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On this last proposition the authorities are conflicting, and we adopt and follow the decision of the supreme court of the state upon the point. Nesbit v. St. Paul Lumber Company, 21 Minn., 491. The rule above laid down is the only one which will effectually protect the timber lands of the government which are remote from settlements and in the wilderness. As against the wilful or negligent trespasser the rule of damage indicated is not unjust, and as against his vendee it is perhaps the logical and necessary result of the property in the logs still remaining in the government. At all events it is the rule which has been approved by the supreme court of the state in the case before cited.

It may also be observed that the conclusions reached have a strong support in the adjudicated cases. Silsbury v. McCoon, 3 Comst., 379; Riddle v. Driver, 12 Ala. (N. S.), 590; Betts v. Lee, 5 Johns., 348; Ellis v. Wire, 33 Ind., 127; Schulenburg v. Harriman, 2 Dillon, 398, 404. But there are cases which assert principles more or less in conflict with the cases just cited. Moody v. Whitney, 38 Maine, 174; Single v. Schneider, 30 Wis., 570; Wetherbee v. Green, 22 Mich., 311, an instructive case.

There is also a class of cases, English and American, which hold that where coal or mineral ore is taken by one person from the land of another, the ordinary measure of damages in trespass or trover is the value of the coal or mineral when it first became a chattel, or was converted, and not the value of the coal or ore in place, or as it lay in the earth. The principal cases on this subject are cited and commented on in Barton Coal Company v. Cox, 39 Md., 1; S. C., 17 Am. Rep., 525; S. P., McLean Coal Company v. Long, Sup. Ct. II., Oct., 1876; In re United Merthyr Collieries Company, Law Rep., 15 Equity Cases, 46; S. C., 5 Eng. Rep. (Moak's ed.), 707.

The cases last referred to have generally arisen between adjoining owners, and the mitigated rule of damages which they lay down may have been adopted in consequence of the difficulty of ascertaining boundaries in subterranean mines, and it does not apply where the trespass is fraudulent or wilful, or negligent. At all events, the doctrine of these cases should not be extended to cases of wilful or negligent trespasses upon the public timber lands of the government.

If a private proprietor of timber lands used due precautions to ascertain his boundaries, and, by mistake of the surveyor, or without negligence or fault on his part, or that of his servants, unintentionally cuts on the adjoiņing lands of the government, be in good faith supposing he was cutting on his own lands, and the government neglected or delayed to bring trover until the logs thus cut were enhanced in value two or three hundred fold by the labor of bringing them to market, in such a case it may be that the court would be warranted in directing the jury to allow as damages the value of the logs when first severed, and interest on that value.

I am inclined to think the true doctrine of the measure of damages in trover is sufficiently flexible to allow this to be done when justice requires no greater recovery; but the cases now before the court do not require a judgment on the point, and I leave it open for further consideration should it arise.

Judgment accordingly. NELSON, J., concurs.

27

COTTON v. UNITED STATES.

(11 Howard, 229-232. 1850.)

ERROR to U. S. District Court, Northern District of Florida.
Opinion by Mr. JUSTICE GRIER.

STATEMENT OF Facts.— This is an action of trespass quare clausum fregit brought by the United States against Loftin Cotton, in which he is charged with cutting and carrying away a large number of pine and juniper trees from the lands of plaintiff.

On the trial below the counsel for defendant requested the court to instruct the jury: 1. “ That the only remedy for the United States for cutting pine timber on the public lands was by indictment.” 2. “That the United States have no common-law remedy for private wrongs.” The refusal by the court to give these instructions is now alleged as error.

$ 11. The United States, as a boily politic, are entitled to common-law remedy for injuries or wrongs to their property. They are, in effect, a corporation, with the usual rights of such bodies.

