Where the instructions of the Commissioner of the General Land Office directed the agents to seize and sell timber cut on the public lands, and also authorized them to compromise with the trespasser on his paying a reasonable compensation for the timber cut and taken away: Held, That a compromise so made by which he pays all the costs and expenses of the seizure, and gives bond to pay for the timber when its value shall be ascertained, pursuant to the agreement, is binding on the United States.

This compromise, should, in violation of its terms, the property be seized and sold by such agents, is evidence of his title and right of possession in his action against their vendee for the recovery of the property.

[Act of April 30, 1878; 20 Stat., 46.]

SEC. 2.

*

And provided further, That if any timber cut on the public lands shall be exported from the Territories of the United States, it shall be liable to seizure by United States authority wherever found.

THOMAS STEPHENSON v. WILLIAM L. P. LITTLE AND OTHERS.

The General Government has all the common-law rights of an individual in respect to depredations committed upon the public lands, and the Commissioner of the General Land Office-being the proper executive department to enforce those rights in the absence of legislation by Congress on the subject-may lawfully direct the seizure and sale by the local land officers, on behalf of the Government, of timber cut by trespassers on the public lands, The party guilty of a fraudulent admixture of saw logs owned by himself with those owned by another, so that it is impossible any longer to identify his own, loses all interest in them, and is remediless if such other person appropriate the whole mass to his own use. Per Manning, jr., Christiancy, J., concurring. Campbell, J., dissented, holding that where the evidence showed the logs to be of a uniform value per thousand feet the person who had intermingled them was entitled to reclaim from the common mass an equivalent to his own logs. Martin, Ch. J., gave no opinion on this question.

Per Martin, Ch. J.: The person whose property another has fraudulently admixed with his own has the right to take possession of the whole mass for the purpose of separating and securing, or of disposing of, the portion belonging to himself; and if it can not be separated, and he advertise and sell his interest in the whole, he does not thereby render himself liable to the other for the conversion of his property. He has at the very least, as respects the property so commingled, the rights of a tenant in common.

NORRIS ET AL. v. UNITED STATES.

Circuit court, western district of Louisiana (44 Fed. Rep., 735).

ACTION FOR TIMBER CUT ON PUBLIC LAND-BURDEN OF PROOF.

Where in an action by the United States to recover the value of logs cut ou public land the plaintiff's evidence shows that the defendant purchased from the trespasser and converted to his own use a large number of logs, among which were some of those cut from the public land, the burden is on the defendant to show that all the logs so bought by him were not so cut.

CONFUSION OF GOODS.

Where the logs so cut were mixed in the river with a large quantity of other logs, so that the identical logs could not be conveniently separated, the United States thereby acquired a proportionate interest in the entire mass of logs, under Rev. Civil Code La., art. 528, which provides that "when a thing has been formed by a mixture of materials belonging to different proprietors, * if the materials can not be separated without inconvenience, their owners acquire in common the pro rata of the thing."

TIMBER UNLAWFULLY CUT ON INDIAN LANDS.

[19 Op., p. 710.]

*

*

Where a large quantity of standing timber (about 4,000,000 feet) was unlawfully cut by trespassers on the Fond du Lac Indian Reservation, in Minnesota, and left lying thereon-the land from which the timber was cut being held in common by the Indian bands for whom it was reserved by the ordinary Indian title: Advised, (1) that the United States have the absolute ownership of the timber thus cut; (2) that the Indians have no interest therein whatever, and that it in no way appertains to the Indian Bureau or its agents to assume charge thereof; (3) that such timber may be sold for and on account of the United States, but that sale should be made by the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior. Opinion of Acting Attorney-General Jenks of August 23, 1886 (18 Op., 434), concurred in. (See p. 41.)

See United States v. Cook (19 Wall., 591), cited on page 47.

See, also, "Timber on Indian allotments and Indian reservations" (19 Op., p. 232), cited on page 96.

SAWMILLS ON PUBLIC LANDS.

[Acting Commissioner of General Land Office to Secretary of the Interior, March 2, 1886, in case of public timber trespass by Robert H. Longwell, Colorado.]

I have to state that I am not aware of any statute expressly authorizing the seizure and sale of sawmills erected on the public domain by timber depredators or intruders thereon, but I am of the opinion that the title to such mills should be held to be in the United States under the principle of common law which gives to the owner of real estate all houses, fixtures, and other improvements placed thereon by strangers without the knowledge and consent of such owner. The depredator in this case had no color of right or title to the land nor license to go upon the same, and the mill was erected thereon without authority. As soon as the material was attached to the land it became a part of the realty, and the title passed to the Government. (See Sedgwick and Tait on Trial of Titles to Land, pp. 361, 690, and Gerald Real Estate, p. 107.)

I would suggest, as the United States attorney expresses doubt as to whether the mill can be seized prior to the termination of the suit for the trespass, that the parties be restrained by injunction from removing the mill and appurtenances from the land pending the determination of the suit for damages.

See Erhardt v. Boaro and others, cited on page 49.

Where the title to land remains in the State, timber cut upon the land belongs to the State. Whilst the timber is standing it constitutes a part of the realty; being severed from the soil, its character is changed; it becomes personalty, but its title is not affected; it continues as previously the property of the owner of the land, and can be pursued wherever it is carried. All the remedies are open to the owner which the law affords in other cases of the wrongful removal or conversion of personal property.

Where logs cut from the lands of the State without license have been intermingled with logs cut from other lands, so as not to be distinguishable, the State is entitled, under the law of Minnesota, to replevy an equal amount from the whole mass. The remedy afforded by the law of Minnesota in such case held to be just in its operation and less severe than that which the common law would authorize.

