Although a liberal construction of a statute may be proper and
desirable, yet the fair meaning of the language used must not be
unduly stretched for the purpose of reaching any particular case
which, while it might appeal to the court, would plainly be beyond
the limitations contained in the statute.
Without defining the exact distance within which lands must lie
in order to be "adjacent" to a railroad passing through territory
of the United States, public lands lying in Idaho, more than twenty
miles from a two hundred foot right of way of a railroad, not
exceeding forty miles in length, are not "adjacent public lands"
within the meaning of the Act of March 3, 1875, 18 Stat. 482,
permitting railroad companies to cut timber therefrom for the
construction of their roads.
A railroad company cutting timber for the construction of its
road on public lands not adjacent thereto is liable to the United
States for the value thereof, and where there is no intention to
violate any law or do a wrongful act, the measure of damages is the
value of the timber at the time when, and at the place where, it
was cut and not at the place of its delivery.
Wooden-ware Co.
v. United States, 106 U. S. 432, and
Pine River Logging Co. v. United States, 186 U.
S. 279, distinguished.
This action was brought by the United States against the
railroad company to recover damages for the unlawful cutting down
and conversion by the company, in the year 1899, of certain timber
on the public lands belonging to the United States in the State of
Idaho. The value of the timber thus cut was, as alleged, over
$20,000. The trial was had in the Circuit Court of the United
States for the District of Idaho, Southern Division, and resulted
in a judgment dismissing the complaint, which was affirmed, upon
appeal, by the Circuit Court of Appeals, Ninth Circuit, 114 F. 722,
and the government has appealed to this Court.
The defendant answered the complaint and denied its averments as
to unlawfully entering upon the lands and cutting
Page 192 U. S. 525
the timber. As a further and separate defense, the defendant
averred that it was duly incorporated on May 18, 1899, under and
pursuant to the laws of the State of Idaho for the purpose of
constructing and operating a railroad from the Town of Idaho Falls
in Bingham County, Idaho, to St. Anthony, in Fremont County, in
that state, a distance of approximately forty miles. On or about
July 7, 1899, the board of directors duly adopted the route for the
railway, which was practically a straight line between the Town of
Idaho Falls and the Town of St. Anthony, and passed through and
over the public lands of the United States. The defendant fully
performed all things required by railroad companies by the act of
Congress granting to railroads the right of way through the public
lands of the United States, approved March 3, 1875, and it thereby
became entitled to the benefit of the privileges therein granted to
railroad companies. For the purpose of procuring the necessary
material with which to construct its railroad, the defendant,
through its authorized agents, entered upon the lands described in
the complaint, which were, as defendant alleged, adjacent to the
line of the railroad, for the purpose of procuring ties and timbers
for the construction of the road, and did, during the summer and
fall of 1899, cut and remove timber growing on the lands, not to
exceed 1,682,975 feet; that the ties and timbers were cut from the
nearest public lands to said line of road, and were, as the
defendant averred, adjacent thereto; that all the ties and timbers
were necessary for the original construction of the road, and were
used for that purpose, and the defendant cut and removed the timber
in good faith, with no intention of violating any law or committing
any trespass, but believing that it had the right to enter upon the
lands and take the timber.
For the purpose of the trial, there was an agreed statement of
facts made, and therein it was stated that the cutting of the
timber was upon the lands of the government and the amount thereof
was correctly stated in the answer, and its value upon delivery to
the defendant was as alleged in the complaint.
Page 192 U. S. 526
The defendant did not act under any mistake of fact in regard to
the status of the timber and the lands upon which it grew, and did
what was done believing it had the legal right so to do. It is not
disputed that the lands were unoccupied unentered public lands of
the United States.
Upon the question whether the lands where the timber was cut
were or were not adjacent, it was agreed:
"That said lands from the place where said timber was cut to the
line of the road were and are the following distances, namely, from
17 to 23 miles by air line; from 20 miles to 25 miles by wagon
road, and from 22 to 26 miles following the sinuosities of the
river upon which said timber was in part conveyed. By far the
larger part of the timber was driven or rafted down said river from
said lands to said railroad, the other part being hauled by wagon.
