their assistance in freeing the cable, which was refused. But when the boat attempted to depart in the morning the cable was wound about the screw in such a manner as to break and damage the cable and require the docking of the vessel to get the cable off, and repair the damage to her machinery. Held, (1) that the telegraph company was bound to lay the cable in such a manner that it would not catch the bottom of vessels navigating that water in the ordinary method, and to maintain it in that condition; (2) that the boat was justified in the means and skill at her command to free herself from the cable, and that the refusal of the proffered aid did not, under the circumstances, cast upon the propeller the responsibility for all that occurred; (3) that the telegraph company was liable for the injury to the boat, and that there was no lability on the part of the owners of the propeller for the damage done the cable. Stephens, etc., Transportation Co. v. Western Union Telegraph Co., & Ben., 502.

§ 31. Right of eminent domain.- A New York telegraph company having applied to condemn for its new line over the M. & C. Railroad between Memphis and Grand Junction, Tennessee, the court held (1) that the grant of a privilege to have property condemned for the purpose of public improvement rests wholly in the discretion of state legislation; (2) that the laws of the state of Tennessee do not confer upon any telegraph corporations, except those chartered under statutes of the state, the right to ask for, or to have, a condemnation of property of any kind for the erection of telegraph lines; (3) that the acts of congress do not confer any powers upon foreign corporations in this respect; that section 5263, Revised Statutes of United States, only gives federal permission to telegraph companies to build their lines along railroads; but they must acquire the right of way by purchase or contract when the state laws, as in this case, do not allow condemnation. 5 Cin. L. Bul., 858.

§ 32. Damages for negligence.— A bill having been presented to plaintiff's bank, purporting to have been drawn by the bank of P., the plaintiff telegraphed to the latter bank to ascertain whether the draft was genuine, to which such bank telegraphed the reply that it had drawn no such bill. A forged dispatch, however, saying that the bill was all right, was smuggled into the hands of the messenger employed by the telegraph company, and delivered into the hands of the plaintiff instead of the genuine one. The plaintiff having been thus led to believe the draft to be genuine, whereas the same was forged, paid the amount of the same. Held, in an action brought against the telegraph company for damages, that the defendant was liable, notwithstanding the fact that the forged draft was indorsed by a party of financial responsibility, and no demand had been made upon such indorser, to whom the money had in fact been paid by plaintiff. Strause v. Western Union Telegraph Co., 8 Biss., 104.

§ 33. Lease; rights of property. Where a telegraph company has acquired an interest in a telegraph line and property, it is not affected by a subsequent lease of the line taken by it. And were it otherwise, and should the contract of the lease prove void, the property accumulated or constructed under it must, as between the parties, be disposed of according to equity. The court will not refuse to deal with the property because acquired under an illegal contract. Western Union Telegraph Co. v. Union Pacific R'y Co., 1 McC., 558.

§ 34. Patent-rights. A telegraph company owning the right derived from the patentee to use a telegraph line between certain points cannot restrain others from conveying messages between the same points by means of combinations made between different assignees of the patentee, thus forming a more circuitous route. Western Telegraph Co. v. Magnetic Telegraph Co., 21 How., 456.

§ 35. Contract for use of wire.— An agreement between a telegraph company and a state owning a railroad stipulated that the former should put up a separate wire on its poles along the road of the latter, connecting it with the various stations along such road, and furnishing all necessary instruments for the exclusive operation of the railroad. The agreement further fixed the terms upon which the officers of the road might use the connecting lines of the telegraph company, and provided that the state should pay the cost of erecting the wire, as well as equipping the same with instruments, supplies, etc., at stations not already provided therewith. Held, that such agreement was not a sale of the wire, but a contract for the exclusive use thereof. Western Union Telegraph Co. v. Western & Atlantic R. Co.,* 1 Otto, 283.

§ 36. Where a telegraph company, using the right of way of a railroad company, erects, under contract, a wire on its poles for the exclusive use of the railroad, the ownership of the wire and instruments remaining in the telegraph company, the lessee of such railroad is affected by the contract, and acquires only such rights thereunder as the lessor had. Ibid.

§ 37. Use of right of way of railroad companies. The act of congress of July 24, 1865, authorizing any telegraph company "to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States," and over and along any of the military or post-roads of the United States, etc., does not authorize the construc

tion of lines of telegraph over the right of way of railroad companies without paying compensation therefor. A. & P. Telegraph Co. v. C., R. I. & P. R. Co.,* 6 Biss., 158.

§ 38. Congress cannot confer rights upon a telegraph company the enjoyment of which will necessarily deprive individuals or corporations of their rights of property. Hence congress has no power to authorize a telegraph company to construct its line over the right of way of a railroad company without making compensation, because the construction of the telegraph line involves necessarily the actual taking of the property. Ibid.

