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Opinion of the Court by

Tompkins, Judge.

Wiliam Sloane sued James Moore in an action of forcible entry and detainer, and before any judgment therein, removed the cause by writ of certiorari into the circuit court of Platte county. Judgment being there given against him, he appealed to this court. On the trial of the cause, it was in evidence, that some time in the latter part of the year 1838, Sloane, the plaintiff, built a cabin on the land in controversy, and removed with his family into it, and has ever since resided there. That in the spring or summer of the year following, the defendant Moore built in the neighborhood, and within two hundred and fifty yards from the plaintiff’s improvement, a cabin, and moved into it, and has ever since occupied it. That according to the surveys made, a quarter section will include Moore’s house, if Sloane’s house be made the centre..

. The plaintiff below, appellant here, moved for a new trial and instructions.

It is contended that by the 29th section of the act con- . * . . cermng forcible entries and detainers, the plaintiff is entitled bring this action against any person who settles so near him, that his house would be covered by a quarter section of land, of which the plaintiff’s house is the centre. Where no legal survey has been made at the time of settlement the ° , , . act does give this right to one who is entitled to a right of Pre'emP^ot1, ^ *s not Pretended that there was any act of congress by which Sloane, when he made this settlement, was entitled to a pre-emption; and it would be a curious thing for a court of law, to decide in anticipation of such a , , , , , . , . law, (which may never be passed,) what such court could by authority of the statute only. This case is like the case of Kincaid v Logue, decided at this term. The * *173same instructions which the judge gave in that case, apply to this, except that the jury are not in this case with a pretended fence.

The court, in my opinion, instructed the jury very well, having instructed them as in the case of Kincaid v. Logue, and the jury had abundance of evidence too to warrant their finding in pursuance of the instructions given. The judgment is therefore affirmed.

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