Where there is evidence from which the jury may find defendant acted maliciously in committing a trespass, they may give plaintiff punitive damages. (United States Digest, Vol. XIII, p. 874; Smith v. Thompson, 55 Md., 5; S. C., 39, Am. Rep., 409.)

The rule allowing exemplary or punitive damages applies where the wrongful acts of defendant are within the law for the punishment of crimes. (United States Digest, Vol. XIII, p. 244; Boetcher v. Staples, 27 Minn., 308; S. C., 38, Am. Rep., 295.)

WILLIS AND WIFE v. MILLER, TREASURER, ETC., AND OTHERS.

Circuit court, eastern district of Virginia, October, 1886 (29 Fed. Rep., 238). DAMAGES.

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MALICE.

Malice in law is not necessarily personal hate or ill will of the trespasser towards the person injured, but it is that state of mind which is reckless of law and of the legal rights of the citizens; and the object of exemplary damages or "smart money" is not only to indemnify the sufferer for any loss sustained, but to prevent similar actions on the part of the trespasser in the future.

BARRY v. EDMUNDS.

(116 U. S., 550.)

It is settled in this court that in an action for a trespass accompanied with malice, the plaintiff may recover exemplary damages in excess of the amount of his injuries if the ad damnum is properly laid.

UNITED STATES v. TAYLOR.

Circuit court, southern district of Alabama (35 Fed. Rep., 484).

PUBLIC LANDS-TRESPASS-RIGHT OF GOVERNMENT TO SUE-POSSESSION-HOMESTEAD.

Possession by a homestead claimant, and a receiver's receipt issued since bringing the action, do not divest the Government of possession or title so that it can not maintain an action of trespass for cutting timber on the land.

In such a case, merely entering on the land and cutting boxes or chipping trees, and removing therefrom crude turpentine, entitles plaintiff to nominal damages, though no actual damages were done.

SAME-COMPENSATORY DAMAGES.

In an action for cutting growing trees, if their value can be ascertained without reference to the value of the soil on which they stand, the measure of damages is the injury done them and not the difference in the value of the land before and after such injury.

SAME-EXEMPLARY DAMAGES.

In such a case the Government is entitled to exemplary damages, if the going on the land and cutting and chipping the trees, or dipping and removing the turpentine, was done by defendant wilfully, or if such acts were the result of a negligence so gross as to show wilfulness or a reckless indifference to the rights of the Government.

WOODEN-WARE Co. v. UNITED STATES.

(106 U. S., 432.)

Where the plaintiff, in an action for timber cut and carried away from his land, recovers damages, the rule for assessing them against the defendants is: (1) Where he is a wilful trespasser, the full value of the property at the time and place of demand, or of suit brought, with no deduction for his labor and expense. (2) Where he is an unintentional or mistaken trespasser, or an innocent vendee from such trespasser, the value at the time of conversion, less the amount which he and his vendor have added to its value. (3) Where he is a purchaser without notice of wrong from a wilful trespasser, the value at the time of such purchase.

Cases applying this rule of damages will be found in U. S. v. Williams, 18 Fed. Rep., 478; U. S. v. Heilner, 26 Fed. Rep., 82; U. S. v. Ordway, 30 Fed. Rep., 31; Aurora Hill, etc., Mine Co. v. Eighty-five Mine Co., 34 Fed. Rep., 521; Murphy v. Dunham, 38 Fed. Rep., 511; U. S. v. Scott, 39 Fed. Rep., 901; U. S. v. Wingate, 44 Fed. Rep., 129.

INSTRUCTIONS RELATIVE TO MEASURE OF DAMAGES.

The following circular relative to the rule of damages to be applied in cases of public timber trespass is based on the above-cited decision in the case of Wooden-Ware Company v. United States (106 U. S., 432):

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 1, 1883.

Special Timber Agents, General Land Office.

