United States v. Murphy

• Decision Date: 01 October 1887
• Citation: 32 F. 376
• Parties: UNITED STATES v. MURPHY.
• Court: U.S. District Court — Western District of Michigan

32 F. 376

UNITED STATES v. MURPHY.

United States Circuit Court, W.D. Michigan, Northern Division.

October 1, 1887

G Chase Godwin, Dist. Atty., for plaintiff.

F. W Clark and B. J. Brown, for defendant.

JACKSON J.

The defendant, having been indicted for cutting and removing timber from certain lands of the United States, contrary to the provisions of section 2461, Rev. St., was tried and convicted, and now moves for a new trial on the ground of certain alleged errors committed by the trial judge in the rejection of evidence offered by the defense and in the instructions given to the jury as to the law applicable to the case.

There is no contest or controversy as to the material facts established by the evidence. It is conceded, as shown by the defendant's own testimony, that on the twenty-fifth of February, 1885, the defendant, as the agent and general superintendent of the Spalding Lumber Company, entered into a contract with one James Henderson, the occupant of a homestead entry located in Bagley township, Menominee county Michigan, for the purchase of the pine timber, whether standing or fallen, on the entire homestead tract of 160 acres. By the terms of the contract, which was reduced to writing, the defendant's principal and its successor had the right 'to enter upon said lands at its pleasure, and cut, remove, and carry away said timber, said timber to be cut and removed prior to April 1, 1888, without needless destruction of other merchantable timber;' the recited consideration was $200 paid to the vendor; that, under and in pursuance of said contract, the standing pine timber on said homestead land was subsequently cut and removed, by direction and under the superintendence of the defendant, and converted to the use and benefit of the Spalding Lumber Company; that the timber so purchased, cut, and removed by the defendant averaged about one pine tree to the acre, scattered over the entire homestead tract of 160 acres; that the defendant, before and at the time of purchasing, cutting, and removing said timber, knew the fact that the land from which it was taken was government land, and that the vendor, Henderson, had only a homestead right or entry in and to the premises on which the timber stood, and from which it was cut and removed.

It further appears that Henderson, who undertook to sell said timber, and confer upon defendant the authority to cut and remove it, first pre-empted this tract of land in the fall of 1882; that on the thirteenth of October, 1883, he changed his pre-emption to a homestead entry; that while occupying the land under his pre-emption entry he cleared about two acres, and built a small log cabin; that since the date of his pre-emption entry he has resided continuously on the land; that since changing to a homestead entry he has extended his clearing on the land, which amounted to eight or ten acres in February, 1885; that the timber cut and removed by defendant was not taken from the cleared and cultivated land, or from any portion in process of clearing; that while, in the preliminary negotiations for the purchase of the timber, the defendant had expressed the opinion that Henderson had the right to sell, or would get into no trouble by selling, if he would 'put the money on the place,' it was no part of the contract of sale that the proceeds of the timber should be applied in improving the homestead. Henderson, however, actually expended a portion of the money received from the sale supporting himself. His homestead entry was made, and the occupation of the land was continued, with the bona fide intention of completing his title according to the provisions of the laws; but he has not, in fact, yet perfected his entry and secured title to the land. Whether he is in a position to do so does not appear from the record; nor is it material in the consideration of the questions presented by the pending motion.

The fact is clear and uncontroverted that, at the time defendant purchased, cut, and removed the pine timber on and from this homestead entry, the United States held, as they still hold, the title both to the land and to the trees standing thereon. The homesteader not having then so fulfilled his obligations under the law as to entitle him to a patent, the land was government land, and the timber was government timber. This was all known to the defendant when he bought the pine trees, and when he cut and removed, or caused or procured the same to be cut and removed, from the land, not for the use, benefit, and advantage of the land or homesteader, but for the Spalding Lumber Company. These facts and circumstances bring the defendant directly within the letter of the statute, (section 2461, Rev. St.,) and subject him to the penalties therein provided, unless he can bring himself within some recognized exception created by, or arising under, the homestead laws. The value of the timber so out and removed being shown, the defendant's admitted acts, done with full knowledge, make out the case of the government, and the onus probandi rests upon him to extract the case from the penal consequences of an infraction of the law. What are the defenses relied on to do this?

