United States v. Perkins

• Decision Date: 05 January 1891
• Citation: 44 F. 670
• Parties: UNITED STATES v. PERKINS et al.
• Court: U.S. District Court — Western District of Louisiana

44 F. 670

UNITED STATES v. PERKINS et al.

United States Circuit Court, W.D. Louisiana.

January 5, 1891

M. C Elsner, U.S. Atty.

J. L Bradford, for defendants in error.

PARDEE J.

December 17, 1885, the United States brought suit in the district court of this district against Allen J. Perkins and Charles H. Miller, composing the commercial firm of Perkins & Miller claiming that they were indebted to the United States in solido in the sum of $2,328, with legal interest from judicial demand, for the manufactured value of a lot of pine timber that was cut by one Reeves and one Perkins trespassers, in the fall and winter of the year 1884, on the vacant lands of the United States, and by said trespassers sold and delivered to the defendants, said defendants well knowing at the time of said sale and delivery that the said timber had been unlawfully cut and removed from vacant lands of the United States: and that said timber, which so came to the hands of said defendants, was sold and converted to the uses of said defendants. Defendants answered with a general denial and the plea of prescription of one year. The cause came on for trial, and the jury found the following special verdict:

'We find as a fact specially that John T. Reeves went upon the W. 1/2 of N.W. 1/4, sec. 30, T. 8 S., R. 7 W., prior to 1877. Subsequently he made homestead entry of the N.E. 1/4, sec. 25, T. 8 S., R. 8 W., supposing it to be the land upon which he was then and had been previously living; that in 1879 he discovered that the land upon which he was actually residing was not included in his said entry, and after learning this fact he cut eight hundred logs from the land included in said homestead entry, and sold same to Perkins & Miller, worth, as trees, fifty cents, and, as logs, five dollars ($5.00) per thousand, averaging two hundred and seventy feet per log.'

Thereupon, it appears, the following agreed statement of facts was entered into, viz.:

'In addition to the facts found by the special verdict of the jury in the above-entitled cause, it is agreed that the evidence before the jury in said suit established the following facts, viz.: 'That John T. Reeves, on March 9, 1877, at the United States land-office, New Orleans, Louisiana, made his homestead entry for the land described in plaintiff's petition in said suit, to-wit: 'The N.E. 1/4 of sec. 25, T. 8 S., R. 8 W.;' that on November 5, 1885, said homestead entry was canceled by the government; that on December 30, 1886, said John T. Reeves, at said land-office, paid the government in full for said land at the rate of one dollar and twenty-five cents ($1.25) per acre, and the same day received from the receiver of said land-office a receipt in full for the price of said land, including a receipt for the payment of all fees for said office in the matter of said homestead entry; that said receipts and a certified extract from the tract book of said land-office in the matter of said homestead entry, also in evidence in said suit, showed that said payment by said John T. Reeves, in full payment of said land, was made by him as a homestead claimant, as was supposed, by virtue of and under the privilege confirmed by section 2 of the act of congress, approved June 15, 1880, and had relation to the original claim or equity acquired by him, whatever that was, by his said original homestead entry, made as aforesaid, for said tract of land on March 9, 1877.' It is admitted that after 1879, and prior to the cash entry on December 30, 1886, John T. Reeves, with the full knowledge that the land upon which he trespassed was not the land upon which he was living, cut the eight hundred sticks mentioned on the N.E. 1/4 of sec. 25, T. 8 S., R. 8, and sold the same to Perkins & Miller.'

Upon the facts as found, and as admitted in the record, the court gave judgment for the defendants, to which the plaintiffs excepted, reserving a bill of exceptions thereto, and thereupon sued out this writ of error.

On the facts as found and admitted the United States are entitled to a judgment, unless the effect of the purchase by Reeves, the original trespasser of the lands trespassed upon, was to estop the United States from further prosecuting the defendants for the value of the property converted. The defendants claim that as Reeves originally entered the land as a homestead in 1877, his purchase of the same from the United States in 1886, under the act of 1880, (21 St.at Large, 237,) and possession thereunder, related back to the date of the homestead entry, and thus effectually canceled the trespass, and this notwithstanding the fact that Reeves never lived upon, occupied, nor possessed the land, and the further fact that the entry of said lands by Reeves as a homestead had been canceled by the government. In the cases cited by counsel, where such effect has been given to such subsequent purchases, (U.S. v. Ball, 31 F. 667, and U.S. v. Freyberg, 32 F. 195,) the homesteader entered the land in good faith, and actually resided upon and possessed it; and there was no suggestion of any cancellation of the entry or abandonment of the same, nor in the lengthy and elaborate opinions given by the learned judges is there a suggestion that the homesteader took anything under the enabling act of 1880. The decisions cited from the land department, to the effect that under the act of 1880 the homestead settler, even after the cancellation of his original entry, can purchase the same tract at the full government price, provided it does not interfere with subsequent right, (In re Riggs, 1 Dec.Dep.Int. 96; Railroad Co. v. Burt, 3 Dec.Dep.Int. 490; Hollants v. Sullivan, 5 Dec.Dep.Int. 115; Holmes v. Railroad Co., Id. 333; Railroad Co. v. McLean, Id. 529; Railroad Co. v. Elder, 6 Dec.Dep.Int. 409; In re Doolittle, 8 Dec.Dep.Int. 403,) do not deal, or pretend to deal, with the effect of such purchase on the status of property, such as timber, which became personal property when severed from the soil and removed from the land prior to the purchase. As Reeves never had possession of the land, and as his prior entry was canceled, he never had any title, legal or equitable, prior to December 30, 1886, a date subsequent to the institution of this suit. The trees cut and removed from the tract in question in 1879 became and were personal property, which undoubtedly then belonged to the United States. When the defendants received the timber, and converted it to their own use, they became liable to the United States for its value, and there was no reason why the United States, in thereafter selling the land, should renounce their just right to recover their damages already accrued; and such an intention cannot be presumed in the absence of an act of congress warranting such presumption. But in this case we are not left to conjecture as to what was the intention of the United States in the sale to Reeves, and as to the property sold and the rights reserved. Reeves' purchase is under the act of 1880, the first and fourth sections of which read as follows:

'Section 1. That when any land of the United States shall have been entered, and the government price paid therefor in full, no criminal suit or proceeding by or in the name of the United States shall thereafter be had or further maintained for any trespasses upon or for or on account of any material taken from said lands, and no civil suit or proceeding shall be had or further maintained for or on account of any trespasses upon or material taken from the said lands of the United States in the ordinary clearing of land, in working a mining claim, or for agricultural or domestic purposes, or for maintaining improvements upon the land of any bona fide settler, or for or on account of any timber or material taken or used by any person without fault or knowledge of the trespass, or for or on account of any timber taken or used without fraud or collusion by any person who, in good faith, paid the officers or agents of the United States for the same, or for or on account of any alleged conspiracy in relation thereto; provided, that the provisions of this section shall apply only to trespasses and acts done or committed and conspiracies entered into prior to March 1st, eighteen hundred and seventy-nine: and provided, further, that defendants in such suits or proceedings shall exhibit to the proper courts or officer the evidence of such entry and payment, and shall pay all costs accrued up to the time of such entry. ' 'Sec. 4. This act shall not apply to any of the mineral lands of the United States; and no person who shall be prosecuted for or proceeded against on account of any trespass committed or material taken from any of the public lands after March 1st, eighteen hundred and seventy-nine, shall be entitled to the benefit thereof.'

The said act is a part of Reeves' title, and contains a definite notice to him and the parties holding under him that there was to be no condonement for trespasses committed after the 1st of March, 1879, even when...