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cost more to repair it, polish it and put it in order for use, than to buy a new machine.

Upon the testimony offered by plaintiff, the counsel for defendant moved the court to instruct the jury that the action could not be sustained because it showed that there was not a total loss. The court declined to do this, and the request was renewed at the conclusion of 642*] *defendant's evidence and again declined. Several prayers for instruction were then presented by the defendant, based upon the leading proposition that if any of the pieces of the machinery insured was recovered and tendered in specie to the assured, there was no total loss. These were refused and exceptions taken to all these refusals, on which error is assigned here. An exception was also taken as to the charge of the court; laying down the law by which the jury were to decide the question of total loss submitted to them. That charge was in the following words:

"The meaning of the term 'free from particular average' used in the policy was, that the defendants should be liable only for a total loss of the subject insured; that the subject insured was not machines but machinery, by which is generally understood the several parts or portions of machines adapted and fitted to be put together so as to constitute a machine, in this case a sugar packing machine, and applying the rule of law as to what constitutes a total loss to this particular subject insured, the jury will find whether any piece or portion of the machinery insured arrived at its destination in a perfect condition, so that it could have been used with its corresponding or connecting pieces, had they also arrived in good condition; in that case the plaintiffs could not recover, as the loss would not be total; but that if every piece of the machinery was so damaged by the perils insured against as to be entirely unfit for use on being supplied with its corresponding or connecting pieces, then there was a total loss of the subject insured as machinery, although the material itself might still exist; and if they so found, they would find a verdict for the plaintiff for the sum named in the policy, with interest from the 10th day of September, 1868." The question here presented in this case for consideration has been often in the courts, and 643*] the discriminations between *what is total loss and what is not, are frequently very nice and delicate. The authorities are by no means uniform or consistent with each other, when, as in the present case, the line of distinction is very narrow. Several cases bearing upon the one before us have been decided in this court, and perhaps a short review of them may aid us here better than a more extended examination of the numerous other authorities on the subject.

In the case of Biays v. Ins. Co., 7 Cranch, 415, the plaintiff was insured upon hides, the whole number of which was 14,565. Of these, 789 were totally lost by the sinking of a lighter, and 2,491 of those sunk were fished up in a damaged condition and sold. The hides were memorandum articles, and this court held that inasmuch as less than 800 hides insured as part of a much larger number of the same kind was lost, it could not be a total loss, and overruled the argument that it was a total loss as to the 789 hides.

In the case of Marcardier v. Ins. Co., 8

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Cranch, 47, it is said that "it seems to be the settled doctrine that nothing short of a total extinction, either physical or in value of memorandum articles at an intermediate port, would entitle the insured to term the case a total loss, where the voyage is capable of being performed. And perhaps even as to an extinction in value, where the commodity specifically remains, it may yet be deemed not quite settled whether, under like circumstances, it would authorize an abandonment for a total loss."

In the case of Morean v. Ins. Co., 1 Wheat., 219, more than half of a cargo of corn was thrown overboard and lost. The remainder was saved in a damaged condition and sold at about one fourth the market value of sound corn. This was held not to be a total loss, because part of the corn was saved, and although damaged was of some value. It was, therefore, only a partial loss.

The next case is that of Hugg v. Ins. Co., 7 How., 595. *The question there arose on [*644 an insurance of jerked beef of four hundred tons, part of which was thrown into the sea and part of the remainder so seriously damaged that the authorities of the City of Nassau refused to allow more than 150 of it to be landed. This was wet and heated, and not in a condition for reshipment. In answer to a question on this subject, certified to this court by the judges of the circuit court, it was replied, that if the jury found that the jerked beef was a perishable article within the meaning of the policy, the defendant is not liable as for a total loss of the freight, unless it appears that there was a destruction in specie of the entire cargo so that it had lost its original character at Nassau, or that a total destruction would have been inevitable from the damage received if it had been reshipped before it could have arrived at Matanzas, the port of destination. And though there are some very strong expressions of the judge who delivered the opinion, as to the necessity of the total destruction of the thing insured to establish a total loss in memorandum articles, no doubt the language here certified is the true expression of the court's opinion. And it will be observed that in this case, as in the case in 8 Cranch, the destruction spoken of is destruction as to species, and not mere physical extinction. Indeed, philosophically speaking, there can be no such thing as absolute extinction. That of which the thing insured was composed must remain in its parts, though destroyed as to its specific identity. In the case of the jerked beef, for instance, it might remain as a viscid mass of putrid flesh, but it would no longer be either beef or jerked beef. And when the case went back for trial in the circuit, the charge of Ch. J. Taney, to the jury places this point in a very clear light. He says there was not a total loss at Nassau, because a part of the jerked beef remained in specie, and had not been destroyed by the disaster. And if there was reasonable ground for believing that a portion of this beef could, by repairing the vessel, have been transported to

