Cobban

(after stating the facts as above). [1] The theory of the defense, which is quite urgently presented, is, in substance, that the terms of the Oregon enabling act operated as a grant in prsesenti, and, upon the acceptance by the state of its provisions, the state became clothed with an indefeasible right to all the public lands within its borders which should thereafter be ascertained by actual survey to be embraced within the sixteenth and thirty-sixth sections; that, although title to the particular sections did not formally vest until the survey thereof was approved, the state was potentially clothed with the title for the reason that by the force of its terms the sixteenth and thirty-sixth sections were irrevocably appropriated to the use of the state, subject only to be thereafter identified by survey, and were thereby withdrawn from other sale or disposition by the United States; that it was thereafter "not within the power of the Congress, or the president acting under subsequent legislation, to reserve or appropriate such lands or any part thereof to any other use; that the state had a perfect right to sell such lands in anticipation of the survey, and, upon such survey…