Stephenson v. Little

• Decision Date: 21 July 1862
• Citation: 10 Mich. 433
• Court: Michigan Supreme Court
• Parties: Thomas Stephenson v. William L. P. Little and others

10 Mich. 433

Thomas Stephenson v. William L. P. Little and others

Supreme Court of Michigan

July 21, 1862

Heard January 17, 1861 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case made after judgment from Saginaw Circuit.

The action was trover, brought by Stephenson against William L. P. Little, Moses B. Hess and Daniel Boutell, for a quantity of saw logs. Plea, the general issue.

It appeared in evidence that in the winter of 1856-7 plaintiff got out and hauled upon Potobaco Lake and its outlet some 2,600 pine saw logs. A portion of these was cut on and owned by the plaintiff, and others upon land belonging to the government. Still another portion was cut upon lot three of section thirty in township fifteen north of range five east, on which plaintiff seems to have commenced cutting as early as November, 1856, and got the logs all off by the 20th of January, 1857. The facts in relation to this lot three were as follows: June 2d, 1856, plaintiff had entered at the (then) Genesee land office the south half of the northwest quarter of said section thirty. On the 30th of August following he applied to the register and receiver to change this location for said lot three, alleging a mistake in the original entry. The officers forwarded to Washington the necessary papers to obtain consent to this change, and the Acting Commissioner of the General Land Office, under date of September 15th, 1856, wrote them as follows--after stating that he was satisfied the first entry was made through mistake--"I have, therefore, to request that you will permit Mr. Stephenson to withdraw the said entry, and to apply the amount paid thereon to the lot number three of section thirty, township fifteen north of range five east, if vacant, it being the tract for which he wished to change it." Notice of this authority was sent by the register to Stephenson in February, 1857. The difference in the price of the two lots was only one dollar, which was paid by Stephenson, but before any duplicate was issued for lot number three, the register and receiver ascertained that Stephenson had taken the timber from the lot first entered, and they then refused to take further steps in reference to the change of location.

On the 12th of May, 1857, defendant Boutell spoke to Bird, the person in charge of the logs for Stephenson, and forbade his having any thing more to do with them, saying that he, Boutell, was put in charge of them. At the same time the following notice was posted in public places by the register and receiver:

"Sale of Logs and Lumber.

"Notice is hereby given, that we, the subscribers, the register and receiver of the Saginaw Land Office, have seized about 2,500 logs and a quantity of square and flatted timber, cut by trespassers from government land, which we shall expose for sale at auction to the highest bidder, on the 25th of May instant, at two o'clock p. m., at the mouth of Potobaco Lake, in town 15 N. R. 5 E., where said logs and timber now are.

"May 12th, 1857.

"M. B. Hess, Register.

"Wm. L. P. Little, Receiver."

At the date of this notice a part of the logs were boomed. A storm subsequently scattered them, and a portion were driven out into Saginaw Bay and lost. This occurred before the time fixed for the sale.

On May 25th, the defendant Little attended at the outlet of Potobaco Lake, in sight of the logs, and made the sale. An agent of Stephenson's was present and forbade it. Little, in making the sale, said the logs had been cut on government land, and he sold the right, title and interest of the government in and to them. They were purchased by one Hart, who acted in so doing as agent for Stephenson; but it was testified by Hart that Stephens on failed to pay the amount of the bid, and one Frazer paid it, and took a bill of sale of the logs.

To show the authority of the officers to make the seizure, defendants gave in evidence a circular from the Commissioner of the General Land Office, dated December 24th, 1855, addressed to the several registers and receivers, giving them full directions to take charge of the public lands and prevent trespasses, and when timber should be cut or removed by unknown trespassers, to cause it to be seized and sold at auction, under such regulations as their discretion might suggest. This evidence was admitted under objection.

On some points in the case the evidence was somewhat obscure, and different views were taken of it by the judges; but the foregoing is all that it is deemed important to give in this place in order to an understanding of the legal questions. The Circuit Court rendered judgment for defendants.

Judgment affirmed, with costs.

