Lynch v. United States

• Decision Date: 05 June 1905
• Docket Number: 1,119.
• Citation: 138 F. 535
• Parties: LYNCH v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

138 F. 535

LYNCH v. UNITED STATES.

No. 1,119.

United States Court of Appeals, Ninth Circuit.

June 5, 1905

T. J Walsh, for plaintiff in error.

Carl Rasch, U.S. Atty.

Edward E. Cushman, Special Asst. Atty. Gen.

This action was brought by the United States to recover from the defendant, John Lynch, the sum of $4,000, alleged to be the value of 500,000 feet of lumber manufactured from timber cut and removed by the defendant from unsurveyed lands of the United States, which lands, when surveyed, will be within township 16 north, or range 26 west, in the state and district of Montana. The defendant, in his answer, denied that the plaintiff was the owner of the lumber mentioned in the complaint, but admitted that the lumber had been manufactured out of timber or logs cut from lands which will be township 16 north, of range 26 west of the Montana meridian. He denied that the lumber referred to in the complaint was of the value of $5,000, or any sum greater than $2,500, or that any interest the plaintiff might have in the same was of any greater value than $250. For a further and separate defense, the defendant admitted the cutting of the timber, and that he converted the same to his own use, but justified his action by averring that he was a citizen of the state of Montana, and entitled, under the laws of the United States, to enter upon public lands of the United States in the state of Montana, which were strictly mineral in character, and not subject to entry except for mineral purposes, and to cut therefrom certain timber, in accordance with the rules and regulations prescribed by the Secretary of the Interior, to manufacture the same into lumber, and to sell and dispose of the same to residents of said state for use therein for mining purposes. The defendant averred that the land in controversy was such mineral land owned by the United States, and that his action in cutting the timber and converting it to his own use was strictly in accordance with his right under the laws, and was done in good faith.

It appears from the testimony that the defendant had a mill on what will be, when surveyed, section 9 of township 16 north range 26 west of the Montana meridian, and had cut timber from sections 5 and 8 of the same township; that sections 5 and 9 are within a grant from the United States to the Northern Pacific Railroad Company; that section 8 is the property of the United States. The witness Schwartz, special agent of the General Land Office, testified that he went over the land, counted the stumps, and made an estimate of the amount of timber that had been cut. He found that about 1,000 trees had been cut from section 8, and that these trees would make about 500,000 feet of lumber-- the amount of lumber alleged in the complaint as having been taken by the defendant. Testimony was introduced by both parties regarding the character of the land, from which it appears that the ground is broken and mountainous-- in places very steep; that a creek runs through the section, along which, from 1870 to 1876, considerable placer mining was engaged in. There was conflicting testimony as to the present character of the land. The register of the land office in that district testified that all of the unsurveyed portions of said township had been classified as mineral by the mineral land commission appointed pursuant to the act of Congress of February 26, 1895, for the examination and classification of certain mineral lands in Montana and Idaho, but, when recalled as a witness for the government, he further testified that certain sections of the township, other than section 8, were entered under the homestead and forest reserve acts, and certain odd-numbered sections were selected by the Northern Pacific Railroad Company under its grant. Testimony was also introduced to the effect that there were patches of cultivated ground, of a few acres each in extent in the immediate vicinity of the defendant's mill, and along the creek on the land in question.

The case was tried with a jury, resulting in a verdict in favor of the United States in the sum of $500. Judgment was entered thereupon, and the case brought to this court for its reversal.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge (after stating the facts as above).

The plaintiff called as a witness one Chadwick, who was asked the following questions:

'Q. What is the value of timber in that neighborhood, if you know-- in the growing tree? A. I only know that by the price set by the state. Q. State what that is. A. Two dollars. The Court: Q. Do you know whether there was any sold for that? A. Yes, sir; there was some sold at Florence at $2.10, I think.'

The defendant objected to this testimony on the ground that it related to specific sales of timber; that the knowledge of such sales did not qualify the witness to testify as to the value of the timber. The plaintiff alleged in the complaint that it was the owner of 500,000 feet of lumber cut and removed from land of the United States; that the defendant wrongfully and unlawfully took possession of the same and converted the same to his own use. The defendant in his answer admitted the cutting of the timber, and that he converted the same to his own use, but he justified the cutting and the appropriation upon the ground that he had a right under the law to do so, for the reason that the land upon which the timber in question was cut was mineral land of the United States. There was no question raised by defendant's answer as to the amount of timber cut and removed by the defendant, and the only issue raised as to the value of the timber was that it was not of the value of $5,000 ($4,000), or any sum greater than $2,500, or that any interest in the same was of any greater value than $250. What was meant by the denial that plaintiff's interest in the lumber was of greater value than $250 is not clear. Possibly it had relation to the fact that the Northern Pacific Railroad Company claimed to own the odd-numbered sections in that township, while the government had retained the title to the even-numbered sections, and that the charge in the complaint was that the defendant had cut timber from lands in the township generally. But however that may be, the specific denial was that the 500,000 feet of timber cut and removed by the defendant was of any greater value than $2,500.

The evidence on behalf of the government as to the amount of timber cut was the testimony of Schwartz, the special agent of the General Land Office, who testified that he found that 1,000 trees had been cut from section 8, and that these trees would make about 500,000 feet of lumber. There was also testimony as to the value of this timber in the trees. The witness Vogel, who was the agent of the Blackfoot Milling Company, testified upon direct examination that timber at the railroad station nearest the place where the timber in question was cut was worth $8 per thousand, and that it would cost $7.50 to cut and manufacture it and place it on the cars ready for shipment. He further testified that timber in the trees was worth $1.50 per thousand. On cross-examination he testified that his company had purchased the stumpage (that is, the right to cut and remove the timber) on all land granted to the Northern Pacific Railroad Company in the vicinity of the lands in question, at 50 cents per thousand feet.

The court instructed the jury that if they believed from the evidence that the defendant had good reason to believe, and in good faith did believe, he had a right to cut and appropriate the timber he manufactured into lumber, described in the complaint, and also found, under the law and the evidence, that he had no such right, then the plaintiff was entitled to recover, not the value of the manufactured lumber, but merely the value of the timber as it stood in the land before being cut, and, if they found that the land from which was cut the timber manufactured into the lumber mentioned in the complaint was not mineral land, they could not find for the plaintiff for the value of any lumber, except such as was cut by the defendant on section 8 prior to May 15, 1902.

As before stated, the only evidence on behalf of the plaintiff as to the amount of timber cut was the testimony of the special agent of the land office, who testified that he found that 1,000 trees had been cut from section 8, and that these trees would make about 500,000 feet of lumber. This evidence was not contradicted. Upon this testimony, and under the instructions of the court, the jury found for the plaintiff and fixed the damages at $500. It is evident that the defendant was not prejudiced by the testimony of Chadwick that the timber in a growing tree was worth about $2 per thousand, since the only inference that can be drawn from the testimony is that the jury fixed the value at $1 per thousand on the 500,000 feet of lumber cut and removed from section 8, as determined by the examination made by the special agent of the land office. But, aside from this view of the testimony, we think the evidence was properly admitted. The testimony of the witness as to the specific sale made by the state was given after he had stated what the value of the timber was, and was given in...