Moore v. Fields

1 Or. 317 | Or. | 1860

Stratton, J.

Two principal questions were made in the argument by counsel for the respondent:

First. That there ought not to have been any finding of damages for the complainant.

Second. That the court ought not, under the circumstances, to have ordered execution to issue.

As to the first point: The testimony reported by the referee is quite voluminous, and somewhat conflicting; but on looking into it, we are satisfied that the finding of the referee, and the judgment of the court below confirming it, was sufficiently favorable to the respondent, if indeed a larger amount of damages was not warranted by the testimony. Palpably the respondent had placed himself in the wrong, and ought to be made to pay the full damage consequent upon his trespass. There is nothing in his situation or conduct to exempt him, or to mitigate the damages.

As to the second point: The argument proceeded upon an established rule of this court, to entertain no proceedings arising out of facts still pending and undetermined by the tribunals of the land department of the United States; and where actions had been commenced, when the fact has been made to appear that any such controversy was in process of investigation by the proper department, this court has uniformly suspended its proceedings, until the final judgment of the “land department.” The register and receiver rendered their decision in 1855, at which time the respondent gave verbal notice of his intention to appeal to the commissioner of the general land office; but, in fact, took no other step until December, 1857, when the referee was proceeding to take testimony touching the question of damages, then Fields ordered the register to prepare his papers for transmission to Washington. In June, 1858, when the Circuit Court confirmed the report of the referee, upon a suggestion of this appeal, the judge ordered execution not to issue until further order of the court. For aught that appears, the respondent never took any further step in the matter of his appeal; and at the October term, 1859, of the Circuit Court, the judge very properly, we think, set aside the order staying execution. It does not appear that there is any fixed time in which appeals from registers and receivers shall be taken to the department at Washington ; but, if there is not, justice and good sense would say that the time ought to be Treasonable, and that the rights of a party ought not to be held in abeyance, an indefinite length of time, at the mere caprice or the interest of his adversary.

Here the respondent had more than ample time to make his appeal effectual for some purpose, and it is his own fault if he did not. But it is pretty clearly evident that he only sought a temporary respite from the execution.

Judgment is therefore affirmed.