Sutherland & Miller, for plaintiff:

The possession of the logs by plaintiff was prima facie evidence of property in the plaintiff, and conclusive against all persons disturbing that possession officiously, without having or acting under and in privity with a better title: 11 Wend. 54, 58; 13 Wend. 63; 2 Taunt. 309; 1 Strange 504; 2 Bing. 173; 2 Bing. N. C., 98; 8 A. & E., 878; 9 Bing. 279; 10 C. B., 713; 12 Wend. 30; 13 Johns. 276; 11 Johns. 132; 9 M. & W., 460; 9 Gill 7; 19 Ala. 130; 4 Flor. 283; 3 Jones N. C., 306; 33 Me. 132; 7 Wheat. 27; 8 Cranch. 229; 1 E. D. Smith, 393; 11 East. 65; 25 Me. 411. Nor does plaintiff, by bringing trover, acknowledge that defendants obtained possession of the property lawfully. The manner of getting possession is material, and the taking itself, if tortious, is a conversion; while, if not tortious, a conversion must be shown by proof of subsequent facts: 8 Pick. 545; 19 Conn. 319; 1 McCord, 213, 428; 15 Johns. 431; 17 Vt. 176; 23 Wend. 462.

Defendants had no right, on behalf of the government, to make the seizure. It devolves upon Congress to make all needful rules and regulations respecting the public domain: Const., Art. 4, § 3, clause 2. An act of Congress must, therefore, be the basis of defendants' authority to seize.

Even the commissioner's instructions do not authorize the seizure where the trespasser is known, as was the case here if any trespass had been committed.

The plaintiff showed title to lot three. The entry of the S. 1/2 of N. W. fr. 1/4 of sec. 30 was claimed to have been made through mistake for this, and the claim was allowed by the Land Department, and the entry ordered to be changed. This order has never been vacated, and is a judicial determination which the local land officers had no power to reverse or control. The plaintiff paid in full for lot three, and did everything which was required to be done on his part. The omission of the land officers to make the proper entries, or to issue the proper papers, cannot affect his rights. As purchaser he was entitled to take possession, and was liable for taxes. He was owner from the date of the original or erroneous entry: 3 How. 459. But fraud is alleged, because it is said plaintiff trespassed upon the lot on sec. 30 in the winter of 1855-6. We deny the trespass, but insist that the court erred in admitting evidence to prove it, as well as in finding fraud from that evidence. If the trespass were proved, it could not take away plaintiff's right to have the mistake corrected, and government could not compel him directly to buy the land trespassed upon, nor indirectly by denying him the right to have the mistake corrected. The plaintiff is not outlawed or disfranchised by the trespass, but is to be punished for it as the law has provided. The contract of purchase is not avoided by actual fraud, except at the option of the defrauded party and on refunding what has been received: 14 Barb. 594; 1 Denio 69, 302; 2 Hill 288; 5 Hill 390; 2 Denio 136; 5 Barb. 322; 4 Mass. 502; 15 Mass. 319; 1 Metc. 547; 4 Mich. 508.

Plaintiff did not lose his rights by confusion of goods. The cases of confusion of goods are divided into three classes: 1. Those showing intermixture by consent, and, therefore, tenancy in common. 2. Those showing intermixture of articles of uncertain quantities or dissimilar qualities or value, by act of one party, by mistake, negligence or design, where the party causing the intermixture must bear all the consequences, even to the loss of his property, if necessary to save the rights of the other party: 2 Johns. Ch., 62; 1 Hill on Torts, 526; Story on Bailm., § 40. 3. Those in which occurs an intermixture of articles or effects of like kinds and value, the quantity whereof may be ascertained. Here the motive of the intermixture is immaterial. Each party is entitled to take from the mass such proportion as his original quantity bears to the aggregate: 30 Me. 237; 20 Me. 287; 21 Pick. 298; 15 Ves. 442; 5 Pick. 7; 2 Pick. 86; 6 Gray 134; 18 Ill. 287.

In this case there was no proof of such an intermixture as prevented defendants from separating the logs belonging to plaintiff. And if there were, the plaintiff was still entitled to his proportion of the commingled mass.

Webber & Wheeler, for defendants:

The consent for a change of entry, given by the Commissioner of the Land Office, did not give plaintiff any title to lot three, because given under a mistake of facts, brought about by the fraudulent conduct and concealment of plaintiff. Even if the change had been perfected, government would have been remitted to its original rights, on account of the fraud.

The greater portion of the logs being cut from government lands and they being unmarked, and so mixed that their identity was destroyed, the doctrine of confusion of goods applies, and government had the right to take the whole. The facts clearly show that the mixture was both negligent and fraudulent on the part of plaintiff: 11 Metc. 495; 2 Bl. Com., 405; 21 Pick. 305; 3 Comst. 379 and note; 30 Me. 237, 295; 20 Wend. 275; 7 Cow. 95...