English v. United States

• Decision Date: 05 May 1902
• Docket Number: 778.
• Citation: 116 F. 625
• Parties: ENGLISH et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 625

ENGLISH et al. v. UNITED STATES.

No. 778.

United States Court of Appeals, Ninth Circuit.

May 5, 1902

John L Rand and Lionel R. Webster, for plaintiffs in error.

John H Hall, for the United States.

Before GILBERT, Circuit Judge, and HAWLEY and DEHAVEN, District judges.

GILBERT Circuit Judge.

The question presented in this case is whether a cause of action is stated by a complaint in an action brought by the United States, which alleges that the defendants in the action unlawfully and without the license of the plaintiff entered upon nonmineral vacant public lands of the United States in the state of Oregon, the said lands not being within any mineral district of the United States, and cut and removed therefrom 1,684 cords of wood, of the value of $842, and carried and conveyed said wood to the smelter of the defendants at Sumpter, Or and there used it in their quartz mill. The plaintiffs in error contend that the action is brought under section 4 of the act of June 3, 1878, entitled 'An act for the sale of timber lands in the states of California, Oregon, Nevada, and Washington Ty.' (20 Stat. 90), which provides that it shall be unlawful 'to cut, or cause or procure to be cut or wantonly destroy, any timber growing on any lands of the United States, in said states and territory, or remove, or cause to be removed, any timber from said public lands, with intent to export or dispose of the same,' and denounces a penalty against any person violating the provisions of the act. It is claimed for this statute that there can be no violation of any of its provisions unless there be an intent to 'export or dispose' of the timber so cut. Reference is made to the case of U.S. v. Hacker (D.C.) 73 F. 292, where it was held that the words 'with intent to export or dispose of the same' apply to the cutting, as well as to the removal, of the timber, and the argument is that, since the cutting in the case at bar was not alleged to have been done with intent to export or dispose of the wood, the act with which the plaintiffs in error are charged is not made unlawful by the terms of the act, but is impliedly permitted. Reference is further made to the act of congress (20 Stat. 88) passed on the same date with the act above referred to, which provides that 'all citizens of the United States and other persons, bona fide residents of the state of Colorado or Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby authorized and permitted to fell and remove, for building, agricultural mining or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either of said states, territories, or districts of which such citizens or persons may...