Denver & R. G. R. Co. v. United States.

Decision Date16 August 1898
Citation54 P. 241,9 N.M. 382
CourtNew Mexico Supreme Court
PartiesDENVER & R. G. R. CO.v.UNITED STATES.

OPINION TEXT STARTS HERE

Syllabus by the Court.

1. In actions in trover for alleged unlawful cutting of timber from the public domain, when the defendant proves that it had a lawful right, under a grant given by act of congress, to enter on public lands adjacent to its railroad line, and cut timber therefrom, for certain specified purposes, the presumption is that such cutting was done in accordance with the terms of the act, and not contrary thereto.

2. The burden of proof is on the plaintiff to show that the grantee exceeded the terms of its grant, and not on the defendant to show that it had not.

Error to district court, Santa Fé county; before Justice Napoleon B. Laughlin.

Action by the United States against the Denver & Rio Grande Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

In actions in trover for alleged unlawful cutting of timber from the public domain, when the defendant proves that it had a lawful right under a grant given by act of congress, to enter on public lands adjacent to its railroad line, and cut timber therefrom, for certain specified purposes, the presumption is that such cutting was done in accordance with the terms of the act, and not contrary thereto. The burden of proof is on the plaintiff to show that the grantee exceeded the terms of its grant, and not on the defendant to show that it had not.

Wm. W. Field and Edward L. Bartlett, for plaintiff in error.

A. A. Jones and Wm. B. Childers, for the United States.

MILLS, C. J.

This is an action in trover, originally brought before the district court of the First judicial district by the United States, to recover from the defendant, the Denver & Rio Grande Railroad Company, the sum of $96,000, for the conversion of certain logs, lumber, and timber, which the plaintiff claimed were manufactured out of trees theretofore standing and growing upon certain public lands situated in the county of Rio Arriba, in New Mexico, in said First judicial district. To the declaration the defendant pleaded not guilty. Issue was joined, and early in January, 1897, the case came on for trial before a jury; and after a trial lasting nearly two weeks, on the 15th day of January, the jury found the defendant guilty, and assessed the damages against it as $6,282. Immediately thereafter the defendant gave notice of a motion for a new trial, and in arrest of judgment, and on the 22d of the same month filed said motion, arguments on which were had on the following day, and the motion was denied, and judgment was duly entered. To this judgment the defendant duly excepted, and afterwards a bill of exceptions was signed, settled, and sealed, and the case came to this court for hearing on error. At an adjourned term of this court held in January, 1898, argument was had upon a motion to dismiss the writ of error, on the ground that, the assignments of error being all based upon alleged errors occurring during the trial, and none upon the record proper, there was no bill of exceptions upon which the assignments could be based. This motion the court overruled. 51 Pac. 679.

The facts may be briefly stated as follows: The Denver & Rio Grande Railway Company, its successors and assigns, under and by virtue of an act of congress approved June 8, 1872 (17 U. S. Stat. 339), and the act of March 1, 1877, amendatory thereof (19 U. S. Stat. 405), had the right to take from the public lands adjacent to its road, constructed prior to June 8, 1882, timber for the construction and repair of its railroad. It had constructed by June 8, 1882, a fraction of a mile less than 1,130 miles. The Denver & Rio Grande Railroad Company, the plaintiff in error herein, is the successor and assignee of the Denver & Rio Grande Railway Company, and has succeeded to all of its rights and privileges under the aforesaid acts of congress. The railroad company, on March 14, 1893, appointed the New Mexico Lumber Company its agent, and authorized it to enter upon the public lands of the United States adjacent to or in the neighborhood of its lines of railway, constructed prior to June 8, 1882, and, on its behalf and for it, to take therefrom such timber as might be necessary for the construction and repair of such portions of its line as were built prior to the last-mentioned date in this agreement, which was accepted by the lumber company in writing, the railroad company expressly set out that it did not authorize its agent to commit any waste upon the public lands, or to cut, destroy, or take away any timber not required for its purposes as aforesaid, nor to cut or remove any timber for it on the public lands, except so far and to such extent as to amounts and quantity as it was specially authorized to do. It is in evidence that, when the railroad company needed lumber, it always gave written orders therefor. The proofs adduced in the trial in the lower court, and the stipulations entered into between counsel, showed that from January, 1894, to August, 1895, the New Mexico Lumber Company had cut some 7,500,000 feet of lumber, board measure, principally from the lands described in the declaration, and had sawed the same at its mill at Lumberton, and that of this lumber 2,130,000 feet was delivered to the railroad company, for its use, upon its written orders; that the difference between these amounts, or 5,370,000 feet, was taken by the lumber company of its own volition. It is not contended that the railroad company is responsible therefor. The contention in this case, therefore, is only as to the 2,130,000 feet admitted to have been delivered to the railroad company upon its written orders.

Numerous grounds of error are assigned, some of which were, no doubt, put into the record out of abundant caution. We do not consider it necessary, for the proper determination of this case, to take up these assignments seriatim. The railroad company had a right, under the acts of congress above referred to, to cut such timber from the public lands adjacent to its line as was necessary for the repair of such portions of its road as were constructed prior to June 8, 1882; and, having such right, it was lawful for it to go upon public lands adjacent to...

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