United States v. Scott

• Decision Date: 23 September 1889
• Citation: 39 F. 900
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. SCOTT et al.

39 F. 900

UNITED STATES v. SCOTT et al.

United States Circuit Court, N.D. California.

September 23, 1889

Syllabus by the Court

A party prosecuted for cutting timber on the public lands under section 2461, Rev. St., is only relieved from the criminal prosecution and liabilities provided for in said section 2461 by payment of $2.50 per acre for the land on which it is cut in pursuance of the provisions of the act of 1878, (1 Supp.Rev.St.p. 329, Sec. 5;) he is not relieved from his civil common-law liability to the United States as owner of the land for the value of the timber cut.

J. T Carey, U.S. Atty., for plaintiffs.

J. J Scrivner and R. T. Devlin, for defendants.

Before SAWYER, Circuit Judge, and SABIN, District Judge.

SAWYER J.,

(SABIN, District Judge, dissenting.) This is an action to recover twenty-six thousand and odd dollars, the value of lumber manufactured from timber cut on the public lands of the United States, described in the complaint. The third defense set out is, that, after the cutting of said timber, and manufacturing of it into lumber, the defendants were indicted for the offense of cutting the same timber under section 2461 of the Revised Statutes of the United States; that after said, indictment, the defendants paid into the court in which it was pending, the sum of two dollars and fifty cents per acre for all lands upon which said timber had been cut, and were, thereby, 'relieved from further prosecution and liability therefor,' in pursuance of section 5 of the act of June 3, 1878, entitled 'An act for the sale of timber lands in the states of California, Oregon and Nevada, and in Washington Territories.' 1 Supp.Rev.St. 329. The United States moves to strike out this defense, as constituting no valid answer to the suit, and as being, therefore, irrelevant. On the part of the defendant it is claimed, that section 5 covers not only all criminal prosecutions, and relieves them 'from further prosecutions and liability therefor,' incurred under section 2461, Rev. St., but, that, it exonerates and relieves them from all civil liability for the lumber cut, or for its value. The United States, on the other hand, claim, that they are only relieved from the penal liabilities incurred under said section 2461, and the question thus raised is the one to be now determined. Section 2461 makes it an offense against the United States to cut and destroy or remove timber from the public lands in the way alleged in the complaint; and provides, that, 'any person so cutting timber,' shall pay a fine not less than triple the value of the trees cut, or timber so destroyed, or removed, and shall be imprisoned not exceeding 12 months. There is, therefore, a criminal liability created which is to be prosecuted and punished by indictment-- the penalty being both fine and imprisonment. Now what is the subject-matter of section 5 of the act of 1878? Manifestly, by the terms of the statute, persons prosecuted and the liabilities for which they are prosecuted, 'for violating section two thousand four hundred and sixty-one. ' They are to be relieved from 'further prosecution and liability,' under said former section. It would be a strained construction, to extend the section to other civil rights of the United States, no specifically, or at all, mentioned. The subject-matter of the provision seems, manifestly, limited to prosecutions under section 2461. When the timber is once severed from the land, it ceases to be a part of the realty, and becomes personal property, having no further relation to the realty whatever. But the title to the personal

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