In the first place, it is urged that congress, by the enactment of the pre-emption and homestead laws, has so far modified the provisions of section 2461, Rev. St., which embodies the act of March 2, 1831, that homesteaders occupying public lands under such laws may cut, sell, and use the timber thereon for the purposes of such occupation. This was so held in U.S. v. Nelson, 5 Sawy. 68; and it is undoubtedly a correct proposition that section 2461, Rev. St., is to be construed in connection with the homestead laws, and that, in so far as the latter confer rights and privileges in respect to the use or sale of timber by the homesteader, its provisions are to be modified. Assuming then, as contended by his counsel, that the defendant is entitled to claim and rely upon all the rights which the homesteader, Henderson, had in, to, and over the timber cut and removed, we are brought directly up to the important question in the case as to what, under the law, are the rights of the homesteader in respect to timber standing upon the homestead land. How far, and to what extent, and under what conditions and restrictions, may he cut and remove the timber, or confer upon another lawful authority to cut and remove it, while occupying the land in good faith, and before perfecting his entry by the acquisition of the title?

It admits of no doubt that the settler on public lands, whether he secures a mere right of occupancy, like the Indian, or acquires an inceptive or inchoate right to the land in the nature of an estate on conditions precedent, such as the homestead laws confer, has not an unlimited or unrestricted power and authority of disposition over the timber standing upon his homestead entry, which is in fact only an application to purchase, giving the applicant no property in either the land or timber thereon, until acquired by compliance with the requirements of the law. Pending this acquisition of the title, the homesteader is authorized (section 2288, Rev. St.) to transfer, by warranty against his own acts, any portion of his homestead for church, cemetery, or school purposes, or for right of way of railroads,-- his conveyance, however, being worthless against the government if he should fail to perfect his claim, (9 C.L.O.p. 94;) but there is no provision of the statute expressly declaring to what extent he may sell or dispose of timber for purposes other than these. His entry is required to be for his 'exclusive use and benefit,' and for the purposes of actual settlement and cultivation. Section 2290. To effectuate and accomplish these objects of the law, judicial construction has clearly and liberally defined the homesteader's rights. By numerous decisions of the federal courts it is settled that his right of user and disposition over the timber is qualified by the nature and character of his interest in and possession of the land.

While in the occupation of the premises with the 'bona fide' intention of completing his homestead, it is held that the homesteader may clear any portion of the land for the purpose of cultivation and settlement. In making clearing for these objects he may cut and remove the timber, and such portions of the timber so cut and removed from the clearings intended for cultivation or tillage as may not be needed on the place for the improvements thereon he may sell; but not further or otherwise. He may also use the timber in the erection of buildings necessary for the convenient occupation of the land, and its improvement; that is to say, better adapting it to convenient occupation. The timber may also be used for necessary and proper fencing and repairs. In other words, the homesteader may use or dispose of timber as an incident to his settlement, cultivation, and improvement of the land. He has only those rights in or over the property which are necessary to the perfecting of his title. His title can only be perfected by settling upon and improving the land for cultivation. For these purposes he may exercise ownership over the timber, but he is not allowed to sever the timber from the land for the purpose of sale and traffic. As held in the Timber Cases, 11 F. 81, 'a settler on the public lands has no authority to go outside of the improvements, cut or sell timber, and thus denude the land, and destroy the value of the public domain, even though he intends to acquire the title under his claim. ' The authorities, which need not be commented on in detail, fully sustain and support this statement of the law, and the proposition above stated. U.S. v. Cook, 19 Wall. 591; U.S. v McEntee, 23...