The United States court in the District of Washington has
jurisdiction of an action brought by the United States against a
defendant, found there, to recover for timber unlawfully cut from
lands of the United States in Idaho.
It is no defense against such action that the defendant was
indicted criminally for cutting such timber and was acquitted.
The ruling of the court about the challenges are without
merit.
The provision in the Act of March 3, 1875, c. 152, that the
railroad companies therein provided for have "the right to take
from the public lands adjacent to the line of said road material,"
etc., means lands in proximity, contiguous to, or near the
road.
As between the government and a settler, the title to public
land until the conditions of the law are fulfilled remains in the
United States, but in the meantime, if the settler is engaged in
improving the land as required by law and disposes of any surplus
timber without intent to defraud the government, and the purchaser
buys the timber under the belief that there is no intent or purpose
to defraud the government, the sale is lawful and the purchaser is
protected.
The fact that claimants to lands under the homestead and
preemption laws, after occupation for a time, abandon the lands is
not alone proof that they intended to defraud the government,
although in the meantime they have cut and sold the timber from the
lands during the occupation, but the jury should judge of the
intent of the parties so acting by all the circumstances
surrounding each case, and if these circumstances satisfy the jury
that claimants of the land were acting in good faith at the time
they sold the timber, and the purchaser had no reasonable ground to
believe otherwise, then such sale would be lawful.
A general verdict is not a nullity by reason of its being
received or recorded on Sunday.
Page 167 U. S. 179
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This action was brought in the District Court of the United
States for the District of Washington, Eastern Division, to recover
the reasonable value of certain timber and railroad ties
manufactured from trees alleged to have been unlawfully cut by the
defendant, Stone, from certain lands in Idaho, of which, it was
averred, the United States was the owner.
The answer put the United States upon proof of all the material
allegations of the complaint.
But the defendant made two special defenses:
(1) That, at a term of the United States District Court for the
District of Idaho, held in April, 1891, the trespasses and wrongs
complained of were presented by the United States to the grand jury
for investigation, and such proceedings were then and there taken
that the grand jury returned into court true bills of indictment,
in which each and all of the wrongs and trespasses complained of
herein were included; that the defendant was charged thereby with
the commission of an offense against the statutes forbidding the
cutting or removal of timber from the lands of the United States;
that, on all the charges involving the acts of the defendant as set
forth in the complaint filed herein, he was tried and acquitted and
discharged therefrom by the judgment of that court, and that
judgment was duly entered against the government, "the issues
therein being the same as are now presented in this action, and
were each and all determined and adjudged in this defendant's
behalf." The defendant therefore alleged that the issues tendered
by the plaintiff herein have been heard, tried, and adjudged for
defendant and against the plaintiff by a court of competent
jurisdiction, and that such judgment and determination precluded
the maintenance of this suit.
Page 167 U. S. 180
(2) That between the dates mentioned in the complaint, to-wit,
between the months of August, 1888, and November, 1890, he had
contracts with various customers for supplies of railroad ties and
timber for the manufacture of lumber at points along the line of
the Northern Pacific Railroad Company in the State of Washington,
and adjacent to the region mentioned in the complaint; that he
procured his supplies of timber for the purposes aforesaid from
lands embraced in the grant made by acts of Congress passed to aid
in the construction of the Northern Pacific Railroad, and by
contracts with that company, and that at no time did he cut timber
on any lands except such as belonged to that company; that during
said time, he purchased from other parties, who delivered ties and
timber suited for lumber on the railroad, both ties and timber not
cut by himself, for which he paid the market price, and which were
either cut from the railroad lands or were lawfully cut by the
parties who sold and delivered them to him; that no part or portion
thereof were cut or taken from lands of the United States, or were
unlawfully cut or taken from any lands; that the railroad ties so
purchased from other parties, and which were not cut by himself
from the lands of the railroad company, were for the use of, and
were used in the construction of, the Spokane & Palouse Railway
Company's and the Central Washington Railway Company's railroads,
respectively, both corporations being organized and constructing
their roads under and in compliance with grants made by the Act of
Congress of March 3, 1875, authorizing the use of timber, etc., for
construction, to be taken from the public lands of the United
States, and that the taking for such purpose was not unlawful, but
was by authority of law.