GENTLEMEN: Respecting the measure of damages to which the Government is entitled in settlement for timber trespass upon the public domain, the United States Supreme Court has recently decided that

1. Where the trespasser is a knowing and wilful one, the full value of the property at the time and place of demand, with no deduction for labor and expense of the defendant, is the proper rule of damages.

2. Where the trespasser is an unintentional or mistaken one, or an innocent purchaser from such a trespasser, the value of the timber at the time when first taken by the trespasser, or if it has been converted into other material, its then value, less what the labor and expense of the trespasser and his vendee have added to its value, is the proper rule of damages.

3. Where a person or corporation is a purchaser without notice of wrong from a wilful trespasser, the value at the time of purchase should be the measure of damages.

You will, therefore, in cases where settlement is contemplated, state the facts and circumstances attending the cutting and the purchase of

the timber in such clear and definite manner that the Supreme Court decision above referred to can be readily applied.

In cases where settlement with an innocent purchaser of timber cut unintentionally, through inadvertence or mistake, is contemplated, you are instructed to report as nearly as possible the damage to the Government as measured by the value of the timber before cutting.

In the settlement of an unintentional timber trespass the value of the timber at the time of its taking, or if it has been converted into another form, its then value, less what the labor and expense of the trespasser have added thereto, is the proper rule of damages.

The fact that the trespasser in such case, in order to avoid prosecution, has offered a larger sum in settlement of the trespass than that required under the rule adopted by the Department is no reason why he should be held to such proposition, where it does not appear that he was acquainted with said rule. The sum incident to the survey of the land, under direction of the agent, together with the sum found to be due for the timber taken, is the amount he should be required to pay.

It is not an act of trespass for a homesteader to remove timber from his land in the preparation of the same for cultivation, nor should his vendee be held liable on a proposition of settlement therefor.

UNITED STATES v. MOCK.

Error to the circuit court of the United States for the northern district of California (149 U. S., 273).

When the defendant in an action of trespass brought by the United States against him for cutting and carrying away timber from public lands admits the doing of those acts, the plaintiffs are entitled to at least nominal damages in the absence of direct evidence as to the value of the standing trees.

It is not to be presumed in such case as matter of course that the Government permitted the trespass, and any instruction by the court pointing that way is error. This action was commenced by the filing of a complaint on May 6, 1884, in the circuit court of the United States for the northern district of California, in which complaint it was alleged that the plaintiff was the owner, in 1879, of a certain tract of land in the county of Fresno, State of California, describing it, upon which tract of land were growing trees; that during that year the defendant unlawfully and wrong

fully cut down and carried off certain of these trees, to wit, five hundred pine trees, and manufactured them into lumber, producing 1,500,000 feet of lumber, of the value of $15,000, for which sum judgment was asked. Defendant answered with a general denial.

The case was tried before a jury in April, 1888. On the trial it appeared from the testimony of defendant, as well as that of other witnesses, that in 1879 defendant had built a sawmill adjoining the tract and operated it for a little less than three months; that it had a capacity of about 10,000 feet, board measure, a day; that he had five white men and two or three Indians employed at the mill; that the timber was cut in the vicinity of the mill. The defendant also admitted that he knew that the tract described in the complaint was Government land, and that he did not at any time enter it as a homestead or preemption, and that a portion, though only a small portion, of the timber which he sawed was cut from that tract. There was the further testimony on the part of the Government of two timber agents, that after the commencement of this action they went upon the land and counted the number of stumps, and found 814 stumps of pine trees of the diameter of from 2 to 3 feet. There was also given in evidence an estimate of the amount of lumber that would be made from a tree of the size indicated by such stumps. There was evidence tending to show the price and value of lumber in that vicinity in the year 1879, but not the value of standing trees. In its instructions the court referred to the estimate made by the timber agents of the amount of lumber that would have been manufactured from the timber cut upon the premises, and the admission made by the defendant that he had cut some timber, stated that there was no testimony that he had cut all the timber that had been cut thereon, and that the jury had no right to guess, and that unless proof had been offered which created a reasonable certainty in their minds as to the amount of timber cut by the defendant and its value, the verdict must be for the defendant, and then proceeded as follows:

