United States v. Richmond Mining Co.

• Citation: 40 F. 415
• Parties: UNITED STATES v. RICHMOND MIN. CO.
• Decision Date: 23 November 1889
• Court: U.S. District Court — District of Nevada

40 F. 415

UNITED STATES v. RICHMOND MIN. CO.

United States Circuit Court, D. Nevada.

November 23, 1889

Syllabus by the Court

The defendant, a corporation engaged in mining, reducing ores and refining bullion, purchased wood and charcoal for use at its reduction works. The cord-wood, and the wood from which the charcoal was manufactured, were cut upon unsurveyed public lands, mineral in character, of little or no value except for the mineral therein, and within organized mining districts, or not far remote from known mines. Held, that this was mineral land within the meaning of the act of congress of June 3, 1878, permitting timber to be taken therefrom for 'building, agricultural mining, or other domestic purposes;" and that defendant could lawfully purchase such wood and coal for said use under the license given by said act.

J. W Whitcher, U.S. Atty., and Henry Rivers, for plaintiff.

Wren & Cheney, for defendant.

SABIN J.

This is an action of replevin, brought by plaintiff to recover from the defendant the possession of 10,000 bushels of charcoal, of the alleged value of $1,800, and 300 cords of wood, of the alleged value of $2,100, the same being at the yard and premises of the defendant at the town of Eureka, in this state. The complainant alleges that said coal was manufactured from wood cut and removed from the unsurveyed public timber lands of plaintiff within said state, and that said 300 cords of wood were cut and removed from said lands, and all so cut and removed unlawfully and without the consent of plaintiff, and that plaintiff is now the owner thereof. Plaintiff demands judgment for the recovery of the possession of said coal and wood, or for the value thereof, in the sum of $3,900, if recovery of possession cannot be had. The answer of defendant denies that plaintiff is the owner of said personal property; denies that said wood was cut from the lands mentioned in the complaint; denies that defendant wrongfully or unlawfully or without plaintiff's consent took possession of said property, or wrongfully or unlawfully withholds possession of the same, or any part thereof, from plaintiff. The case was tried before the court, without a jury. The findings of fact upon the evidence submitted are brief, and as follows:

'(1) That the defendant, the Richmond Mining Company of Nevada, is a corporation duly organized and existing under and by virtue of the laws of the state of Nevada, engaged in the business of mining, purchasing, and reducing ores, and separating gold and silver from lead, in the town and county of Eureka, state aforesaid, and was such corporation and so engaged at the time of, and long prior to, the commencement of this action. (2) That at the time of the commencement of this action said defendant was in possession of 16 cords of wood, of the value of six dollars per cord, and seven thousand bushels of charcoal, of the value of 21 cents per bushel, at its works in said town; and that said wood, and the wood from which said charcoal was manufactured, was cut upon the unsurveyed mineral lands of the United States, not subject to entry under any existing law of the United States except for mineral entry; and that said wood was cut, and said charcoal was burned, by bona fide residents of the said state, for use in the said county, and sold to said defendant for use in carrying on its said business in said town, at a distance of about three miles from its mines. (3) That the trees from which said wood was cut were a species of scrubby nut pine, cedar, and what is locally called 'Mountain Mahogany,' about ten or twelve feet in height on an average, with bodies from four to eight feet in length. and less than twelve inches in diameter, and unfit for manufacture into either lumber or timber.'

I believe the correctness of these findings is not questioned by either party.

The defendant justifies its purchase and possession of said coal and wood under the provisions of an act of congress, approved June 3, 1878, (20 U.S.St.p. 88, c. 150.) The section of said act under consideration reads as follows:

'That all citizens of the United States, and other persons, bona fide residents of the state of Colorado or Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States except for mineral entry, in either of said states, territories, or districts of

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