Suñol

(dissenting.) The plaintiffs sued to recover a tract of land, alleging that for more than two years they had been in the peaceable, public, and uninterrupted possession of the land, as owners, and that, shortly before the commencement of their suit, the defendants forcibly entered upon and detained it, and that, when the plaintiffs had erected a building upon the land, the defendants came with force and drove away the plaintiffs’ workmen, and destroyed their building. The plaintiffs seek to be restored to the possession, and to recover damages. The defendants deny all the allegations of the petition, and claim back one hundred and sixty acres of the land under the pre-emption laws of the United States. The defendant Hepburn justifies the destruction of the plaintiffs’ building on the *286 ground that it was erected within the furrow which marked the lines of his settlement, and was a nuisance. The other defendants justify as his agents and servants. He also claims damages in re-convention from the plaintiffs, on the ground that they have erected another building within his enclosure. The record contains all the evidence given on the trial. The plaintiffs insist that the verdict is…

By the Court,

On the first argument of this cause my impressions were strong, that the plaintiffs ought not to recover, and, if it had been qn ordinary case, I should have had no hesitation in so deciding at once. I was not entirely satisfied, however, but that, on a re-argument, additional authorities might be adduced, which would leave the case without doubt in the minds both of myself and my associates. I felt, also, in common with the chief justice, that there was a possibility that I might have been led into error. I thought, therefore, that the case was a proper one for re-argument, and that, the attention of counsel should he called to the particular points concerning which some doubts were entertained by the court. I was the more inclined to this course, inasmuch as the cause was not argued before a full bench, and from the conviction that a decision, which must not only settle the rights of the immediate parties to this suit, blit which may determine great and important interests in all parts of the state, should receive the deliberation, ami, if possible, the sanction of all the members of the court. The re-argument was, accordingly, ordered, and *258 has taken place ;…