Where, in an action by the United States against a railroad
corporation for the conversion of logs cut from government lands,
the defendant admits the taking but justifies its action under a
statute permitting it to take timber for construction and repair of
its railway, the burden of proving that the logs were taken and
used in accordance with the statute is upon the defendant.
Northern Pacific R. Co. v. Lewis, 162 U.
S. 366.
Page 191 U. S. 85
This burden cannot be shifted to the plaintiff because the
timber was cut by an agent of the defendant. The presumption
attaching to public officers that they act within the scope of
their authority does not apply to agents of private persons sued
for conversion.
This was an action of trover brought by the United States
against the railroad company for the value of certain logs cut upon
the plaintiff's lands. The declaration averred simply that the
"defendant converted to its own use plaintiff's goods -- that is
to say, logs, lumber, and timbers . . . manufactured out of trees
theretofore standing and growing upon certain lands of the
plaintiff,"
therein described.
The defendant pleaded not guilty, issue was joined, the case
tried before a jury, which was instructed to return a verdict for
the defendant.
The case was submitted upon an agreed statement of facts, which
showed that the New Mexico Lumber Company cut from the lands
described in the declaration 2,100,000 feet of lumber, which was
furnished to and received by the railroad company for its use.
Upon these facts, and proof of the ownership of the lands, and
of the value of the lumber cut, the plaintiff rested.
The defendant also offered an agreed statement of facts in which
it appeared that it was the successor of the Denver and Rio Grande
Railway Company, and that, by Act of Congress of June 8, 1872, 17
Stat. 339, c. 354 and amendatory Act of March 3, 1877, 19 Stat.
405, c. 126,
"the right of way over the public domain . . . and the right to
take from the public lands adjacent thereto, stone, timber, earth,
water, and other material required for the construction and repair
of its railway and telegraph line,"
was granted to the Rio Grande Railway Company, of which the
defendant was entitled to the benefit. The amendatory act of 1877
merely extended the time for the completion of the railway from
five to ten years, and is not material to this controversy.
Defendant also offered testimony showing the appointment of the New
Mexico Lumber Company as its agent for the cutting of such timber
for the purposes mentioned, and that the lumber delivered to the
railroad company was furnished upon specific orders given to
Page 191 U. S. 86
the lumber company as its agents. There were other facts
included in the statement which are immaterial upon this writ of
error.
No testimony was offered by either party tending to show whether
the timber cut from the lands and received by the defendant was
required for the construction and repair of its railway and
telegraph line.
The jury, under instructions of the court, returned a verdict of
not guilty, and judgment was entered for the defendant, which was
affirmed by the supreme court. 66 P. 550.
The case was first tried in 1897, a verdict for plaintiffs
returned, the case carried to the supreme court, which reversed the
judgment of the court below upon the ground of erroneous
instructions with respect to the burden of proof. 9 N.M. 382.
Page 191 U. S. 89
MR. JUSTICE BROWN delivered the opinion of the Court.
As plaintiffs alleged simply a conversion of logs, and defendant
pleaded the general issue of not guilty, plaintiffs made a
prima facie case by proving their ownership of the lands,
the cutting and asportation of the timber, its value, and its
subsequent possession by the defendant. Here they were entitled to
rest, and did rest. They were under no obligation to put in the
special acts of Congress, nor could defendant compel their
introduction by them.
By the laws of New Mexico of 1889, certain forms of pleadings
are prescribed, including forms of pleas in actions for wrongs, one
of which is that the defendant "is not guilty of the wrong
alleged," and another "that he did what is complained of by the
defendant's" (mistake for plaintiff's) "leave."
Whether it was competent, under the plea of not guilty, to
introduce the special acts of Congress in question we do not
Page 191 U. S. 90
find it necessary to decide; but, assuming that the defense
could be made, it is clear that, upon the introduction of the
statute of 1872, it became necessary for the defendant to assume
the burden of producing evidence tending to show that the public
lands were adjacent to the right of way, and that the timbers cut
were required for the construction or repair of its railway or
telegraph line. This is not a question of pleading, but of the
order of proof. There was a question of adjacency made in the court
below which is not pressed here, and the case was argued
substantially upon the question as to which party had the burden of
showing the purpose for which the timber was cut.
Except in a single particular, hereinafter noticed, we think
this case is practically controlled, with respect to the burden of
proof, by that of the
Northern Pacific R. Co. v. Lewis,
162 U. S. 366,
decided in 1896. That was an action against the railroad company
for negligence in burning certain cordwood belonging to the
plaintiffs. To prove ownership, plaintiffs showed that they had
entered upon a portion of the unsurveyed lands of the United
States, chopped about 10,000 cords from the timber thereon
standing, and that, after it was cut, it was piled up near the
railroad. For authority to cut the wood, plaintiffs relied upon an
Act of Congress of June 3, 1878, 20 Stat. 88, the first section of
which authorized
bona fide residents of the state to fell
and remove, for building, agricultural, mining, or other domestic
purposes, timber growing on the public lands,
"said lands being mineral, and not subject to entry under
existing laws of the United States, except for mineral entry, . . .
subject to such rules and regulations as the Secretary of the
Interior may prescribe."
