United States v. Loughrey

• Decision Date: 12 December 1898
• Docket Number: No. 22,22
• Parties: UNITED STATES v. LOUGHREY et al
• Court: U.S. Supreme Court

172 U.S. 206

19 S.Ct. 153

43 L.Ed. 420

UNITED STATES

v LOUGHREY et al.

No. 22.

December 12, 1898.

This was an action originally begun by the United States in the circuit court for the Eastern district of Wisconsin, to recover the value of timber cut from the N. 1/2 of the N. W. 1/4 of the N. E. 1/4 of section 13, township 44 N., of range 35 W., in the state of Michigan. The complaint charged the cutting of the timber by one Joseph E. Sauve, and that he removed from the lands 80,000 feet of timber so cut, and left the balance skidded upon the lands. The defendants were charged as purchasers from Sauve. The amount of timber cut by Sauve was alleged to have been 600,000 feet, and the time of the cutting in the winter of 1887-88, and prior to the 1st day of March, 1888.

The case was tried by the court without a jury, upon facts stipulated as follows:

'First. The defendants, prior to the 1st day of March, 1888, cut and removed from the north half (1/2) of the northwest quarter (N. W. 1/4), and the northwest quarter (N. W. 1/4) of the northeast quarter (N. E. 1/4), and the southeast quarter (S. E. 1/4) of the northeast quarter (N. E. 1/4), of section thirteen (13), in township forty-four (44) north, of range thirty-five (35) west, in the state of Michigan, four hundred thousand (400,000) feet of pine timber, and converted the same to their own use.

'Second. That such cutting and taking of said timber by the defendants from said land was not a willful trespass.

'Third. That none of the lands in question were ever owned or held be any party as a homestead.

'Fourth. That the value of said timber shall be fixed as follows: That the value of the same upon the land or stumpage, at $2.50 per thousand, board measure; that the value of the same when cut and upon the land, $3 per thousand, board measure; that the value of the same when placed in the river was $5 per thousand, board measure; that the value of the same when manufactured was $7 per thousand, board measure.

'Fifth. That the lands above described were a part of the grant of lands made to the state of Michigan by an act of the congress of the United States approved June 3, 1856, being chapter 44 of volume 11 of the United States Statutes at Large; and that said lands were accepted by the state of Michigan by an act of its legislature approved February 14, 1857, being Public Act No. 126 of the Laws of Michigan for that year, and were a part of the lands of said grant within the 'six-mile limit,' so called, outside of the 'common limits,' so called, certified and approved to said state by the secretary of the interior, to aid in the construction of the railroad men- tioned in said Act No. 126 of the Laws of Michigan of 1857, to run from Ontonagon to the Wisconsin state line, therein denominated the 'Ontonagon and State Line Railroad Company."

The finding of facts by the court was in accordance with the foregoing stipulation, with the additional finding that said railroad was never built, and said grant of lands was never earned by the construction of any railroad.

And, as conclusions of law, the court found:

'First. That the cause of action sued on in this case did not, at the time of the commencement of this action, and does not now, belong to the United States of America.

'Second. That the defendants are entitled to judgment herein for the dismissal of the complaint upon its merits.'

No exceptions were taken to the findings of fact, and no further requests to find were made. Exceptions were only taken to the conclusions of law found by the court, and for its failure to find other and contrary conclusions.

Upon writ of error sued out from the circuit court of appeals, the judgment of the circuit court dismissing this complaint was affirmed. 34 U. S. App. 575, 18 C. C. A. 391, 71 Fed. 921.

Whereupon the United States sued out a writ of error from this court.

Sol. Gen. Richards and George H. Gorman, for the United states.

W. H. Webster, for defendants in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

To entitle the plaintiff to recover in this action, which is substantially in trover, it is necessary to show a general or special property in the timber cut, and a right to the possession of the same at the commencement of the suit.