Matanzas, although it might arrive [*645 there in a damaged condition, but yet retaining the character of jerked beef, there was no total loss. Hugg v. Ins. Co., Taney, Dec., 168. The jury found there was a total loss. The case of Judah v. Randal, 2 Cai. Cas., 324, where a carriage was insured and all was lost but the

not decree that it was so made.

wheels, is another illustration of the principle. I could not have been made, a court of equity will A part of the carriage, namely: the wheels, a very important part, was saved; but the court held that the thing insured, to wit: the car

[Nos. 230, 231.]

riage, was lost-that it was a total loss. Its Argued Mar. 19, 1874. Decided May 4, 1874. specific character as a carriage was gone. In the case of Wallerstein v. Ins. Co., 44 N.IN ERROR to the Supreme Court of the State

of Minnesota.

Y., 204, the whole doctrine is ably reviewed with a very full reference to previous decisions, and it is there shown that there is far from unanimity in the language in which the rule is expressed; and the extreme doctrine of an absolute extinction or destruction of the thing in-be declared to be held by them in trust for Warsured is not the true doctrine, or, at least, is not applicable in all cases as a criterion of

total loss.

The circuit court was right in holding that what was insured was machinery-pieces or parts of a machine, pieces made and shaped to unite at points with other pieces, so as to make a sugar packing machine. If parts of them were absolutely lost, and every piece recovered had lost its adaptability to be used as part of the machine; had lost it so entirely that it would cost as much to buy a new piece just like it, as to repair or adapt that one to the purpose, then there was a total loss of the machinery. If no piece recovered was of any use, or could be applied to any use connected with the machine of which it was a part, without more expense on it than its original cost, then there was no part of the machinery saved, however much of rusty iron may have been taken from the wreck. The court went quite as far in behalf of the defendant as the law justified, when it told the jury that the plaintiff could not recover if any piece or portion of the machinery insured arrived at its destination in a condition so perfect that it could have been used with its corresponding or connecting pieces, had they also arrived in good condi

tion.

646*] *We are of opinion that the charge of the court put the case very fairly to the jury, as we understand the law, and the judgment is, therefore, affirmed.

THOMAS D. WARREN, Plff. in Err.,

v.

FLORA E. VAN BRUNT, Widow of George M. Van Brunt, Deceased, et al.; and

SAME v. SAME.

(See S. C., 19 Wall., 646-655.)

Patent for land, effect of remedy of wronged party amendment of claim-entry under pre-emption laws.

patentee.

The plaintiff in error brought this suit in equity, and prayed that the legal title of the defendants in error, which is derived from George M. Van Brunt, deceased, who was the patentee, ren, and that the defendants convey to him. cree to Warren all the relief prayed, but it deThe court of original instance declined to decreed in his favor as to a portion of the tract, being the allotment claimed to have been established by Warren and Van Brunt while they were in joint occupancy, before the lands were surveyed by the United States.

From this decree each party appealed to the Supreme Court of Minnesota, thereby making two records in that court. The Supreme Court reversed the judgment of the district court, and denied Warren any relief, both as to the whole tract and also as to that portion which the district court awarded to him, and dismissed the suit as to all the defendants.

To these judgments of the Supreme Court of Minnesota, Warren has sued out writs of error. The facts are stated in the opinion.

Messrs. M. S. Wilkinson and C. K. Davis, for plaintiff in error:

Both plaintiff and the deceased, Van Brunt, entered upon the premises in dispute at the same time, and used and occupied them conjointly. They also had a residence or dwelling in common, on the premises. But afterward,

Van Brunt transferred his interest in this resi

dence or dwelling to the plaintiff, and the lat

ter became sole owner and went into the sole this, Van Brunt also erected a house on the 40 use and occupation thereof. Subsequently to continued thereafter to reside on the same. All acre parcel in question and moved into it, and this was done prior to the government survey which, as to the township lines, took place in the fall of 1854, and as to the subdivision lines, in the spring of 1855.

