United States v. Edgar
| Decision Date | 29 August 1905 |
| Docket Number | 111. |
| Citation | 140 F. 655 |
| Parties | UNITED STATES v. EDGAR. |
| Court | U.S. District Court — District of Montana |
Carl Rasch, U.S. Atty.
McBride & McBride, for defendant.
This action is brought by the plaintiff against the defendant to recover judgment against the defendant in the sum of $18,750 alleged to be the aggregate value of 15,000 cords of wood taken from the lands of the plaintiff by the defendant and converted to his own use and benefit. By stipulation, the question of the liability of the defendant has been submitted to the court for decision, upon the following facts, agreed and conceded to be those in the cause First. That the plaintiff is the owner of certain tracts of unsurveyed lands, which are described in the complaint situated in Powell county, state of Montana. Second. That the lands described are mineral in character, and that, prior to June 15, 1902, the defendant, who was a bona fide resident of the state of Montana, entered upon the lands described and cut and removed therefrom 15,000 cords of wood, manufactured from timber a portion of which was growing upon the said lands and premises described; that the whole of said cordwood was taken and appropriated by the defendant, and removed by him, to be sold in the general market within the state of Montana; and all of said cordwood was sold by said defendant in the general market as follows, to wit: 750 cords in Helena, and were there used for household purposes; 1,850 cords in Powell county, and were there used in burning lime rock and manufacturing it into lime; 12,400 cords in Butte of which amount approximately 7,400 cords were used for household purposes and 5,000 cords for smelting ores at Butte and for operating hoisting works at the mines of Butte. Third. That in the cutting of said cordwood defendant complied with the rules and regulations of the Secretary of the Interior governing the piling up and caring for the brush and rubbish resulting from such cutting; that the defendant cut no trees less than 18 inches in diameter, and no part of said cordwood was exported from the state of Montana; that the lands upon which the cordwood was cut, and from which the same was removed, is situated in Powell county, but of said cordwood 13,150 cords were removed and shipped, as hereinbefore set out, where the same was disposed of and sold; that the distance from the place where the said cordwood was cut to the city of Helena is 35 miles, the distance from the place where the cordwood was cut to the place where it was used in the manufacture of lime in Powell county is 9 miles, and the distance from the place were used, is 35 miles. Fourth. That the cutting of said cordwood by the defendant, and its removal from Powell county, Mont., to the cities of Butte and Helena, Mont., was done under the provisions of the act of June 3, 1878, entitled 'An act authorizing citizens of Colorado, Nevada, and the territories to fell and remove timber on the public domain for mining and domestic purposes. ' Fifth. That if, upon the foregoing facts, the court shall rule that the defendant was entitled to cut and remove said cordwood and dispose of the same in the manner as hereinbefore stated under the provisions of said act of Congress of June 3, 1878, then the action shall be dismissed; but if the court, upon the facts as stated, shall rule that the defendant was not authorized under said act to cut said cordwood and remove the same from Powell county to the cities of Butte and Helena, and that he is liable for the value thereof, evidence upon the question of value may thereafter be introduced by plaintiff and defendant upon a day to be fixed by the court.
Do the facts of this case distinguish it, so that the construction put upon the act of Congress of June 3, 1878, by the Circuit Court of Appeals, in United States v. Rossi (1904) 133 F. 380, 66 C.C.A. 442, and more recently by the Supreme Court in United States v. United Verde Copper Company (1905) 196 U.S. 207, 25 Sup.Ct. 222, 49 L.Ed.
449, is not applicable and controlling? To this question I shall briefly address my attention.
United States v. Rossi, supra, was an action to recover the value of a certain quantity of lumber, claimed by the United States to have been unlawfully cut from the public domain in Idaho, during 1899 and up to 1903, by the defendants therein, and manufactured by them into lumber and converted to their own use. The defendants there admitted that they were manufacturers and dealers in lumber when the timber was cut, and admitted the cutting, but justified upon the ground that the land was mineral, that the lumber manufactured from the timber cut was sold for domestic, agricultural, mining, and building uses in the vicinity of Boise City and within the general district and state wherein the timber was cut, and pleaded that no portion thereof was exported from the state, that in cutting and removing the timber then in question defendants had complied with the rules and regulations of the Secretary of the Interior then in force, and that because of these several facts defendants were licensed and privileged to cut and remove the timber in question by Act Cong. June 3, 1878, c. 150, 20 Stat. 88 (U.S. Comp. St. 1901, p. 1528), entitled 'An act entitling the citizens of Colorado, Nevada, and the territories to fell and remove timber on the public lands for mining and domestic purposes. ' The contention of the government was that the defendants acted unlawfully in cutting and removing the timber, and manufacturing the same into lumber 'for the purpose of sale and traffic out of the district where cut,' thus violating the rules and regulations of the Secretary of the Interior. The Circuit Court overruled this contention, and thereafter the question involved was submitted to the Court of Appeals. In the opinion of the latter court, the reasons for the enactment of the statute are quite fully set forth, not alone as they appeared in original opinion of the judges, but as they had been previously laid down in the views of Secretary Teller, found in 1 L.D. 607. Speaking for itself the Court of Appeals says:
'The intention of Congress in enacting this law was to enable settlers in the regions where timber is scarce to utilize it for domestic and mining purposes, and especially to develop the mineral resources of the rough mountainous districts, where agricultural pursuits could not be profitably followed.'
In accord with this policy, up to 1900, the Interior Department expressly recognized the right to cut timber, and manufacture it for sale to citizens of the state or territory in which the timber grew for building, agricultural, mining, or other domestic purposes; and in the light of the conditions existing when the act of 1878 was passed, the construction put upon it by Secretary Teller was well calculated to make its real purposes effectual. Colorado, Nevada, Montana Idaho, Utah, and the other states and territories named in the first clause of the act, were all mining regions, comparatively speaking, undeveloped in any permanent resources, except mining. Undoubtedly, therefore, special concern for the further development of mining, and the encouragement of other development to come with that of mining, moved Congress to grant the permission contained...
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