ACQUITTAL IN CRIMINAL SUIT NO BAR TO SUIT TO RECOVER THE VALUE OF TIMBER.

STONE v. UNITED STATES.

Circuit court of appeals, ninth circuit (64 Fed. Rep., 667).

JUDGMENT-RES JUDICATA-ACQUITTAL OF CRIMINAL CHARGE.

An acquittal of a person indicted for unlawfully and feloniously cutting and removing timber from public lands in violation of Rev. Stat., sec. 2461, is not a bar to an action by the United States against such person to recover the value of such timber as being wrongfully cut and converted. (Coffey v. U. S., 6 Sup. Ct., 437; 116 U. S., 442, distinguished.)

SAME-PROPER TEST.

A proper test in determining whether a prior judgment between the same parties concerning the same matters is a bar to a subsequent action is to ascertain whether the same evidence which is necessary to sustain the second action would have been sufficient to authorize a recovery in the first suit, if it had been given therein.

STRUCTURES WRONGFULLY PLACED ON PUBLIC LAND.

The mere continuance of a structure tortiously erected upon another's land, even after satisfaction of a judgment for such erection, is a trespass for which another action of trespass qu. cl. fr. will lie. (United States Digest, Vol. VI, p. 758, 1875; Russell v. Brown, 63 Me., 203.)

MEASURE OF DAMAGES.

E. H. BLY, PLAINTIFF IN ERROR, v. THE UNITED STATES, DEFENDANT IN ERROR; B. F. HARTLEY ET AL., PLAINTIFFS IN ERROR, v. THE UNITED STATES, DEFENDANT IN ERROR; THE UNITED STATES v. DAY ET AL. (INDICTMENT).

Circuit court, Minnesota (4 Dill., 464).

In certain civil and criminal actions by the United States against trespassers upon its unsold timber land: Held, that the official plats and books in the office of the register of the United States Land Office are admissible as evidence on its behalf to show that the land on which the timber was cut had not been sold by the United States.

Parol evidence is not admissible on behalf of the defendants to show that the locus in quo was swamp land within the meaning of the swamp-land grant to the several States.

The cutting of timber upon the public lands is a criminal offense (Rev. Stat., sec. 2461), and the Government may proceed both civilly and criminally.

Where timber is cut upon the public lands willfully, fraudulently, or negligently, and without authority, and made into saw logs, the Government may replevy such logs, even when they have reached the boom, or, at its election, may sue in trover for their value, and in either case may recover without deduction for their enhanced value, after severance from the freehold, arising from the labor of the wrongdoer. In such case the Government is not confined to the "stumpage" value. (Nesbit v. St. Paul Lumber Company, 21 Minn., 491.)

Whether a different rule of damages would apply if the trespass were neither willful, fraudulent, nor negligent, quære?

CUTTING TIMBER UPON PUBLIC LANDS

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-REMEDY OF GOVERNMENT—

INDICTMENT-REPLEVIN-TROVER-MEASURE OF DAMAGES.

The Government has brought numerous civil suits in the nature of trover to recover the value of pine saw logs cut upon the public lands by the defendants or their vendors, and which, before the suits were commenced, had been rafted and brought down into the boom at Minneapolis, Brainerd, and other places. It has also caused the persons who cut the timber to be indicted. Certain questions of law arising in these cases were argued and decided, as shown in the opinion of the court. DILLON, C. J.:

3. The cutting of timber upon the public lands is made a crime by the legislation of Congress, which may be prosecuted by indictment (Rev. Stat., sec. 2461), notwithstanding the provisions of section 4751. And the Government may proceed against trespassers upon its land, 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, ante, has no application to such a 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. 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 wrongdoer 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 wrongdoer. 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 wrongdoer 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 wrongdoer 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.

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 willful 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. Ill., 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 cut on the adjoining lands of the Government, he, 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 hundredfold 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.

Nelson, J., concurs. Judgment accordingly.

O. A. DODGE ET AL.

(District court, Lewiston, Idaho, December term, 1886).