There is no question that the lands belonged to the United States prior to June 3, 1856. By an act of congress passed upon that date (11 Stat. 21), it was enacted that 'there be, and hereby is, granted to the state of Michigan, to aid in the construction of railroads from Little Bay De Noquet to Marquette, and thence to Ontonagon, and from the last two named places to the Wisconsin state line [with others not necessary to be mentioned], every alternate section of land designated by odd numbers; for six sections in width on each side of each of said roads; * * * which land * * * shall be held by the state of Michigan for the use and purpose aforesaid: provided, that the lands to be so located shall in no case be further than fifteen miles from the lines of said roads, and selected for, and on account of each of said roads: provided, further, that the lands hereby granted shall be exclusively applied in the construction of that road for and on account of which said lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever.' By the third section it was enacted that the 'said lands hereby granted to the said state shall be subject to the disposal of the legislature thereof, for the purposes aforesaid, and no other.' Provision was made in the fourth section for a sale of the lands for the benefit of the railroads as they were constructed. The last clause provided that 'if any of said roads is not completed within ten years no further sales shall be made, and the lands unsold shall revert to the United States.'

1. Under this act, the state of Michigan took the fee of the lands to be thereafter identified, subject to a condition subsequent that, if the roads were not completed within 10 years, the lands unsold should revert to the United 1 Washb. Real Prop. (5th Ed.) 95. As was Professor Washburne says that, 'so long as the estate in fee remains, the owner in possession has all the rights in respect to it, which he would have if tenant in fee simple, unless it be so limited that there is properly a reversionary right in another,—something more than a possibility of a reverter belonging to a third person, when, perhaps, chancery might interpose to prevent waste of the prem- ises.' 1 Washb. Real Prop. (5th Ed.e 95. As was said in De Peyster v. Michael, 6 N. Y. 467, 506, a right of re-entry 'is not a reversion, nor is it the possibility of reversion, nor is it any estate in the land. It is a mere right or chose in action, and, if enforced, the grantor would be in by a forfeiture of a condition, and not by a reverter. * * * It is only by statute that the assignee of the lessor can re-enter for condition broken. But the statute only authorized the transfer of the right, and did not convert it into a reversionary interest, nor into any other estate. * * * When property is held on condition, all the attributes and incidents of absolute property belong to it until the condition be broken.' Had the state, through its agents, cut timber upon these lands, an action would have lain by the United States upon the covenant of the state that the lands should be held for railway purposes only, and devoted to no other use or purpose; but the state was not responsible for the unauthorized acts of a mere trespasser, and it was no violation of its covenant that another person had stripped the lands of their timber.

In the case of Schulenberg v. Harriman, 21 Wall. 44, an act immediately preceding this, granting public lands to the state of Wisconsin to aid in the construction of railroads in that state, and precisely similar to this act in its terms, was construed by this court as a grant in praesenti of title to the odd sections designated, to be afterwards located, so that, when the route was fixed, their location became certain, and the title, which was previously imperfect, acquired precision, and became attached to the lands. As it is stipulated in this case that the lands from which the timber was cut were a part of the grant of June 3, 1856, to the state of Michigan, and were a part of the lands within the six-mile limit, certified and approved to the state by the secretary of the interior, no question arises with respect to the identity of the lands.

The case of Schulenberg v. Harriman was also an action for timber cut upon lands granted to the state, against an agent of the state who had seized the logs, which had been cut after the 10 years had expired for the construction of the railroad, but before any action had been taken by congress to forfeit the grant. The complaint in the case alleged property and right of possession in the plaintiffs. It was stipulated by the parties that the plaintiffs were in the quiet and peaceable possession of the logs at the time of their seizure by the defendants, and that such possession should be conclusive evidence of title in the plaintiffs against evidence of title in a stranger, unless the defendant should connect himself with such title by agency, or authority in himself. The title of the plaintiffs was not otherwise stated. It was held that the title to the lands did not revert to the United States after the expiration of the 10 years, in the absence of judicial proceedings in the nature of an inquest of office, or a legislative forfeiture, and that, until a forfeiture had taken place, the lands themselves and the timber cut from them were the property of the state. Said Mr. Justice Field, in delivering the opinion of the court (page 64): 'The title to the land remaining in the state, the lumber cut upon the land belonged to the state. While the...