United States v. Pine River Logging & Imp. Co., 780.

• Decision Date: 18 January 1897
• Docket Number: 780.
• Citation: 78 F. 319
• Parties: UNITED STATES v. PINE RIVER LOGGING & IMPROVEMENT CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

78 F. 319

UNITED STATES v. PINE RIVER LOGGING & IMPROVEMENT CO. et al.

No. 780.

United States Court of Appeals, Eighth Circuit.

January 18, 1897

John E Stryker, for plaintiff in error.

Eugene G. Hay and J. B. Atwater, for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This suit was brought by the United States against the Pine River Logging & Improvement Company, a corporation, and Joel B Bassett and William L. Bassett, co-partners as J. B. Bassett & Co., who are the defendants in error, and against John S Pillsbury and Charles A. Smith, co-partners as C. A. Smith &amp Co., for the wrongful conversion of 22,005,921 feet of pine lumber, which was alleged in the complaint to have been taken from the Mississippi Indian reservation in the state of Minnesota. The complaint, which contained nine counts, charged, in substance, that nine different parties had wrongfully felled certain pine trees standing on said Indian reservation, and had cut the same into logs, and had removed the logs from the reservation; that the trespasses in question were committed at the special instance and request of the defendants; that the logs, when thus cut, had been delivered to the defendants; that the defendants had thereupon caused the logs to be floated down the Mississippi river to the city of Minneapolis, and to be there manufactured into lumber; and that they had sold the lumber, and had appropriated the proceeds thereof to their own use.

The answers which were filed by the defendants to the aforesaid complaint alleged, in substance, the following facts: That the logs referred to were cut under and by virtue of contracts which had been entered into with certain Chippewa Indians for the cutting of dead and down timber found on said reservation; that said contracts had been executed in pursuance of the provisions of an act of congress approved February 16, 1889, in relation to the cutting of dead and fallen timber on Indian lands (25 Stat. 673, c. 172); that payment for the logs so cut and removed had been made in full to the United States and to the proper Indian agent in accordance with the provisions of said contracts; that said logs were so cut by said Indians, and delivered to and accepted by the defendants in good faith, in the honest belief that said logs had been lawfully cut under said contracts, from dead and down timber, and that the defendants were entitled to the same, and became the owners thereof upon delivery of the logs, and upon the making of the aforesaid payments; that, after the said logs had been delivered to the defendants, and before they were floated down the river to Minneapolis, the United States, through its proper officer, had seized and taken possession of the logs, claiming that they were cut from green and growing timber, and not from dead or down timber; that thereafter, for the purpose of preserving said logs, and realizing the full value of the same for the party who should ultimately be determined to be owner thereof, a contract was entered into between the United States and the defendants, which was as follows:

'This agreement, made and entered into this 27th day of May, 1892, by and between the government of the United States, * * * party of the first part, and the Pine River Logging & Improvement Company, * * * and J. B. Bassett & Company, * * * witnesseth: That whereas, the United States, by and through a special agent of the general land office, has seized and is now in the undisputed possession of certain pine saw logs heretofore cut on the Winnebigoshish and Leech Lake Indian reservations, in the state of Minnesota, said logs being now in the waters of the Winnebigoshish Lake, Leech Lake, Leech river, Mississippi river, and Ball Club Lake, state of Minnesota, and within the limits of the Indian reservations aforesaid; and whereas, it is apprehended by both parties that said logs will suffer deterioration in quality by being suffered to remain where they now are until the season of 1893; and whereas, the parties of the second part desire, for the preservation of whatsoever property interest they may have in said logs, to remove, or cause the same to be removed, to a boom in the Mississippi river near the city of Minneapolis, and are willing to so remove said logs without questioning or attempting to disturb the possession thereof in the United States: Therefore, it is mutually agreed and understood that the parties of the second part may, without charge or cost to the United States, and under the supervision of the special agent of the general land office, cause said logs to be driven from their present position, through the waters of the Mississippi river, to such a boom in the Mississippi river at or near the city of Minneapolis as the Mississippi & Rum River Boom Company may designate: provided, that said logs shall be separated from all other logs and detained at Minneapolis in the boom to be designated by the boom company aforesaid, subject to the order of the commissioner of the general land office. In consideration of the covenant and agreement aforesaid, and with the distinct understanding that the possession of the United States shall in no sense be questioned or impaired on account of the location of the logs, the United States does hereby agree, through the commissioner of the general land office, that said logs may be driven in the manner and subject to the conditions hereinbefore stated: provided, that nothing in this contract contained shall be held in any proceeding, legal or otherwise, hereinafter to be had, to impair any right, title, property, or interest that the said parties of the second part, or either of them, or the United States, may have in or to the said logs, or any of them; the object of this contract being to recognize and continue possession in the United States, and to allow said logs to be driven without in any way affecting the question of right, title, property, or interest in the logs, and to leave such questions for future determination.'

The answers further showed that thereafter, on March 10, 1893, after the logs had been driven to the city of Minneapolis in compliance with the provisions of the aforesaid contract, two bonds were accepted by the United States, one of them being executed by the Pine River Logging & Improvement Company as principal, and the other by the members of the firm of J. B. Bassett & Co. as principals. The bond executed by the Pine River Logging & Improvement Company contained the following recitals and condition, and the bond executed by the firm of J. B. Bassett & Co. was of like tenor and effect:

'Whereas, the above-named Pine River Logging & Improvement Company, principal, did in the year 1891 enter into divers contracts with sundry Indians of the Chippewa Nation, which contracts were duly approved by the department of Interior, whereby each of the said several Indians so contracted with were to cut, haul, and deliver

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