Every sovereign state is of necessity a body politic, or artificial person, and, as such, capable of making contracts and holding property, both real and personal. It is true, that, in consequence of the peculiar distribution of the powers of government between the states and the United States, offenses against the latter, as a sovereign, are those only which are defined by statute, while what are called common-law offenses are the subjects of punishment only by the states and territories within whose jurisdiction they are committed. But the powers of the United States as a sovereign, dealing with offenders against their laws, must not be confounded with their rights as a body politic. It would present a strange anomaly indeed, if, having the power to make contracts and hold property as other persons, natural or artificial, they were not entitled to the same remedies for their protection. The restraints of the constitution upon their sovereign powers cannot affect their civil rights. Although as a sovereign the United States may not be sued, yet as a corporation or body politiç they may bring suits to enforce their contracts and protect their property, in the state courts, or in their own tribunals administering the same laws. As an owner of property in almost every state of the Union, they hare the same right to have it protected by the local laws that other persons hare. As was said by this court in Dugan v. United States, 3 Wheat., 181: “It would be strange to deny them a right which is secured to every citizen of the United States.” In The United States v. The Bank of the Metropolis, 15 Pet., 392, it was decided that when the United States, by their authorized agents, become a party to negotiable paper, they have all the rights and incur all the responsibilities of other persons who are parties to such instruments. In The United States v. Gear, 3 How., 120, the right of the United States to maintain an action of trespass for taking ore from their lead mines was not questioned.

Many trespasses are also public offenses, by common law, or are made so by statute. But the punishment of the public offense is no bar to the remedy for the private injury. The fact, therefore, that the defendant in this case might have been punished by indictment as for a public offense is no defense against the present action. Whether, if he had actually been indicted and amerced for this trespass in a criminal prosecution in the name of the United States, such conviction and fine could be pleaded in bar to a civil action by the same plaintiff, is a question not before us in this case, and is therefore not decided.

The judgment of the district court is therefore affirmed.

$ 12. Catting on public land by mistake.- Under the act of June 15, 1880, if a person without knowledge or fault eater upon lands belonging to the government, and cut timber under the mistaken belief that he is the owner of the land, and afterwards actually enters the land from the government and pays for it, he is excused from any liability for the trespass. United States v. Mills,* 9 Fed. R., 684.

$ 13. The term “ timber" in the act of March 2, 1831, signifies the standing and the felled trees prepared for transportation to a vessel or saw-mill, such as saw-logs or lumber in bulk; but does not embrace any article manufactured from the tree, as shingles or boards. The trees are those the wood of which is generally used in ship and house building. United States v. Schuler, 6 McL., 28.

$ 14. Claiming title.— It is no defense to an action of trespass for cutting timber upon the public lands that the defendant clained the land under the act of September 4, 1841. He must also show that he had taken some steps to secure the pre-emption right set up. United States v. Brown,* 4 McL., 378.

§ 15. Where a person cuts timber from the public land in good faith, believing himself to be the owner of the land, and afterwards enters the land and pays the costs up to the time of entry, he is excused from liability for the trespass and has a good defense to an action of trover for the timber so cut. United States v. Mills,* 9 Fed. R., 684.

$ 16. Right to manufactured product.— The fact that trees wrongfully severed from the realty have been manufactured into shingles and the value considerably enhanced does not prevent the owner from having the chattel returned to him in its altered form; nor does the fact that defendants obtained the timber by purchase, where they bad actual or constructive notice of plaintiff's title. Nelson v. Graff, 12 Fed. R., 389.

$ 17. Where timber has been wrongfully cut an action may be maintained, on the strength of the title to the realty, for the chattels which have become such by a wrongful severance from the premises. The fact that the owner of the realty has contracted to sell it, and the fact that the severance of the trees was by the vendee, who held possession as licensee, licensed to cut and remove standing timber on certain conditions, does not interfere with the owner's right of action. Ibid.

$ 1$. Timber while standing constitutes a part of the realty. Being severed from the soil its character is changed, and it becomes personalty; but if wrongfully severed its title is not affected; it continues as previously the property of the owner of the land, and may be pursued wherever it is carried. Schulenburg v. Harriman, 21 Wall., 44.

$ 19. Where logs are cut from lands of the state without license, and become intermingled with logs cut from other lands, so as not to be distinguishable, the owner is entitled under the legislation of Minnesota and the decisions of her courts to replevy from the whole mass an amount equal to that so cut. The remedy thus afforded by the law of Minnesota is eminently just in its operation, and is less severe than that which the common law would authorize. Ibid.