The defense based on the criminal prosecution in the United
States district in Idaho was adjudged on demurrer to be
insufficient in law.
The United States also brought an action against John H. Stone,
Edward Noonan, and W. G. Kegler, as partners doing business under
the name of the Spokane Fuel Company, to recover the value of 3,545
cords of wood alleged to have been
Page 167 U. S. 181
made from trees unlawfully cut from the public lands of the
United States in the same state, and to have been unlawfully
converted and disposed of by the defendants to their own use.
Noonan answered, denying each and every allegation of the
complaint. Stone answered separately, and alleged that
"he was indicted upon a charge of cutting timber unlawfully from
the same lands and premises upon which the alleged trespasses
complained of in this action are founded at the April term, 1891,
of the United States District Court for the District of Idaho; that
he was thereafter arrested on that indictment, and appeared in said
court; that such proceedings were afterwards had, a judgment was
duly given and rendered in favor of the defendant, and he has been
fully acquitted and discharged of said offense and of said trespass
thereby."
That judgment was pleaded in full discharge of the plaintiff's
cause of action, and in bar of all right of action on account
thereof. As further special defense, Stone denied that the
defendants were, or had ever been, partners in any business. The
defense based upon the indictment, trial, and judgment referred to
was, on demurrer, adjudged to be insufficient in law. Stone then
filed an answer denying each and every allegation of the complaint.
Noonan denied all the allegations of the complaint. Kegler was not
served with process, and did not appear.
The two actions were tried before the same jury, having been
previously consolidated by order of court. In the first case, there
was a verdict and judgment in favor of the United States against
Stone for $19,000. In that case, the jury, in answer to special
questions propounded by the court, stated that Stone had received
saw logs unlawfully taken from the lands described in the
complaint, and that $15,000 were awarded as damages on that
account. They also stated, in response to a special question put by
the court, that Stone had received railroad ties unlawfully taken
from the lands, and that $4,000 were awarded on that account. In
the case against Stone, Noonan, and Kegler as partners, there was a
verdict against Stone for $3,000, but the judgment was arrested,
and the verdict set aside.
Page 167 U. S. 182
The judgment against Stone for $19,000 was affirmed by the
circuit court of appeals. 64 F. 667.
1. It is contended in behalf of Stone that, as the lands from
which the trees were alleged to have been unlawfully cut are in
Idaho, the action is local to that state, and the District Court of
the United States for the District of Washington was without
jurisdiction.
Ellenwood v. Marietta Chair Co.,
158 U. S. 105, is
cited as an authority for this proposition. But that case proceeded
upon the theory that the allegations of the petition at the time it
was tried presented a single cause of action, in which the trespass
upon the land was the principal thing, and the conversion of the
property was incidental only, and therefore that the entire cause
of action was local. In the present case, the petition, it is true
avers that the United States was the owner of the lands from which
the trees were cut, but the gravamen of the action was the
conversion of the lumber and the railroad ties manufactured out of
such trees, and a judgment was asked not for the trespass, but for
the value of the personal property so converted by the defendant.
The description in the petition of the lands and the averment of
ownership in the United States were intended to show the right of
the government to claim the value of the personal property
manufactured from the trees illegally taken from its lands.
Although the government's denial of the ownership of the land made
it necessary for it to prove its ownership, the action, in its
essential features, related to personal property, was of a
transitory nature, and could be brought in any jurisdiction in
which the defendant could be found and served with process. And a
suit could have been brought to recover the property wherever it
could be found. In
Schulenberg v.
Harriman, 21 Wall. 44,
88 U. S. 64, it
was said:
"The title to the land remaining in the state, the lumber cut
upon the land belonged to the state. Whilst the timber was
standing, it constituted a part of the realty. Being severed from
the soil, its character was changed. It became personalty, but its
title was not affected. It continued as previously the property of
the owner of the land, and could be pursued wherever it was
carried. All the remedies were open to the owner which the
Page 167 U. S. 183
law affords in other cases of the wrongful removal or conversion
of personal property."