The wagon road referred to and so used is an ordinarily good road
and involves no unusual grades, and said timber could, with
reasonable profit, be hauled by wagon from the place where it was
cut to said railroad, where it was used for ties and in the
construction of bridges. It is further agreed that there were no
other timber lands or suitable timber upon either side of said
railroad as near as were the land and timber in question, and that
said lands are near enough and so located with reference to said
railroad as to be directly and materially benefited thereby."
The statute under which the cutting is justified is section 1 of
"An Act Granting to Railroads the Right of Way Through the Public
Lands of the United States," approved March 3, 1875, 18 Stat. 482,
and is set forth in the margin.
*
Page 192 U. S. 530
MR. JUSTICE PECKHAM, after making the foregoing statement,
delivered the opinion of the Court.
The important question in this case is as to the meaning of the
term "adjacent" when used in the first section of the statute of
1875. The act is a general one, and is therefore applicable to no
particular road, except as the facts in each case may bring the
road within its language. It grants the right of way through the
public lands in the United States upon conditions named, to the
extent of 100 feet on each side of the central line of the road.
The lands from which materials for the construction of the railroad
may be taken must be adjacent to this piece of land, but 200 feet
wide. The term is a somewhat relative and uncertain one, and in one
aspect the case may be determined with at least some reference to
the size of the strip or right of way granted, and to which the
land must be adjacent. It may also be remembered that the whole
length of the road is but forty miles. In some views of the case,
the narrowness and shortness of the line might have some effect
upon the question of the distance to which the word adjacent might
carry one in the search for timber. As the word is frequently
uncertain and relative as to its meaning, it might naturally,
perhaps, be regarded as more extended when used with reference to a
large object than with reference to a comparatively small one. In
other words, it must be defined with reference to the context at
least to some extent.
We are not disposed to unduly limit the meaning of the word as
used in the statute so as to exclude lands which might
otherwise
Page 192 U. S. 531
fairly be regarded as within its purpose, and thereby defeat the
intent of Congress. The act is not to be construed in an
unnecessarily narrow manner, nor at the same time, should the
construction of its language by extraordinarily enlarged in order
to attain some special and particular end. In
United States v.
Denver &c. Railway, 150 U. S. 1, another
question arose under this same section, and the construction of the
act in that regard was certainly as liberal as its language would
warrant. It was there held that a railroad company had the right to
cut and take the timber or material from public lands adjacent to
the line of the road and use the same on portions of its line
remote from the place from which it was taken.
In speaking of the proper construction of the act, it was said
by Mr. Justice Jackson, for the Court:
"It is undoubtedly, as urged by the plaintiffs in error, the
well settled rule of this Court that public grants are construed
strictly against the grantees, but they are not to be so construed
as to defeat the intent of the legislature or to withhold what is
given either expressly or by necessary or fair implication. In
Winona & St. Peter Railroad v. Barney, 113 U. S.
618,
113 U. S. 625, Mr. Justice
Field, speaking for the Court, thus states the rule upon this
subject:"
"The acts making the grants . . . are to receive such a
construction as will carry out the intent of Congress, however
difficult it might be to give full effect to the language used if
the grants were by instruments of private conveyance. To ascertain
that intent we must look to the condition of the country when the
acts were passed, as well as to the purposes declared on their
face, and read all parts of them together."
"Looking to the condition of the country, and the purposes
intended to be accomplished by the act, this language of the court
furnishes the proper rule of construction of the act of 1875. When
an act, operating as a general law, and manifesting clearly the
intention of Congress to secure public advantages, or to subserve
the public interests and welfare by means of benefits more or less
valuable, offers to individuals
Page 192 U. S. 532
or to corporations as an inducement to undertake and accomplish
great and expensive enterprises or works of a
quasi-public
character in or through an immense and undeveloped public domain,
such legislation stands upon a somewhat different footing from
merely a private grant, and should receive at the hands of the
court a more liberal construction in favor of the purposes for
which it was enacted.
