1. While no act of Congress expressly authorizes the Secretary
of the Interior or other officer of the Land Department to appoint
timber agents, the appropriation of money by Congress to pay them
is a recognition of the validity of their appointment.
2. 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.
3. 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.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
Nickles brought replevin in the District Court of the Third
Judicial District of Utah to recover possession of a large amount
of sawed lumber, laths, and logs of which he claimed to be the
owner. The defendants, Wells and others, denied this and set up
ownership in themselves. The court, at the request of the
plaintiff, gave the following instruction to the jury:
"To make a case entitling plaintiff to recover, it is only
necessary for him to show, by a preponderance of testimony, that
the logs in question, and the logs from which the lumber in
question was made, were cut on government lands, seized by the
timber agents, and sold to him, and that the defendants detained
the logs and timber from him."
The jury found a verdict for the plaintiff, as there was no
doubt that all the logs had been cut on government lands and that
he bought them of a timber agent. Judgment was rendered
accordingly. This was affirmed by the supreme court of the
territory, where the soundness of this instruction was the main
question to be decided, as it is here.
Page 104 U. S. 445
One of the defenses set up by Wells and his co-defendants was
that this same lumber had been seized and taken out of his
possession by timber agents, under order of Oliver A. Patton, and
V. M. C. Silva, register and receiver of the land office within
whose district the timber was cut; that he brought a suit against
them for that seizure, in the progress of which a compromise was
effected, which was reduced to writing and signed by the attorneys
of the parties, and that according to its terms the lumber was
delivered to Wells.
The paper is as follows:
"
I
n the District Court for the Third Judicial District"
"
of the Territory of Utah"
"DANIEL H. WELLS"
"v."
"OLIVER A. PATTON, V. M. C. SILVA, J. J. HEFFERMAN,"
"and WILLIAM MCKAY, Timber Agents of the United States"
"for the Territory of Utah"
"It is hereby stipulated by said parties as follows:"
"In consideration of the bond to be executed by said plaintiff
as below stated and his stipulation herein, said defendants hereby
release the property from seizure mentioned in the complaint filed
in this action, and will discontinue the publication of the notice
of sale thereof, and will not hereafter meddle with said property
or interfere with plaintiff's use thereof for his own benefit; said
plaintiff, in consideration of the above, hereby agrees that he
will not discontinue this suit without the defendants' consent, but
will prosecute the same with diligence to final judgment, and will
now give bond, with sufficient surety, to pay such sum as he shall
be adjudged to pay by final judgment on the merits of this action.
The plaintiff also agrees to advance the money to pay the costs of
the seizure mentioned in the complaint and all the costs connected
therewith, including advertising, and if the plaintiff shall not be
found liable to pay such costs and charges, so paid by such
advance, the money so paid shall be deducted from the amount
otherwise awarded, if anything, against him by such final
judgment."
"SUTHERLAND & BATES"
"MARSHALL & ROYLE & HEMINGRAY"
"
Att'ys for Def'ts"
Page 104 U. S. 446
"Rec'd of Daniel H. Wells three hundred and twelve dollars for
the expenses of seizure mentioned in the last paragraph of the
foregoing stipulation."
"SALT LAKE CITY, July 10, 1875."
"MARSHALL & ROYLE & HEMINGRAY"
"
Att'ys for Def'ts"
The Oliver A. Patton who made this agreement in that suit is the
same man who, as register of the land office, directed the
subsequent seizure of the property, and sold it to Nickles. It is
under that sale alone that Nickles asserts a title to the
property.
It appears that in addition to paying the costs of suit and the
expenses of the seizure, Wells gave the bond required by the
stipulation, and that after this the defendants demurred to his
complaint. Their demurrer was sustained and that suit dismissed. It
does not appear that any attempt was made to assess their damages
or the value of the timber delivered by them to him, nor that any
suit was brought on his bond or that it was delivered up to him or
cancelled.
It would seem to be undeniable that if all the rights thus
contested were those of private persons, the transaction above
detailed would bar the present suit. Apparently conceding this to
be so, as far as we can gather from the opinion of the supreme
court of the territory, both courts denied the sufficiency of these
facts as a bar on the ground that the property belonged to the
United States and that the parties to the former suit had no
authority to make the compromise which is relied on.
That the lumber when first seized by the timber agents was the
property of the United States is not denied. It was therefore held
by them as agents of the government at the time Wells sued not to
replevy it, but to enjoin them from selling it and to determine his
right to it. If, as he maintained, they were seizing and attempting
to sell and deliver as public property that which was lawfully his,
we know of no principle of law which forbade him to bring them
before a legal tribunal. Their authority to act for the government,
and the ownership of the property which they asserted a right to
seize, were questions eminently proper to be decided by a court,
especially a
Page 104 U. S. 447
court of the United States. If it were otherwise, all the
property of the citizens of this vast country would be held at the
pleasure of anyone bold enough to assert that it is government
property and he a government agent.
