United States v. Another

• Citation: 6 Mont. 379
• Parties: UNITED STATES v. WILLIAMS and another.
• Decision Date: 26 January 1887
• Court: United States State Supreme Court of Montana

6 Mont. 379

UNITED STATES

v.WILLIAMS and another.

Supreme Court of the Territory of Montana.

January 26, 1887.

Appeal from district court, Deer Lodge county.

Action to recover value of wood cut on public lands. Demurrer to complaint. Plaintiff appeals.

Robt. B. Smith, U. S. Atty., for the United States.

W. W. Dixon, for respondent.

MCLEARY, J.

This was an action brought by the United States against Henry Williams and A. H. Smith to recover the value of 28,000 cords of wood alleged to have been cut by the defendants on the public lands of the United States, in violation of law. The defendants demurred to the complaint, and the court sustained the demurrer, and, the United States district attorney declining to amend his complaint, the case comes to this court on the correctness of the ruling sustaining the demurrer, and the judgment thereupon rendered in favor of the defendants.

The grounds of the demurrer are stated in the records as follows: First. That said amended complaint does not state facts sufficient to constitute a cause of action. Second. That said amended complaint does not state facts sufficient to constitute a cause of action as to the alleged trees cut which were less than eight inches in diameter. Third. Said amended complaint is ambiguous, unintelligible, and uncertain, in that (1) it cannot be ascertained therefrom whether the action is in the nature of an action of replevin or of trover or of trespass; and (2) it does not set out or recite the alleged rules and regulations prescribed under the statute of the United States, and contrary to which the trees and timber are alleged to have been cut. Fourth. Two causes of action are attempted to be improperly united in said amended complaint; that is to say: (1) A cause of action for cutting trees and timber generally, contrary to the statute; and (2) a cause of action for cutting trees and timber less than eight inches in diameter, contrary to the alleged rules and regulations prescribed under the statute.

We will consider these several grounds of demurrer in their regular order, as they appear in the record.

As to the first ground of demurrer, we would say that the complaint states more than sufficient facts to constitute a cause of action. The timber growing upon the public lands of the United States is the property of the government, and is not liable to be appropriated by the first comer, regardless of the rights of property. It would seem hardly necessary to announce so plain a proposition, did it not appear to be an idea fixed in the minds of some people, at least, that whatever is found upon the public lands belongs to the finder. This error has doubtless grown up from a misunderstanding among the people generally of the term “public lands,” and which has doubtless been fostered by the extreme liberality of the government towards its citizens in the use of the timber growing thereon. The mere allegation in the complaint that the defendant had cut 28,000 cords of wood from timber growing upon the public lands, and alleging the value of the wood, and other formal matters, would be sufficient to put the defendants on their defense. Kimball v. Lohmas, 31 Cal. 156-160. If they had the right to cut the timber under the license granted by congress, for certain purposes, then they should plead that license, and set up the facts bringing them within the law. It is not necessary for the United States attorney to negative every possible fact or circumstance by which the defendants might be justified in taking the timber from the public lands. Such particularity is not necessary, even in criminal pleadings, and certainly cannot be required in a civil action. The facts, and only those facts, must be stated, which constitute the cause of action. If more should be stated, the allegation thereof would be stricken out on motion. Nothing which constitutes matter of defense should be averred in the complaint. Smith v. Richmond, 19 Cal. 479;Green v. Palmer, 15 Cal. 415;Canfield v. Tobias, 21 Cal. 351.

The second ground of demurrer is the same as the first, but applies only to the trees alleged to have been cut which are less than eight inches in diameter. What we have already said applies with equal force to this ground of demurrer, and no further notice of this point is necessary.