Bradley v. New York & New Haven
Railroad, 21 Conn. 294; Pierce on Railroads 491."
"This is the rule, we think, properly applicable to the
construction of the act of 1875, rather than the more strict rule
of construction adopted in the case of purely private grants, and
in view of this character of the act, we are of opinion that the
benefits intended for the construction of the railroad, in
permitting the use of timber or other material, should be extended
to and include the structures mentioned in the act as a part of
such railroad."
It was also said that the railroad should be treated "as an
entirety," in the construction of which it was the purpose of
Congress to aid by conferring upon any railway company entitled to
the benefits of the act the right to take timber necessary for such
construction from the public lands adjacent to the line of the
road. This intention would be narrowed, if not defeated, if it were
held that the timber which the railway company had the right to
take for use in the construction of its line could be rightfully
used only upon such portions of the line as might be contiguous to
the place from which the timber was taken. If Congress had intended
to impose any such restriction upon the use of timber or other
material taken from adjacent public lands, it should have been so
expressed. No rule of interpretation requires this Court to so
construe the act as to confine the use of timber that may be taken
from a proper place for the purpose of construction to any
particular or defined portion of the railroad. To do this would
require the court to read into the statute the same language as to
the place of use which is found in the statute as to the place
of
Page 192 U. S. 533
taking. In other words, it would require the court to
interpolate into the statute the provision that the place at which
the timber shall be used shall be "contiguous, adjoining, or
adjacent" to the place from which it is taken. The place of use is
not, by the language of the statute, qualified, restricted, or
defined, except to the extent of the construction of the railroad
as such, and it is not to be inferred from the restriction or
limitation imposed as to the place from which it may be rightfully
taken that it is to be used only adjacent to such place.
In the above case, it was admitted that the lands from which the
timber was taken were adjacent to the line of the road within the
meaning of the statute.
It is also seen in the extract from the opinion that the word
"adjacent" is therein used in connection with the words
"contiguous" and "adjoining," so as to give an impression that it
is almost, though not entirely, synonymous with those words. And we
think this is true. "Contiguous, lying close at hand, near," is the
meaning given it by the lexicographers. It need not be adjoining or
actually contiguous, but it must be, as said, near or close at
hand.
Although a liberal construction of the statute may be proper and
desirable, yet the fair meaning of the language used must not be
unduly stretched for the purpose of reaching any particular case
which, while it might appeal to the court, would yet pretty plainly
be beyond the limitation contained in the statute. While not to be
construed so as to defeat the intent of the legislature or to
withhold what is given either expressly or by fair implication, it
is surely improper to so extend the ordinary and usual meaning of
the word as to permit the railroad company to enter upon any land
of the government, as being adjacent, simply because the road wants
the timber. The statute was not intended to furnish a general
license to the company to enter upon any public land and to range
to any extent thereon for timber for its road. In all cases, it
must be adjacent.
In the lower federal courts, there have been some cases in
Page 192 U. S. 534
which the question of the proper construction of this section of
the act of Congress received attention. In
United States v.
