Year: 1862

| EWlilSs NOnSJdOIt


Upper Touchet-A. Dagget, Justice of the
Peace Perry Bruce, Constable.


Lower Touchet-H. H. Spaulding, Justice Of
the Peace James Cusker, Constable.


Application for an Injunction


WIN. w. WIsEMAN, )Territory of Washing


VS.. ton-County of Walla
THos. R. CORNELIUS. SWalla.


Application erparte plaintiff for an Injunction to
restrain defendant from cutting hay, &c., as set
forth in plaintiffs complaint Hearing at Cham
bers July 10th, 1862


Opinion of OIiphant, Judge.


After patient hearing and examination of this
case we are of opinion that the donation act and
the amendments thereto expired by its own lin
itation on the 1st of December, 1855 The plff,
if he has any rights, acquired them by virtue OF
the pre-empton law as extended to this Territory.
His entry is in 1860. The action of the govern
ment reserving the lands, was in May, 1859 The
pre-emption laws expressly exclude from entry
lands reserved by the President of the United
States, by proclamation or otherwise, or by law,
for public uses. Entertaining this view, it is un-
necessary to notice the other points raised and
argued in this preliminary proceeding


To grant the application, under all the phases
and aspects of the case as exhibited before me,
would be a futile attempt to enjoin the govern
ment from the use and enjoyment of its own
property. The application for the injunction is
refused at plaintiffs COSTS The defendant has
leave to withdraw the exhibits attached to defend
ants affidavit.


[Signed] E. P. OLIPHANT, Judge.


The above is uerbqtim copy of the opinion of
Judge Olphant in this matter, and as design to
make some comments upon tie principles elimin-
ated in that decision, have given it hec uerba to
preclude the possibility of misrepresentation.


First, it is essential to proper understanding
of the matter that the facts as disclosed in the
case should be stated.


Wiseman alleged in his complaint and proved
that he had taken under the pre-emption laws the
quarter section of land on which he resides; had
been residing on it about two years had made
valuable Improvements to the amount of two
thousand dollars that there was now on it grow
ing crop of hay of the value of four thousand
dollars as it now stands, and that COL Cornelius
was threatening and making preparations to cut
and carry away the hay, with prayer for an in
junction, &c.


The answer of Col. Cornelius stated that in
May, 1859, by order of the President, a reserva-
ton had been made of $40 acres including the
land of complainant, and that the hay had been
cut every year from that time to the present by
the troops, except last year. 1t appeared by the
evidence of the complainant that during the ab-
sence of the then commanding officer, Maj. Stein,
the troops commenced cutting the hay last year,
but on the return of Major Stein it was stopped ;
that officer assuring Mr.. Wiseman that the gov
ernment had no further use for the reservation,
and that if he had been at home he should not
have been disturbed at ALL COL Cornelius in his
answer did not positively deny or admit bis inten-
ton to cut the hay, but said he would order il cut
if necessary, and that the order was executed,
and promptly expel any trespassers that might be
found on said reservation.


The above are the leading facts of the case,
and all that have any controlling bearing upon it.
There is but one question of law involved in this
case; all other questions grow out of this one
Is this a reservation authorized by iaw? | am
clearly of opinion it is not; and as reason for
that opinion, call attention to the 9th section of
the act of Congress, 14th Feb. 1858, which limits
to 20 acres all reservations except forts, and they
are limited to $40 acres. This being an act of
Congress, and perfectly clear and free from am
biguity, would seem to settle the whole matter,
and establish beyond question the negative of
this proposition. That the reservation is without
the authority of law, and consequently is main
tanned by no other law than the law of physical
force admits of no doubt; and upon examination
will be found TO be in violation of the principles
of the constitution. mo man shall be deprived
Of property without due process of law" This
constitutional bulwark was placed by the fathers
of our country between the private and otherwise
unprotected citizen and the armed forces of the
land. 1t also violates another principle of the
constitution nor shall private property be Ia
ken for public use without Just compensation -
As long as the constitution remains unviolated it
operates as an invulnerable shield to all of the
rights Of citizens, from the highest to the lowest
and for this as well as for other reasons every Of
icer and soldier before entering on the discharge
of public duty, takes a solemn oath that he will
support the constitution Of the United States Ii
follows then, a matter of course, that where
property is in dispute between the government
and citizen, before it will be taken by the gov
ernment the right will first be settled by due
process Of law" And that in every instance
where an officer is so far forgetful of the constu-
ton and his oath as to decide these questions by
the Lav Of force instead of the ciUl lao and take
from a man property before court of competent
Jurisdiction first determines that it belongs to the
government, he does what he has solemnly sworn
he would not do. That is, he takes the property
without due process of law So far as this
question is concerned, it is not necessary to dem
onstrate that Wiseman is the owner of this prop
erty if he has a color of title so as to leave a
question to be determined. How is that question
to be determined ply gunpowder? by bayon-
esp or by due course of law" As to how it
will be determined, depends entirely on whether
the constitution has a living, breathing existence,
or whether it is an empty romance, and the Gus
tomary oath farce. But in this case, Wseman
has more than mere color of title. There is no
pretense but what be has fenced the land on