$ 20. A pre-emption or homestead claimant on the public land of the United States may cut timber needed for the improvements he is or contemplates making. He may cut the timber standing on land intended for cultivation, and after applying such portion as can be used, and is needed for the improvement for that purpose, may sell or dispose of the remainder to the best advantage. The Timber Cases, 3 McC., 519; 11 Fed. R., 81.

$ 21. A sett!er on the public lands cannot, however, go outside of the improvements, and cut and sell timber, even though he intends to acquire the title under his claim, for he might at any time change his intention after the timber was taken and thus defeat the ubject of the law. Ibid.

$ 22. Measure of damages.- In an action for the value of timber wrongfully cut from the public land the government is not confined in its measure of damages to the value of the stumpage. On the contrary, if the timber has been converted by the defendant into logs, ties or piles, he will be chargeable with their market value in cash at the time and place of their sale and delivery. United States v. Mills, * 9 Fed. R., 684.

$ 23. Timber agents.— Although the authority of timber agents cannot be fixed by any positive provisions of lay, the validity of their appointment by the secretary of the interior, and their authority to act thereunder, may be fairly inferred from the appropriation of money by congress to pay them. Wells v. Nickles, * 14 Otto, 444.

§ 24. Where a compromise by a timber agent, under authority from the commissioner of the land office, is made with a trespasser who bas cut timber on the public land, whereby the

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latter is to pay the expenses of seizure and the costs of suit, and bond is given to pay the value of the stumpage as soon as the same shall be ascertained, such compromise is binding upon the United States. Ibid.

$ 25. After the making of such a compromise, should the power of agents to compromise be recalled, and the property be seized and sold by such agents in violation of the terms of the compromise already made, such sale is void. Ibid.

$ 26. Mining and farming claims.- Under the act of June 3, 1878 (19 Stat. at L., 89), the defendant was only authorized to cut upon his mining or mineral claim or upon the public lands for the improvement of said claims, and not to cut on the public lands timber for sale or disposition to the public within the land district where cut, for “building, mining, agricultural and domestic purposes.” United States v. Young,* 11 Fed. R., 493.

$ 27. To justify a cutting of timber under the act of June 3, 1878 (19 Stat. at L., 89), it must appear that the timber was cut upon the mining or farming claim or land of the defendant in the ordinary course of working the same, or preparing it for tillage, as the case may be, or was taken from the public lands for the necessary improvements thereon. United States v. Smith,* 11 Fed. R., 487.

$28. The act of Jupe 3, 1878 (20 Stat. at L., 88), authorizing any bona fide resident of Colorado, Nevada and the territories, “and all other mineral districts of the United States,” to fell and remove timber growing upon public lands, does not apply to Oregon, there being no division of the state established either by law or common reputation known as a " mineral district." The act regulating the cutting of timber on the public lands is of the same date as the above (19 Stat. at L. 89), providing also for the sale of timber lands. Ibid.

$ 29. Under the timber act of 1831 one occupying mining ground has a qualified right to the timber thereon. He has a right to cut down or destroy the trees as fast as the earth in which they stand is dug or washed away in the process of mining, and when so cut the timber may be sold for the private benefit of the occupant; but he cannot cut several acres in advance of his mining operations that the stumps may become rotted and thus facilitate the process of mining. United States v. Nelson, * 5 Saw., 68.

$ 30. Live oak and other timber – Act 1831.- To render a vessel liable to forfeiture under the act of congress of March 2, 1831, entitled an act to provide for the punishment of offenses committed in cutting, destroying or removing live oak and other timber or trees for naval purposes, the timber transported by the vessel must have been knowingly taken by the master from lands reserved for naval purposes, or, if cut on lands of the United States not so reserved, it must have been "live oak or red cedar.” United States v. The Schoover Helena,* 5 McL., 273.

$ 31. Under the act of congress of March 2, 1831, providing for the punishment of persons who shall cut or be employed in cutting timber from lands of the United States, “ or shall remove or be employed in removing live oak, etc., or other timber, from any other land of the United States," held, that the term “other land" in the statute has reference to its surveyed divisions, and contemplates the lands known and described in the public surveys as distinct from those reserved for naval purposes. United States v. Schuler, 6 McL., 28.