§ 39. Powers of Union Pacific Railroad Company under act of 1864.- Congress, by the act of July 2, 1864, authorized the Union Pacific Railroad Company and its branches to devolve the duty of constructing and operating the line of telegraph which the railroad company had been chartered to construct upon the United States Telegraph Company. This telegraph company, at the time of the passage of the act, had not, nor has it since, filed its articles of association in the office of the secretary of the state where it was organized. Held, that this was not fatal to its right to contract with the Union Pacific Railroad Company, or transfer rights and privileges to other companies, inasmuch as congress had the power to adopt this imperfect or inchoate organization, and confer upon it all the rights and powers which it has conferred upon the United States Telegraph Company. Western Union Telegraph Co. v. Union Pacific R'y Co., 3 Fed. R., 1, 423; 1 McC., 418, 581.

§ 40. Under the act of July 2, 1864, the United States Telegraph Company had a right to assign to the Western Union Telegraph Company its right to construct a line of telegraph on the Kansas Pacific Railroad, and did so assign it. Western Union Telegraph Co. v. Union Pacific R'y Co., 1 McC., 558.

§ 41. The Union Pacific Railway entered into a contract with a telegraph company which provided for granting to the said company the right of way along the line of the railway, but also that the railway company should do no commercial or paid telegraph business from any station where the telegraph company should have an office, without the consent of the latter. Held, that this contract amounted to an alienation of its telegraphic franchise, and was beyond the power of the railway company, unless the authority to make it could be derived from some act of congress. Western Union Telegraph Co. v. Union Pacific R'y Co., 1 McC., 418.

§ 42. Under the act of July 2, 1864 (13 Stat., 374), the Union Pacific Railway Company had the power to transfer to the United States Telegraph Company the right to operate the line of telegraph required by the charter to be operated. Ibid.

§ 43. Exclusive right over right of way of railroad company.— Where a railroad has entered into a contract with a telegraph company not to construct another telegraph line on the line of its road, any proceedings instituted in a state court by another telegraph company to condemn the right of way of such railroad, or whatever interest the former telegraph company had in the right of way of such road, while the road was in the possession of a federal court through its receivers, are wholly inoperative. Western Union Telegraph Co. v. Atlantic & Pacific Telegraph Co.,* 7 Biss., 367.

$44. A contract between a telegraph company and a railroad company is unaffected by the sale of the latter's road under foreclosure proceedings if such contract be ratified by the purchaser at the foreclosure sale. Ibid.

45. A restriction contained in a contract between a telegraph company and a railroad company, binding the latter not to construct another telegraph line along the line of its road, cannot be declared void as against public policy, for should the needs of the public demand another telegraph line it could be constructed over the rights of way of other railroads, or, if none such existed, over the public highways or over property condemned for the purpose. Ibid.

§ 46. Under the act of July 24, 1866, it was not competent for the Wabash Railway Company to grant to the Western Union Telegraph Company an exclusive right of way for the purpose of constructing and operating lines of telegraph, as against other telegraph companies which, like the Western Union, accepted the provisions of the act of 1866, and whose lines, when constructed and in operation, would not disturb the possession or materially obstruct the operation of the lines of that company. Western Union Telegraph Co. v. American Union Telegraph Co.,* 9 Biss., 72.

§ 47. A telegraph company having bargained with a railroad company for the exclusive use of the right of way of such railroad for the construction and operation of telegraph lines in such a manner as to conflict with the provisions of the act of July 24, 1866, can only have an injunction against any interference with the operation and use by it of its lines of telegraph upon and along the said road, other than such interference as may arise or result from mere business competition with other companies constructing rival lines. Ibid.

§ 48. Rights of board of trade.— The Chicago Board of Trade is a private corporation, and for that reason is not obliged to allow reporters of telegraph companies on the floor of its

exchange for the purpose of collecting and transmitting reports of the market therefrom; and having admitted the agents of telegraph companies for the above specified purposes, a bill filed by the stock exchange praying an injunction restraining the telegraph company from breaking the connection of its wires and instruments on the floor of the exchange room of the board of trade with the telegraphic instrument in the complainant's office, and that the board of trade be enjoined from in any manner interfering with the sending by the telegraph company, by means of its wires and instruments, to complainant's office, of reports of the prices of commodities, etc., was dismissed, it appearing that the board of trade had notified the telegraph company that it would no longer allow the agents and operators of such company to attend its sessions and report prices, etc. Metropolitan Grain, etc., Exchange v. Chicago Board of Trade,* 15 Rep'r, 457.

TENANTS IN COMMON.

See LAND.

TENDER.

See PAYMENT.

TENNESSEE.

See STATES.

TENURE OF OFFICE.

See OFFICERS.

1.

TERRITORIAL COURTS.

See COURTS.

TERRITORIES.

See STATES AND TERRITORIES.

TEXAS.

See STATES.

TEXAS LAND TITLES.

See LAND.

THREATS.

See CRIMES.

TIDE.

See MARITIME LAW.

TIMBER.

[See CRIMES.]

SUMMARY - Right of government to replevy logs, §1.-Swamp lands, § 2.- Forms of action, §§ 3, 6.- Bona fide purchaser, § 4.— Cutting timber by mistake, § 5.

