Cloquet Lumber Co. v. Burns

• Decision Date: 10 July 1913
• Docket Number: 3,883.
• Parties: CLOQUET LUMBER CO. v. BURNS.
• Court: U.S. Court of Appeals — Eighth Circuit

207 F. 40

CLOQUET LUMBER CO. v. BURNS.

No. 3,883.

United States Court of Appeals, Eighth Circuit.

July 10, 1913

William B. Phelps, of Duluth, Minn., for plaintiff in error.

Burt F Lum, of Minneapolis, Minn., and R. R. Briggs, of Duluth Minn. (John R. Van Derlip and George P. Wilson, both of Minneapolis, Minn., on the brief), for defendant in error.

Before SANBORN and CARLAND, Circuit Judges, and WILLARD, District judge.

WILLARD District Judge.

This is an action of replevin for 1,500,000 feet of logs. It was brought by Burns, the defendant in error, against the Cloquet Lumber Company, the plaintiff in error. The logs were cut from land around Cedar Island Lake or Ely Lake, in St. Louis county, Minn.

Controversies relating to these lands have at various times appeared in the federal and Minnesota courts. Kirwan v. Murphy, 83 F. 275, 28 C.C.A. 348, decided Sept. 27, 1897; Murphy v Kirwan (C.C.) 103 F. 104, decided July 5, 1900; Kirwan v. Murphy, 109 F. 354, 48 C.C.A. 399, decided May 20, 1901; Kirwan v. Murphy, 189 U.S. 35, 23 Sup.Ct. 599, 47 L.Ed. 698, decided April 6, 1903; Security Land & Exploration Co. v. Burns, 87 Minn 97, 91 N.W. 304, 63 L.R.A. 157, 94 Am.St.Rep. 684, decided July 11, 1902; Security Land & Exploration Co. v. Burns, 193 U.S. 167, 24 Sup.Ct. 425, 48 L.Ed. 662, decided Feb. 29, 1904; Murphy v. Tanner, 176 F. 537, 100 C.C.A. 125.

The facts relating to the two surveys appear in the reports of these cases, and need not be repeated here. In March, 1892, Burns settled upon what afterwards became lots 11, 12, 13, 14, 19, and 20 of section 4, containing about 135 acres. This land lies between the lake and the Howe meander line. Burns built a house on the land in the spring of 1892, and in the fall of the same year he built and moved into another house on what is now lot 14, in which house he is now living. He has resided upon the land continuously since 1892, and has cleared and cultivated parts of it. His purpose in entering upon the land in 1892 was to secure it as a homestead. In July, 1893, Burns and others applied to have the land surveyed. On July 24, 1896, he applied to the proper land office to enter the land as a homestead, and tendered the fees. On March 24, 1905, the land being still unsurveyed, owing to the litigation above referred to, Burns applied to locate it with Valentine scrip. In his affidavit of that date he stated that he had continuously resided on the land for more than 12 years, and he added:

'That in the month of March, 1892, he was a citizen of the United States over 21 years of age, and qualified and entitled to make homestead entry on its public lands; that in said month he settled upon the lands above described, which were then wholly unoccupied and unappropriated and were unsurveyed, and claimed the same under the homestead laws of the United States, intending to make a homestead entry thereof as soon as the same should be surveyed and open to such entry; that every since he established such settlement upon said lands he has continuously resided thereon, and has occupied the same exclusively under said claim of homestead right and said intention of making homestead entry; that he is entitled to the exclusive possession of said lands, and every part thereof; that the application to locate said lands which is attached hereto is not made for the purpose of fraudulently obtaining title to saline or mineral land, but with the object of securing said land for agricultural purposes; that affiant's post office address is Eveleth, St. Louis county, Minn.'

The land was finally patented to him under his location with Valentine scrip.

The defendant at one time claimed title to the timber on Burns' land by virtue of the purchase of it from the owner of the lots bounded by the Howe meander line, alleging that these lots extended to the lake. After the decision in the United States Supreme Court of February 29, 1904, it abandoned that claim, and now admits that it never had any title to the timber nor any right to cut it. The cutting was done in the winter of 1900 and 1901, and the logs were put in the lake, where they were when the plaintiff commenced this action of replevin on August 1, 1902. The defendant by giving a bond retained possession of the logs, and afterwards converted them to its own use. The court below directed a verdict for the plaintiff for $18,952.38. The case presents three questions: (1) Was Burns entitled, at the time he commenced this action, to maintain it? (2) Was the defendant entitled to have submitted to the jury the question as to whether or not it acted in good faith in cutting and banking the logs? (3) Did the lower court err in instructing the clerk to enter a verdict without the consent of all the jurors, and notwithstanding the refusal of one of them to agree to the verdict?

