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Government, or any irregularity or misconduct of any officer or agent of the United States, shall have authority to administer an oath to any witness attending to testify or depose in the course of such investigation.

DECISIONS. General decisions, timber trespass.

Decision of November 20, 1913, by Judge Riner, of District Court of Wyoming, on motion to dismiss certain counts in an indictment against William Gibson for cutting of timber on Targhee National Forest in violation of regulations of Secretary of Agriculture: The penal provision in the act of June 4, 1897 (30 Štat., 11), which refers to the act of June 4, 1888 (25 Stat., 166), for the penalty, is not affected by the repeal of the latter act; nor does the act, (Mar. 4, 1909; 36 Stat., 1088), revising the penal laws of the United States impliedly repeal the penal portion of the act of June 4, 1897 (30 Stat., 11).

By a modification of the earlier doctrine of equity, injunction will now lie to prevent irremediable mischief to the substance of the estate as by the mining of ores or the cutting of trees by one in possession of lands while the title is in litigation. (Erhardt v. Boaro, 113 U. S., 537.)

Where one has unlawfully cut timber from lands of the United States it is no defense that he acted in accordance with a general custom in the locality, known to the general land office, of entering lands and cutting the timber before patent issued. (Teller v. United States (C. C. A.), 113 Fed., 273.)

An instruction to the jury that if defendant entered upon public land knowing it to be such, without having complied with the provisions of law giving him a right to do so, and cut timber therefrom, they would be authorized to find the requisite criminal intent, fairly states the law, and is as favorable as the defendant is entitled to. (Teller v. United States (C. C. A.), 113 Fed., 273.) Timber trespass upon mineral lands.

The act June 3, 1878-(20 Stat., 88), seems to apply only in the States and Territories specifically mentioned therein. (United States v. Smith, 11 Fed., 487; United States v. Benjamin, 21 Fed., 285; United States v. English, 107 Fed., 867.)

The right to cut timber under this act extends only to lands valuable for minerals and not to lands adjacent thereto, or lying in a recognized mineral region, but not themselves valuable for their minerals. (United States v. Plowman, 216 U. S., 327.)

The cutting of timber from mineral lands for roasting of ores is authorized by the act of 1878, whether this process be considered a part of the mining or as smelting. In either event the use is for * domestic purposes.” (United States v. United Verde Copper Co., 196 U. S., 207.)

One who cuts timber from public mineral lands and sells the same, or the lumber manufactured therefrom, without taking from the purchaser a written statement of the purposes for which the same is intended to be used, as required by the regulations of the Secretary of the Interior, is guilty of a violation of the statute. (United States v. Redes, 69 Fed., 965.)

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The act of 1878 (20 Stat., 88) and the act of March 3, 1891 (26 Stat., 1093), have been construed by the land department as having practically the same scope and purpose, the one applying only to mineral and the other only to nonmineral lands. Held, therefore, on the authority of United States v. United Verde Copper Co., supra, that the latter statute authorizes the use of timber for smelting purposes. (34 L. D., 78.)

Jurisdiction over matters relating to the cutting of timber upon lands within the surface area of mining claims within National Forests is vested in the Department of Agriculture and not in the Department of the Interior. (H. T. Mecum, 43 L. D., 465.) Timber trespass upon homestead claims.

The settler upon a homestead claim may cut such timber as is necessary to clear the land for cultivation or to build him a house, outbuildings, and fences, and, perhaps, as indicated in the charge of the court below, to exchange such timber for lumber to be devoted to the same purposes, but not to sell the same for money, except so as the timber may have been cut for the purpose of cultivation. While, as was claimed in this case, such money might be used to build, enlarge, or finish a house, the toleration of such practice would open the door to manifold abuses, and be made an excuse for stripping the land of its valuable timber. One man might be content with a house worth $100, while another might, under the guise of using the proceeds of the timber for improvements, erect a house worth several thousands. A reasonable construction of the statute—a construction consonant both with the protection of the property of the Government in the land and the rights of the settlerwe think restricts him to the timber actually cut or the lumber exchanged for such timber and used for his improvements, and to such as is necessarily cut in clearing the land for cultivation. Shiver v. United States, 159 U. S., 491, 498; see also United States v. Cook, 19 Wall., 591; Conway v. United States (C. C. A.), 95 Fed., 615; U. S. v. Niemeyer, 94 Fed., 147; U. S. v. Haymaker, 199 Fed., 644.)