Denver & Rio Grande Company, 31 F. 886, that land was
regarded as adjacent which could be reached by ordinary
transportation by wagons. The parties in that case agreed that the
timber was cut from lands adjacent to the line of railway, and the
question was whether timber thus cut could be taken from lands
adjacent to the line of road and used on any part of the line. But
the meaning of the word was referred to in the opinion, and it was
stated that it depended very much upon the context and the subject
matter to which it should be applied for its proper effect; that
with reference to the lands which might be taken for stations,
sidetracks, etc., the word "adjacent" was used in the same sense of
"contiguous" or "adjoining," while with reference to material for
building the road the word should have the larger significance of
nearness without actual contact. It was said to be unreasonable to
limit the meaning of the word to the government subdivisions lying
next to the right of way, and it was said that the meaning of the
term "adjacent" probably included the right to take timber from
public lands within ordinary transportation by wagon. This meaning
was arrived at because the company could thus avail itself of all
timber which could be so transported with a profit to the company,
while excluding other lands from which transportation with profit
could not be thus effected. We are not satisfied of the correctness
of this construction or of its reasonableness. Lands might in this
way be found adjacent which were 50 or 100 or more miles away, and
which could not be regarded as adjacent within any meaning of that
word heretofore given, and could only be said to be adjacent in
order to serve an exigency and to allow a railroad to procure
timber gratuitously from the government. The purpose may, perhaps,
be good, but the meaning cannot be stretched too far, even to
accomplish a possibly desirable end.
Again, in
United States v. Chaplin, 31 F. 890, it was
held, in the Circuit Court, District of Oregon, that land was
Page 192 U. S. 535
adjacent to the line of road within the purpose and intent of
the act when, by reason of its proximity thereto, it is directly
and materially benefited by the construction of such road. The
court said in that case:
"What is 'adjacent' land within the meaning of the statute must
depend on the circumstances of each particular case. Where the
'adjacent' ends and the nonadjacent begins may be difficult to
determine. On the theory that the material is taken on account of
the benefit resulting to the land from the construction of the
road, my impression is that the term 'adjacent' ought not to be
construed to include any land save such as, by its proximity to the
line of the road, is directly and materially benefited by its
construction."
We fail to see the correctness of this rule. Lands hundreds of
miles distant might be directly and materially benefited by the
construction of a railroad, and yet be far beyond the utmost extent
heretofore supposed to be included by the word adjacent. To give
this extended meaning to the word is, as it seems to us, merely to
say that Congress might have included lands for that reason if it
had so chosen, and therefore it is well enough to enlarge the
ordinary meaning of the word to accomplish a purpose not plainly
stated, but only guessed at.
In
Denver & Railroad v. United States, 34 F. 838,
while the question as to what were adjacent lands was not in issue,
as the fourth paragraph in the agreed statement of facts stipulated
that the lands from which the timber was cut were adjacent to the
line of railway, yet MR. JUSTICE BREWER, then circuit judge, in his
opinion said that he did not agree with the idea that the proximity
of the lands was immaterial, or that Congress intended to grant
anything like a general right to take timber from public lands
where it was most convenient. He said that, while the grant was
limited to adjacent lands, he did not appreciate the logic which
concludes that, if there be no timber on adjacent lands, the grant
reaches out and justifies taking the timber from distant lands
fifty or a hundred miles away. The real question in the case was
whether timber taken
Page 192 U. S. 536
from land which was adjacent could be taken to any portion of
the road, no matter how distant from the place of cutting. As it
was agreed the timber taken was adjacent, it does not appear how
far from the line of the road it was cut. The circuit judge,
overruling in this respect, the district judge, held the timber
could be used all along the line of the road. This is the same view
subsequently taken by this Court in 150 U.S.,
supra.
In
Bacheldor v. United States, 83 F. 986, it was held
by the circuit court of appeals that, under the Act of June 8,
1872, 17 Stat. 339, which uses language similar to the section in
question, the cutting of timber 25 miles from the road was not, as
matter of law, unlawful. The question whether the lands were
adjacent was held to be a mixed question of law and fact, and the
test of illegality was whether the timber was within reasonable
hauling distance by wagons. The judgment of the court below, 48 P.
310, was therefore reversed.
In
Stone v. United States, 64 F. 667, it was held that
the act in question did not authorize the taking of timber for the
construction of a road from public lands which were 50 miles
distant from the end of the road. That case was affirmed in this
Court.