(1) Did Burns, at the time he commenced this action on August 1, 1902, have sufficient interest in the logs to enable him to maintain it against the defendant?

What was his situation at that time? He had entered upon the land for the purpose of acquiring a homestead under the laws of the United States. He had continuously occupied it as such homestead for nine years. There was valuable pine timber standing thereon. The defendant, without any right whatever, entered upon the land, with actual knowledge of Burns' claim, and against his protest cut down and carried off the logs, which in the standing trees were worth more than $6,000. Under these circumstances was Burns bound to remain quiescent, and witness this spoliation, without any right of action against the trespasser? We think not.

He was then in the lawful possession of the land and of the trees standing thereon. The unlawful severance by the defendant of these trees did not deprive Burns of the possession of the logs made therefrom, and when the defendant removed the logs from the land it took them from the possession of Burns.

The fact that the land was unsurveyed is immaterial. Though unsurveyed, Burns had a right to initiate a homestead thereon. St. Paul, Minneapolis & Manitoba Ry. Co. v. Donohue, 210 U.S. 21, 30, 28 Sup.Ct. 600, 52 L.Ed. 941.

That this action can be maintained, although the legal title to the land stood in the United States, we think is settled by the adjudicated cases.

Atherton v. Fowler, 96 U.S. 513, 24 L.Ed. 732, was an action of replevin brought by Page, the plaintiff's intestate, to recover hay cut by the defendants. Two cases brought by Page against Fowler appeared several times in the Supreme Court of California. Page v. Fowler, 28 Cal. 605; Page v. Fowler, 37 Cal. 100; Page v. Fowler, 39 Cal. 412, 2 Am.Rep. 462; Atherton v. Fowler, 46 Cal. 320; Atherton v. Fowler, 46 Cal. 323. From the facts stated in these reports it appears that Vallejo sold a part of the Soscol ranch in 1851 to the plaintiff Page, who in 1860 inclosed parts of it with a substantial fence, and used and occupied the rest for cultivation and pasturage. In the spring of 1862 Vallejo's title under the Mexican grant was finally rejected by the Supreme Court of the United States. On March 3, 1863, Congress passed an act (12 Stat. 808, c. 116) authorizing the Commissioner of the General Land Office to extend the public surveys over the Soscol ranch, and providing that, after the return of the approved plats of the surveys to the district office, bona fide purchasers from Vallejo might enter, according to the lines of the public surveys, at $1.25 per acre, the land so purchased, to the extent to which the same had been reduced to possession. The defendants, claiming the right to pre-empt this land, under the general pre-emption law, entered thereon, and in May, 1863, cut the hay which was the subject of the controversy. This action was commenced on May 25, 1863. After that date the public surveys were extended over the lands, and the plaintiff, in accordance with the act of March 3, 1863, applied to the land office to pre-empt the tract purchased from Vallejo. A patent was afterwards granted to him in pursuance of this entry. When the hay in controversy was cut, the defendants knew or should have known that they were mere trespassers on the lands of Page, and had no right to the hay. The Supreme Court of the United States said, in 96 U.S., on page 520, 24 L.Ed. 732:

'It follows that the defendants could not have made any lawful entry on the lands where the hay was cut in this case; that no law existed which gave them any right to make such an entry; that they were mere naked trespassers, making an unwarranted intrusion upon the inclosure of another-- an inclosure and occupation of years, on which time and labor and money had been expended-- and that, in such a wrongful attempt to seize the fruits of other men's labor, there could be no bona fide claim of right whatever. The instruction of the court that this could be done, founded on an erroneous view of the pre-emption law, was itself erroneous, and the judgment founded on it must be reversed.' There are many points of resemblance between that case and the one at bar. In both the plaintiff was in the lawful possession of the land; in both the trespasser entered upon the land and cut in one case trees and in the other case hay; in both the land was at that time unsurveyed. In both the plaintiff at the time of the trespass had made no entry in the land office, but in that case he had the right to enter the land and to acquire the title thereto under a special law, and in this case he had a right to enter the land and acquire title thereto under the general homestead law. In both the action was replevin, and in each case it was brought before the plaintiff had secured recognition from the government of his right to the land, except as it came from the laws allowing

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