The sole and exclusive residence and occution, therefore, has in point of fact a date anpation of the plaintiff, on the premises in ques

terior to that of Van Brunt.

The plaintiff in his declaratory statement, dated his settlement on the 17th day of November, A. D. 1853.

Van Brunt, in his declaratory statement, dated his settlement on the 4th day of June, A. D. 1855. As the settlements, respectively, were never afterwards abandoned or intermitted by either party, but so continued and existed at the time of the government surveys and afterwards, it conclusively follows that the plaintiff had the prior and better right, both legal and equitable, to these premises, and to the government patent thereof; and hence that Van Brunt's legal representatives received the patent to these premises, in fraud of the plaintiff's right and, consequently, now hold the title thereto in trust for him.

1. The issue of a patent upon the award of the register and receiver, sanctioned by the Commissioner of the General Land Office, was final and conclusive as between the United States and the several claimants. It passed the legal title to the 2. The remedy of the defeated party, if he has any thereafter, was by a proceeding in the courts against the patentee or those claiming under him. 3. Where one claimed the right to enter the whole of a tract, and upon that claim the parties went to a hearing; and he might have asked to make his entry jointly with another, but did not, he is concluded by his election made at the time. The proviso of section 1 of the Act of Con4. An entry could not be made under the pre-gress of August 4, A. D. 1854, 10 Stat. at L., emption laws by one in trust for another, and if it 576, Brightly, Dig., 477, sec. 108, extending the

Pre-emption Act of 1841 to Minnesota, does not | which forbids persons from making a joint setreach the case at bar, for the reason that both tlement, declaration and purchase. the plaintiff and Van Brunt had their dwelling Messrs. J. M. Carlisle and J. D. McPheron the smallest legal subdivision. We must son, for defendants in error: then fall back on other provisions of the Act of 1841. Section 11 of this Act, gives the right of pre-emption, where two or more persons have settled on the same quarter section, to him who made the first settlement.

84.

5 Stat. at L., 455; Brightly, Dig., 473, sec. It may be here remarked that the residence of Van Brunt, on a parcel which he was not entitled to preempt, worked him no injustice or hardship, but his case was fully provided for by the statutes. He could have preempted his entire 160 acres, notwithstanding his residence on this parcel and exclusively of it.

It is contended by the plaintiff in error that he was entitled to the whole disputed forty acres because he was the first settler. But he did not make the first settlements; he only bought Van Brunt's interest in the first house erected on the land. But Van Brunt's occupation was not interrupted when he sold and left the log house; his cultivation continued and he was off the forty only a few weeks while building a dwelling-house on it. But Warren having fixed his residence on a forty in section 18, he acquired title to that tract and eighty acres more by preemption by reason of his residence thereon; and having acquired this, he sought See, Act of Congress, March 3, 1843, secs. 7 to acquire also the whole of the disputed and 8; 5 Stat. at L., 620; Brightly, Dig., 475,"forty," including Van Brunt's dwelling-house secs. 95, 96; also, Act of Congress, June 22, | and “a large corn-crib, cow-shed, and other out1838, sec. 1; 5 Stat. at L., 251; Brightly, Dig., buildings," with fences, ditches and cultivated 477, sec. 76, and Act of Congress of 1840, sec. 1; 5 Stat. at L., 382; Brightly, Dig., p. 472,

sec. 78.

It is then clear that, both in law and equity, the plaintiff was entitled to receive from the government the patent for the parcel of land in question.

ground.

That he was not the first settler, the findings of the court show; but had he been, the Act of Sep. 4, 1841, which gave the right of preemption to the first settler, gave it in cases where two persons had settled on the same quarter section, and such a provision could apply only

Was the decision of the Land Office Depart-to settlements on lands that had been surveyed, ment conclusive and final between the parties in this matter?

It is respectfully submitted that this can hardly be treated now as an open question. But if it could, its solution on principle is so clear and obvious as hardly to occasion difficulty.

The Constitution of the United States declares plainly where all judicial power shall be vested. Art. 3, sec. 1.

It is not competent for Congress to vest judicial power in the Land Department of the government, nor in any officer of such department, nor in any officer connected with the Executive Department of the Government. Congress, therefore, could not if it would vest any land officer with power to adjudicate the rights of the parties to this suit.

