United States v. Ball

• Decision Date: 05 August 1887
• Parties: UNITED STATES v. BALL and another.
• Court: U.S. District Court — District of Oregon

31 F. 667

UNITED STATES v. BALL and another.

United States Circuit Court, D. Oregon.

August 5, 1887

Syllabus by the Court

A settler on the public lands under the homestead act, pending his residence thereon, and prior to the issue of a final certificate, is like a person in possession under an uncompleted contract of purchase, and he is not authorized to cut or remove timber therefrom except for the purpose of preparing the land in the ordinary way for tillage; but if he does cut and remove timber therefrom for export and sale merely, and afterwards obtains a certificate from the register and receiver of his compliance with the law, as such settler, the United States cannot thereafter maintain an action against him for damages for cutting such timber, nor against any one to whom he may have disposed of the same, for the conversion thereof.

Lewis L. McArthur, for the United States.

H Hurley and Arthur L. Frazer, for defendants.

DEADY J.

This action is brought by the United States to recover damages for the conversion of timber alleged to have been cut from the public lands in Yamhill county. It is alleged in the complaint that on January 1, 1881, and on divers days thereafter, and prior to February 1, 1884, John W. Green unlawfully cut from the public lands designated in the surveys thereof as the N.E. 1/4 of the N.E. 1/4, and the S.E 1/4 of the N.E. 1/4, of section 30, township 2 S. of range 5 W. of the Wallamet meridian, 840,000 feet of growing timber and made the same into sawlogs, which he removed to the defendants' saw-mill in Yamhill county that the defendants, well knowing the premises, took possession of said logs, and manufactured them into lumber, which they converted to their own use, to the damage of the plaintiff in the sum of $6,720.

The answer of the defendants contains three defenses, the first of which is demurred to by the plaintiff. In effect, the defense is that in November, 1880, said Green, being qualified to enter land under the homestead act, took possession of the N. 1/2 of the N.E. 1/4, and the E. 1/2 of the N.W. 1/4, of the section aforesaid, and filed his affidavit in the proper land-office as a settler thereon, under said act, and paid the fees required by law; that in January, 1886, he made his final proof of compliance with said act before the proper register and receiver, who thereupon made and delivered to him a final certificate to that effect, and that he is entitled to a patent for the land; that the defendants bought 239,680 feet of logs of said Green, which were cut off said homestead during the time he occupied the same under the act, and that said logs are a part of those mentioned in the complaint, and were only worth 15 cents per 1000.

On the argument of the demurrer, counsel for the plaintiff cited U.S. v. Minor, 114 U.S. 233, 5 S.Ct. 836, to prove that the United States are not precluded by the proceedings before the land-officers, under any of the various acts for the disposition of the public lands to settlers thereon, to show that such officers have, by the falsehood or fraud of the applicant, been imposed on, and induced to give him a final certificate in a case where he was not entitled to the same; while counsel for the defendant cite and rely on Smith v. Ewing, 23 F. 741, to prove that such certificate cannot be questioned or set aside except on a direct proceeding. But no question of this kind arises here. Under any circumstances, the certificate is at least prima facie evidence of the facts and conclusions stated therein. Neither does U.S. v. Minor countenance the idea that the certificate is subject to a collateral attack, but can only be set aside or overcome by a suit in equity instituted for that purpose.

The demurrer to the defense in this case admits the facts stated therein; the gist of which is that Green entered the premises under the homestead act, and having duly performed the...