Northern Pac. R. Co. v. Lewis

• Decision Date: 18 July 1892
• Citation: 51 F. 658
• Parties: NORTHERN PAC. R. CO. v. LEWIS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

51 F. 658

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 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.

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 his title through his own criminal acts. ' This principle seems to be founded in justice, for the reason that courts would be reluctant to encourage wrongdoers in the violation of the law by extending to them the right to enforce their claims to property which they had obtained by their own criminal acts. In the case of Dos Hermanos, 2 Wheat. 76, the principle was laid down that, if a party attempts to impose upon the courts by knowingly or fraudulently claiming as his own property belonging to others, he will not be entitled to restitution of that portion which he may ultimately establish as his own.

The courts of the United States have repeatedly refused to enforce contracts founded on the violation of the law, and have held that the property acquired in violation of the law conveys no title. Duncanson v. McLure, 4 Dall. 308; U.S. v. Lapene, 17 Wall. 601; Cutner v. U.S., Id. 517; Montgomery v. U.S., 15 Wall. 395; Desmare v. U.S., 93 U.S. 605; Coppell v. Hall, 7 Wall. 548.

This action was one of trespass,-- not only such in fact, but admittedly so regarded by defendant in the court below. It is purely and simply an action for injury to the possession, and therefore proof of property, either general or special, in addition to proof of possession, is utterly idle. While in actions of replevin and ejectment, and sometimes in trover, the rule is different, it is because right is involved, and plaintiff in them must recover on the strength of his own title. Lambert v. Stroother, Willes, 221; Graham v. Peat, 1 East, 244; Jefferis v. Railroad Co., 34 Eng.Law & Eq. 122; 2 Greenl.Ev. §§ 613, 618. Also note 2: 'Possession alone is good as against one who has neither title nor possession. ' Sweetland v. Stetson, 115 Mass. 49.

While in an action of trespass, if plaintiff have not actual possession he may prove title, the object of so proving title is to establish possession constructively from title; while in trover and replevin the object of proving possession is to make a prima facie showing of right or title. 2 Greenl.Ev.§§ 614, 636; Abb. Tr. Ev. p. 629; Kissam v. Roberts, 6 Bosw. 163.

'But in respect to a proper action of trespass de bonis asportatis the authorities are consistent and overwhelming that possession is a sufficient title to the plaintiff in an action of trespass vi et armis, and defendant in such an action cannot set up property in a stranger. * * * If it were held that in an action of trover for the wrongful conversion of goods the defendant might show property in a third person it would by no means follow that such a defense is admissible in trespass for a wrongful taking. ' To the same effect are Hoyt v. Gelston, 13 Johns. 151; Cook v. Howard, Id. 276, 284; Aikin v. Buck, 1 Wend. 466, 469; Demick v. Chapman, 11 Johns. 132; Squire v. Hollenbeck, 9 Pick. 551; Hanmer v. Wilsey, 17 Wend. 91; Parker v. Hotchkiss, 25 Conn. 321; Todd v. Jackson, 26 N.J.Law, 525; Ashmore v. Hardy, 7 Car.& P. 501; Whittington v. Boxall, 5 Q.B. 139; Cary v. Holt, 2 Strange,...