119 F. 70 (8th Cir. 1902), 1,757., United States v. Gentry

Docket Nº:1,757.
Citation:119 F. 70
Case Date:November 10, 1902
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 70

119 F. 70 (8th Cir. 1902)




No. 1,757.

United States Court of Appeals, Eighth Circuit.

November 10, 1902

Caldwell, C. J., dissenting.

(Syllabus by the Court.)

The test which determines whether one was a willful or an innocent trespasser is not his violation of or compliance with the law, but his honest belief and actual intention at the time he committed the trespass, and neither a justification of his acts nor any other complete defense to them is essential to establish the fact that he was not a willful trespasser.

Where the good faith or intention of a party in an affair is in issue, his acts and sayings in relation to it at or about the time of the transaction generally constitute the best evidence, and are always competent and material.

The rule of the secretary of the interior that one who takes timber from the mineral land of the United States under the act of June 3, 1878 (20 Stat. 88 (U.S. Comp. St. 1901, p. 1528)), shall not sell or dispose of it without taking a written agreement from the purchaser that it shall not be used except for building, agricultural, mining, or domestic purposes within the state or territory, requires the vendor to take the agreement before or at the same time when he sells or disposes of the timber, and obtaining the written contract three months after the sale and delivery is not a substantial compliance with the rule.

The rule is that one who takes timber from the public domain is a willful trespasser, and a full and fair compliance with the requirements of the act of June 3, 1878 (U.S. Comp. St. 1901, p. 1528), and with the rules prescribed by the secretary of the interior thereunder, is essential to justify the taking of timber from the public domain under that act.

An amended complaint, which is complete in itself, and which does not refer to or adopt the original complaint as a part of it, entirely supersedes its predecessor, and becomes the sole statement of the plaintiff's cause of action.

The presumption is that error produces prejudice. It is only when it appears so clear as to be beyond doubt that the error challenged did not prejudice, and could not have prejudiced, the complaining party, that the rule that error without prejudice is no ground for reversal is applicable.

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Glenn E. Husted and Henry C. Lewis (Marsden C. Burch, on the brief), for plaintiff in error.

Charles D. Hayt (Clyde C. Dawson, on the brief), for defendant in error.

This is the second appearance of this case in this court. The judgment on the first trial was reversed, because in an action for the recovery of damages for the conversion of timber a verdict and judgment for the recovery of lumber and logs were rendered without any pleading of such a cause of action, or any prayer for such relief. Before the second trial was had, the complaint in conversion was superseded by an amended complaint, which set forth a cause of action in replevin, and prayed for the recovery of 539,505 feet of lumber and 300 saw longs, or for the sum of $5,000, the value thereof. The defendant, Gentry, answered this new cause of action that the lumber and logs were his; that he had lawfully taken them from the mineral lands of the United States, in compliance with the terms of the act of Congress of June 3, 1878 (20 Stat. 88 (U.S. Comp. St. 1901, p. 1528)); that he had taken them in good faith in the honest belief that he had a lawful right to do so; that the lumber and logs had been taken from him by the United States marshal under color of the authority of the circuit court, and that their proceeds were in its registry. He prayed that he might be adjudged to be the owner of the lumber and logs, and that their proceeds in the registry of the court might be paid over to him. The plaintiff put at issue the averments of the amended answer, and the case proceeded to its second trial. At this trial it conclusively appeared that the logs and lumber of which the defendant had possession when the action was commenced had all been taken from him by the United States marshal under a writ of replevin issued in this action without authority and in violation of the statutes and practice of Colorado (Gentry v. U.S., 101 F. 51, 53, 41 C.C.A. 185, 187); that, pursuant to an order of the court, the marshal had sold this property, and that the net proceeds of the sale, which, with interest, amounted to more than $3,600, had been deposited in the registry of the court to the credit of the cause, to abide its final determination. Notwithstanding these pleadings and facts, and the plain issue relative to the disposition of this sum of money, the court instructed the jury at the close of the trial that this was an action by the United States to recover damages for the conversion of the lumber and logs; that, if the defendant had complied with the act of June 3, 1878, they ought to find a verdict in his favor; that, if he had failed in compliance, but was an unintentional trespasser, they should return a verdict against him for the value of the timber in the trees, and that, if they found that he was a willful trespasser, they should render a verdict against him for the full value of the manufactured lumber, as it was at the commencement of the action. Under these instructions the jury returned a simple verdict for the defendant, without determining the ownership of the logs and lumber seized, or of their proceeds in the registry of the court, and a judgment that the defendant go hence without day has been rendered. The writ of error which the United States has sued out challenges this judgment.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, .

The chief complaint of the government concerning the...

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