If a suit like this cannot be maintained, then persons
depredating on the public lands may escape civil liability by
simply removing from the state in which the depredation occurred,
whereby the government would be compelled to rely altogether upon a
criminal prosecution, in which it could not succeed except by
proving the guilt of the defendant beyond all reasonable doubt.
2. The indictment against Stone in the Circuit Court of the
United States for the District of Idaho charged that he unlawfully,
willfully, and feloniously cut and removed, and caused and procured
to be cut and removed, from the lands described, 50,000 timber
trees growing on such lands, such trees being the property of the
United States. It was based upon § 2461 of the Revised Statutes,
which provides:
"If any person shall cut, or cause or procure to be cut, or aid,
assist, or be employed in cutting, or shall wantonly destroy, or
cause or procure to be wantonly destroyed, or aid, assist, or be
employed in wantonly destroying any live oak or red cedar trees, or
other timber standing, growing, or being on any lands of the United
States, which, in pursuance of any law passed, or hereafter to be
passed, have been reserved or purchased for the use of the United
States, for supplying or furnishing therefrom timber for the navy
of the United States; or if any person shall remove or cause or
procure to be removed, or aid, or assist, or be employed in
removing from any such lands which have been reserved or purchased,
any live oak or red cedar trees, or other timber, unless duly
authorized so to do, by order, in writing, of a competent officer,
and for the use of the navy of the United States; or if any person
shall cut, or cause or procure to be cut, or aid, or assist, or be
employed in cutting any live oak or red cedar trees or other timber
on, or shall remove, or cause or procure to be removed, or aid, or
assist, or be employed in removing any live oak or red cedar trees
or other timber from any other lands of the United States, acquired
or hereafter to be acquired, with the intent to export, dispose of,
use or employ the same in any manner whatsoever, other than for the
use of the navy of
Page 167 U. S. 184
the United States, every such person shall pay a fine not less
than triple the value of the trees or timber so cut, destroyed or
removed, and shall be imprisoned not exceeding twelve months."
Did the court below err in adjudging that the defense in this
action based upon an acquittal of the criminal charge was
insufficient in law?
In our opinion, the record of the criminal proceedings in the
court in Idaho was not evidence to establish or disprove any of the
material facts involved in the civil action.
In support of the contrary view, counsel have cited
Coffey
v. United States, 116 U. S. 436,
116 U. S.
443-444. That was a libel on behalf of the government in
the Circuit Court of the United States for the District of Kentucky
against certain personal property as being
forfeited to
the United States
on account of the violation of certain
statutes. It contained three counts, based, respectively, on
§§ 3257, 3450, and 3453 of the Revised Statutes, Title "Distilled
Spirits." Coffey filed a claim to most of that property, as well as
an answer to the information, in which he denied the allegations of
each count. He made defense also on these specific grounds: that,
before the institution of the proceedings for forfeiture of the
personal property, a criminal information was filed against him in
the same court, the counts of which information were based upon §§
3256, 3257, 3296, 3450, and 3453 of the Revised Statutes, or on
some one or more of them; that such counts contained the same
charges, in substance and effect, and embraced the same matters,
things, and frauds that were set out and charged in the libel
against the personal property therein described, and that, upon the
trial of the criminal information he was found not guilty, and by
the judgment of the court was acquitted of the charges of fraud and
attempts at fraud therein alleged, which were the same frauds as
were alleged in the libel. To this part of the answer a demurrer
was sustained upon the ground that the facts stated were not
sufficient to constitute a defense. But this Court held that, as
the demurrer to the answer admitted that the fraudulent acts and
attempts to defraud alleged in the criminal information and covered
by the verdict
Page 167 U. S. 185
and judgment in the criminal case embraced all the acts,
attempts, and intents averred in the libel for the forfeiture of
Coffey's personal property, the judgment of acquittal in the
criminal case was a bar to the proceeding by libel. This Court
said:
"Where an issue raised as to the existence of the act or fact
denounced has been tried in a criminal proceeding instituted by the
United States, and a judgment of acquittal has been rendered in
favor of a particular person, that judgment is conclusive in favor
of such person on the subsequent trial of a suit
in rem by
the United States, where, as against him, the existence of the same
act or fact is the matter in issue as a cause for the forfeiture of
the property prosecuted in such suit
in rem. It is urged
as a reason for not allowing such effect to the judgment that the
acquittal in the criminal case may have taken place because of the
rule required to be proved beyond a reasonable doubt, and that, on
the same evidence, on the question of preponderance of proof, there
might be a verdict for the United States in the suit
in
rem. Nevertheless the fact or act has been put in issue, and
determined against the United States, and all that is imposed by
the statute as a consequence of guilt is a punishment therefor.