There are two elements entering into these cases. This is an action of trespass, a tort. It is wrong for one person to go on another person's land and cut and remove timber without the consent of the owner; so the going of any person on the public domain and cutting and removing from it timber without the consent of the Government is wrong, just as much as if I went on any of your ranches or vineyards, cut and removed the crops without your consent. But there is a vast difference in the character and quality of actions. A gentleman may permit the public to use a portion of his domain as a highway for years, and as long as it is being done with his tacit consent nobody would be held a trespasser for doing so; but when he notifies the public that it must cease then that tacit right ceases, and anybody who went on there might be justly held as a trespasser. The history of the country in regard to trespassing on the public domain and cutting timber for the use of the people in building their homes upon their farms and for general domestic purposes may be considered. As I observed, the Government is the proprietor of the soil. It has always owned the soil and the timber on it and the mines beneath it; but it is a matter of common knowledge in this country that the country could not have been settled up otherwise than by the practice and custom which has grown up in advance of legislation.

It is a matter of history that the Government permitted the early pioneers as they went ahead to make their homes for themselves to go on the public domain and take such timber as was necessary for domestic use, and although there never was any law or license to that effect, it was done with the knowledge of every department of the Government-legislative, judicial, and executive. The earliest law that was passed that I remember was in 1831, forbidding, under pains and penalties, the entering on lands that had been reserved on which there were valuable forests of live oak and pine for shipbuilding. It is possible that there was other legislation following that, but I do not remember any until 1878, and during all that time every department of the Government knew how the country was being settled, and that men went on and felled trees with this tacit permission, or, if there was not a tacit permission, at least there was no reprehension of their acts. In this case, in order to judge wisely and fairly of this defendant, as to whether he was a wanton trespasser, you will have to take into consideration the concurrent circumstances surrounding his acts. While I wish you to understand that I am not aware of any license having ever been given in the last sixty years to any party to go on the public domain and cut timber, no court has ever held, and no court would be justified in holding, that these men were all criminals who went on and put up a little mill for the purpose of aiding their neighbors in procuring lumber for domestic purposes. I say you will not judge correctly whether these men were wilful and wanton trespassers in the sense in which a trespass is wilful and wanton unless you take into account the contemporaneous history of the country and these matters, which are familiar to you all. If this party was a wilful trespasser, and cut from the public domain this timber wantonly and maliciously, the Government is entitled to recover from him the full value of the timber by him so cut and removed from the public domain, without allowing at all for the increased value that he put upon it; for it will not be permitted that a man shall trespass on your property and commit waste and wanton destruction by removing it, that you shall be merely indemnified for the original value; in other words, you may recover your property and its value wherever you find it, whether the man has added to its value since he got it or not. This case is somewhat different from the case yesterday. This case presents this naked fact: That if you return a verdict for the Government, it must be for the value of the lumber manufactured. Now, no evidence had been offered in the case showing the market value of the trees or if they had any market value one way or the other. There is no evidence in the case to warrant you in concluding that the trees had any market value in 1879 or at any other time. The only evidence offered by the Government is as to the value of the timber after it was cut and made into lumber, and in that way this case differs from the case yesterday. Yesterday I instructed you in that case that if you find that although there was a trespass, that it was not wilful, you might determine the value of the timber as it stood on the ground. In this case there is no evidence of that kind.

The jury found a verdict for the defendant, and the Government has brought the case here on error.

Mr. Justice Brewer, after stating the case, delivered the opinion of the court:

The only errors alleged are in the charge. The specific portions to which the attention of the court was called at the time and exceptions taken are that which refers to the history of the attitude of the Govern ment toward pioneers and others who took timber from Government lands for domestic use and that which declared that no verdict could be returned in favor of the Government except for the value of the lumber manufactured. In these there was obvious error. Although there was no direct evidence of the value of the standing trees, yet it