United States v. Homestake Min. Co.

• Citation: 117 F. 481
• Decision Date: 25 August 1902
• Docket Number: 1,710.
• Parties: UNITED STATES v. HOMESTAKE MIN. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

117 F. 481

UNITED STATES v. HOMESTAKE MIN. CO.

No. 1,710.

Circuit Court, Of Appeals, Eighth Circuit.

August 25, 1902

Syllabus by the Court.

The measure of damages for the willful or intentional taking of ore or timber from the land of another without right is the enhanced value of the ore or timber when it is finally converted to the use of the trespasser. But the limit of the liability for damages of one who takes ore or timber from the land of another through inadvertence or mistake, or in the honest belief that he is acting within his legal rights, is the value of the ore in the mine or the value of the timber in the trees.

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.

The fact that one acted on the advice of reputable counsel of persuasive evidence of his good faith. And one who honestly follows the erroneous advice of such counsel upon questions of legal right concerning which a layman would hardly have actual knowledge is not chargeable with bad faith, or with the willful intent to commit a wrongful act, because his counsel was mistaken in his view of the law.

Parties may by stipulation, or by silent acquiescence in the introduction of evidence of the statement or affidavit of a person, waive the right and opportunity to cross-examine him and the prescribed forms for taking and certifying his testimony; and when this is done his statement or affidavit becomes as competent evidence of the facts its details as it would be if every formality had been observed.

Evidence to reduce or mitigate the damages is generally admissible under the general denial in actions for unliquidated damages for torts. In an action for a willful trespass for cutting and converting timber a defendant may prove, under the general denial in its answer, that the trespass was not willful, but was committed in the honest belief that it was exercising its legal right.

A disputable presumption may be so completely overcome by subsequent evidence in a case that it will become the duty of the court to instruct the jury that it cannot prevail.

James D. Elliott (William G. Porter, on the brief), for the United states.

G. C Moody and Chambers Kellar (James C. Moody, on the brief), for defendant in error.

This was an action for the conversion of lumber and cord wood cut and removed from the Black Hills forest reserve of the United States, and used by the Homestake Mining Company, a corporation, in conducting its mining operations. In its complaint the United States alleged that between September 18, 1898, and May 1, 1899, the defendant, 'without any permit or authority from the secretary of the interior, or without any authority at all' willfully cut and removed from the Black Hills forest reserve in South Dakota pine trees and wood, which it manufactured into lumber and cord wood, and then converted to its own use; that at the time and place of the conversion the lumber and cord wood were worth $10,451.06, and prayed for damages in this amount and interest. The answer of the Homestake Company consisted of a general denial of the willful cutting and removal of the trees and wood of the alleged value of the manufactured lumber and cord wood, and an averment that whatever timber or wood was taken by it from the Black Hills forest reserve was taken by permission and authority of the secretary of the interior. At the trial there was a stipulation that the value of the wood and timber taken in the tree was $1,757.75, while the evidence was that the manufactured lumber and cord wood were worth $10,451.06 when the defendant used them. Thereupon the court instructed the jury to return a verdict against the defendant for $1,757.75, and the judgment upon this verdict is assailed by the United States on the ground that the legal measure of the government's damages was the value of the manufactured lumber and cord wood, and not the value of the wood and timber in the trees,

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

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

The measure of damages for the reckless, willful, or intentional taking of ore or timber from the land of another without right is the enhanced value of the ore or timber when it is finally converted to the use of the trespasser. But the limit of the liability for damages of one who takes ore or timber from the land of another without right through inadvertence or mistake, or in the honest belief that he is acting within his legal rights, is the value of the ore in the mine or the value of the timber in the trees. Bolles Wooden-Ware Co v. U.S., 106 U.S. 432, 434, 27 L.Ed. 230; Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U.S. 428, 12 Sup.Ct. 877, 36 L.Ed. 762; Durant Min. Co v. Percy Consol. Min. Co., 35 C.C.A. 252, 254, 93 F. 166, 268; Gentry v. U.S., 101 F. 51, 54, 41 C.C.A. 185, 188. The court below instructed the jury to apply to this case the measure for the damages resulting from an innocent trespass. Counsel for the government assail this ruling on the ground that the court should either have instructed the jury to apply the measure of the damages for a willful trespass or should have left to the jury the question whether the trespass was willful or innocent. There are many specifications of error, but the only actual question which this case presents is whether or not a verdict of a jury that in the taking of this wood and timber the defendant was a willful trespasser could have been lawfully sustained under the undisputed facts which the record presents. These are the facts: The Homestake Mining Company has been engaged in mining upon a large scale in the Black Hills of South Dakota for many years. It is necessary for it to use large quantities of wood and lumber to carry on its work in its mines. Prior to 1898 it had obtained this wood and timber from the public mineral lands of the United States under the provisions granting such corporations permission to do so found in the act of congress of June 3, 1878 (20 Stat. 88, c. 150). By the act of congress of March 3, 1891, the president had been authorized to set apart by proclamation public lands as forest reserves (26 Stat. 1091, 1093). Pursuant to this act, President Cleveland had set apart as a forest reserve certain tracts of land in the Black Hills of South Dakota in the vicinity of the mines of the defendant by a proclamation dated February 22, 1897 (29 Stat. 34), and that act had provided that the secretary of the interior might make rules and regulations for the sale for use in the states where they were situated, but not for export, of so much of the dead, matured, or large growth of trees upon forest reserves as might be compatible with the utilization of the forests; and that the secretary might permit, under regulations to be prescribed by him, the use within any state where any reservation was situated of timber and stone found upon such reservation free of charge by bona fide settlers, miners, and residents for their wood, fencing, building, mining, and other purposes (30 Stat. 35.) The Homestake Company was actively engaged in operating its mines, and was employing many hundred men. It could not carry on its work without timber. The public mineral lands from which it expected to obtain this timber were about to be included within the Black Hills forest reserve, and, while rules for the purchase of land within those reserves had been promulgated on June 30, 1987 (24 Land Dec.Dep.Int. 589), these rules and regulations were inapplicable to the lands which were not yet included within the reserves, and it was certain that some time would be required to perfect the official machinery so that timber could be purchased under these rules from the lands about to be placed within the reserves. In this condition of affairs the attorney and the manager of the Homestake Company in South Dakota went to the city of Washington, and presented this state of the law and of the facts to the secretary of the interior and to the commissioner of the general land office in the month of January, 1898. The secretary of the interior said to the attorney for the defendant that his company might continue to cut and remove the timber on the forest reserve for its use in the operation of its mines after the suspension of the effect of the proclamation of the president ceased in the same way that it had cut and removed timber from the public mineral lands under the act of June 3, 1878, and the rules and regulations thereunder, until rules and regulations for the sale of the timber on The black Hills forest reserve under the act of February 22, 1897, should be adopted or made applicable to that reserve, and the price of timber thereon should be fixed; that the company might keep an accurate account of the wood and timber it should take, and that when, under the rules of the department, the price of like timber taken from the Black Hills forest reserve was fixed, the company should pay to the government for the wood and timber it took meanwhile at the same rate which that price fixed. The attorney for the defendant accepted these terms, instructed his client to comply with them, and advised the defendent that it had the right to cut wood and timber on the Black Hills forest reserve pursuant to this agreement until the rules for the purchase of timber thereon should be promulgated and made applicable thereto, and the price of wood and timber thereunder should be fixed. The...