Plaintiffs insisted that, in the absence of any evidence to the
contrary, the presumption was that, when they cut the timber, they
complied with and came under the conditions provided for in this
act, and that the burden rested upon the defendant to show that the
conditions mentioned in the act had not been complied with by them.
The Court held that, if plaintiffs had acquired the right, by
reason of a compliance with the statute, the facts should have been
shown by them; that the presumption
Page 191 U. S. 91
was that the cutting was illegal, and that the burden of proof
was upon the plaintiffs to show the facts which brought them within
the statute of 1878.
In
United States v.
Cook, 19 Wall. 591, which was an action of replevin
to recover possession of certain logs cut by Indians upon a
reservation, and sold to Cook, it was held that the Indians, having
only the right of occupancy, could not cut the timber for the
purposes of sale, and that it was incumbent on the purchaser to
show that the timber was rightfully severed from the lands.
The only feature distinguishing the case under consideration
from that of Lewis is that the timber was cut not by the defendant
corporation, but by the New Mexico Lumber Company, acting as its
agent, and was subsequently furnished and delivered to the
defendant. It is insisted that there is a presumption that the
agent, having authority to cut, acted within the scope of his
authority, and that this would of itself throw upon the plaintiffs
the burden of showing that it had not. Although a presumption of
this kind may attach to the acts of public officers, we know of no
case holding that a party sued for a conversion by his agent may
shield himself under a presumption that the agent acted within the
scope of his authority. If the burden of proof would rest upon the
defendant to show the cutting of timber for a proper purpose,
evidently it could not shift that burden upon the plaintiffs by
employing an agent to do the work.
Upon principle as well as upon authority, a party who has been
shown to be
prima facie guilty of a trespass, and relies
upon a license, must exhibit his license, and prove that his acts
were justified by it. The practical injustice of a different rule
is manifest. It would require the plaintiffs not only to establish
a negative -- that is, that the timber was not cut for the purpose
of construction and repair -- but to establish it by testimony
peculiarly within the knowledge of the defendant. As the cutting in
this case was done by agents and servants of the defendant, it
would impose upon the plaintiffs a difficult if not an impossible
task -- to require them to show that the timber was not cut for the
construction or repair of the railway, though
Page 191 U. S. 92
evidence that it was so cut could be readily produced by the
defendant. It is a general rule of evidence, noticed by the
elementary writers upon that subject, 1 Greenl.Ev. sec. 79,
that
"where the subject matter of a negative averment lies peculiarly
within the knowledge of the other party, the averment is taken as
true unless disproved by that party."
When a negative is averred in pleading, or plaintiff's case
depends upon the establishment of a negative, and the means of
proving the fact are equally within the control of each party, then
the burden of proof is upon the party averring the negative; but
when the opposite party must, from the nature of the case, himself
be in possession of full and plenary proof to disprove the negative
averment, and the other party is not in possession of such proof,
then it is manifestly just and reasonable that the party which is
in possession of the proof should be required to adduce it, or,
upon his failure to do so, we must presume it does not exist, which
of itself establishes a negative.
Great Western R. Co. v.
Bacon, 30 Ill. 347;
King v. Turner, 5 M. & S.
206. Familiar instances of this are where persons are prosecuted
for doing a business -- such, for instance, as selling liquor
without a license. It might be extremely difficult for the
prosecution in this class of cases to show that the defendant had
not the license required, whereas the latter may prove it without
the slightest difficulty. In such cases, the law casts upon the
defendant not only the burden of producing his license, but of
showing that it was broad enough to authorize the acts complained
of.
Commonwealth v. Rafferty, 133 Mass. 574;
Commonwealth v. Towle, 138 Mass. 490. As the license (the
statute in this case) authorized the timber to be cut only for a
specific purpose, and the means of proof as to the purpose for
which the timber was cut were peculiarly within the knowledge and
control of the defendant, we think the burden of producing evidence
to that effect devolved upon it.
This burden, however, which was simply to meet the
prima
facie case of the government, must not be confounded with the
preponderance of evidence, the establishment of which usually rests
upon the plaintiff.
Heinemann v. Heard, 62 N.Y.
Page 191 U. S. 93
448;
Willett v. Rich, 142 Mass. 360;
Wilder v.
Cowles, 100 Mass. 487;
Central Bridge Corporation v.
Butler, 2 Gray 130. If this were a criminal case, it would
undoubtedly rest on the government upon the whole evidence to
satisfy the jury beyond a reasonable doubt that the timber was not
cut for the construction or repair of the railway.
While the Supreme Court of New Mexico upon this second writ of
error may have considered itself bound by its decision upon the
question here involved upon the first writ as the law of the case,
we are not ourselves restrained by the same limitation. As its
judgment upon the first writ was merely for a reversal of the court
below, and for a new trial, such judgment, not being final, could
not be made the subject of a writ of error from this Court. Upon
the present writ, however, we are at liberty to revise the action
of the court below in both instances.
There was error in requiring plaintiffs to assume the burden of
showing that the timber was not cut for purposes of construction or
repair, and
The judgment of the Supreme Court is therefore reversed, and
the case remanded to that court with instructions to order a new
trial.
