1 Rob. 142 | La. | 1841
Griffin alleges that on or about the 16th of October, 1840, he purchased at a sheriff’s sale, made under an order of seizure and sale in his own name, against Valentine F. Cotten, several tracts of land/among which was one section No. 26, in township 4, north, range 2, west, in the Opelousas land district. That when he went to take possession of said land, he was forcibly resisted by the said Valentine Cotten, and his brother Elijah B. Cotten; he then called on the sheriff who made the sale, to put him in peaceable possession, which the sheriff was about to do, when Elijah B. Cotten got out a writ of injunction against him and the sheriff, to prevent it. In his petition, Elijah B. Cotten states that he had been in possession of the land about nine months ; that it belongs to the United States, and that he has acquired a right of pre-emption to it, by virtue of an act of congress passed in 1840, granting pre-emption rights to settlers on the public lands, and that he feared Griffin and the sheriff would forcibly put him out of possession. He further states that he had made an application to the Register and Receiver of the proper land district, to purchase the land. Upon this petition an injunction was granted. Griffin afterwards took out a writ of injunction to prevent E. B. Cotten from destroying the timber and committing waste; and also a writ of sequestration to prevent him from taking away or selling a quantity of cord wood he had cut on the land.
The suits were consolidated in the district court; there was judgment giving Griffin possession of the land, dissolving Cotten’s injunction, and condemning him and his sureties, jointly and severally, to pay two hundred dollars damages, from which he has appealed.
All the evidence in the record-shows that E. B. Cotten has taken possession of an enclosure, which he did not make ; he says in his petition that the land does not belong to him ; he does not pretend that he has ever paid any one for it; he says he has a pre-emption right, but does not prove that he has made any attempt to exercise it, nordoeshe allege or show a possession of one year. Weare therefore at a loss to understand how he can, under the articles 47 and 49 of the Code of Practice, maintain a possessory action. We have held that when a man takes peaceable possession of a portion of the public domain, to which no one else has a claim at the time, and
Upon á full consideration of the whole case, we cannot resist the impression that the proceedings of E. B. Gotten are an afterthought ; and that he is interposing himself between Griffin and his brother.
Whether Griffin has any title to the land in question, or a right of pre-emption to it, we do not decide in any manner. Of the evidence he shall produce to sustain his rights, the land officers are the proper judges.
But we think the judge erred in giving damages when he dissolved the injunction. We have always held the act of 1831 relative to injunctions one of great severity, and have construed it rigorously, 10 La., 519; and in the case of Morgan v. Driggs, &c., 17 Id., 176, we held that the act only applied when judgments were enjoined. In other cases, parties must be left to their action on the bond.
The judgment of the district court is affirmed so far as it decrees to Spencer Griffin the possession of the lot or section of land described as No. 28, in township 4 north, range 2 west; but so far as it decrees damages against E. B. Gotten and his securities on the injunction bond, it is reversed, reserving to Spencer Griffin, his right to proceed on the injunction bond against the principal obligor and his securities ; the costs in the district court to be paid by E. B. Gotten, and those of this appeal to be paid by the ap-pellee, Griffin.