United States v. Eureka & P.R. Co.

• Decision Date: 23 November 1889
• Citation: 40 F. 419
• Parties: UNITED STATES v. EUREKA & P.R. CO.
• Court: U.S. District Court — District of Nevada

40 F. 419

UNITED STATES v. EUREKA & P.R. CO.

United States Circuit Court, D. Nevada.

November 23, 1889

Syllabus by the Court.

The defendant, a railroad corporation, purchased for use upon its locomotives and cars, wood severed from the public mineral lands. Held, that such purchase and use was unlawful, and that the United States could recover from defendant the value of the wood so severed and purchased by it.

J. W Whitcher, U.S. Atty., and Henry Rivers, for plaintiff.

Wren &amp Chesney, for defendant.

SABIN J.

This is an action of replevin, brought by plaintiff to recover from defendant the possession of 2,000 cords of pine, cedar, and mahogany wood, or the value thereof, alleged at the sum of $10,000, in case recovery of possession of said wood cannot be had. The complainant alleges that said wood was severed from the public lands of plaintiff, in the state of Nevada, without the consent of plaintiff; that on or about December 1, 1888 at the county of Eureka, in said state, defendant wrongfully, unlawfully, and without plaintiff's consent took all of said wood from the possession of plaintiff, to its damage in said sum of $10,000. The answer of defendant denies plaintiff's ownership of said wood, or that there was more than 550 cords of the same; denies that it was severed from the public lands of the United States; denies that at the date alleged, or at any other time, defendant wrongfully, unlawfully, or without plaintiff's consent took all or any of said wood from the possession of plaintiff. It alleges that defendant is operating its railroad, running from the town of Eureka to the town of Palisade, in said Eureka county, a distance of about 85 miles; that the wood used upon its locomotives was not cut by defendant, but the same was delivered to it by residents of the state, along the line of said road, for use upon its locomotives, and in operating its railroad; denies that said wood was or is of any greater value than four dollars per cord. The case was tried by the court, without a jury. The whole case is summed up in the findings of fact, which are as follows:

'(1) That the defendant is and was at all the times mentioned in the complaint a corporation duly organized and existing under and by virtue of the laws of the state of Nevada, and engaged in doing business as a common carrier exclusively in the county of Eureka, in said state; that on the 1st day of December, A.D. 1888, and for a long time prior thereto, the above-named plaintiffs were, ever since have been, and now are, the owners of thirteen hundred cords of pine, cedar, and mahogany wood which lies along the line and within one hundred feet of the track of the Eureka & Palisade Railroad Company, in Eureka county, state of Nevada, between the towns of Eureka and Palisade, in said county, and at and between the various stations on said road between said towns, and which said wood was and is of the value of five thousand and two hundred ($5,200) dollars in gold coin of the government of the United States. (2) Said wood was severed from the public lands of the United States, which lands are situated within the state and district of Nevada, and are unsurveyed and mineral in character, and not subject to entry except for mineral entry; that said wood was so severed by bona fide residents of the state of Nevada, and by them sold to defendant. (3) That on or about the 1st day of December, A.D 1888, at the county and state aforesaid, said defendant wrongfully, unlawfully, and without the consent of plaintiff took all of said wood into its possession, and now does wrongfully, unlawfully, and against the wishes of plaintiff withhold and detain from the possession of the plaintiff seven hundred and fifty (750) cords of said wood of the value of four ($4.00) dollars per cord; and there was seized at said time, under a writ of replevin, in said action, five hundred and fifty cords of the wood described in the complaint, which said five hundred and fifty cords of wood is now in the possession of the United States marshal in and for said district. Said five hundred and fifty cords of wood is of the value of four ($4.00) dollars per cord. (4) That during all of the times mentioned in the complaint the defendant owned and operated a railway between the towns of Eureka and Palisade, in said county and state, of about the length of eighty-five (85) miles; that during all of said times said railroad was largely engaged in the transportation of the gold, silver, and lead products of the Eureka and other adjacent mining districts to a market, and in transporting mining and other supplies in said region. (5) That at all of said times all of the locomotives used upon said road were...