A preemptor who cuts or authorizes others to cut timber from his claim simply as a matter of converting the same into money, and not in good faith for the purpose of improving his claim and preparing it for cultivation, is a trespasser; if others purchase said timber they also are trespassers, and if they purchase knowing the facts they are wilful trespassers. The fact that the United States afterwards patents said lands to other persons does not relieve those committing the trespass from their liability for their wrongful act in cutting the timber. (See Land Office Report for 1887, p. 479.)

UNITED STATES v. JAMES A. SMITH.

(District court, eastern Arkansas, April term, 1882.)

In the case of the United States v. James A. Smith at the April term, 1882, of the United States district court for the eastern district of Arkansas, where it was charged that said Smith unlawfully cut and removed certain timber from lands belonging to the United States in the State of Arkansas and converted the same into cord wood and railroad ties, and where evidence was produced to show that he purchased said timber from parties who claimed to own the land upon which it stood, Judge Caldwell held as follows:

Persons cutting and removing timber from lands are bound to know that they who assumed to sell them the timber had the right to do so, and if they did not, the purchaser is liable to the lawful owner of the timber for its value, and if the trees are worked up into cord wood or railroad ties, such cord wood and ties are the property of the owner of the land as much as the trees were, and the owner of the land is entitled to recover the value of the timber in its new form; in other words, the value of the cord wood and railroad ties.

In a case reported as involving purchase of public timber from a wilful trespasser without reasonable inquiry on the part of the purchasers, suit ordered to recover the manufactured value of the logs, leaving it to the defendants to prove the innocence of their purchase, if such exists. (See letter from Attorney-General to the Secretary of the Interior, November 17, 1886, in the case of Spies and Martin, Michigan.)

The fact that the parties from whom purchase of public timber was made were irresponsible parties does not relieve the purchaser from responsibility in the matter, it being a fundamental principle of common law that when a person purchases from an irresponsible party he is bound to take proper precautions to satisfy himself that said party had the right to dispose of the article in question. (See Land Office Report for 1887, p. 470.)

In the matter of the claim of "innocent" purchasers "without notice of wrong," the stringent and oft-enforced regulations of the Department respecting public timber constitute sufficient "notice" in respect to the necessity of taking due precautions not to infringe upon public timber. Carelessness or indifference on the part of speculators purchasing can not serve as a shield to ward off the consequence of their actions. (See Land Office Report for 1887, p. 474.)

In purchasing timber, ignorance of the facts attending the procuring of the same or mistaken belief that all was right, is no sufficient defense for violating the statute which makes cutting and removing timber from public lands an offense irrespective of knowledge. (See Land Office Report for 1887, p. 473.)

EXEMPLARY DAMAGES.

The measure of damages for felling and carrying away trees from a tract of land is their value as they stood upon the land; and if their removal impaired the value of the land damages may be had for such in ury. (United States Digest, Vol. IX, p. 201 (1872); Ensley v. Nashville, 58 Tenn., 144.)

Punitive damages may be recovered in a civil action for a wrongful act, notwithstanding the act constitutes an offence punishable under the criminal statutes. (United States Digest, Vol. VII, p. 230 (1875); Ward v. Ward, 41 Iowa, 686.)

The public good in the restraint of others from wrongful doing, as well as the punishment of the offender, is to be considered in estimating exemplary damages. (Ib.)

Exemplary damages are not recoverable as matter of right. In awarding them the jury must be governed by the malice or wantonness of the defendant as shown by the conduct they find him liable for. (United States Digest, Vol. VII, p. 231 (1875); Boardman v. Goldsmith, 48 Vt., 403.)

Where wilfulness, fraud, malice, or oppression, evincing a disregard for the rights of others, characterize the wrongful act complained of, the jury are not limited in their verdict to the mere value of the property and interest, but may rightfully consider the circumstances of aggravation and increase the damages, so as to enforce a respect for the rights of others and as a punishment to the wilful trespasser. (United States Digest, Vol. VIII, p. 223 (1875); Storm v. Green, 51 Miss., 103.)