The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1893-04-15

Judge Langley Awards the Lake
Shore the Sand Spit.
IT HAD THE PRIOR POSSESSION.
Maitland Coald Not Inherit Rieo's
squatteR's Right and Davidson
Was . Later Claimant


Was . Later Claimant.
The argument In the suit Of A. Davidson
against the Seattle. Lake Shore q Eastern
Railroad Company to secure . perm anene
injunction to prevent it from taking DOS.
session OF the Smiths cove sand spit, ia
cob Davidson being an intervenor. vas
concluded before Judge Langley last even
Ing. and . decision was given Diminishing
the petition and dissolving the temporary
injunction. This is a victory for the rail-
road company. although the state court
can only give it the right of possession.
Fred Rice Rowell closed his speech on
behalf of the railroad. begun on the previ-
Gus evening, and A. +. Burleigh then
closed that side Of the argument. s. D.
King then closed for the plaintiff Matt
land, and T. p. Carroll for the intervenor
Davidson. Judge Langley then gave his
decision, which occupied until FIVE min
utes to IL O'Clock. 1t Is in substance a.
follows:
i do not think state courts would care to
undertake to pass upon the title to government
iand any further than 70 pass upon tho mers
right OF possession. for the question of title and
ownership belongs to the land department OF
the United States Tho questions in this casa
are whether the intervenOr at any time up to
the time Of his Intervention had such rights of
possession ~ are set up In his petition that he
could invoke the aid OF this court to protect in
proceeding OF this kind; or II the plaintiff had
any such right, 1t would be duty of this court to
protect them. So also II 10 clearly tho duty OF
the court to protect the rights OF the de-
PENDANTS, II it, rights are superior or
equal to theirs, for tho reason that
before action could DO had that
would interfere with or change the status quo
OF the parties there must be something more
than equal rights shown: there must Be sups-
FLOR right In order to invoke the aid of this
court The plaintiff In this case has no possess
DRY rights, for the reason that no 10 disqualified
either ~ pfe-empsor or . homesteadsr, and
wa % disqualified at the time OF Rices death,
because II Rice bad any claim whatever it was
that OF . homssssader. While have no doubt
that the relations between Maitland and Rice
were those OF perfect good faith, Mr.. Rice, upon
his part. was desirous of securing Maitland for
advances made to him. But can see no right
that Maitland could take ~ executor
or dsvises except the right to whatever tangible
property belonged to Rice and which he re-
ceived at the time OF death in the nature OF
Improvements that were ssverable from the
realty, but he would take no right In the land
for the reason that Rice himself had no right in
1t except at the most the mere right to claim tho
land when II should DO opened for settlement,
governments
land. He had the right simply OF a squatter, no
more and no less, and had right that he
could impart &c anybody, not even the right to
his ninety days privilege OF entry prior to the
general public Any claim he had to tho land
was by virtue OF his being an occupant and he
possessed no property In IL
For the same reason Rico could cell nothing
to Davidson save his improvements and David.
son must acquire his rights in the land, II At
ALL a. settler or sQuatser and must initiate his
title or right to that land ultimately through
the land department of the government, con.
ceding even that ne purchased those improve
ments OF Rice, as he claims, and conceding that
he was honestly intending at the time Of that
purchase OF the Improvements to take steps to
perfect HIS title to that land a soon the same
should be surveyed, through the agency OF the
land department. think he showed purpose
to do 80 and however lilly managed that pur-
pose was. It showed his evident intention to be-
come ultimately the owner OF that land and got
IL by the methods prescribed BY the land
department, and If he had had no
notice Of any other interest that had equal
right with an individual attached to that land
and claiming IL, he would have gone on uniu.
terruI tedly and carried out his purpose to
fulhllment. II the land was determined BY the
land department to Be unsurvsyed public land.
and In that event he would havc been entitled
to have II surveyed, and could have occupied 10
~ . homestead and initiated his title by this
claim. no had full and actual notice OF some sore
OF previous occupancy OF this land soon - he
undertook to initiate steps towards getting title
In himself. When he went to the land ONCE In
Seattle, the proper place TO put on foot the 90
comp!ishment OF his purpose. right there
at the threshold OF his effort he en-.
countered . notice that his land Dwas
already appropriated or occupied and taken BY
the Seattle, Lake Shore & Eastern Railway COM
pany under the act of congress Of March 8.
1875, for depot and station purposes. and that IL
Is 20 marked upon the plats ana charts OF the
land Office. which he not only had an oppor-
tunity to examine, but was informed by the
register. by whom its full import was consider
ably amplifsd and explained 10 him. 1t APP
pears to this court that this right of the rail-
read company, II it is q right. was acquired very
nearly near before Mr.. Davidson even claimed
the right to movo or took ono step forward to-
wards the accomplishment OF his title to this
sand spit, 40 that do not think he 10 In any
batter shape than the cevsee Of Mr.. Smith In
this matter. He claims by q purchase from
Rice, which could not cover anything more
than the improvements OF Rice and whatever
occupancy he may have had.
Tho court presumes that the proceedings In
the filing Of the railroad plat with the secretary
OF the interior were regular, especially a. even
the Federal courts are not disposed to question
the regularity OF proceedings which were prima
face correct, as IL would only result In disturb
ing the methods Of the land department.. ana
does not think this II question for tho state
courts to deal with. Therefore, hold that the
secretary Of the interior has made the statute
under which the railroad claims operative by .
compliance on the part Of the railroad company
with its tsrma and that right upon its part
attached for year prior to the attaching of any
right which Davidson may have had The court
will not consider seriously the arguments - 70
the claims OF the railroad company by virtue of
its upland ownership based upon the assump-
ton that the sand spit il an accretion.
Now IL IL Q we'll settled rule OF law
that the courts will not reach out their
hands and prevent parties from doing things
which they are proceeding to do unless the %
titioner asking for the Injunction shall show
clear title ard. even II 1t were question Of
doubtful rights among those parties. the court
would not be warranted in compelling one 70
desist and leaving the others free and untsan-
neled TO pursue their own course on the lana.
lt must be q clear right and there In no clsar
right made out here. ! doubt even II q doubt
fui right on the part Of either OF those platntids
sufhcisnt 70 entftls them to an injunction 10
made out here IL IL were not for the Affirmative
defense Of the defendant setting mp its right un'
der the patent from the government
! think It may be regarded - sxceedfngly
doubtful whether Rice ever asserted any claim
% that land at all a. land and Dsvtdson's hight
70 tho land, II ever asserted, was asserted after
the railroad company was actually In posses.
sion. Even II Davidson never hsd notice from
the land once. he had notice By the presence q
nj n