Milligan v. Dickson , 2 Wash. C. C. 258 ( 1808 )

WASHINGTON, Circuit Justice

(charging jury). Whether the survey for Campbell does or does not fit the application, is a question of some difficulty, but you may discharge your minds from this subject, since the plaintiff places his chief reliance upon his possessory-title; and if that will not support him, he cannot recover in the present action upon his paper title, for that does not give him a legal title. The question, then, for your consideration, is, whether the plaintiff has shown a right of entry? From 1769 to 1778, it is clear, that the premises were in the possession of Campbell, under whom the lessor claims; or of Christie, by his servants. It does not appear that Hadabaugh paid rent to Christie; nor, from any positive declarations from him, whether he held under or adversely to Christie. Whether you will consider his offer, in 1796, to purchase the land, and his subsequent abandonment of it, as evidence of the former, or not, is the question. If you are of opinion that he held under Christie, then it is unimportant whether he paid rent, or not; and In that case, you should find for the plaintiff. If you think that he held in opposition to the title of Christie, then your verdict should be for the defendants, since an order and survey, without payment of the consideration, does not give a legal right of entry.

Verdict for defendants.