United States v. Heilner

• Decision Date: 15 January 1886
• Parties: UNITED STATES v. HEILNER and another.
• Court: U.S. District Court — District of Oregon

26 F. 80

UNITED STATES v. HEILNER and another.

United States Circuit Court, D. Oregon.

January 15, 1886

James F. Watson, for plaintiff.

Lewis L. McArthur, for defendant.

DEADY J.

This action was brought January 2, 1884, to recover damages from the defendants for the wrongful taking and cutting into boards of 400,000 feet of logs, belonging to the plaintiff and wrongfully converting the same to their own use. It is alleged in the complaint that between June 1, 1881, and the commencement of this action, one O. T. Elliott wrongfully cut and removed from section 17, in township 7 S., of range 38 E of the Wallamet meridian,-- the same being then unsurveyed public land,-- 400,000 feet of timber, made into saw-logs, of the value of $800, to a steam saw-mill in Baker county Oregon, with intent to dispose of the same; that the defendants, well knowing the premises, took possession of said saw-logs, then and there being of the value of $1,200 and wrongfully cut the same on said mill into boards, of the value of $4,800, and did then and there convert the same to their own use, to the damage of the plaintiff $4,800.

On June 2, 1884, the defendants answered separately, denying, substantially, any knowledge of the allegations of the complaint relative to Elliott's cutting and removing timber from the public land; and admitting that on and since October 1, 1882, they each had an interest in the steam saw-mill situate on or near the section aforesaid, but that about said date it was removed to land belonging to the defendants; and denying that they were in any way interested in the running of said mill between the time of acquiring said interests therein and its removal, or that they ever took possession of said logs, or sawed the same into lumber, or converted the same to their use.

On the trial it appeared that in April, 1882, the defendant Heilner took a conveyance of the mill in question,-- it being then located on the unsurveyed public land, and on or near this section 17, and the same day leased it to said Elliott for so much lumber,-- the transaction being, in fact, a mere security for the delivery to Heilner of lumber in payment of money theretofore advanced by him to Elliott; that in the summer of 1882 there was received, under said arrangement, by Heilner, at Baker City, from forty to sixty thousand feet of lumber, made from logs cut and taken from said section 17 by said Elliott, which was worth at the mill about $10 per thousand, and at Baker City, a distance of 20 miles therefrom, $15 per thousand; and that, although the defendants were then members of a mercantile firm at Baker City, the defendant Ottenheimer had no interest in the transaction. The jury found for the defendant Ottenheimer and against the defendant Heilner, and assessed the plaintiff's damages by reason of the premises at $750.

Afterwards counsel for Heilner made a motion for new trial, on the ground that the lumber was delivered by Elliott and received by the defendant at the mill, and the latter paid the cost of hauling the same to Baker City, which was $5 per thousand. This fact did not appear on the trial, but the case was given to the jury on the supposition that Elliott delivered the lumber at Baker City. On this hypothesis, the jury, taking the mean of the evidence-- 50,000 feet-- as the amount of lumber received by Heilner, and its value at Baker City,-- $15 per thousand,-- properly assessed the plaintiff's damages at $750. But the district attorney now concedes that the defendant did receive the lumber at the mill, and paid for hauling it to Baker City, where, presumably, it was disposed of by...