167 U. S. 167
U.S. 178. The trial court had charged the jury that, under the act
of 1875, the term "adjacent lands" means lands in proximity,
contiguous to, or near to the road, and that lands so far distant
from the railroad as lands in Kootenai County, Idaho, where it is
claimed that the railroad ties were cut, were not adjacent lands
within the meaning of the law. This Court concurred with the
circuit court of appeals in adjudging the charge to be a sound
interpretation of the act.
The report in the
Stone case showed, as stated in the
opinion of the circuit court of appeals, that no timber fit for its
use was found along the line of either of the railroads, that both
of them penetrated a barren region, almost entirely destitute of
timber, and that timber was cut from the lands along the
Page 192 U. S. 537
line of the Northern Pacific Railroad about 50 miles distant
from the eastern end of the other roads, which was the nearest
point where available timber could be had.
We thus have the authority of this Court that lands which are
adjacent within the meaning of this act of 1875 must be lands in
proximity, contiguous or near to, the line of the road. While
"proximity" or "nearness" to an object is somewhat uncertain as a
measure of distance, yet the use of such words as a definition
brings to the mind the idea that lands which are in fact far off or
distant are not adjacent. And the question is whether lands which
are 20 miles off can reasonably be described as in proximity or
near to a line of road a couple of hundred feet wide. In our
belief, no one, in describing the locality of such lands, would say
they were adjacent to the railroad.
The above cited cases show a conflict in the minds of the
federal judges as to what are the material facts upon which to base
an answer to the question when are lands adjacent within the
meaning of this statute? "Adjacent," we admit, is a relative term,
and sometimes may depend for its proper application upon the facts
in the particular case.
The matter of the construction of this language was the subject
of a letter from Mr. Vilas, who was then Secretary of the Interior,
to the Attorney General, dated January 10, 1889, after the decision
of the cases in 31 F.,
supra. The Secretary was of the
opinion that, while nothing in the term "adjacent," as used in the
statute, rendered it necessary to imply that the lines of survey
should be resorted to to define its extent, there was at the same
time nothing in this indefiniteness which in his opinion could
authorize the view that timber or other material could be taken
from public lands so far away as may be reached by wagon
transportation in a single day or any other given period of time.
He thought that the use of the word "adjacent" intended and meant
the right to the public lands which were
conveniently
contiguous to the right of way and immediately accessible from
it, and he did not believe
Page 192 U. S. 538
that it was the purpose of Congress or that his department ought
to decide that the railroad company could range the public lands to
secure material for the construction of the road when it did not
happen to exist on those lands which, in the ordinary acceptance of
the phrase, would be regarded as adjacent to the right of way.
Taking into consideration the whole case, the Secretary was of
opinion that it was --
"As far as sound discretion will warrant executive officers to
go until an authoritative decision by the courts, to hold that,
under this phrase, material may be taken from the tier of sections
through which the right of way extends, as immediately adjoining
the right of way, and perhaps an additional tier of sections on
either side, as within the idea of 'adjacency.' . . . In view of
all the facts and considerations applicable, it is believed the
definition and rule given are fair and just, and legitimately to be
adopted. I think it wiser and safer to pursue such a rule, subject
as it is to review by the courts, than to leave the matter open to
the varying notions of different officers or the necessities of the
companies."
There is in our judgment much to be said in favor of this view
of the statute. It falls in with the general system adopted by the
United States for the survey of its public lands. Those sections
touching the line of the road would, of course, be included within
the term, while those next to them might also be included because,
although not touching, they would be near to such line, and would
therefore come within any definition of the term as being close or
near to the line without being contiguous to or actually touching
it. It is not at all unreasonable to say that very probably
Congress had in mind this general system of division of the public
lands, and that the word "adjacent" would properly be interpreted
with respect thereto. If the word "adjoining" had been used instead
of "adjacent," those sections touching the line of the road could
be regarded as the adjoining lands, and when the word "adjacent"
instead of "adjoining" is used, it might, not unnaturally, be said
to include the next tier of sections away
Page 192 U. S. 539
from the line of the road. We do not think that sections still
further removed could, under this rule, be regarded as adjacent.