$ 32. Acts repealed.— Section 2461, Revised Statutes of United States, which is section 1 of the act of March 2, 1831, prohibiting absolutely the cutting or removal of timber from the public lands for any purpose other than the use of the United States, is so far repealed by the timber act of 1831 as is necessary for the operation of the latter. United States v. Nelson, * 5 Saw., 68.

$ 33. Indians holding land by the right of occupancy alone have no right to cut timber growing thereon solely for purposes of sale. If, however, it is severed for the purpose of improving the land, that is, adapting it to occupation and cultivation, there is no restriction on the sale thereof and their vendee gets a good title. United States v. Cook,* 19 Wall., 591.

S 34. The Indians having only a right of occupancy in the lands held by them, the presumption is against their authority to cut and sell the timber. Every purchaser from them is charged with notice of this presumption, and to maintain his title under his purchase it is incumbent on him to show that the timber was rightfully severed from the land. If he cannot do this the government may replevy the timber in his hands. Ibid.

$ 35. The Indians on the Oneida reservation have a right to cut and sell timber sufficient for the support of themselves and their families, they being owners of the lands, subject merely to the sovereignty of the United States. United States v. Foster, 2 Biss., 377.

30

TIME.

SUMMARY - Computation, SS 1-3.

$ 1. A statute of Missouri provided that a sale under execution of lands of a decedent could not be made until eighteen months after letters of administration had been granted. Letters were granted on the 1st day of November, 1819, and the sale was made by order of the court on the 1st day of May, 1821. Held, that this was a compliance with the above statute. Griffith v. Bogert, SS 4-7.

$ 2. “From” a certain day will, for the purpose of computing time, be construed to mean either “ inclusive” or “exclusive" of the day named, for the purpose of supporting any bona fide transaction or title. Ibid.

$ 3. A judicial sale and title acquired under the proceedings of a court of competent jurisdiction cannot, in the absence of fraud, be questioned collaterally because of a mistake in computing the time which must elapse after the granting of letters of administration before a sale could be decreed. Ibid.

[NOTES.-See 8S 8-36.]

GRIFFITH v. BOGERT.

a

(18 Howard, 158–165. 1855.) ERROR to U. S. Circuit Court, District of Missouri. Opinion by MR. JUSTICE GRIER.

STATEMENT OF Facts.— The plaintiffs claim the land which is the subject of controversy in this suit as heirs of Isaac W. Griffith, who died seized of the same in 1819. His estate was insolvent. Judgments were obtained against his administrators in 1820, executions were issued thereon, and the property sold by the sheriff. The defendants claim under the purchaser at this sale. On the trial the court below instructed the jury "that the sheriff's deed, read in evidence under the judgments and executions also in evidence, was effectual to divest the title of the heirs of Isaac H. Griffith to the land mentioned in said deed.”

It is admitted that in the state of Missouri the lands of a deceased debtor may be taken in execution, and sold by the sheriff, in satisfaction of a judgment against the administrator. And also that such deed vests in the purchaser all the estate and interest which the deceased had in the property at the time of his death. But it is alleged that this sale is “without authority of law and void,” because the execution was issued and sale made before the time limited for stay of execution against the real estate of a decedent. The law and the facts on which this objection to the validity of the sale is founded are as follows:

By an act of 1817 it is provided that “all lands, tenements and hereditaments shall be liable to be seized or sold upon judgment and execution obtained against the defendant or defendants, in full life, or against his or her heirs, executors or administrators, after the decease of the testate or intestate; provided no such land, tenements or hereditaments shall be seized and sold until after the expiration of eighteen months from the death of such ancestor, or the date of the letters testamentary or letters of administration, and execution may issue against such lands, tenements and hereditaments after the death, testate or intestate, and after the time aforesaid, in the same manner as if such person were living"

The letters of administration on the estate of Griffith are dated on the 1st of November, 1819. The sale was made by the sheriff on the 1st of May, 1821, on executions previously issued. It is contended that the term of eighteen

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