr. Lovejoy.
"Dear Sir:
"The letter referred to in the Notice was one written to Rev. J. Lee in answer to one he wrote me. I think I have never written a line to Dr. McLoughlin on any subject. Mr. Lee I presume has the letter with him.
"I am yours truly,
"A. F. Waller."
"Copy of a reply to the within."
The following copy and statement of John Ricord's caveat or notice as attorney for Rev. Alvin F. Waller to Dr. McLoughlin is taken from Mrs. Frances Fuller Victor's volume, The River of the West, page 358: "'You will please to take notice that my client, Mr. A. F. Waller, has taken formal measures at Washington to substantiate his claim as a preemptor and actual settler upon the tract of land, sometimes called the Wallamet Falls settlement and sometimes Oregon City, comprising six hundred and forty acres; and being aware that, although a foreigner, you claim to exercise acts of ownership over said land, this notice is given to apprise you that all sales you may make of lots or other subdivisions of said farm, after the receipt hereof, will be regarded by my client, and by the government, as absolutely fraudulent, and will be made at your peril.'"
Then followed the grounds upon which the Doctor's claim was denied. "First, that he was an alien; Secondly, that he was the chief of a foreign corporate monopoly; Thirdly, that he had not resided upon the land in question for a year previous; Fourthly, that he did not hold the land for himself but the Company; Fifthly, that his claim, if he had any, arose two years subsequent to Mr. Waller's settlement thereon. This flattering document closed with Mr. Ricord's regrets that he had 'failed to make an amicable compromise' of the matter between the Doctor and his client, and also that his 'client had been driven to the vexatious proceedings of the law, in order to establish his rights as an American citizen.'" This caveat or notice was served on Dr. McLoughlin in 1844 prior to April 4, after Ricord left Oregon for the Sandwich Islands.
The attempt of Rev. A. F. Waller to assert any right to, or to procure the land claim of Dr. McLoughlin, or any part of it, at Oregon City, under the law relating to pre-empting lands was absurd as well as invalid. Under the act of Congress of September 4, 1841, then in force, relating to the pre-emption of public lands of the United States, it was necessary that the lands should be a part of the public lands of the United States. The Conventions of joint-occupancy were then in force and neither Great Britain nor the United States exercised jurisdiction over the lands in the Oregon Country.
In addition to other requisites of the pre-emption law, no person could pre-empt more than one hundred and sixty acres, and the law required the intending pre-emptor "to enter with the Register of the Land-Office for the district in which such land lies, by legal subdivisions, any number of acres not exceeding one hundred and sixty, or a quarter-section of land," etc.
There was no United States land district in Oregon nor any Register of any United States land-office. There had been no public surveys of land in Oregon. No lands could be legally pre-empted which had not been officially surveyed by authority of the United States.[63]
In the case of Lytle v. State of Arkansas, 9 Howard (U. S. Supreme Court) 314, it was held, concerning a claim to pre-emption, that "until sanctioned by law, it has no existence as a substantive right." In the case of Brown v. Coursen, 16 Oregon, 388, it was held that a pre-emption is a right derived wholly from statute and a substantial compliance with the statute is necessary; and the condition must exist which would enable the pre-emptor to acquire the land under the statute. In the case of Stark v. Starrs, 6 Wallace (U. S. Supreme Court) 402, it was held that even the act of August 14, 1848, organizing the Territory of Oregon, did not extend over Oregon any portion of the preëmption act of September 4, 1841.