United States v. Copper Queen Consolidated Mining Company

• Decision Date: 19 May 1902
• Docket Number: No. 218,218
• Citation: 22 S.Ct. 761,46 L.Ed. 1008,185 U.S. 495
• Parties: UNITED STATES, Plff. in Err. , v. COPPER QUEEN CONSOLIDATED MINING COMPANY
• Court: U.S. Supreme Court

185 U.S. 495

22 S.Ct. 761

46 L.Ed. 1008

UNITED STATES, Plff. in Err.,

v COPPER QUEEN CONSOLIDATED MINING COMPANY.

No. 218.

Argued April 11, 14, 1902.

Decided May 19, 1902.

Mr. Marsden C. Burch for plaintiff in error.

Messrs. Wm. Herring and John C. Chaney for defendant in error.

Mr. Justice Peckham delivered the opinion of the court:

The government has brought this case here by writ of error for the purpose of reviewing a judgment of the supreme court of Arizona, affirming a judgment entered upon the verdict of a jury in favor of the defendant. The action was to recover $183,000, being the alleged value of about 5,900,000 feet of timber, said to have been wrongfully cut and taken by the defendant from the surveyed and unsurveyed public lands of the United States in a canon in the Chiricahua mountains, 60 miles from the town of Wilcox on the Southern Pacific Railroad in the territory of Arizona.

The answer joined issue upon the allegations of the complaint, and also set up that the timber was cut by one Ross from public mineral lands of the plaintiff, and was so cut and removed from those lands under the authority of the act of Congress of June 3, 1878 (20 Stat. at L. 88, chap. 150) the material portion of which reads as follows:

'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, agriculture, 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 be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, The provisions of this act shall not extend to railroad corporations.'

The answer further set up that Ross had good right and lawful authority to cut and remove the timber, and that it was cut and removed from such lands in good faith, and at the time that he so cut and removed the timber Ross was a citizen of the United States of America and a bona fide resident of the territory of Arizona.

A trial was had in the district court before a judge and jury, and upon the close of the evidence counsel for the government made a motion that the court instruct the jury to find on the evidence a verdict for the government, which was refused and an exception taken.

Among other things the court charged the jury as follows:

'It is also incumbent upon the defendant, in order to avail itself of the permission granted by said act of June 3d, 1878, and in order to justify its purchase and consumption of said timber, to show by a preponderance of the evidence that Daniel D. Ross, at the time of the cutting and removal of said timber from the lands of the plaintiff, was a citizen of the United States and was a bona fide resident of the territory of Arizona. And should the evidence in this case fail to establish that, at the time of the cutting and removal of said timber, the said Daniel D. Ross was a citizen of the United States, and a bona fide resident of the territory of Arizona, you must find for the plaintiff, without regard to the mineral or nonmineral character of the land.'

The jury found a verdict for the defendant, after which a motion for a new trial was made and denied by the trial judge. An appeal from the judgment entered upon the verdict was then taken to the supreme court of the territory, where it was affirmed.

It thus appears that the judge held, and so charged the jury, that Ross, who did the cutting, must have been, not only a bona fide resident of the...