Ghost v. United States

• Decision Date: 30 March 1909
• Docket Number: 2,579.
• Citation: 168 F. 841
• Parties: GHOST v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

168 F. 841

GHOST v. UNITED STATES.

No. 2,579.

United States Court of Appeals, Eighth Circuit.

March 30, 1909

(Syllabus by the Court.)

A motion to strike out portions of an answer and the ruling thereon cannot be regarded as part of the record, upon a writ of error, unless made such by a bill of exceptions; nor is the ruling upon such a motion open to review where no exception thereto was taken.

In the courts of the United States the proceedings preparatory to obtaining a review of their rulings, including the questions of when an exception need be taken and how motions and rulings, not in themselves part of the record, may be made such, are not regulated by state statutes, but by the statutes of the United States, and, if they be silent, by the common law and the practice prevailing in those courts.

Under sections 2347-2352, Rev. St. (U.S. Comp. St. 1901, pp. 1440 1441), a qualified individual or association who, in response to the government's invitation, enters upon public lands in search of coal deposits, and expends time, labor, and means in an honest effort to open and develop such deposits when found, intending to purchase the lands according to the statute if the coal proves to be such as to give character and value to them, is not a trespasser, but is in the exercise of a privilege conferred by law, and is entitled to such coal as is extracted and removed as an incident only to the reasonable prosecution of that work.

Edwin Van Cise and Elmer E. Whitted (Frank L. Grant, on the brief) for plaintiff in error.

Ralph Hartzell, Asst. U.S. Atty. (Earl M. Cranston, U.S. Atty., on the brief).

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District judge.

VAN DEVANTER, Circuit Judge.

In January, 1897, Allen M. Ghost purchased from prior possessory claimants a so-called coal mine upon public lands of the United States, in Colorado, the purchase including two or three hundred feet of tunnels and shafts theretofore made in an attempt to develop an outcropping vein of coal, and various improvements and appliances used in that connection. Three days later he tendered at the proper local United States land office a declaratory statement of his intention to purchase the land under the coal land law, accompanied by the requisite filing fee, and these were regularly accepted and properly noted upon the records of the office.

He was qualified to acquire the land under the coal land law, and the land was subject to acquisition thereunder, if it was coal land. The so-called mine had then been idle quite a while and was in bad condition, the timber work being down, and the tunnels and shafts being choked with fallen material. Ghost put these in proper condition, added materially to the improvements and appliances, and extended the development work much farther into the earth, all in an industrious effort to ascertain whether the land was valuable for coal. As exposed in the original workings, the outcropping vein had a total thickness of four feet, less than half of it being good coal and the balance waste. What was thus exposed was not sufficient to make the land of practical value for coal mining, and Ghost continued the development work in the belief or hope that as the vein was followed into the earth it would improve sufficiently to make the mining of it profitable. But in this he was disappointed, for the development work done by him demonstrated that the vein did not improve, and he permitted his declaratory statement to expire by limitation, without purchasing the land. In the course of his development work, and during the life of his declaratory statement, he extracted and removed from the land 1,800 tons of lump coal and 900 tons of slack coal, which he sold at $2 and $1.25 per ton, its value on the cars at a nearby railway station. After his declaratory statement expired, the United States brought an action against him for the alleged conversion of the coal so extracted and sold, and upon the trial, where the matters here stated appeared in evidence, the jury, under the court's direction, returned a verdict for the government for the full value of the coal at the place of sale. The present writ of error challenges the judgment rendered upon that verdict.

Various objections were made to the complaint, one count in which is said to have been for trespass upon realty and the other for conversion of personalty. Of the rulings upon these objections it suffices to say that each count adequately stated a cause of action for conversion, and nothing more, within the rule applied in United States v. Ute Coal & Coke Co., 158 F. 20, 85 C.C.A. 302, and that, although one of them might well have been eliminated, the record affirmatively discloses that no harm resulted from the presence of both.

