Grubbs v. United States

• Decision Date: 19 November 1900
• Docket Number: 1,390.
• Citation: 105 F. 314
• Parties: GRUBBS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

105 F. 314

GRUBBS v. UNITED STATES.

No. 1,390.

United States Court of Appeals, Eighth Circuit.

November 19, 1900

The United States district attorney preferred an information against Jesse M. Grubs, the plaintiff in error, for an alleged violation of section 2461 of the Revised Statutes of the United States, which, so far as it is applicable to this case, reads as follows: 'If any person shall cut, or cause or procure to be cut, or aid, or assist, or be employed in cutting any live-oak or red-cedar trees, or other timber on, or shall remove, or cause or procure to be removed, or aid, or assist, or be employed in removing any live-oak or red-cedar trees or other timber, from any other lands of the United States, acquired, or hereafter to be acquired, with intent to export, dispose of, use, or employ the same in any manner whatsoever, other than for the use of the navy of the United States; every such person shall pay a fine not less than triple the value of the trees or timber so cut destroyed or removed, and shall be imprisoned not exceeding twelve months. ' The information charged that the defendant cut the timber from land belonging to the United States. The defendant entered a plea of not guilty. There was a trial, and verdict and judgment against the defendant whereupon he sued out this writ of error.

On the trial it appeared the defendant had purchased the timber he was charged with cutting from one Joel B. Hickman, who had entered the land from which the timber was cut as a homestead. Hickman, the homesteader, testified as follows 'The homestead consisted of 160 acres. Have known this property for 14 years. Have no other home than this homestead. About 14 years ago I attempted to homestead this property, but my wife would not agree to come back into the woods to live. Since her death I have drifted along from place to place with my little children, until I lost one, and one went to Texas. I wanted a home. I was tired of drifting. Had no home during six years. Took this place in good faith to make a home for myself and children. I have been sick more or less for seven years, and have to support myself and family by hard labor, working on farms, chopping wood, or working in mills, or anything I could get to do. I took up this property in August of last year. Had two children with me at the time of going on the place. Was at that time working for defendant at his mill by the day, and I entered into an arrangement with the defendant shortly after I took up the property to cut the timber and put the lumber back so that I could make a building to go into and shelter my little children. I let the defendant have the timber at 50c. per thousand in the tree, and he was to return me lumber, nails, hinges, and other material for building the house and other buildings. There is probably five or six thousand feet of lumber in the house, part of it first and part of it second quality. He returned, as near as I know, as much or more material in value that I let him have. I have about one acre cleared and ready for the plow and fenced. There are three and one-half acres deadened. Rail timber sawed, and part of the rails laid, and the underbrush and tree tops burned. Have done all in my power to improve the land, considering the condition of my health, finances, etc., and could not have built this house at all except for the arrangement I made with Mr. Grubbs, unless I made the same arrangement with some other mill man. He was to take this timber at 50c. a thousand, and turn back lumber and furnish material, such as nails, hinges, etc., and I also made about 5,000 rails. Some of them are laid up. Expect to cultivate the land. Have a man employed to work on the place. He is to exchange with my little boy. He will cultivate the land for me for my boy to plow for him. I have no such thing as a plow, mule, or agricultural implement on the place, except a couple of hoes. Mr. Grubbs, the defendant, was to cut enough timber to put up my dwelling and barn, and the balance of the timber was to stand on the land. It was my intention to farm the place as soon as I was able. If I had not been bothered by fever, I would have had eight or ten acres in cultivation by this time. There are thirty acres on the homestead fit for cultivation. It is different patches. When I made the entry of these lands I got the money from Mr. Grubbs, the defendant, on my labor. There was nothing said about the timber on the homestead by Mr. Grubbs at the time I got the money to make the entry. He was allowed 50c. a thousand for the timber, and returned the lumber to me at ranging prices. I told them not to cut the timber where it was rough, for it would be too expensive for me to handle the lands where the timber was cut. There was no talk between the defendant and myself at the time I made this arrangement with him as to whether or not I had a right to cut the timber. Afterwards we had a talk about it, and he said I had the right. I instructed them to cut the timber on the land which was smooth, so it could be used for agricultural purposes. They were simply removing the timber from these parts of the homestead so that later on it could be used for agricultural purposes. The logs had to be drawn one mile and a half or two miles to the mill, and the lumber had to be drawn back. The hands of Mr. Grubbs picked out the lands where to cut, and cut all the trees over twelve inches. He drew the logs away, and delivered the lumber. Some of the lumber was dressed,-- the flooring and ceiling. I personally did a month or more work on the place,-- such work as I was able to do. Whenever I could get enough ahead I would work on the land, cutting rail timber, making rails, cutting down trees, or in clearing the land. I continued working for Mr. Grubbs until I got sick. I worked one time seven days on the land, and at odd times parts of days. When arrested, in June, none of the land was cleared,-- about one acre brushed, and the rails made. ' James N. Corbett, another witness, testified substantially to the same facts.

The court charged the jury, in part, as follows: 'But if a man of limited means goes upon a claim, and is able during the first years to cultivate only a few acres, he is only authorized to cut the timber off the few acres that he intends to cultivate and is able to cultivate. If he cuts down the timber off the 40 acres, it should be in pursuance of a definite plan that the plow should follow the ax, and that the entire forty acres shall be put to use for the purpose of cultivation, or in such manner as a farmer makes use of land; that is, tillable land. The balance of the timber on the homestead, if it is a claim covered by timber should remain as a preserve,-- a timber preserve,--for the future benefit of the land, and should be removed only and so fast as the settler finds it necessary to remove it in order to put in cultivation the land he intends to cultivate in good faith. The declaration and settlement must be in good faith, and supported by a compliance with the requirements of law by making a home upon the land, actually living upon it, and actually proceeding in good faith in the regular way, by regular process of improving the land and putting it in cultivation, and until he has perfected his right by full compliance with the law, and received his patent, he has no right to cut down and sell the timber on other portions of the land, which he is not intending to immediately put into cultivation. Now, in regard to the intention, I want to state to you that that cannot always be ascertained by what the parties say, but may be more correctly found by what the parties do. The question is not whether the parties believe that the cutting of the timber off the land homestead was right under the law, for all persons are presumed to know the law, and to intend the natural results of their acts; so if you find in this case from the evidence that the defendant, knowing the condition of these lands, that they were recently homesteaded, and that the timber that they obtained permission to cut off lands not put in cultivation, and not to be put immediately into cultivation, then the law presumes that they intended to violate the law. ' Due exception was taken to the quoted parts of the court's charge. The defendant requested the court to give the following instructions: 'If Corbett and Hickman having homesteaded these lands, in good faith cut and removed, or authorized the defendant to cut and remove, timber from such parts of the lands as they in good faith intended to improve, and exchanged such timber with defendant for lumber and other materials which have been in good faith placed on the homesteads, and that this lumber and other material was necessary to enable Corbett and Hickman to live upon and improve their homesteads, and that the timber was not sold to simply get the purchase price thereof, and denude the lands, then you will find the defendant not guilty. If you find Hickman and Corbett were poor men, without means to buy lumber and other materials for building upon and improving their homesteads, and that the timber removed was exchanged for lumber and other materials to build houses upon these lands, and that this lumber and other material was put into houses and improvements upon these lands, and that Corbett and Hickman and their families have resided in these houses since they were erected, these would be very strong circumstances tending to prove the good faith of the transaction. The law does not contemplate that the homesteader must plow all the land he improves, but he may use it for pasturage or any other purpose to which it can be put to assist in making him a home and living for his family. The law does not contemplate that the poor homesteader shall...