HUTCHINS ET AL. v. KING.

(1 Wall., 53.)

Growing timber constitutes a portion of the realty, and is embraced by a mortgage of the land. When it is severed from the freehold without the consent of the mortgagee, his right to hold it as a portion of his security is not impaired. When the amount due according to the stipulation of the mortgage is paid, the lien of the mortgage upon the timber thus severed is discharged, and the property reverts to the mortgagor, or any vendee of the mortgagor. Any sale of the timber by the mortgagee, or assignee of the mortgagee, after such payment is a conversion for which an action will lie by the mortgagor or his vendee.

D. cut and piled posts on lands belonging to the State. While he was thus engaged R. purchased the land, and afterwards replevied the posts, some of which were cut before and some after the purchase. Held, that R. had no title to those cut prior to his purchase. (United States Digest, Vol. II, p. 590 (1869); Rogers v. Bates, 1 Mich. (N. P.), 93.) The sale of standing timber is a sale of an interest in real estate, and a subsequent purchaser by warranty deed of the land with notice of such sale can not maintain trespass against the prior purchaser of the timber for cutting and removing the timber. (United States Digest, Vol. VII, p. 839; Russell v. Meyers, 32 Mich., 522.)

THE RIGHT TO SUE FOR THE VALUE OF CUT TIMBER AFTER PATENT.

[Land Office Report for 1889, p. 287.]

The rights acquired by a claimant under the homestead law

invest the claimant with no legal title to the land, or any portion of the realty, such as the timber. Hence, until title to the land is passed by

patent, the Government is empowered to indemnify itself for any portion of the realty improperly alienated.

Whenever, however, patent issues, the title thereby acquired, as faras concerns remedies for damages in connection with the land, is regarded as relating back to the date of actual settlement, and right is thereby acquired by the claimant at the date of issuance of patent, but not earlier, to seek recovery of damages subsequent to the date of settlement.

Since cut timber is not a part of the realty and does not go with the land, I will further add that all unlawful cutting or removing of timber from public land prior to the date of such settlement constitutes a trespass against the United States, which is not affected by the subsequent passing of title to the land by patent.

USE OF CUT TIMBER BY VIRTUE OF A RIGHT OF OCCUPANCY.

UNITED STATES v. COOK.

(19 Wall., 591.)

Timber standing on lands occupied by the Indians can not be cut by them for the purposes of sale alone, though when it is in their possession, having been cut for the purpose of improving the land, that is to say, better adapting it to convenient occupation; in other words, when the timber has been cut incidentally to the improvement, and not cut for the purpose of getting and selling it, there is no restriction on the sale of it.

The Indians having only a right of occupancy in the lands, the presumption is against their authority to cut and sell the timber. Every purchaser from them is charged with notice of this presumption. To maintain his title it is incumbent on him to show that the timber was rightfully severed from the land. The United States may maintain an action for unlawfully cutting and carrying away timber from the public lands.

The Chief Justice delivered the opinion of the court:

We think the action was properly brought, and that it may be maintained.

The right of the Indians in the land from which the logs were taken was that of occupancy alone. They had no power of alienation except to the United States. The fee was in the United States, subject only to this right of occupancy. This is the title by which other Indians hold their lands. It was so decided by this court as early as 1823 in Johnson v. McIntosh.* The authority of that case has never been doubted. The right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession when abandoned by the Indians attaches itself to the fee without further grant.§

This right of use and occupancy by the Indians is unlimited. They may exercise it at their discretion. If the lands in a state of nature are not in a condition for profitable use, they may be made so. If desired for the purposes of agriculture, they may be cleared of their timber to such an extent as may be reasonable under the circumstances. The timber taken off by the Indians in such clearing may be sold by them. But to justify any cutting of the timber, except for use upon the premises, as timber or its product, it must be done in good faith for the improvement of the land. The improvement must be the principal thing, and the cutting of the timber the incident only. Any cutting beyond this would be waste and unauthorized.

The timber while standing is a part of the realty, and it can only be sold as the land could be. The land can not be sold by the Indians, and consequently the timber, until rightfully severed, can not be. It can be rightfully severed for the purpose of improving the land, or the better adapting it to convenient occupation, but for no other purpose. When rightfully severed it is no longer a part of the land, and there is no restriction upon its sale. Its severance under such circumstances is, in effect, only a legitimate use of the land. In theory, at least, the land is better and more valuable with the timber off than with it on. It has been improved by the removal. If the timber should be severed for the purposes of sale alone-in other words, if the cutting of the timber was the principal thing and not the incident-then the cutting would be wrongful, and the timber when cut become the absolute property of the United States.

These are familiar principles in this country and well settled, as applicable to tenants for life and remainder-men. But a tenant for life has all the rights of occupancy in the lands of a remainder-man. The Indians have the same rights in the lands of their reservations. What a tenant for life may do upon the lands of a remainder-man the Indians may do upon their reservations, but no more.

In this case it is not pretended that the timber from which the saw logs were made was cut for the purpose of improving the land. It was not taken from any portion of the land which was occupied, or, so far as appears, intended to be occupied for any purpose inconsistent with the continued presence of the timber. It was cut for sale and nothing else. Under such circumstances, when cut, it became the property of the United States absolutely, discharged of any rights of the Indians therein. The cutting was waste, and in accordance with well-settled principles the owner of the fee may seize the timber cut, arrest it by replevin, or proceed in trover for its conversion.

The Indians having only a right of occupancy in the lands, the presumption is against their authority to cut and sell the timber. Every purchaser from them is charged with notice of this presumption. To maintain his title under his purchase it is incumbent on the purchaser to show that the timber was rightfully severed from the land.

That the United States may maintain an action for cutting and