The cutting and removal of timber from a homestead claim must be for a legitimate purpose, having some connection with the cultivation and improvement of the land, but it is error to instruct the jury that the timber could only be cut “in pursuance of a definite plan that the plow should follow the ax," and that if the timber was cut from lands “not put in cultivation, and not to be put immediately into cultivation, then the law presumes that they intended to violate the law.” (Grubbs v. United States (C. C. A.), 105 Fed., 314; see also Stone v. United States, 167 U. S., 194.)

After final proof and the issuance of final certificate, homestead entrymen may cut and remove timber from their claims for any purpose. (1 Sol. Op., 327.) Timber trespass upon mining claims.

An occupant of a mineral claim, who has applied for patent, has no right to cut and sell the timber thereon before payment of the Government price and issuance of final certificate, and a license from him to so cut the timber is no protection to the licensee. (Teller v. United States (C. C. A.), 113 Fed., 273; see also United States v. Nelson, 5 Sawyer, 68.)

When, however, the timber on a mining claim in a National Forest is infested with insects so as to be a menace to the young and growing trees, the Government, having the paramount title, may, through the Forest Service, sell and dispose of such timber, even without the consent of the claimant. (Lewis et al. v. Garlock (United States, intervenor), 168 Fed., 153.) Timber trespass upon railroad lands.

The grant to the Northern Pacific Railroad Co. vested in the grantee a present title to the odd sections on the definite location of the road, but the Government makes its own surveys, and until survey by the Government the United States retains at least a special property in all the timber in the township and may recover for timber cut by the company or its grantees, notwithstanding a survey made by the company shows the land cut over to be an odd section. Such a survey is inadmissible as evidence that the land is part of an odd section. (United States v. Montana Lumber Co., 196 U. S., 573.)

The mineral return of the Surveyor General under the grant to the Central Pacific Railroad Co., of July 1, 1862, and July 2, 1864, is merely prima facie evidence of the mineral character of the land, which may be inquired into by the Department of the Interior at any time before patent. (2 Sol. Op., 897.)

The Department of Agriculture is not authorized to handle the sale of timber cut in trespass upon lands within the primary limits of the Northern Pacific Railroad grant, even though such lands lie within the exterior limits of a National Forest. (1 Sol. Op., 541.) Timber trespass upon lieu selection.

Prior to the approval of a selection under the indemnity school and university land grants, title in the land remains in the United States and no one has a right to go upon the land and cut the timber therefrom. (1 Sol. Op., 468.) Damages-Innocent and willful trespasses.

One innocently purchasing timber unlawfully and willfully cut from Government lands and transported to market by his vendor is liable for its value at the time and place of his purchase without any deduction for value added by the acts of the willful trespasser. (Woodenware Co. v. United States, 106 U. S., 432.)

In a case of innocent trespass the measure of damages is the value of the timber after it was cut at the time and place where it was cut. (United States v. St. Anthony R. R. Co., 192 U. S., 524; 1 Sol. Op., 298; 40 L. D., 518, 525.)

In a letter of instructions to the United States attorney at Helena, Mont., dated September 7, 1910, the Acting Attorney General, after reviewing the authorities and discussing the conflicting cases, says:

“After a somewhat careful examination of the authorities cited and many others, the department is of the opinion that, where timber has been inadvertently cut from the public lands, (1) the timber immediately after felling becomes the personal property of the United States (Sampson v. Hammond, 4 Cal., 184); (2) an action of

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trover will lie for its conversion (Sampson v. Hammond, supra; White v. Yawkey, 108 Ala., 270, 275); (3) the value of the property when first taken is the measure of damages recoverable (Woodenware case, 106 U. S., 432, 434); and (4) the value of the property when first taken, within the meaning of the Woodenware case, is its value immediately when it takes the form of personal propertyi. e., immediately after severance from the freehold (White v. Yawkey, 108 Ala., 270, 274, 275)."

In Pine River Logging Co. v. United States (186 U. S., 279, 293) the doctrine of the Woodenware case as to willful trespasses is stated to be that “if the trespass be willfully committed the trespasser can obtain no credit for the labor expended upon it, and is liable for its full value when seized ”; and this rule was applied in the case under consideration, the parties in the possession of the timber at that time being found to have participated in the trespass.