There could be no new trial of the criminal prosecution after the
acquittal on it, and a subsequent trial of the civil suit amounts
to substantially the same thing, with a difference only in the
consequences following a judgment adverse to the claimant. When an
acquittal in a criminal prosecution in behalf of the government is
pleaded or offered in evidence by the same defendant in an action
against him by an individual, the rule does not apply, for the
reason that the parties are not the same, and often for the
additional reason that a certain intent must be proved to support
the indictment, which need not be proved to support the civil
action. But upon this record, as we have already seen, the parties
and the matter in issue are the same."
After referring to the case of
Gelston v.
Hoyt, 3 Wheat. 246, in which it was adjudged that a
sentence of acquittal, accompanied by a denial of a certificate of
probable cause, in a proceeding by libel against a vessel for an
alleged offense was
Page 167 U. S. 186
conclusive evidence that no forfeiture was incurred, and that
the same question could not be reexamined in an action of trespass
against the collector and surveyor for seizing the vessel, the
Court said:
"This doctrine is peculiarly applicable to a case like the
present, where, in both proceedings, criminal and civil, the United
States is the party on one side, and this claimant the party on the
other. The judgment of acquittal in the criminal proceeding
ascertained that the facts which were the basis of that proceeding
and are the basis of this one, and which are made by the statute
the foundation of any punishment, personal or pecuniary, did not
exist. This was ascertained once for all, between the United States
and the claimant, in the criminal proceeding, so that the facts
cannot be again litigated between them as the basis of any
statutory punishment denounced as a consequence of the existence of
the facts. This is a necessary result of the rules laid down in the
unanimous opinion of the judges in the case of
Rex v. Duchess
of Kingston, 20 Howell's State Trials 355, 358, and which were
formulated thus: the judgment of a court of concurrent
jurisdiction, directly upon the point is, as a plea, a bar, or as
evidence, conclusive between the parties upon the same matter
directly in question in another court, and the judgment of a court
of exclusive jurisdiction, directly upon the point, is in like
manner conclusive upon the same matter between the same parties,
coming incidentally in question in another court for a different
purpose. In the present case, the court is the same court, and had
jurisdiction, and the judgment was directly on the point now
involved, and between the same parties."
We are of opinion that the present case is not covered by the
decision in
Coffey v. United States. The judgment in that
case was placed distinctly upon the ground that the facts
ascertained in the criminal case, as between the United States and
the claimant, could not be "again litigated between them, as the
basis of any statutory punishment denounced as a consequence of the
existence of the facts." In the
Coffey case, there was no
claim of the United States to property except as the result of
forfeiture. In support of its conclusion, the Court
Page 167 U. S. 187
referred to
United States v. McKee, 4 Dill. 128,
observing that the decision in that case was put on the ground
"that the defendant could not be twice punished for the same crime,
and that the former conviction and judgment was a bar to the suit
for the penalty."
