51 F. 658 (9th Cir. 1892), Northern Pac. R. Co. v. Lewis

Citation:51 F. 658
Party Name:NORTHERN PAC. R. CO. v. LEWIS et al.
Case Date:July 18, 1892
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 658

51 F. 658 (9th Cir. 1892)

NORTHERN PAC. R. CO.

v.

LEWIS et al.

United States Court of Appeals, Ninth Circuit.

July 18, 1892

In order to maintain this action, the defendants in error were required to show that they were the general owners of the wood destroyed, or that they had a special property therein. If they had no title to the wood, and the same belonged to a stranger to the suit, then they had suffered no injury by the negligence of the plaintiff in error, and could recover no damages in the action. Comp. St. Mont. p. 60, Sec. 4, reads as follows: 'Sec. 4. Every action

Page 659

shall be prosecuted in the name of the real party in interest, except as otherwise provided in this act. ' The real party in interest was the owner of the wood; and if defendants in error, in making out their case in chief, proved that they were not the owners of the wood and had no interest therein, then their cause of action necessarily failed. Railroad Co. v. Jones, 27 Ill. 41; Railway Co. v. Rees, (Ariz.) 28 P. 1134; Railway Co. v. Hecht, 38 Ark. 357; Murphy v. Railroad Co., 55 Iowa, 473, 8 N.W. 320; Railway Co. v. Cullers, (Tex. Sup.) 17 S.W.Rep. 23; Clapp v. Glidden, 39 Me. 448; Lindsay v. Railroad Co., 29 Minn. 411, 13 N.W. 191; Reed v. Railway Co., (Wis.) 37 N.W. 225; Hungerford v. Redford, 29 Wis. 345; McNarra v. Railway Co., 41 Wis. 69; Dermott v. Wallach, 1 Black, 96; Schulenberg v. Harriman, 21 Wall. 44; Glenn v. Garrison, 17 N.J.Law, 1; Putnam v. Wyley, 8 Johns. 337; Winship v. Neale, 10 Gray, 382; Ridgely v. Bond, 17 Md. 14; Hurd v. Fleming, 34 Vt. 169; Hume v. Tufts, 6 Blackf. 136; Howe v. Farrar, 44 Me. 233; Johnson v. Neale, 6 Allen, 229; Stanley v. Neale, 98 Mass. 343; La. 220; Goodman v. Kennedy, 10 Neb. 270, 4 N.W. 987; Reinheimer v. Hemingway, 35 Pa.St. 432; Ribble v. Lawrence, 51 Mich. 569, 17 N.W. 60.

The denial of title in the answer made the ownership of the wood a material issue in the case, and put the defendants in error upon proof of their title. Dermott v. Wallach, 1 Black, 96; Schulenberg v. Harriman, 21 Wall. 44; Woodworth v. Knowlton, 22 Cal. 165; Marshall v. Shafter, 32 Cal. 177; Bruck v. Tucker, 42 Cal. 346; Bliss, Code Pl. Secs. 327, 328; Abb. Tr. Ev. p. 627; 2 Boone, Code Pl.p. 96; Davis v. Hoppock, 6 Duer, 254; Stephenson v. Little, 10 Mich. 433.

The defendants in error invoke the principle that such possession of the property as they had would be sufficient to entitle them to maintain the action against a wrongdoer, or against one who could show no better evidence of title; but this principle is not available to the defendants in error, for the reason that, to give a right of action founded on mere possession, that possession must be a rightful one. One wrongdoer can have no right against another. Turley v. Tucker, 6 Mo. 583; Hardman v. Willcock, 9 Bing. 382; Stephenson v. Little, 10 Mich. 434; Winship v. Neale, 10 Gray, 382; Ridgely v. Bond, 17 Md. 14; Hurd v. Fleming, 34 Vt. 169; Hume v. Tufts, 6 Blackf. 136; Howe v. Farrar, 44 Me. 233; Muggridge v. Eveleth, 9 Metc. (Mass.) 233; Buckley v. Gross, 3 Best & S. 566; Merry v. Green, 7 Mees.& W. 623; Ransom v. State, 22 Conn. 153; Putnam v. Wyley, 8 Johns. 337.

As the defendants in error did not own the land upon which the wood was piled, they had no constructive title to it. Murphy v. Railroad Co., 55 Iowa, 473, 8 N.W. 320.

If, therefore, it appears that the wood in question was the property of some one else other than the defendants in error, and that they had no interest therein, under the foregoing authorities they had no cause of action against the plaintiff in error.

The wood was cut by the defendants in error upon the unsurveyed public domain of the United States, and at the time of its destruction was piled thereon. The testimony of the defendants in error showed that they had not complied, or attempted to comply, with the rules and regulations of the secretary of the interior under the act of congress of June 3, 1878. 'Without positive license by statute, or other competent authority, no person or corporation can lawfully cut or use the timber cut upon the public lands, be they mineral lands or otherwise. ' U.S. v. Eureka & P.R. Co., 40 F. 422; Schulenberg v. Harriman, 21 Wall. 44; U.S. v. Cook, 19 Wall. 591; Spencer v. U.S., 10 Ct.Cl. 259; Cotton v. U.S., 11 How. 229; U.S. v. Gear, 3 How. 120.

Page 660

When the timber is once severed from the land, it ceases to be a part of the realty, and becomes personal property; but the title to the property is still in the United States, and the United States could replevy the lumber or timber wherever found; and if it could not be found, and the cutting was knowingly and unlawfully done, could recover the full value of the lumber or timber, with the enhanced value by reason of its manufacture, not only from the original trespasser, but from any third party in whose hands it may have passed. Woodenware Co. v. U.S., 106 U.S. 432, 1 S.Ct. 398; U.S. v. Scott, 39 F. 901. See, also, Hungerford v. Redford, 29 Wis. 345; McNarra v. Railway Co., and Murphy v. Railroad Co., supra.

The very evidence which shows the possession proves the possession to be tortious, and plaintiffs' prima facie evidence is rebutted by showing absolute property in another. Turley v. Tucker, 6 Mo. 583; Stephenson v. Little, 10 Mich. 434; U.S. v. Heilner, 26 F. 80; Winship v. Neale, 10 Gray, 382; Lindsay v. Railroad Co., supra; Nesbitt v. Lumber Co., 21 Minn. 491; U.S. v. Ball, 31 F. 667; U.S. v. Lane, 19 F. 910; U.S. v. Williams, 18 F. 475; Timber Cases, 11 F. 81; Bly v. U.S., 4 Dill. 464.

The defendants in error, having admitted that they cut the wood in controversy upon the public unsurveyed lands of the United States, and that they had not complied with the laws of the United States relative thereto, and had violated the rules and regulations prescribed by the secretary of the interior, under the act of congress of June 3, 1878, are compelled to trace their title through their own criminal acts. Under the act of congress, a violation of the rules and regulations of the secretary of the interior became a misdemeanor punishable by fine and imprisonment. Their violation of the rules and regulations of the secretary of the interior in force at that time rendered them liable to a prosecution for this offense. U.S. v. Williams, supra. They were therefore obliged to trace their title to the property in question through their own criminal acts.

In the case of The Arrogant Barcelones, 7 Wheat. 496, the court, in refusing to grant relief to the owner of a vessel which had been captured for a violation of the neutrality laws of the United States, condemned, sold, and eventually purchased by the wrongdoer, said: 'Nor will courts of justice ever yield the locus standi in judicio to the suitor who is compelled to trace...

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