Jamestown alert. [volume] (Jamestown, Stutsman County, D.T. [N.D.]) 1878-1882, 1881-06-03
The Reservation Law Suit.

II. f.. Elicit and D N. kelleher of this
place are at present taking an active part.
seems to be attracting no small amount of
attention. The suit Of Saturday was
brought fol- the purpose of settling the
perplexing ouestinn of which of the two
parties named above has q legal right
to occupy tina; portaon Of the reservation
known rs the Post Garden until the ques-
ton Of title to the whole fraction is set
tied by the land Office, aud came under
the head Of Forcible Entry and Dctalner.
The principals in the case were as follows
D. NJ. Kcllthcl, plaintiff; II. F. Elliott,
defendant; Allen 4 Dodge, for plaintiff;
White & N ickcus, fordefendant; the jury
consisted of Messrs. Flint, Griffin. Dole,
Nierling, Campbell and Curtin; the case
was tried before Justice F. E. Jones.
THE CASE.
The law provide, that any person le
gally settled upon any government land
can maintain anaaction for the possession
of the same, just the same rs if lie had q
deed for it. The statue of forcible entry
and 'detainer says that when part.
either by intimidation or fraud, has enter
ed upon the prior actual possession of the
real property of another and seeks to hold
the same, this action, according to law, is
Main:ainable. The plaintiffs evidence
tended to show that Mr.. Kelleher entered
upon tic land in question in the year 1877
when the military post was abandoned, by
virtue of license from the post COM
mander, and had continued it ever since {;
that the military reservation was opened
% settlement aud entry by the Act of
Congress Of June 10th, 1880; that it was
surveyed in the fall of 1880. The PLAIN.
tiff 'ated that he had broken in the mean.
time about six acres on lot Is. and made
other valuable improvements in good faith
on said land since it was opened to set.
tlemcnt
The evidence of the plaintiff and dc"
fendsnt went to show that the defend dHnt
Commenced to reside on said land in 1879; !;
built house on lot IA, and cultivated a
portion of said Post Garden during the
years '79,ane 80. The plaintiff claimed
that the defendant cultivated sali land by
bis permission. Defendant denied ever
having asked permission Of the plaintiff.
and claimed that lie had treated the plain.
tiff as a trcsspasser. and had ordered him
off the land some time last year. Defend.
Il ut also iutroducedStestimony to the ct
feet that the plaintiff had cultivated SAID
garden very poorly and only small por.
ton of it since the year 1878; that the
buildings on the reservation, including
the building on the Post Garden, we're
sold, ami that one Abner Scidmore pur.
chased the latter, and not the plaintiff.
The case was opened for the p aintlff by
Mr. Dodge, who referred to the authori-
ties, and argued to show that the plaintiff
had made a legal settlement upon said
land, and complied in all respects to the
letter of the law since it was oLened TO
settlement by act of June 10, 1880; that
the defendant had never made such legal
settlement, and consequently was not en-.
titled to possession.
The defence was very ably presented
by Mr.. White, who argued that the PLAIN
Tiff had no license, as the post commander
had no legal right to grant one, and that
The plaintiff and defendant stood on equal
grounds, and had both cultivated the
garden, hence both had light Of entry
He went OH to show that the defendant
having lived on it previous to its being
opened to settlement, gave him prefer
red right over the plaintiff; and, that
when said land became subjcc. to entry
the defendants prior residence gave him a
preference over the palntif.
Mr.. Dodge closed the case by saying
that the defendant had gained Mo prcferr-
ence right by residing upon the land Will
it Was a military reservation, and re-
ferred the jury to Sec. 1888 of the re-
vised statue, which says that lands rescrv.
cd by any treaty law are not subject to
the rights of pre.emption or homestead
settlement.
The council on both sides handled
the cases with marked ability and force.
The jury spent about As minutes in con.
sultation and returned verdict in favor of
the plaintiff. THUS ended the dispute SO
tar as right to occupy the garden for the
present is concerned.