Atherton v. Fowler (96 U.S. 513)/Dissent Waite

MR. CHIEF JUSTICE WAITE, with whom concurred Mr. JUSTICE CLIFFORD, dissenting.

I dissent from this judgment. It is not claimed that, when the defendants entered, Page had title to the lands on which the hay was cut. After the judgment of this court in United States v. Vallejo (1 Black, 541), against the validity of the 'Soscol' grant, the lands became public lands of the United States; and the occupancy of Page from that time, covering as it did a tract of more than eight hundred acres, did not, in my opinion, prevent a peaceable entry by the defendants, in good faith, for the purposes of pre-emption. The case was fairly put to the jury upon that question.