United States v. Mock

• Decision Date: 01 May 1893
• Docket Number: No. 233,233
• Citation: 149 U.S. 273,37 L.Ed. 732,13 S.Ct. 848
• Parties: UNITED STATES v. MOCK
• Court: U.S. Supreme Court

149 U.S. 273

13 S.Ct. 848

37 L.Ed. 732

UNITED STATES

v MOCK.

No. 233.

May 1, 1893.

Action of trespass by the United States against Moses Mock to recover damages for cutting of timber from the public lands. There was a verdict and judgment for defendant, and the United States brings error. Reversed.

Statement by Mr. Justice BREWER:

This action was commenced by the filing of a complaint on May 6, 1884, in the circuit court of the United States for the northern district of California, in which complaint it was alleged that the plaintiff was the owner, in 1879, of a certain tract of land in the county of Fresno, state of California, (describing it,) upon which tract of land were growing trees; that during that year the defendant unlawfully and wrongfully cut down and carried off certain of these trees, to wit, 500 pine trees, and manufactured them into lumber, producing 1,500,000 feet of lumber, of the value of $15,000, for which sum judgment was asked. Defendant answered with a general denial. The case was tried before a jury in April, 1888. On the trial it appeared from the testimony of defendant, as well as that of other witnesses, that in 1879 defendant had built a sawmill adjoining the tract, and operated it for a little less than three months; that it had a capacity of about 10,000 feet, board measure, a day; that he had five white men and two or three Indians employed at the mill; and that the timber was cut in the vicinity of the mill. The defendant also admitted that he knew that the tract described in the complaint was government land, and that he did not at any time enter it as a homestead or pre-emption, and that a portion though only a small portion—of the timber which he sawed was cut from that tract. There was the further testimony on the part of the government, of two timber agents, that after the commencement of this action they went upon the land, and counted the number of stumps, and found 814 stumps of pine trees, of the diameter of from two to three feet. There was also given in evidence an estimate of the amount of lumber that would be made from a tree of the size indicated by such stumps. There was evidence tending to show the price and value of lumber in that vicinity in the year 1879, but not of the value of standing trees. In its instructions the court referred to the estimate made by the timber agents of the amount of lumber that would have been manufactured from the timber cut upon the premises, and the admission made by the defendant that he had cut some timber; stated that there was no testimony that he had cut all the timber that had been cut thereon, and that the jury had no right to guess, and that unless proof had been offered which created a reasonable certainty in their minds as to the amount of timber cut by the defendant, and its value, the verdict must be for the defendant, and then proceeded as follows:

'There are two elements entering into these cases. This is an action of trespass,—a tort. It is wrong for one person to go on another person's land, and cut and remove timber, without the consent of the owner; so the going of any person on the public domain, and cutting and removing from it timber, without the consent of the government is wrong, just as much as if I went on any of your ranches or vineyards, cut and removed the crops, without your consent. But there is a vast difference in the character and quality of actions. A gentleman may permit the public to use a portion of his domain as a highway for years, and, as long as it is being done with his tacit consent, nobody would be held a trespasser for doing so; but, when he notifies the public that it must cease, then that tacit right ceases, and anybody who went on there might be justly held as a trespasser. The history of the country in regard to trespassing on the public domain, and cutting timber for the use of the people in building their...