, 1862-12-27
Decision of Register and Receiver.

T.. III. Barron VS.. The City OF w ALA Wala, BE-
fore the Register and Receiver of the Land
Office at Vancouver Washington Territory.
This is matter of controversy between the
above named parties, touching the right to enter
the S. w. IA of the S. w. IA of section No.
20, I. N. X. SO E. of w. NJ.
E. II, Barron claims the tract of land described
as pre-emption right under the act of 4th Sep
tember 1871, and its amendments.
The City of Walla Wala claims it as a town
site, under the act 23d May, 1874.
In considering this question, we deem proper
first to determine, whether we shall, or shall not,
admit the evidence of certain witnesses, to whom
the attorney for Barron objects on the ground of
interest," said interest consisting in the ownership
of Improvements on the land in dispute. In con-
sidering questions presented to for adjudication,
we must not be unmindful of the peculiar circum-
stances which surround the case. And when
questions arise as to date of settlement of city
town, it is presumed that the persons most like
ly TO be cognzant of such matters, would be the
early settlers or founders of the city or town, and
by excluding such from testifying we might de-
priye ourselves of the only means of arriving at
the truth. True, we could not consider the un-
supported testimony of an interested party as of
sufficient force to outweigh opposite testimony
given by disinterested party but we may, and
strengthening similar testimony given by party
who has no interest, ard in taking this position
We are sustained by the law of this Territory,
which enacts (page 63 of civil practice act) that
"no person offered witness, shall be exclud-
ed from giving evidence by reason of his interest
IN the event of the action but such interest may
be shown to effect his credibility" We therefore
deem it proper tp admit the testimony of the
witnesses referred to- bearing in mind the fac: that
they are interested parties, and receiving these
statements with due caution.
The act of September 4th, 1S41, is known as
the "Pre-empton act, declares that ''no portion
of the public lands which have been selected as
the site for city or town, no parcel or lot of
land actually settled and occupied for the purpose
OF trade, and not agriculture,
shall be liable to entry, sc, and the city of Waila
Walla claims that the land in dispute was so Sc
lected and occupied prior to the settlement of E.
II. Barron, to wit, Nov 18th 1858. 1t is claimed
that portion of the house known as "the Nc
Clnchy house," was on the land in dispute at that
time, and surveys have been made by both parties
with view of determining the fact. These sur
veys do not give the same result, but it appears
that small portion of an addition to the said
house was upon the disputed tract. The testimo-
ny relative to building materials having been on
the disputed tract, at, and prior to the date above
referred to, is also very contradictory; but in
our judgement the balance of testimony is on the
side of the affirmative.
But apart from the above, a question arises as
to whether the land in dispute was subject to pre-
emptiOn at all, at the date referred to. In order
to bring land within the provisions of the act of
Sept. 4th lS41, it necessary that it should be
surveyed, and the Indian title extinguished.
The act of 18th July 1854, extended the pre-
aofn nf ho in,
and Washington Territories, whether surveyed
or unsurveyed;" )" but it did not remove any of the
other restrictions imposed by the act of 1S4l, and
the Attorney for the City claims that the Indi-
an title not extingushed until April 1lth,
1852 Barron had no legal right to the land
prior to that date.
The Attorney for Barron objects, that if such
was the case the act of 1854. was at the time of
its passage, dead letter, as it regards this Ter
ritory.
As the restrictions referred to (the Indian title)
was imposed by the act of lS4l, was not removed
by the act of 1854, we cannot do otherwise
than regard il being still in force and, therefore,
conclude that the land in question was not sub
ject to private or agricultural pre-emption.
1t is also claimed on the part of the City that
Barron's claim, as takeh prior to the survey,
would include less than half of the land in dispute.
bounded on the west by military reservebut where
the Eastern line of the military reserve at that
time was is not determined. Measuring from
the reserve line as it is now established, Barron s
claim would include but small portion of the
land in dispute but measuring from the cotton
wood tree which the witness, Blackmore, says
was thought to be on the eastern line of the re-
serve, it would include the greater portion of it,
but not all and when the public surveys were
extended over the land, the legal subdivision in
dispute was claimed by two parties. First by
Barron, who had no Improvements on Ii, his
dwelling, &c, being on another quarter section;
and I'd, by the citizens who settled upon it, and
were in the actual occupation thereof, and by the
terms of the act of 1871 the claim of a city or
town, is preferred to that Of private pre-emp-
tor.
1t is further claimed on the part Of the city,
that Barron is estopped from claiming the dispu-
ted land, inasmuch as he saw persons occupying
and building upon said land and did not notify
them of his claim thereto. To this the Attorney
for Barron answers, that Barron had given the
legal notice required filing his declaratory state
ment) and need do no more. We are not pre-
pared to say what legal effect this omission on
the part of Barron would have; but we do think
that this fact taken in connection with the fact
that Barron did forbid building on another part
of his claim, was sufficient to lead to the belief
that he did not claim the land in dispute, and
this view of the case is strengthened by the evi-
dence of Thos. X. Mccoy, which is 10 the effect
that Barron told him that his eastern line was at
or about an "old corral" which "conaP was en-
tirely outside or west of the city limits.
There were other points noticed by the Attor-
neys on either side; but as we regard the forego-
ing as the leading features of the case, and as
affording sufficient ground upon which to base
decision, we think it unnecessary to examine
others; and having given the case that careful
and mature consideration which its importance
demands, we have come to the conclusion that
the city of Walla Walla is the rightful claimant
of the land in dispute, and we decide accord
ingly.
Land Office, Vancouver, w. I. Dec. II, 1862.
JOSEPH NJ. FLETcHER, Reg.
SAM'L w. BROWN, Rec.