The rule also gives certainty and definiteness to an otherwise
somewhat doubtful expression, and, as the Secretary says, prevents
the companies from ranging the public lands to secure material for
the construction of their roads, and thus raising questions of
legality in cutting in almost every case where the lands were
beyond the sections described by the Secretary. This alone is an
important consideration.
If not bounded by section lines, the term "adjacent" becomes of
more or less uncertain meaning. We cannot, however, conclude that
within any fair construction of the statute, these lands were in
any event adjacent to the line of the road. The word is also used
in the same section when speaking of the use of ground adjacent to
the right of way for purposes of depots, machine shops, etc. In
such use, it is clear the word is greatly limited. We take it there
is a limit beyond which lands could not be described as adjacent to
the line of the railroad even if they were benefited by its
construction and were the nearest public lands upon which timber
could be found, and the timber thereon could be transported by
wagon with profit to the company. Lands which are twenty miles off
we cannot regard as adjacent to the line of a railroad within the
meaning of this statute. On the other hand, lands within two miles,
we assume all would agree, are so adjacent. Now at what point
between these two extremes lands are on one side adjacent and on
the other not adjacent, is a very difficult matter to decide. It is
necessarily somewhat vague and uncertain, and we are not called
upon to determine it in this case. All we have to do now is to
declare that lands as far off as the lands in question are not
adjacent lands, and it is unnecessary to say at what point on the
intervening lands adjacency begins. It is very difficult to
determine just where twilight ends and night begins, but it is easy
enough to distinguish noon from midnight. If we say that two miles
would be within the term and twenty would be beyond it, it might be
asked why nineteen
Page 192 U. S. 540
miles would not also be beyond it, or three miles be within it,
and these questions might puzzle one to answer. It can only be said
that a distance of twenty miles is beyond it anyway, and two miles
would be within it. If, then, short distances be proposed and an
answer requested as to whether they are or are not within of
without the limit, each division might be so small that no clear
and decided difference could be asserted between it and the land
immediately adjoining, and so it might result in no difference
being stated between two and twenty, and yet we know there is a
division and it lies somewhere between those two points. The nearer
an approach is made to a junction between what is stated to be the
adjacent and the nonadjacent lands, the more difficult it becomes
to show any difference warranting a different decision, and yet, as
we have said, there is a point at which there can be no doubt. We
think twenty miles is certainly beyond any fair distance in which
lands could be said to be adjacent to the line of this road. And we
say this while fully recognizing and keeping in mind the liberal
rule of construction set forth by this Court in the
Denver
Railroad case,
150 U. S. 1,
supra. We appreciate the fact that the act was passed to
"secure public advantages and to subserve the public interests,"
but nevertheless it does not grant free license to roam the public
lands and take timber wherever thereon it may be found, or wherever
by possibility it might be taken with profit to the company. The
statute says that the lands must be adjacent, and there must of
necessity therefore be a point where the lands are not adjacent,
even though the timber might be removed therefrom with some
possible profit to the company. As Congress has not given the
definition of adjacent such as has been adopted by any of the lower
courts, we cannot, even by a so-called liberal construction,
enlarge the ordinary meaning of the word to the extent made
necessary in order to justify this cutting.
We cannot take, for the reasons already stated, the fact of
wagon road transportation as a means of deciding whether the lands
are or are not adjacent, for it seems to us that it may lead
Page 192 U. S. 541
us far beyond any reasonable limit to the word. The same may be
said as to the benefits to the land by the building of the road.
That also would in many cases lead too far from the line. In this
case, most of the transportation was done by water, the timber
being driven or rafted down the river, and in that way the distance
was from twenty-two to twenty-six miles, although such timber might
have been hauled by wagon with reasonable profit. Now, suppose the
nearest timber lands of the government were a hundred miles away,
but, by reason of water communication, the timber could be floated
down to the line of the road "with reasonable profit" -- would such
lands then be adjacent? We think clearly not. And it is because of
the fact that the distance would be plainly too great to conform to
any of the meanings which have heretofore been given to the word.