The effort we have made to ascertain and fix the authority of
these timber agents by any positive provision of law has been
unsuccessful.
The Department of the Interior, under the idea of protecting
from depredation timber on the lands of the government, has
gradually come to assert the right to seize what is cut and taken
away from them wherever it can be traced. In aid of this, the
registers and receivers of the land offices have, by instructions
from the Secretary of the Interior, been constituted agents of the
United States for these purposes, with power to appoint special
agents under themselves. If any authority from Congress to do this
was necessary, it may be fairly inferred from appropriations made
to pay for the services of these special timber agents.
But neither in these acts of Congress nor in the instructions
from the department are the powers of these special agents well
defined. Fortunately that point is not material to the decision of
the question before us, for the sale under which Nickles succeeded
in obtaining his verdict was made by the same register of the land
office with whom Wells made the compromise whose validity is
disputed. The action of the other agents may therefore be
disregarded in the consideration of these questions. It would seem,
in the absence of any express limitation of his authority, that the
general power to deal with lumber or timber of this character by
suit at law, or by such seizure as would subject him to an action,
must also authorize the agent to do whatever could be properly done
in the conduct of such a suit.
But these officers were not left without instruction and
authority on this point. In a letter from the Commissioner of the
Land Office, dated Nov. 4, 1870, to the land officers at Salt Lake
City, one of whom was Patton, the following language is used:
"You will discharge with energy the duty devolved upon you by
the enclosed circular, having due regard, however, to the right of
homestead and preemption settlers,
Page 104 U. S. 448
and to the circumstances of the community requiring a supply of
timber for mining, manufacturing, and other business pursuits. In
cases where timber may be cut from the public lands and extenuating
circumstances exist, you are authorized to compromise with the
parties committing the trespass on their paying all expenses
incurred and a reasonable stumpage to be fixed by you according to
the condition of the markets, and not to fall below the minimum
rate of $2.50 per M. feet. When objection is made to the rate fixed
under this rule, the matter may be submitted to the judges of the
supreme court of the territory, in which case you will be governed
by their decision as to the stumpage to be exacted."
The circular so enclosed was a general one, to all registers and
receivers, of Dec. 24, 1855, by Thomas A. Hendricks, Commissioner
of the Land Office, directing them to be vigilant in preventing
persons cutting timber on public lands, and to seize such timber
when cut and sell it to the highest bidder. These instructions are
repeated without the limitation to $2.50 per M. feet, in orders
from the commissioner of the dates of July 8, 1874, Sept. 8, 1874,
and June 21, 1875, the latter of which, after referring to the
circular of 1855, and the other letters just mentioned, adds:
"When circumstances justify so doing, you may settle with the
parties on their paying any expenses incurred and a reasonable
stumpage for the timber. But you are to regard this as a compromise
justified by existing circumstances, and not as the granting of
permission to cut the timber, which is forbidden by law."
These instructions contain ample authority for the compromise
made with Wells. It was made July 10, 1875, and the latest of the
letters of the commissioner, from which we have cited, is dated
June 21, 1875.
The compromise appears to have been framed in conformity with
the language of the letter of Nov. 4, 1870. Wells agreed to pay,
and did pay, the expenses of seizure and the costs of suit, and
nothing remained but for the judge who decided the demurrer to fix
the amount of the stumpage and give judgment therefor against
Wells. He had given bond to pay what was so ascertained. The case
was settled in precise accordance with the instructions of the
commissioner, and we think the settlement
Page 104 U. S. 449
bound the United States, whose agent made the compromise.
The authority to make this settlement is quite as clear as the
authority of the same officer to sell to Nickles, so that his right
to sue depends upon the same authority on which Wells had the
property delivered to him, on paying all costs and expenses and
giving a bond, with surety, for the damages.
The instruction of the district court held this settlement to be
of no validity. The supreme court held the same view, and the
register who made the sale to Nickles evidently disregarded his own
compromise and sold the property to Nickles under the same idea.
All this, we think was erroneous.
We have been shown a letter of April 5, 1877, from the Secretary
of the Interior to the Commissioner of the Land Office in which he
says, "No agent employed by you will be permitted to make any
compromise for depredation on the public lands." But whether this
order is limited to the agents specially employed to look after
such depredations, or be held to include the registers and
receivers also, is immaterial in the present case, for this recall
of the power to compromise was nearly two years after the one under
consideration was made and a considerable sum of money paid under
it.
All the letters from the department to its officers above
referred to, except the one last mentioned, are in this record, and
are made part of the case on which the supreme court of the
territory decided.
We are of opinion that the instruction to the jury, which we
have given in full, and the whole theory on which the effect of the
stipulation of compromise was decided, is erroneous, and that the
judgment of each of the courts below must be revered, with
directions to set aside the verdict and grant a new trial, and it
is
So ordered.