Lindsey v. Hawes, 2 Black, 554, 17 L. ed.,

265.

It is not perceived that there is any basis whatever for the claim of Van Brunt to the whole of the disputed 40 acres. The defendants in this suit distinctly and ostentatiously repudiate the written agreement. Had they insisted on the binding effect of this agreement, they might perhaps demand the affirmance of the decision of the court below, dividing the disputed premises according to the agreement. But on what principle they could ask more than this is not perceived; for there is no way of marshaling the evidence so as to make it speak a date of settlement for Van Brunt anterior to that of the plaintiff.

If the foregoing views are incorrect, then Warren is entitled to an undivided half of this tract.

A joint entry of the disputed forty should have been allowed by the Land Department in settlement of this dispute; the department having failed to permit this, the court should have decreed the title under the Van Brunt patent to be subject to a trust in favor of Warren for the undivided half.

There is nothing in the preemption laws

and not to unsurveyed lands, and so not to this case. But when the Act was extended to the unsurveyed lands in Minnesota, it was provided that in case two persons should be found to have settled on the same quarter section, not that the first settler should have all, but that each should be permitted to enter his improvements as near as might be by legal subdivisions. Who was to permit the entry? Who was to judge what was "as near as may be?" Clearly the land officers with whom the entry was to be made, and as, by the very nature of the case, the entry was a matter of judgment, to be subject to their sound discretion, that discretion was exclusive.

Martin v. Mott, 12 Wheat., 19; Gould v. Hammond, 1 McAll., 235; Wilkes v. Dinsman, 7 How., 89, 132; Allen v. Blunt, 3 Story, 742; Otis v. Watkins, 9 Cranch, 355.

But it is said that if he was not entitled to the whole forty, it ought to have been patented to him and Van Brunt in common. The 8th section of the Act of March 3, 1843, 5 Stat. at L., 620, contemplates such a joint occupancy, but confines it to cases existing at the date of the Act and arising under the Acts of 1838 and 1840.

The provisions of the Preemption Act of Sep. 4, 1841, seem to require the entry to be made by a single person, all its descriptions of the person entitled are in the singular number, and he is required to swear that the entry is for his own exclusive use. Secs. 10, 13.

By the 4th section, provision is made for the case of two persons settling on the same quarter section. It does not make them tenants in common, but gives to one the exclusive right.

The third proposition is, that if neither of the foregoing two modes of redress be found proper, then the court ought to have decreed a partition according to the terms of the agreement of July, 1853.

This is clearly not a federal question, as it relates only to the enforcement of a contract

between two citizens of the same State, and | ing line which ran diagonally across the premits validity and construction and the measure of relief, depends upon state law.

In Minnesota, it seems that such agreements have been held void, so far as they relate to the land.

St. Peter Co. v. Bunker, 5 Minn., 192; Evans v. Folsom, 5 Minn., 422; Bruggerman v. Hoerr, 7 Minn., 337; McCue v. Smith, 9 Minn., 252.

But in this controversy, neither party relied upon the agreement. In his bill, Warren made no mention of it, and when it was set forth in the answer, he did not amend his bill and ask relief upon the agreement, but insisted on his case as made original in his bill, claiming contrary to the agreement, and only prays in his replication that if he cannot have the relief he asks against the agreement, he may have relief under the agreement. Even if this had been made an amendment to the bill, it would be demurrable, as setting up inconsistent titles to different measures of relief.

Bernheimer v. Marshall, 2 Minn., 78; Tullis v. Orthwein, 5 Minn., 377.

But the agreement, even according to its terms, could not help Warren's case. It does not purport to convey or affect the title to the land. It concerned the possession only, and it had been fully executed by each party taking possession of what was assigned to him, and holding thereafter as if he had made the settlement entirely independently of the other, leaving their respective settlements to draw each after it its own legal consequences, standing the agreement.

ises in controversy and through the plowed land, it was agreed that Warren should have the sole and exclusive use of all the lands *selected for occupancy situated on the [*648 east side of the line, and Van Brunt of all on the west. The house they had built was on the part set off to Warren, but by the agreement, Van Brunt was to have the exclusive use of it until May 1, 1854, when, on the payment to him of one half its cost, he was to surrender the possession to Warren for his exclusive use thereafter. Upon the execution of this contract, Warren went with his family to the Town of Mankato, leaving Van Brunt in the house. Soon after, and within a reasonable time, he commenced the erection of a new house on a part of the premises set off to him, adjoining the disputed property, into which he moved in the fall of 1853, with his family.