It strikes one so at first blush. We are of opinion that the same
ought to be said of these lands. They are not adjacent, for they
are not near; they are not in close proximity to this strip of land
two hundred feet wide. This ordinary limitation of the meaning of
the word should not be enlarged for the purpose of thereby
embracing lands which otherwise would not come within any fair
construction of the statute.
The further question is as to the time when the value of the
timber is to be ascertained.
The parties agreed that the amount of the timber growing on the
lands is correctly stated in the answer, and the value thereof at
the place where the timber was cut was $1.50 per thousand feet and
the value upon delivery to the defendant was $12.35 per thousand
feet. The delivery to the defendant was made by the Thompson
Mercantile Company, with which the railroad company had entered
into a contract to be supplied with the necessary ties and timbers
for the construction of its road, and in such contract the
mercantile company was, by the expressed terms thereof, appointed
the agent of the defendant, and in that capacity it was authorized
by the defendant to cut timber for the purpose mentioned. The
Page 192 U. S. 542
mercantile company did cut the timber on the lands which it in
good faith supposed were adjacent to the line of the railroad, and
delivered such timber to the railroad company upon the line of its
road. We think the measure of damages should be the value of the
timber after it was cut at the place where it was cut. The
defendant does not, in our judgment, come within either the case of
Wooden-Ware Company v. United States, 106 U.
S. 432, or that of
Pine River Logging Company v.
United States, 186 U. S. 279. In
both of those cases, the parties doing the cutting did it willfully
and in bad faith. In the
Wooden-Ware case, the timber was
sold by the original trespasser to a third party without notice of
the trespass, and the party purchasing was guilty of no willful
wrong. It was, however, held that the defendant, having purchased
from the original wrongdoer and willful trespasser, was liable for
the value of the timber at the time and place it was purchased by
defendant.
In the
Pine River Logging case, the parties to the
contract were held liable for the full value of the timber after it
was cut and had increased in value by reason of the labor expended
upon it by the parties who did the cutting. This was on the ground
that they were willful trespassers, acting in bad faith, and ought
to be made to suffer some punishment for their depredations, but it
was stated that, where the trespass is the result of inadvertence
or mistake, and the wrong was not intentional, the value of the
property when first taken must govern.
Although in this case it is agreed that the defendant did not
act under a mistake, meaning thereby that the facts touching the
status of the timber and the lands where the timber was cut were
known, yet what was done was in the belief by the defendant that
the lands were adjacent to the line of the road and that the
cutting was legal. It was done upon the advice of counsel, and the
defendant used ordinary care and prudence in first being advised as
to the law upon the facts as they have been agreed upon, and there
was no intention on the part of
Page 192 U. S. 543
the defendant to violate any law or to do any wrongful act.
This, we think, clearly takes the case out of the principle of
those above cited, and the measure of damages must therefore be the
value of the timber at the time and at the place where it was
cut.
The judgment must be reversed, and the case remanded to the
Circuit Court for the District of Idaho, Southern Division, with
directions to enter judgment in favor of the United States for the
amount of the timber as stated in the answer, and for its value at
the rate of $1.50 per thousand feet.
So ordered.
*
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the
right of way through the public lands of the United States is
hereby granted to any railroad company duly organized under the
laws of any state or territory, except the District of Columbia, or
by the Congress of the United States, which shall have filed with
the Secretary of the Interior a copy of its articles of
incorporation, and due proofs of its organization under the same,
to the extent of one hundred feet on each side of the central line
of said 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; also ground
adjacent to such right of way for station buildings, depots,
machine shops, sidetracks, turnouts, and water stations, not to
exceed in amount twenty acres for each station, to the extent of
one station for each ten miles of its road."