Error is assigned upon the striking out of portions of the defendant's answer upon the plaintiff's written motion, but that ruling is not open to review upon the present record, because, first, the motion and the ruling thereon could be made part of the record only by a bill of exceptions (Dietz v. Lymer, 61 F. 792, 10 C.C.A. 71; England v. Gebhardt, 112 U.S. 502, 5 Sup.Ct. 287, 28 L.Ed. 811; Evans v. Stettnisch, 149 U.S. 605, 13 Sup.Ct. 931, 37 L.Ed. 866; Metropolitan R.R. Co. v. District of Columbia, 195 U.S. 322, 25 Sup.Ct. 28, 49 L.Ed. 219; Wike v. Campbell, 5 Colo. 126; Whitney v. Teichfuss, 11 Colo. 555, 19 P. 507; Rutter v. Shumway, 16 Colo. 95, 26 P. 321), which was not done; and, second, if that omission could be disregarded, an exception to the ruling would still be essential (Rodriguez v. United States, 198 U.S. 165, 25 Sup.Ct. 617, 49 L.Ed. 994), and none is shown.

Counsel for the defendant, while recognizing that these omissions ordinarily would be fatal, rely upon a Colorado statute (Mills' Ann. Code, Sec. 387) which declares:

'No exceptions need be taken to opinions or decisions of courts of record sustaining or overruling demurrers or written motions affecting or based on the pleadings, or overruling motions in arrest of judgment, motions for new trials or for continuance of causes, or giving, refusing or modifying instructions; but all such opinions and decisions together with the demurrers, motions and instructions, shall be taken as a part of the record, without being made such by a bill of exceptions.'

But in the courts of the United States the question of when an exception need be taken, and the further question of how motions and rulings, not in themselves part of the record, may be made such, are not determined by state statutes, but by the statutes of the United States, and, if they be silent, by the common law and the practice prevailing in those courts. As well in point, we quote from Chateaugay Ore & Iron Co., Petitioner, 128 U.S. 544, 553, 555, 9 Sup.Ct. 150, 152, 153, 32 L.Ed. 508, as follows:

'We are of opinion that the practice and rules of the state court do not apply to proceedings in the Circuit Court taken for the purpose of reviewing in this court a judgment of the Circuit Court, and that such rules and practice, embracing the preparation, perfecting, settling, and signing of a bill of exceptions, are not within the 'practice, pleadings, and forms and modes of proceeding' in the Circuit Court, which are required by section 914 of the Revised Statutes (U.S. Comp. St. 1901, p. 684), to conform 'as near as may be' to the 'practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the state' within which the Circuit Court is held, 'any rule of court to the contrary notwithstanding.'

'The manner or time of taking proceedings as a foundation for the removal of a cause by a writ of error from one federal court to another is a matter to be regulated exclusively by acts of Congress, or, when they are silent, by methods derived from the common law, from ancient English statutes, or from the rules and practice of the courts of the United States.'

And as equally apposite we extract the following from the opinion in St. Clair v. United States, 154 U.S. 134, 153, 14 Sup.Ct. 1002, 1010, 38 L.Ed. 936:

'What is necessary to be done in a Circuit Court, even in civil cases, in order that its action upon any particular question or matter may be reviewed or revised in this court, depends upon the acts of Congress and the rules of practice which this court recognizes as essential in the administration of justice.'

These decisions were followed and applied by this court in the recent case of Francisco v. Chicago & A.R. Co., 149 F. 354, 79 C.C.A. 292.

Considerable evidence was offered by the defendant which tended substantially to show that in all that was done by him he acted in good faith, with the sole purpose of ascertaining whether or not the land was valuable for coal, and with intent, if it was, to purchase it under the coal land law during the life of his declaratory statement; that he believed what he was doing was within the law and the regulations of the Land Department; that he ceased operations and permitted his declaratory statement to expire without purchasing the land because it did not prove to be valuable for coal; that in that vicinity there were some developed coal measures which influenced him to undertake and continue his development work; that what was done by him was reasonably necessary to the proper ascertainment of the character of the land, and that the price obtained for the coal extracted and sold was less than the cost of extracting it and getting it to the place of sale.

All of this evidence was excluded, save that one of the defendant's witnesses who had the development work in charge was permitted to testify as follows:

'Q. I will ask you whether or not there was any work done there

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