United States v. Price Trading Co.

• Decision Date: 19 April 1901
• Docket Number: 1,468.
• Citation: 109 F. 239
• Parties: UNITED STATES v. PRICE TRADING CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

109 F. 239

UNITED STATES v. PRICE TRADING CO. et al.

No. 1,468.

United States Court of Appeals, Eighth Circuit.

April 19, 1901

The United States instituted this action on May 12, 1899, against the defendants in error to recover the value of 12,346 fence posts, of the value of $987.68, alleging, in substance, that the posts had been unlawfully cut and removed from government lands. The case was tried principally upon an agreed statement of facts, from which we cull the following admissions: The Price Trading Company is a mercantile corporation. A. Ballinger is its secretary. At the time alleged in the complaint the Price Trading Company had possession of 10,253 cedar posts, which had been cut upon the unsurveyed lands of the United States from six to ten miles in a northerly direction from the town of Price, county of Carbon, in the state of Utah, by residents of said county and the same had been purchased by the trading company from such residents for the sum of eight cents each in merchandise. The persons who cut and removed said posts knew that the lands from which they were cut were public lands of the United States, but they kept no record of the timber so cut and removed, in accordance with government regulations so that subject, and at the time the same were sold to the trading company they exacted to express agreement from the purchaser that the same should only be used for building agricultural, mining, or other domestic purposes, within the state of Utah. It was understood, however, and was the expectation of the parties, at the time of the sale, that the posts were purchased for the purpose of being sold to ranchmen in Carbon and other adjoining counties for the purpose of fencing agricultural and grazing lands. The posts were in the possession of the trading company for some time prior to April 20, 1899, and up to that time were held by the trading company with the intention of selling them for the purpose last mentioned. On March 20, 1899, while the posts were in the possession of the trading company, it was notified by a special agent of the general land office that the United States was the owner of the posts, and it was further notified not to sell or otherwise dispose of the same. On April 20, 1899, the Rio Grande Western Railway Company, by an instrument in writing, appointed the trading company its agent to obtain and deliver to the railway company 9,053 of the posts which had been cut and removed as aforesaid, to be used by said railway company in the construction of one of its branch lines of road hereafter described. Said posts were accordingly sold to said railway company for the sum of eight cents each, in pursuance of the aforesaid written appointment, and 7,000 of the posts were used by the railway company in fencing said branch line, and 2,053 of the posts were used in fencing a line of road termed the 'Utah Eastern Railroad.' Of the remaining 1,200 posts, 200 were used by the trading company in fencing its lands in Carbon county, and the residue, which were small and unfit for fence posts, were in the possession of the defendant company at the time the action was tried. The lands on which the posts in controversy were cut are adjacent to the main line of the Rio Grande Western Railway Company which extends from the boundary line between the states of Colorado and Utah to Ogden City, Utah, and the timber was taken adjacent to that part of the railroad which passes through Carbon county. A branch line of said Rio Grande Western Railroad begins at Provo, Utah county, in said state of Utah, the latter town being on the main line, and runs thence, for a distance of 11 miles, through Provo Canyon, and connects with another railroad known as the Utah Eastern Railroad,' which latter road extends to Heber City, Utah, and is about 25 miles in length. The branch road aforesaid is connected at Provo with the main line of the Rio Grande Western Railroad, so that trains can run directly from the main over the branch line, and thence over the Utah Eastern Railroad. The Rio Grande Western Railway Company laid out and constructed its main and branch line, and the Utah Eastern Railway Company constructed its line in conformity to an act of congress entitled 'An act granting to railroads a right of way through the public lands of the United States,' which was approved March 3, 1875 (18 Stat. 482, c. 152), and both of said companies complied with all of the requirements of that act. The main line of the Rio Grande Western Railroad was constructed about the year 1885. The construction of said branch line through Provo Canyon, and the construction of the Utah Eastern Railroad, was commenced in April, 1899, and was completed after the institution of the present action. The trial court in its charge to the jury instructed them, in substance, that under the act of March 3, 1875, a railroad company could take timber from public land adjacent to any part of its entire line for the construction of any part of its road, and that this right included the right to take timber for the construction of snowsheds, fences, etc., used by it at the time the road was built. To this part of the charge an exception was reserved. It further instructed the jury, in substance, that the act of congress did not require a railroad company to make the selection or take the timber itself, but that it authorized any person who contracts with a railroad company for the building of its road to take the necessary material for that purpose, and that such persons became substituted in this respect to the right of the company. In the same connection it made the following statement, to which an exception was taken: 'The same rule would apply to a person not under contract or in the employment of the company. If he cuts timber on public lands adjacent to the line of the railroad (the railroad company having the right to take the timber), and afterwards disposes of it to the company to be used in the construction of its road, and it is so used, neither such person nor the company are liable as wrongdoers. ' The court further instructed the jury, in substance, and to that portion of its charge an exception was also taken, that as respects the 7,000 posts taken from lands adjacent to the main line of the Rio Grande Western Railroad, where it passes through Carbon county, which were used in the construction of its branch line through Provo Canyon, there could be no recovery. Under these instructions, the government recovered a verdict and judgment for the sum of $20.53 only, and it has removed the record to this court for review.

Charles O. Whittemore (Pennel Cherrington, on the brief), for plaintiff in error.

George Sutherland, for defendants in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

One of the principal contentions on the part of the government is that the instruction of the trial court to which reference is first made in the statement was misleading, for the reason that it conveyed the idea that timber might be taken from land adjacent to any part of the main line of the Rio Grande Western Railroad, which was completed as early as the year 1885, for the original construction of the branch line through Provo Canyon, the building of which was not commenced until some time in April, 1899. It is claimed on the part of the government that timber could not be taken from lands adjacent to the main line for the construction of the branch line; that the branch line was a mere addition to a road which was fully completed; and that the permission given by the act of March 3, 1875 (18 Stat. 482, c. 152), to take timber from public lands for the construction of railroads, ceased to be operative on the completion of the main line in the year 1885. To sustain these propositions, reliance is placed on the decision in Denver & R.G.R. Co. v. U.S. (C.C.) 34 F. 838, which was subsequently affirmed by the supreme court of the United States. 150 U.S. 1, 14 Sup.Ct. 11, 37 L.Ed. 975. In the last-mentioned case it was expressly determined that timber might be taken from public lands adjacent to any part of a railroad to which the act is applicable, for use in the construction of any part of the road, no matter how distant it might be taken for the building of fences and snowsheds along the line of a railroad, these being properly included in the term 'railroad'; and that the act in question, in view of the purpose which congress had in view, should be given a more liberal interpretation than is given to an ordinary private grant. The point adjudicated in that case upon which particular stress is laid is that after a railroad is fully completed the privilege ceases, and that timber cannot subsequently be taken from public lands for the construction of 'absolutely new switches and side tracks,' these being merely additions or improvements to a road already completed. The reason given for this ruling was that congress did not intend that timber might be taken for all time from public lands to make such additions to a railroad once completed as the development of the country might require.

Now conceding, for present purposes, that counsel place a correct interpretation upon the instruction which was given by the trial court, we are of opinion that it was not erroneous. The point adjudicated in the case of Denver & R.G.R. Co. v. U.S., upon which stress is laid, does not, in our judgment, control the case at bar, because the timber which is now involved was taken for the original construction of a branch line of road which the Rio Grande Western Railway Company, as it seems, was fully authorized by its charter to construct, but had deferred building until a more convenient season. As counsel for ...