The present action is unlike that against Coffey. This is not a
suit to recover a penalty, to impose a punishment, or to declare a
forfeiture. The only relief sought here is a judgment for the value
of property wrongfully converted by the defendant. The proceeding
by libel against Coffey, although civil in form, was penal in its
nature because it sought to have an adjudication of the forfeiture
of his property for acts prohibited. It was, as we have seen, a
case in which a punishment denounced by statute was sought to be
inflicted as a consequence of the existence of facts that were in
issue, and had been finally determined against the United States,
in a criminal proceeding. The nature of the proceeding against
Coffey, and the scope of the decision in that case, were recognized
in
Boyd v. United States, 116, U.S. 616,
116 U. S. 634,
where the Court said:
"As showing the close relation between civil and criminal
proceedings on the same statute in such cases, we may refer to the
recent case of
Coffey v. United States, in which we
decided that an acquittal on a criminal information was a good plea
in bar to a civil information for the
forfeiture of goods
arising upon the same acts. As, therefore, suits for penalties and
forfeitures incurred by the commission of offenses against the law
are of this
quasi-criminal nature, we think that they are
within the reason of criminal proceedings for all the purposes of
the Fourth Amendment of the Constitution, and of that portion of
the Fifth Amendment which declares that no person shall be
compelled in any criminal case to be a witness against himself, and
we are further of opinion that a compulsory production of the
private books and papers of the owner of goods sought to be
forfeited in such a suit is compelling him to be a witness against
himself, within the meaning of the Fifth Amendment to the
Constitution, and is the equivalent of a search and seizure -- and
unreasonable search and seizure -- within the meaning of the
Page 167 U. S. 188
Fourth Amendment. Though the proceeding in question is divested
of many of the aggravating incidents of actual search and seizure,
yet, as before said, it contains their substance and essence, and
effects their substantial purpose."
Again, in
Lees v. United States, 150 U.
S. 476,
150 U. S. 480,
which was an action to recover a penalty for importing an alien
under contract to perform labor, this Court said:
"This, though an action civil in form, is unquestionably
criminal in its nature, and in such a case, a defendant cannot be
compelled to be a witness against himself."
In the present case, the action against Stone is purely civil.
It depends entirely upon the ownership of certain personal
property. The rule established in
Coffey's case can have
no application in a civil case not involving any question of
criminal intent, or of forfeiture for prohibited acts, but turning
wholly upon an issue as to the ownership of property. In the
criminal case, the government sought to punish a criminal offense,
while in the civil case, it only seeks, in its capacity as owner of
property illegally converted, to recover its value. In the criminal
case, his acquittal may have been due to the fact that the
government failed to show beyond a reasonable doubt the existence
of some fact essential to establish the offense charged, while the
same evidence in a civil action brought to recover the value of the
property illegally converted might have been sufficient to entitle
the government to a verdict. Not only was a greater degree of proof
requisite to support the indictment than is sufficient to sustain a
civil action, but an essential fact had to be proved in the
criminal case which was not necessary to be proved in the present
suit. In order to convict the defendant upon the indictment for
unlawfully, willfully, and feloniously cutting and removing timber
from lands of the United States, it was necessary to prove a
criminal intent on his part, or at least that he knew the timber to
be the property of the United States.
Regina v. Cohen, 8
Cox C.C. 41;
Regina v. James, 8 Car. & P. 131;
United States v. Pearce, 2 McLean 14;
Cutter v.
State, 36 N.J.L., 125, 126. But the present action for the
conversion of the timber would be supported by proof that it was in
fact
Page 167 U. S. 189
the property of the United States, whether the defendant knew
that fact or not.
Woodenware Co. v. United States,
106 U. S. 432. An
honest mistake of the defendant as to his title in the property
would be a defense to the indictment, but not to the civil action.
Broom's Leg.Max. (5th ed.) 366, 367. It cannot be said that any
fact was conclusively established in the criminal case except that
the defendant was not guilty of the public offense with which he
was charged. We cannot agree that the failure or inability of the
United States to prove in the criminal case that the defendant had
been guilty of a crime either forfeited its right of property in
the timber, or its right in this civil action, upon a preponderance
of proof, to recover the value of such property.
3. As heretofore stated, the two actions were consolidated by an
order of the trial court. After twelve jurors were selected (the
challenges for cause having been determined), the court directed
the respective parties to proceed with their peremptory challenges.