Van Brunt continued to occupy the first house in accordance with the contract of partition until May 1, 1854, when Warren, having paid him for one half its cost, evicted him by legal proceedings. After his eviction he went into an abandoned claim shanty, on the part of the premises set off to him, and remained there from two to four weeks, during which time he erected a new house upon the disputed property, but upon his side of the dividing line. As soon as this house was completed, he moved into it with his family, and resided there until his death, on the 5th of January, A. D. 1856. His notwith-family occupied the same house as their residence after his death, until their title was perfected under his claim. In 1853 and 1854, he plowed and cultivated about twenty acres of land occupied by him, seventeen of which were on the disputed forty. In 1854 and 1855, he plowed a few acres more, and cultivated all his improved land. In 1855 he inclosed all his improvements with a fence and dug some ditches. In addition to his house, he put upon the disputed property a large corn-crib, a cowhouse and other outbuildings.

Mr. Chief Justice Waite delivered the opinion of the court:

647*] *This is a contest between two pre-emp
tion claimants for the ownership of the S. E.
of the N. E. section 13, township 108, N. R. 27
W. in the State of Minnesota. The defendants
in error have the legal title under a patent from
the United States, issued upon the claim of
George M. Van Brunt, deceased. Warren, the
plaintiff in error, alleging that he had an elder
and better right of preemption, sought by his
action in the court below to charge the repre-
sentatives of Van Brunt as his trustees, and to
compel them to convey to him the title they ac-
quired by the patent.

After the eviction of Van Brunt from the first house, Warren moved into it and resided there until the fall of 1854. He then went back to the house he built after the partition, and remained there until after Van Brunt's heirs "perfected their title. He cultivated and [*649 · The case was decided below upon facts found improved his lands upon the east of, and up to by the court and stated in the record. No ex- the agreed division line by fencing, plowing and ception was taken to the finding, and the ques-planting, and kept tenants in the first house all tion presented, therefore, for our determination is, whether, upon the facts as found, there is error in the decree.

the time after he left it until the commencement of the action in the court below. Neither of the parties disputed the right of the other to occupy and cultivate up to the line of division, until after the title of the Van Brunt heirs was perfected.

The township lines were surveyed through the public lands which included the premises in dispute in 1854, and the subdivision line in 1855. When the township lines were run, Warren was residing with his family in the first house, and his improvements on the disputed forty, including the house, were then equal to, if not greater in value than those of Van Brunt.

These facts are substantially as follows: Warren and Van Brunt were each in 1853, and thereafter until the death of Van Brunt, legally competent to avail themselves of the preemption laws of the United States. In May, 1853, they jointly selected, for occupancy, about 280 acres of unsurveyed public land in Minnesota, to which the Indian title had been extinguished. They settled upon forty acres in dispute, and after plowing and planting two or three acres, proceeded with their joint means and labor to erect thereon a house for a residence, into On the 19th July, 1855, Van Brunt filed in which they moved with their families in June. the land office his declaratory statement under They occupied this house together until the the preemption laws, claiming the right to enter 18th of July, when a difficulty having arisen and purchase the N.S. E. and S. N. E. between them, a contract of partition was en-section 13, T. 108, N. R. 27 W., containing 160 tered into, by which, after establishing a divid- acres. His claim included the forty acres in

dispute. In his statement he gave the 4th of | Barnard v. Ashley, 18 How., 44, 15 L. ed., 285. June, 1855, as the date of his settlement. The issue of the patent upon the award of these officers was final and conclusive as between the United States and the several claimants. passed the legal title to the patentee. remedy of the defeated party, if any thereafter, was by a proceeding in the courts against the patentee or those claiming under him.