§ 1. Where timber has been cut into logs upon the public lands by a person who knows that the land belongs to the government, or who has no reasonable ground to believe that it belongs to him, or any one under whom he claims, and such logs are taken by him to a distant boom, the government may replevy them in the boom, or may maintain an action in the nature of trover for their value, and in either case may recover without deduction for the enhanced value which may have been given to the logs after the severance from the freehold by the labor of the wrong-doer. In such case the government is not confined to what is called "stumpage" value, but may recover the value of the logs in the boom. Bly v. United States, §§ 7-10.

§ 2. Where the government shows that certain public lands have not been disposed of, and proves that the defendant cut timber thereon, the latter, showing no title from the United States or the state, cannot prove by parol testimony that the locus in quo is "swamp” land, within the meaning of the swamp land grant. Ibid.

§ 3. The government may, under section 2461, Revised Statutes of United States, proceed against trespassers cutting timber on its land civilly, or by indictment, or both, at its election, and judgment in one form of remedy is no bar to the prosecution of the other remedy. Ibid.

§ 4. Where timber is wrongfully and fraudulently cut from government land and sold, in the shape of logs, to a bona fide purchaser without notice, the government may still maintain reple vin against such vendee, and if he has sawed them into lumber recover the value of such logs when so manufactured into lumber. Ibid.

§ 5. If a private proprietor of timber lands used due precautions to ascertain his boundaries, and by mistake of the surveyor, or without fault or negligence on his part, unintentionally cut on the adjoining land of the government, and the government delayed to bring trover until the logs were greatly enhanced in value by the labor of bringing them to market, etc., quære, whether it would not be restricted in its recovery to the value of the logs when first severed and interest on that value. Ibid.

§ 6. In proceeding against a defendant charged with wrongfully cutting timber from lands belonging to the United States, the government is not restricted to a suit instituted by indictment, but is entitled to the common-law remedy for private wrongs, and may maintain an action of trespass quare clausum fregit. Cotton v. United States, § 11. [NOTES.-See §§ 12-35.]

BLY v. UNITED STATES.

(Circuit Court for Minnesota: 4 Dillon, 464-469. 1877.)

Action for damages for cutting timber on public lands. The facts so far as they are material appear in the opinion of the court.

7. Official plats and books are competent evidence to show that the lands in question had not been sold.

Opinion by DILLON, J.

1. I am of opinion that the official plats and books in the office of the register of the United States land office, produced and explained by that officer, were admissible in evidence on the part of the government to establish, or as tending to establish, the fact that the lands in question had not been sold by the United States.

These plats and books are the official records of the office, and are kept by the register so as to show what lands are taken under the pre-emption, homestead or other laws of the general government. These official records, in connection with the testimony of the register, showed that the locus in quo was vacant land which had never been disposed of by the United States, and were sufficient prima facie to establish that fact. Galt v. Galloway, 4 Pet., 332, 343.

88. Defendants cannot show by parol that the lands in question are swamp lands. 2. Where the proof shows that the lands have not been sold or disposed of by the United States, and the government proves that the defendant cut timber thereon, and the defendant introduces no evidence of right or title from the United States or the state, we are of opinion that parol testimony on his behalf is not admissible to prove that the locus in quo is "swamp" land within the meaning of the swamp land grant.

§ 9. Cutting timber on public lands is an offense, and the government may proceed both civilly and by indictment.

3. The cutting of timber upon the public lands is made a crime by the legislation of congress, which may be prosecuted by indictment (R. S., § 2461), notwithstanding the provisions of section 4751. And the government may proceed against trespassers upon its lands civilly or criminally, or both, at its election, and judgment in one form of remedy is no bar to the prosecution of the other remedy. The principle of the decision of Mr. Justice Miller in The United States v. McKee, 4 Dillon, has no application to such case. It sues in these cases civilly, as the proprietor of the trees or timber which have been unlawfully cut and removed from its lands, to recover the value thereof. And it prosecutes the trespassers criminally in its sovereign capacity for a violation

of its criminal statute in that behalf.

§ 10. The United States may replevy timber taken to the boom or recover damages. What is the measure of damages.

4. Where timber has been cut into logs upon the public lands by a person who knows that the land belongs to the government, or who has no reasonable ground to believe that it belongs to him, or to some one under whom he claims, and such logs are by him hauled to the water-course, and rafted and taken to a distant boom, by means of which labor of the wrong-doer their value is much enhanced beyond their value when first severed from the freehold, the government may replevy such logs in the boom, or may maintain an action in the nature of trover for their value, and in either case may recover without deduction for the enhanced value which may have been given to the logs after the severance from the freehold by the labor of the wrong-doer. In such a case the government is not confined to what is called the "stumpage" value, but may recover the value of the logs in the boom.

As in such case the title of the government to logs thus cut continues as against the wrong-doer and all persons (Town v. Dubois, 6 Wall., 548) until at least there has been some greater transformation of the original property than exists while it remains in the shape of logs, if the wrong-doer sells the logs to a person who has no actual notice that they were cut on the public lands, still the government may maintain replevin against such vendee for the logs, if they are in existence, or, if he has sawed them into lumber (which is a conversion of the logs), the government may recover from him the value of such logs, when so manufactured into lumber, and is not confined to the "stumpage" value.