Thereupon Stone and Noonan, claiming that they were entitled to
challenge peremptorily, in each case, three jurors, and announcing
that they desired to challenge Giffin in the case against Stone,
Noonan, and Kegler, peremptorily challenged him as a juror,
although they had already challenged three jurors in the
consolidated cases. The court denied the challenge, and the
defendants excepted. This ruling of the court is now assigned for
error. But there is no merit in the objection. The case here is the
one against Stone alone. In that case, the defendant had the
benefit of the three peremptory challenges made before the
challenge of Giffin. In the other case, the judgment was arrested
and the verdict was set aside. If the court committed any error in
not allowing the challenge of Giffin in the case against Stone,
Noonan, and Kegler, that error did not prejudice Stone in the
present case.
4. By the Act of March 3, 1875, 18 Stat. 482, c. 152, Congress
granted the right of way through the public lands of the United
States to any railroad company duly organized under the laws of any
territory, except in the District of Columbia, or by the Congress
of the United States, which shall have
Page 167 U. S. 190
filed with the Secretary of the Interior a copy of its articles
of incorporation, and due of proofs of its organization under the
same, to the extent of one hundred feet on each side of the central
line of the road;
"also the right to take from the public lands adjacent to the
line of said road material, earth, stone and timber necessary for
the construction of said railroad."
At the trial, the defendant offered as evidence
"the appointment of the plaintiff in error, John H. Stone, as
agent of the Central Washington Railroad Company and of the Spokane
& Palouse Railway Company, claiming that said corporations
having been organized under the laws of the Territory of
Washington, and having filed their articles of incorporation and
proofs of organization with the Department of the Interior, which
had approved the same, were authorized by the laws of the United
States to take the timber included in this action, and such taking
by them through their agent was not unlawful, the proof showing
that the ties which are sued for in this action were used by the
said railroad companies in the construction of their said
roads."
This evidence was excluded, and its exclusion is assigned for
error. It appears from the record, as stated in the opinion of the
circuit court of appeals, that no timber fit for ties was found
along the line of either of these roads; that both of them
penetrated a barren region almost entirely destitute of timber, and
that the timber was cut from lands along the line of the Northern
Pacific Railroad about fifty miles distant from the eastern end of
the other roads, which was the nearest point where available timber
could be found.
The trial court, in its charge, thus interpreted the above act
of 1875:
"The act of Congress under which this claim is made does not
undertake to provide the materials necessary for the building of
railroads. It does not provide that if there is not any timber
convenient, or within a convenient distance to the building and
construction of a new railroad, that the railroad company has a
right to require the United States to provide them with material or
go upon distant lands and procure the material that they require.
That is not the scope of the law, and so I have decided that
'adjacent lands'
Page 167 U. S. 191
means lands in proximity, contiguous to or near to the road, and
that lands so far distant from the railroad and mentioned as lands
in Kootenai County, Idaho, where it is claimed that railroad ties
were cut, were not adjacent lands within the meaning of the law.
That takes the whole question and the whole subject matter of that
claim from your consideration, and releases you from any
consideration in regard to it."
We concur with the circuit court of appeals in adjudging this to
be a sound interpretation of the act of 1875. It is substantially
the view expressed in
Denver & Rio Grande Railroad v.
United States, 34 F. 838, 841, in which MR. JUSTICE BREWER
said:
"I certainly do not agree with the idea, which seems to be
expressed elsewhere, that the proximity of the land is immaterial,
or that Congress intended to grant anything like a general right to
take timber from public land where it was most convenient. The
grant was limited to adjacent lands, and I do not appreciate the
logic which concludes that, if there be no timber on adjacent
lands, the grant reaches out and justifies the taking of timber
from distant lands -- lands fifty or a hundred miles away."
Under this interpretation of the act of Congress, and under the
facts of this case, it is clear that the timber was not taken from
lands which, within the true meaning of that act, were adjacent to
either of the roads in the construction of which it was used.
5. One of the principal matters contested at the trial was
whether the lands were public lands of the United States, in any
sense that would entitle the government to claim that it owned the
timber taken from them. The defendant introduced evidence to show
that certain individuals had acquired the lands under the laws of
the United States, and were in the exercise of their rights when
cutting timber from them.