The third ground of objection seeks to try this complaint by the common-law forms, and objects that “it cannot be ascertained therefrom whether the action is in the nature of an action of replevin or of trover or of trespass.” We do not believe that it is necessary to try the pleadings under our Code, by the rigid rules of the common law. That procrustean bed has long since been broken by legislation. Daniels v. Andes Ins. Co., 2 Mont. 84;Kimball v. Lohmas, 31 Cal. 158. There is in Montana but one form of civil action. Rev. St. div. 1, § 1. This applies as well to the courts sitting for the trial of causes arising under the constitution and laws of the United States as to the courts when sitting under the territorial laws; and, when the United States come into the courts in civil actions, they occupy the same position as other litigants. U. S.. v. Ensign, 2 Mont. 399.

All the complaint needs to contain, after the title of the action, the name of the court and county, and the names of the parties, is “a statement of the facts constituting the cause of action in ordinary and concise language,” with a prayer for the appropriate relief. Rev. St. div. 1, § 83. It is not necessary that the complaint should set out or recite the alleged rules or regulations of the department of the interior, made for the protection of the timber on the public lands, referred to in the third paragraph of the complaint. If the whole of that paragraph had been omitted, the complaint would still have been sufficient. No allusion to the rules and regulations of the interior department was necessary. If the timber was cut in accordance with those rules and regulations, that was a matter of defense which should have been pleaded by the respondents.

It is assumed by both parties that, if the court could take judicial notice of these rules and regulations of the department of the interior, made for the protection of timber, then the complaint is in this respect sufficient. This is no doubt correct in practice, (Story, Eq. Pl. § 24; Moak's Van Santv. Pl. 254,) and as an examination of the terms of the complaint in regard thereto will show. Then, is it incumbent on the court to take judicial notice of these rules and regulations? Under our statute, “courts take judicial notice of whatever is established by law, of public and private official acts of the legislative, executive, and judicial departments of this territory and of the United States.” Rev. St. Mont. div. 1, § 625. Doubtless our courts will take judicial notice of the fact that the powers of the national government are divided among the three great departments, the legislative, the executive, and the judicial; and, again, of the subdivision of the business of the executive department among the various sub departments, of which the department of the interior is one, -all these facts being matters “established by law.”

Can the rules and regulations prescribed by the secretary of the interior for the protection of timber be classed as public or private acts of the executive department of the United States? If so, the courts of this territory will take judicial notice thereof, under the third subdivision of section 625 of the first division of the Revised Statutes. It certainly was not the intention of the legislature to limit the acts of which judicial notice will be taken to the personal acts of the president or the governor. Such a limitation could serve no useful purpose, and would be without reason. There is no doubt that courts would take judicial notice of the extension of a pardon, or the issuance of a commission, or an order removing an officer, or the issuance of a land patent. Patterson v. Winn, 5 Pet. 241;Yount v. Howell, 14 Cal. 468;Wetherbee v. Dunn, 32 Cal. 108. But many of the most important acts of the president are performed through heads of departments. In the very nature of the existing order of things, the extent of this country, the magnitude of the interests involved, and the immense mass of business required to be transacted by the executive department of the government, it would be impossible to dispose of it without confiding it, in a great measure, to the care of the cabinet officers, yet, whatever the president does through these officers, is to be regarded in law as an act of the executive department. Then, may not the rules prescribed by the secretary of the interior be so considered? Nothing appears more reasonable. There could be no question in regard to the matter if the act of congress required them to be approved by the president. But although his approval is not, in express terms, required by the law, is it not reasonably to be inferred that he is cognizant of them, and that they meet his approval? It would seem so. From the importance of the subject, and the fact that the prescribing of those rules is the personal act of the secretary himself, we think that they may fairly be considered an act of the executive department of the United States. But as the act of congress of the third of June, 1878, requires the secretary of the interior to prescribe the rules and regulations under which the persons permitted so to do may fell and remove timber, this fact certainly gives such rules and regulations sufficient force to allow the court to take judicial notice thereof in interpreting and carrying into execution this very act of congress. Wade, Notice, 729.

Under this view of the case, the court below should have taken judicial notice of these rules and regulations, which would have relieved the district attorney from the necessity of pleading them in extenso. This being settled, the complaint should have...