United States v. Gentry

• Decision Date: 10 November 1902
• Docket Number: 1,757.
• Citation: 119 F. 70
• Parties: UNITED STATES v. GENTRY.
• Court: U.S. Court of Appeals — Eighth Circuit

119 F. 70

UNITED STATES v. GENTRY.

No. 1,757.

United States Court of Appeals, Eighth Circuit.

November 10, 1902

Caldwell C. J., dissenting.

(Syllabus by the Court.)

The test which determines whether one was a willful or an innocent trespasser is not his violation of or compliance with the law, but his honest belief and actual intention at the time he committed the trespass, and neither a justification of his acts nor any other complete defense to them is essential to establish the fact that he was not a willful trespasser.

Where the good faith or intention of a party in an affair is in issue, his acts and sayings in relation to it at or about the time of the transaction generally constitute the best evidence, and are always competent and material.

The rule of the secretary of the interior that one who takes timber from the mineral land of the United States under the act of June 3, 1878 (20 Stat. 88 (U.S. Comp. St. 1901, p 1528)), shall not sell or dispose of it without taking a written agreement from the purchaser that it shall not be used except for building, agricultural, mining, or domestic purposes within the state or territory, requires the vendor to take the agreement before or at the same time when he sells or disposes of the timber, and obtaining the written contract three months after the sale and delivery is not a substantial compliance with the rule.

The rule is that one who takes timber from the public domain is a willful trespasser, and a full and fair compliance with the requirements of the act of June 3, 1878 (U.S. Comp. St. 1901 p. 1528), and with the rules prescribed by the secretary of the interior thereunder, is essential to justify the taking of timber from the public domain under that act.

An amended complaint, which is complete in itself, and which does not refer to or adopt the original complaint as a part of it, entirely supersedes its predecessor, and becomes the sole statement of the plaintiff's cause of action.

The presumption is that error produces prejudice. It is only when it appears so clear as to be beyond doubt that the error challenged did not prejudice, and could not have prejudiced the complaining party, that the rule that error without prejudice is no ground for reversal is applicable.

Glenn E. Husted and Henry C. Lewis (Marsden C. Burch, on the brief), for plaintiff in error.

Charles D. Hayt (Clyde C. Dawson, on the brief), for defendant in error.

This is the second appearance of this case in this court. The judgment on the first trial was reversed, because in an action for the recovery of damages for the conversion of timber a verdict and judgment for the recovery of lumber and logs were rendered without any pleading of such a cause of action, or any prayer for such relief. Before the second trial was had, the complaint in conversion was superseded by an amended complaint, which set forth a cause of action in replevin, and prayed for the recovery of 539,505 feet of lumber and 300 saw longs, or for the sum of $5,000, the value thereof. The defendant, Gentry, answered this new cause of action that the lumber and logs were his; that he had lawfully taken them from the mineral lands of the United States, in compliance with the terms of the act of Congress of June 3, 1878 (20 Stat. 88 (U.S. Comp. St. 1901, p. 1528)); that he had taken them in good faith in the honest belief that he had a lawful right to do so; that the lumber and logs had been taken from him by the United States marshal under color of the authority of the circuit court, and that their proceeds were in its registry. He prayed that he might be adjudged to be the owner of the lumber and logs, and that their proceeds in the registry of the court might be paid over to him. The plaintiff put at issue the averments of the amended answer, and the case proceeded to its second trial. At this trial it conclusively appeared that the logs and lumber of which the defendant had possession when the action was commenced had all been taken from him by the United States marshal under a writ of replevin issued in this action without authority and in violation of the statutes and practice of Colorado (Gentry v. U.S., 101 F. 51, 53, 41 C.C.A. 185, 187); that, pursuant to an order of the court, the marshal had sold this property, and that the net proceeds of the sale, which, with interest, amounted to more than $3,600, had been deposited in the registry of the court to the credit of the cause, to abide its final determination. Notwithstanding these pleadings and facts, and the plain issue relative to the disposition of this sum of money, the court instructed the jury at the close of the trial that this was an action by the United States to recover damages for the conversion of the lumber and logs; that, if the defendant had complied with the act of June 3, 1878, they ought to find a verdict in his favor; that, if he had failed in compliance, but was an unintentional trespasser, they should return a verdict against him for the value of the timber in the trees, and that, if they found that he was a willful trespasser, they should render a verdict against him for the full value of the manufactured lumber, as it was at the commencement of the action. Under these instructions the jury returned a simple verdict for the defendant, without determining the ownership of the logs and lumber seized, or of their proceeds in the registry of the court, and a judgment that the defendant go hence without day has been rendered. The writ of error which the United States has sued out challenges this judgment.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The chief complaint of the government concerning the trial of this case is that the defendant was permitted to introduce certain evidence tending to show an alleged compliance on his part with the act of June 3, 1878 (U.S. Comp. St. 1901, p. 1528), and that the jury was instructed that, if they believed from this evidence that the defendant had substantially complied with that act and with the rules adopted by the secretary of the interior thereunder, he would be entitled to their verdict. The act of June 3, 1878, provides that any bona fide resident of the state of Colorado may fell and remove timber from the mineral lands of the United States for mining, agricultural, and domestic purposes within that state in accordance with the terms of that act and the rules of the secretary of the interior prescribed thereunder. The complaint of the government is founded upon the following rule:

'Every owner or manager of a sawmill, or other person felling or removing timber under the provisions of this act, shall keep a record of all timber so cut or removed, stating time when cut, names of parties so cutting the same or in charge of the work, and describing the land from whence cut by legal subdivisions if surveyed, and as near as practicable if not surveyed, with a statement of the evidence upon which it is claimed that the land is mineral in character and stating also the kind and quantity of lumber manufactured therefrom, together with the names of parties to whom any such timber or lumber is sold, and shall not sell or dispose of such timber or lumber made from such timber, without taking from the purchaser a written agreement that the same shall not be used except for building, agricultural, mining or other domestic purposes within the state or territory; and every such purchaser shall be required to file with said owner or manager a certificate, under oath, that he purchases such timer or lumber, exclusively for his own use and for the purposes aforesaid.'

The evidence, the introduction of which is assigned as error, is that about September 10, 1898, the defendant made an oral agreement with a certain mining company to sell it lumber to timber the Mabel-Grace mine from time to time as this lumber should be needed for that purpose; that he delivered about 1,500 feet of lumber under this agreement; that he was then stopped from proceeding with his contract by the writ of replevin; that afterwards, and on January 10, 1899, he procured a written agreement from this purchaser to the effect that this lumber had been and would be used for the purpose of timbering its mining property in the state of Colorado, and for no other purpose; that he made a similar oral agreement about September 6, 1898, for the sale of lumber to one Swope, a road overseer, and sold him 720 feet of lumber to improve the county road; that about January 7 1899, Swope made a written contract to use this lumber for that purpose only; that these purchasers made certificates in the year 1899 that the timber they bought of the defendant was purchased to be used for the purposes stated in their respective agreements; that as the defendant cut the logs from which this lumber was manufactured he made daily memoranda on slips of paper of the number of feet cut, where it was cut, and who cut it, and filed them in his office; that after his business was stopped by the seizure of the lumber by the marshall he made up from these slips a record in a book which was received in evidence, and which contained the statements of fact required to be recorded by the rule which has been quoted, and that after this record was completed he destroyed the slips. The objections to the various items of this evidence are many and varied, but they are all founded on the proposition that it did not tend to show a compliance with the rule of the secretary under consideration. For the purpose of the decision of this case, but without deciding or intimating any opinion upon that question, it is conceded that there are some parts of this evidence which did not tend to establish such a...