Upon this general subject, the court instructed the jury in
substance that the United States was the primary source of title to
all of the lands in the State of Idaho, and where individuals have
acquired ownership, they have done so by grant or conveyance from
the government; that in a case where there was no evidence of
transfer from the United States of
Page 167 U. S. 192
title, it is to be taken that the title in still in the United
States; that as to all the lands in which the title is in the
government, the timber and trees standing and growing on them are
part of the land, the title of the United States to the trees being
the same as its title to the soil; that when trees on such lands
are cut down without authority of law, the right of property in the
timber after it is severed from the realty still remains in the
government, and if anyone without license from the government or
without authority of law takes the timber from the land, he commits
a trespass against the government; that no person can acquire title
to the timber so cut by buying it from an individual unless it
appears that that individual, in cutting and removing it from the
lands, had license or lawful authority to do so; that under the
laws in force during the time referred to in the pleadings and
evidence, any person desiring any part of the lands known as
"public lands" must prove that it was for his own exclusive use and
benefit, and for the purpose of residing upon and cultivating it,
thus carrying into effect the policy of the government in giving
public lands to the people who need them and would cultivate and
use them, so as to cause the greatest benefit to the country; that
any settler going upon a tract of land with that intention goes by
invitation of the government, and with the authority to improve the
land and make it fit for use; that he is authorized to cut down the
timber which he finds standing there, if it encumbers the ground,
so far as was necessary to do so in order to make the land fit for
cultivation; that any timber that he does so cut down in good
faith, and for the purpose of improving the land, he being a
bona fide settler intending to acquire title in accordance
with the laws, is not the property of the United States, but
becomes his property after being so cut down, and that he may burn
it up or he may sell it for money, and, if he sells it under the
conditions named, the man who buys it from him gets a good title,
and is not required to pay the United States for it afterwards;
that the converse of that proposition was true, and where a man
cuts timber off the public lands, unless he is a
bona fide
settler intending to acquire title to the lands by
Page 167 U. S. 193
obedience to the laws of the United States, he does so
unlawfully, and does not make himself the owner of the timber by
cutting it, and that even a settler who takes up a claim on public
lands, intending to perfect his right to it, has no right, until he
has perfected his claim, to cut the timber except so far as it is
necessary and reasonable to prepare so much of the lands for
cultivation as he intends to cultivate.
The court proceeded in its charge:
"A man of limited means who goes upon a claim and is able during
the first year to cultivate only a few acres is only authorized to
cut the timber off the few acres that he intends to cultivate and
is able to cultivate. If he cuts down the timber off forty acres,
it should be in pursuance to a definite plan that the plow shall
follow the ax, and that the entire forty acres shall be put to use
for the purpose of cultivation, or in such manner as a farmer makes
use of land that is tillable land. The balance of the timber on the
160 acres, if it is a timbered claim (a claim covered by timber),
should remain as a preserve (a timber preserve) for the future
benefit of the land, and should be removed only so fast as the
settler finds it necessary to remove it in order to put in
cultivation the lands he means to cultivate and intends to
cultivate in good faith. But a man whose primary purpose is to cut
the timber on a piece of land is no more authorized to go and cut
that timber, by reason of his having filed in the land office a
declaration of his intention to take the land under the preemption
law, than if he goes and cuts it without filing any declaration.
Unless the declaration is an honest declaration, and is supported
by compliance with the requirements of the law, by making a home
upon the land, actually living upon it, and actually proceeding in
the regular way by regular process of improving the land and
putting it in cultivation, and until he has perfected his right by
full compliance with the law, he has no right to cut down and sell
the timber on other portions of the land which he is not intending
to immediately put into cultivation. As between the government and
the settler, the title to the land, until the conditions of the law
are fulfilled, remains in the United States;
Page 167 U. S. 194
but in the meantime, if the settler is engaged in improving the
land as required by law, and disposes of any surplus timber without
intent to defraud the government, and the purchaser buys the timber
under the belief that there is no intent or purpose to defraud the
government, the sale is lawful, and the purchaser is protected. The
fact that claimants to lands under the homestead and preemption
laws, after occupation for a time, abandon the lands is not alone
proof that they intended to defraud the government, although in the
meantime they have cut and sold the timber from the lands during
the occupation; but the jury should judge of the intent of the
parties so acting by all the circumstances surrounding each case,
and if these circumstances satisfy the jury that claimants of the
land were acting in good faith at the time they sold the timber,
and the purchaser had no reasonable ground to believe otherwise,
then such sale would be lawful."