It

The

It appears from the pleadings and the statements of the counsel for the plaintiff in the argument, that in December, 1855, Warren filed his declaratory statement, also claiming the right under the preemption laws to enter and purchase the disputed premises, and the N. W. S. W. and S., N. W. sec. 13, T. 108, It is claimed on the part of the defendants in N. R. 26 W., in all 160 acres. He gave the date error that the decision of the government offiof his settlement as November 17, 1853. On cers in this case is conclusive as between the the 7th of March, 1856, Warren served a notice claimants themselves, inasmuch as there was an upon the widow and administratrix of Van actual submission of the controversy by both, Brunt, that he should contest her claim to the and the court has found that there was no fraud, preemption of the forty acres in controversy, unfairness *or misconduct in the hearing [*653 and in consequence of this notice both claimants or in the production of the testimony, either on appeared before the Register and Receiver of the part of Van Brunt and his heirs, or the sevthe Land Office, and produced and examined eral officers who were called upon to act. 650*]. their witnesses. After a full *hearing, This question has recently been fully considthese officers were unable to agree upon a de- ered by this court, in the case of Johnson v. cision, and the papers and proofs were there- Towsley, 13 Wall., 72, 86, 87, 20 L. ed., 485, 488, upon sent to the Commissioner of the General and it was there held that "when those officers Land Office who, on the 4th of April, 1857, de- decide controverted questions of fact, in the cided in favor of the Van Brunt claim. Warren absence of fraud or impositions, or mistake, appealed to the Secretary of the Interior who, their decision on those questions will be final,” on the 31st October, A. D. 1857, affirmed the but that "it was the right of the proper courts decision of the Commissioner. On the 15th of to inquire, after the title had passed from the May, 1860, a patent was issued to the heirs of government and the question became one of priVan Brunt for the whole 160 acres claimed by vate right, whether, according to the established him. In January, 1857, Warren received a pat- rules of equity and the Acts of Congress concernent for the 120 acres claimed by him in section ing the public lands, the party holding that 18, and in February, 1865, commenced his ac-title should hold absolutely as his own or as tion to recover from Van Brunt's heirs the dis- trustee for another." We are satisfied with this puted forty acres. He now seeks to reverse the ruling, and this leads us to inquire whether, decision of the Supreme Court of Minnesota in upon the facts as found by the court, the officers that action confirming the title of the heirs. of the government did err in awarding the patWhen Warren and Van Brunt made their set-ent to Van Brunt. The record does not disclose tlement upon the lands, in 1853, they acquired no right of preemption, as the Act of Congress then in force only gave that right to settlers upon lands in the then Territory of Minnesota 652*] which *had been surveyed. 5 Stat. at L., 455, sec. 10. On the 4th of August, A. D. 1854, the provisions of the Preemption Act were extended to unsurveyed lands in that Territory; but it was further provided that if, when the lands were surveyed, it should appear that two or more persons had settled upon the same quarter section, each should be permitted to enter his improvements as near as might be by legal subdivisions. 10 Stat. at L., 576.

There is no legal subdivision of the public lands less than a quarter of a quarter section, or forty acres, except in the case of fractional sections. The lands in controversy, therefore, could not have been subdivided for the purposes of entry and purchase. The forty acres must be taken as a whole or not at all.

Warren and Van Brunt each claimed the right to purchase the whole. There could be no entry by either until the questions arising between them had been settled. To meet such a case, the Act of Congress under which they each made claim, provided that the register and receiver of the land district in which the land was situated should make such settlement, subject to an appeal to and revision by the Secretary of the Interior. 9 Stat. at L., 395, sec. 3. The Commissioner of the General Land Office exercised a supervision over this action of the register and receiver under his general powers in respect to private land claims and the issuing of patents. 5 Stat. at L., 107, sec. 1;

the facts found by the officers.

It is first contended by Warren that the patent should have been issued to him, because his settlement upon the disputed premises was both in fact and by the declaratory statements of the respective parties anterior to that of Van Brunt, and because by the Act of Congress the first settlement gives the better right. It is not important for us to know what the claims of the parties have been. We must look to the facts as they actually existed, and from these it appears that neither of the parties had an advantage over the other by reason of a prior settlement. They both went upon the premises at the same time and, for awhile, their occupancy was joint. After the partition, Van Brunt remained in the house alone. He was there in no respect as the tenant of Warren, but by reason of his right as part owner. His short absence after his eviction upon his lands adjoining, cannot be considered an abandonment of his possession, for he must have been all the time at work upon his new house, which was finished and ready for occupation in *from [*654 two to four weeks. Warren was absent at Mankato, after the partition, from July until October, and he did not actually reside himself on the disputed forty many months. He had, therefore, no claim superior to that of Van Brunt on account of his possession.

It is next insisted that a joint entry of the forty acres by the two should have been permitted. No such demand was made upon the government by Warren. He claimed the right to enter the whole, and upon that claim the parties went to a hearing. He might have

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