Conway v. United States
| Decision Date | 19 June 1899 |
| Docket Number | 1,077. |
| Parties | CONWAY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
This is an action at law instituted by the United States of America the defendant in error, against Hugh Conway, the plaintiff in error, to recover the value of certain pine logs alleged to have been by him unlawfully cut and removed from certain lands belonging to the United States. It is averred in the petition that said logs contained 336,230 feet, board measure, and were and are of the value of $1,681.15, all of which said logs, it is alleged, the defendant did then and there convert and dispose of to his own use, to the damage of the plaintiff in the sum of $1,681.15, together with interest accrued thereon. The answer filed by the defendant consists of a general denial, with a special denial that the plaintiff has been injured or damaged in the sum of $1,681.15, or in any sum whatsoever. By way of pleading an affirmative defense, the answer containers averments in substance as follows: That on the 25th day of May, 1895, one Currer Boyington, with a bona fide intention of acquiring title to the lands described in the petition under the homestead laws of the United States, duly filed his application to enter said lands as a homestead, and that the application so made by him was accepted by the local land officers in the state of Minnesota, where the lands were situated; that afterwards in August, 1895, Boyington commenced his residence on the lands, and has ever since resided and now resides thereon that shortly before so commencing his residence he built a small log house, and in the month of November, 1895, there was growing on the lands scattered timber, a large portion of which was and had been damaged by fire; that it was necessary to cut the same in order to realize therefrom, and save the timber from becoming a total loss by reason of decay; that a large portion of the land was fit principally for pasturage and meadow lands, and that it was expedient, proper, and necessary, in order to cultivate and improve said lands, to cut and remove the scattered and burned timber, so that the lands might be prepared for pasturage and cultivation; that in the month of November, 1895, Boyington and the defendant Conway, entered into a contract, by the terms of which Boyington, for the purpose of clearing and cultivating said lands, covenanted and agreed to sell to Conway the scattered and burned timber thereon for the sum of $800, to be paid for in the following manner: Conway was to erect and construct a frame dwelling house on the lands for Boyington, and such other buildings as he should desire thereon, and also to break for Boyington such portions of the lands as could be cultivated, and also to furnish Boyington with sufficient money to purchase stock to stock said lands, and to furnish him provisions sufficient to keep himself and his hired man until he should have, in the several ways specified, paid to Boyington the total of said $800. It is further averred in the answer that Conway, pursuant to said contract, erected at a cost of $320 a dwelling house and other buildings on the lands, and also furnished Boyington the provisions required by the contract, and the money with which to purchase stock, according to the requirements of the contract; that, during the season of 1896, Conway, in further execution of his contract, broke 5 acres of said lands for Boyington, which he (Boyington) cultivated by planting and raising a crop of potatoes, cabbages, beans, onions, and corn thereon, and that Boyington during the season of 1896 cut about 10 acres of hay therefrom; that in the spring of 1896 Boyington dug a ditch of considerable length for the purpose of draining part of the lands, and cleared about 50 acres of the lands from which Conway had cut the pine logs, and sowed the same with grass seed. It is further alleged in the answer that, by reason of the roots of the trees in the ground from which the timber was cut, it was impossible during the same season to break up the lands, and that it will be impracticable to do so until the stumps and roots have rotted; that the only practical way of cultivating and improving such lands upon which timber had been growing is to seed the same and pasture it for several years, and during that time to allow the stumps to rot so that they can be easily extracted and the land plowed; that Boyington has cultivated the lands from which timber was cut as fast as stump extraction and clearing the same would allow; that up to the present time the defendant Conway has in good faith kept his contract with Boyington, and performed all the conditions thereof; that Boyington has on said lands 6 head of cattle, 2 hogs, and 23 chickens. It is further alleged in the answer in words and figures as follows: 'That the said Boyington is a single man over sixty years of age, and at the time he made the contract with defendant, Conway, had no means with which to improve said lands, and it was necessary and essential that he, in order to cultivate and improve the same, should make a contract similar to the one made with the said Conway; that the said Boyington has acted in perfect good faith in entering and residing upon said lands and in making said contract, with the honest intention of improving said lands and making the same fit for a stock farm, and to cultivate the same to such an extent as is practicable; that all the cutting of timber and logs done on said lands by the defendant, Hugh Conway, was done under said contract made with said Boyington, and that he did so in perfect good faith, believing, as he still believes, that the said Boyington was acting in good faith as a homesteader, and was clearing said lands for the purpose of cultivation. ' To this answer a reply was filed by the plaintiff, denying each and every allegation of the answer, except such as were admitted or qualified in the petition, and thereafter in the reply so filed. It is subsequently averred in the reply as follows: 'That said Conway erected certain buildings on...
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