It is not, in our judgment, necessary to add anything to this
clear and satisfactory statement of the law as applicable to the
matters referred to by the trial court. They are in accord with the
views of this Court as expressed in
Shiver v. United
States, 159 U. S. 491,
159 U. S.
497-498.
See also United States v.
Cook, 19 Wall. 591. The objections made at the
trial (and repeated here) to what was said to the jury on this part
of the case were not well taken. They could not be sustained
without encouraging depredations upon the public lands under the
guise of establishing settlements upon them in accordance with the
liberal policy of the government.
6. The only other question that we deem necessary to consider is
that presented by the assignment of error, which states that the
court erred
"in giving any instructions to the jury on Sunday, because it
had no power to do any judicial act save to receive the verdict and
discharge the jury, and all such instructions given to the jury
were without authority."
The facts upon which this assignment was made were these: the
jury retired on Saturday April 22, 1893, to consider of their
verdict. On the succeeding day (Sunday), in
Page 167 U. S. 195
conformity with the order of the judge, without any request by
the jury, and without any consent asked or given by the defendant,
they came into court, both parties being present by counsel. The
court then read the special questions to which reference has been
made in the statement of this case, and requested the jury to
answer them in addition to their general verdict. Although asked by
counsel to do so, the court declined to instruct the jury upon
matters covered by its charge of the previous day. A juror having
inquired whether the jury were allowed to sign a verdict on Sunday,
the court replied: "Yes; and, when you have come to an agreement,
send for me, and I will receive your verdict." The verdict was
returned into open court on the same day. On the succeeding day,
the defendant asked to have the benefit of an exception to the jury
having been sent out, and to the receiving of the verdict on
Sunday. The court did not directly allow the exception, but
expressed its willingness to sign a bill of exceptions reciting
facts as they occurred. The judgment on the verdict for $19,000 was
entered on the Friday succeeding the day on which the verdict was
returned.
There is no statute of the United States making Sunday
dies
non juridicus. But by the statutes of the State of Washington,
where this case was tried, it is provided that the common law, so
far as it was not inconsistent with the Constitution and laws of
the United States or the State of Washington nor incompatible with
the institutions and conditions of society in that state, shall be
the rule of decision in all its courts. 2 Hill's Anno., Stat. and
Codes § 108. This statute is applicable in the courts of the United
States sitting in the State of Washington, and furnishes a rule of
decision in trials at common law in cases where it applies.
Rev.Stat. § 721. Tested by the principles of the common law, was
the judgment under review void because the verdict of the jury was
received by the court on Sunday? Whatever may be said as to the
right of the court on Sunday to have delivered to the jury special
questions to be answered by them, the general verdict was not a
nullity by reason of its being
Page 167 U. S. 196
received or recorded on Sunday. While many cases hold that a
judgment entered on Sunday is absolutely void, the receiving and
entering of a verdict cannot be questioned upon the ground that
those things occurred on Sunday. It was substantially so held in
Ball v. United States, 140 U. S. 131,
citing
Mackalley's Case, 5 Coke, 111;
Swann v.
Broome, 3 Burrows 1595;
Baxter v. People, 3 Gilman
368, 386, and
Chapman v. State, 5 Blackford 111.
See
also Pierce v. Atwood, 13 Mass. 347;
Frost v. Hall, 4
N.H. 153, 156;
Nabors v. State, 6 Ala. 200, 201;
Story
v. Eliot, 8 Cowen 27;
Ex Parte White & Pergue, 15
Nev. 146;
Hoghtaling v. Osborn, 15 Johns. 119.
Having notice all the matters in the record that we deem
important, and perceiving no error of law to the prejudice of the
substantial rights of the defendant, the judgment is
Affirmed.