Where timber is cut upon public land by one who knows that the land belongs to the Government, or who has no reasonable ground to believe that it belongs to himself or to some one under whom he claims, the trespass is a willful one. (Bly v. United States, Fed. case No. 1581, 4 Dill., 464.)

In actions of trespass where the injury has been wanton and malicious or gross and outrageous, courts permit juries to add to the measured compensation of the plaintiff, which he would have been entitled to recover had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called “smart money.” (Day v. Wood

. worth, 13 How., 362, 371; see also Barry v. Edmunds, 116 U. S., 550.)

Where the defendant admits the cutting and removal of timber from public lands, the Government is entitled to at least nominal damages, in the absence of direct evidence of the value of the standing trees. _ (United States v. Mock, 149 U. S., 273; see alsò United States v. Taylor, 35 Fed., 484.)

In trover for crude turpentine unlawfully but not willfully taken from pine trees, the measure of damages is its value at the time of conversion with interest. (Quitman Naval Stores Co. v. Conway, 58 So. Rep., 840; Solicitor to his assistant at Albuquerque, Dec. 26, 1912.)

Where, in an action for timber trespass, the jury found from the evidence that defendants had taken logs from public lands, but the number taken was uncertain, they were entitled to indulge every reasonable inference supported by the evidence in determining the number. (United States v. McCaskill, 200 Fed., 332.) Fire trespasses.

In United States v. Henry Clay (unreported), Southern District of California, the defendant was indicted under section 52 of the Criminal Code, and the jury were charged by Judge Wellborn in part as follows: “ It is immaterial whether the fire

originated on private land if it was set wilfully and if in the course of nature and in view of all the surroundings the said fire would reasonably be expected to be communicated to the public domain. A man has no lawful right to set fire to his own property if he has reason to believe or intends

that such fire will be communicated to the property of others and destroy it."

In an action by the United States against a railroad company to recover for loss of timber alleged to have been burned through defendant's negligence in permitting inflammable material to accumulate on its right of way, in which fire was started from an engine and spread into the timber on a forest reservation, a letter written by a forest inspector to the secretary of defendant some time before the fire, inclosing a report from a ranger as to the dangerous condition of the right of way, and asking that it be remedied, was not inadmissible as a self-serving declaration, but was properly admitted to show actual notice to defendant of the condition referred to therein, the fact being otherwise proved. (United States v. Corvallis & E. R. Co., 191 Fed., 310.)

On an issue as to the condition of a locomotive alleged to have caused a fire on defendant's right of way because of its defective condition, which permitted the escape of fire and sparks, the admission in evidence of the testimony of the fireman of defendant's machine shop as to the condition of the engine, both before the fire and after its return from the trip on which the fire occurred, the purpose being to show its condition before and at the time of the fire, was not prejudicial error. (Id.)

(Liability of railroads for injuries by fire as affected by management of locomotives, see note to Woodward v. Chicago, M. & St. P. Ry. Co., 75 C. C. A., 598.)

Injunction will lie to prevent the accumulation of inflammable material upon a railroad right of way within the National Forests when such accumulation is shown to be dangerous to the forests. (1 Sol. Op., 300, 526.)

There is no authority in the department to make settlement with the Great Northern Railway Co. of a fire trespass, by which the company shall pay at once for all timber destroyed or damaged, with an agreement that any money received from the sale of damaged timber to a third party, less costs of the sale, shall be paid over to the company: (1 Sol. Op., 496.)

It is not the duty of forest officers directly to prosecute in a State court a person accused of violating a State statute by setting out a fire which spread to National Forest lands. In such case they would perform their full duty by calling the attention of the proper State officers to the alleged criminal offense, suggesting action and offering to aid in all proper ways. (2 Sol. Op., 693.)

The acquittal of a fire trespasser in a State court is no bar to his prosecution in a United States court for a violation of the Federal laws arising out of the same acts. (Solicitor to his assistant at Denver, Sept. 10, 1912.)

The Government is entitled to recover for damage to reproduction (United States v. Corvallis & Eastern R. R. Co., 191 Fed., 310; United States v. N. P. R. R. Co., Dec. 2, 1911, in United States District Court, Western District of Washington, and case of United States v. C. O. Bailey, receiver for Mo. Pac. Ry. Co. and Title Guarantee Surety Co., in United States District Court for South Dakota, Sept. 7, 1910), the verdicts in which cases include such damage. (See also United States v. C., M. & St. P. Ry, Co., 207 Fed., 164.)

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