United States v. Freyberg

• Decision Date: 01 December 1886
• Citation: 32 F. 195
• Parties: UNITED STATES v. FREYBERG and others.
• Court: U.S. District Court — Eastern District of Wisconsin

32 F. 195

UNITED STATES v. FREYBERG and others.

United States Circuit Court, E.D. Wisconsin.

December, 1886

A. K Delaney, for the United States.

G. W Hazelton and Jenkins, Winkler, Fish & Smith, for defendants.

DYER J.

This is a suit by the United States to recover the value of a quantity of timber cut by the defendants from lands which, on the twenty-first of November, 1883, were entered by one Klingenberg as a homestead. The cutting was done with the consent of the homesteader, who, at the time, was living on the land with his family. On the trial of the case, the jury found the following facts in the form of a special verdict:

'First. That the lands mentioned and described in the complaint were duly entered as a homestead by the witness, Christian Klingenberg, on the twenty-first day of November, 1883 that the said entry was made in good faith, and that he has since continuously occupied the same, and lived thereon with his family, as a homestead, and improved a part thereof for agricultural purposes.

'Second. That the defendants herein, with the consent of, and by agreement with, the said Christian Klingenberg, and for a pecuniary consideration paid to him, cut and removed from said land 210,668 feet of pine timber, board measure, during the years 1884 and 1885, of the value of $1,363.25; that the stumpage value of said timber was one dollar per thousand feet, and the manufactured value of said timber, at the place of manufacture, was $7.50 for common lumber, and $3.50 for culls, per thousand feet; that one-quarter of said lumber was culls, and that said timber was not so cut and removed for the purpose of improving and cultivating the land, but for the purpose of sale, and to enable Klingenberg to realize means to pay for supplies for himself and family in connection with the occupancy of the land.

'Third. That on the fifteenth day of January, 1886, and after the commencement of this action, the homesteader, Klingenberg, made the necessary proofs of entry and occupancy under the law, and paid the money required by the commutation act, to-wit, one and 25-100 dollars per acre, and the legal fees, to the receiver of the land-office at Menasha, Wisconsin, who forwarded said proofs to the proper department at Washington, but no patent has been issued to said homesteader.'

Upon the facts so found, the question is, should judgment be entered against the defendants for the value of the timber in question? In U.S. v. Land, 19 F. 910, this court held that one who has entered upon public land according to law, for the purpose of claiming a homestead, and is residing thereon in good faith, and improving it for agricultural purposes, is entitled to cut so much timber from the land as is necessary for his actual improvements, and no more. The rule that a homestead entry, although it gives the party entering the land certain rights of occupation, does not so convey title, or divest the United States of property in it as to authorize him to cut the timber, except where the cultivation of the land is the primary object of the cutting, was also enunciated and enforced in U.S. v. Stores, 14 F. 824, and in the Timber Cases, 11 F. 81. See, also, U.S. v. Smith, 11 F. 487. Counsel seemed disposed, on the argument, to combat these rulings, but it must be regarded as the settled law that a homestead claimant, in occupancy of lands which he has entered, but which he has not paid for, has no right to cut the timber growing thereon, except for the purpose of improving the land, so that it may be profitably used for agricultural purposes, or may be better adapted to convenient occupation. If the timber is severed for the purposes of sale alone, then the cutting is wrongful, and the timber, when cut, becomes the absolute property of the United States. In such case the cutting becomes waste, and in accordance with well-settled principles the owner of the fee may seize the timber cut, arrest it by...