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About The daily morning Astorian. (Astoria, Or.) 1883-1899 | View Entire Issue (Nov. 28, 1883)
r yQL. XX, NO. 49.
ASTORIA, OREGOW WEDNESDAY, .NOVEMBER 28, 1883.
PMCE, FIYE CENTS.
-a i 1 .
CUTTING TIMKEtt ON PHILIP LANDS.
U. a CIRCCIT COUIIT DISTRICT OF
FniDAr, Nov. 23, 1888.
UmlSiSta'tes vs. Ckarlfes Williams,
"William "Williams, 13. J. Pengr
- y No.i?32- -Action for damages for
cutting timber on the public laL
United States vs. Charles "Williams.
B. ,T. Pengra 3STo. 933. Same.
L Cutting timber on the public
lands. Section 4 of the act of June
3, 1878 (20 Stat, 89j, prohibits the cnt
bng of any timber oh the public
lands with intent to dispose of the
same; but the proviso thereto per
mits a settler under the pre-emption
and homstead acts to clear his claim
as fast as the same is put under cul
tivation, and the timber cut in the
course of such clearing may be dis
posed of by the settler to thebest ad
vantage. 2. Idem. But if such settler cuts
timber on his claim with the intent
io dispose of the same and not mere
ly as a means of preparing the land
for tillage, he is a wilful trespasser
and is liable accordingly.
3. Damages for cutting timber. The
measure of damages in an action for
Cutting timber, on public lands, in
case the trespass is inadvertent and
not wilful, is the value of the timber
in the tree; but where the trespass is
wilful, the value of the labor put up
on it by the trespasser must be added
to the value in the tree, Avith interest
thereon in either case.
4. Trespass by "mistake. " The de
fendant claimed" to have taken up a
homestead on .the northwest quarter
of section 22, of township 19, and
while intending to cut saw logs there
on with intent to dispose or the same,
did by mistake cut said logs on the
northeasj; quarter of said section:
Held, that if the defendant had cut
the logs on the northwest quarter, as
ho intended, it would have been .n
wilful trespass, and, therefore, bin
mistake was immaterial, and lie wk
liable to the United Slates for tin1
value of said logs as a wilful tres
passer. Dxadx, J.: .
These actions are brought by the
United States against the defendant
to recover the value of certain tim
ber unlawfully cut and removed from
the public lands to a certain saw mill
in Springfield, Lane county, Oregon,
and there sawed into boards and con
verted to the use of the defendants,
to the damage of the plaintiff in the
sum of $9,000, and in the second one
In No. 932, it is alleged in the com
plaiht that between April 1 and July
1311883, there was cut and romovod.
J)y" the defendants therein, f ronwwhat
widuldbe, if surveyed, the northeast
quarter -of section 22, in township 19
south, of range one west of the "Wal
lamet meridian, 900,000 feet of tim
ber of the value of 1,800; and in
No. 933, between April 1, 1SS2, and
July 13, 1883. there was cut and re
moved from the same tract 000,000
feet of timber of the value of $2,000.
The defendants, Charlas and "Will
iam "Williams, in case 932, answered
jointly, admitting the cutting and re
moving by them to said saw mill, as
alleged, of 200,000 feet of timber;
and said Charles, in case 933, answered
admitting the cutting and removing
-of 600,000 feet by him; and alleging
in.both. cases that such cutting and
removing was done by mistake as to
the locality of said timber; that it
was only worth twenty-ihe cents a
thousand feet in the tree; and they
bring into court in satisfaction of the
damages thereby sustained by the
plaintiff the sum of $50 in the one
case and $150 in the other.
The defendant Pengra answered
separately, denying the allegations of
the complaint, and the actions were
dismissed as to him.
" The -cases were afterwards sub
mitted to the court for trial without a
jury, upon an agreed statement of the
facts or evidence in the case.
From this statement it appears thai
section 23 of said township is unsur
. rayed, but it has not been public
'land since prior to 1881, and that at
the time the defendants cut the tim
ber on section 22 of said township,
they had authority to cut and remove
timber from said section 23; that
said section 22 is public land, the
west half of which was surveyed be
fore this timber was cut thereon, and
the line pn the north side therof was
run between it and section 15 and
sections 23 and 14; that on Mav 1,
18S2, Charles Williams was and still
is the owner of a tract of land the
quantity of which is not stated ad
joining the northwest quarter of said
section 22, and that in said month of
May said Charles "took up a home
stead claim" thereon, as he supposed,
but which was, in fact, on the north
west quarter of said section; that said
northwest quarter section and the
laud so taken for a homestead were
fit for tillage when the timber was re
moved, and said Charles took the lat
ter "for the purposo of preparing the
same for tillage, and for that purpose
removed therefrom in the spring and
summer of 1882, 000,000 feet of tim
ber, in good faith, for the purpose of
preparing said land for tillage," and
in neither case was said timber cut
with any intention of trespassing on
the public lands or taking timber
therefrom unlawfully; and that all of
said timber was cut into logs on the
land, and was worth twenty-five cents
a thousand in the tree, and seventy
five cents a thousand in -the log and
no more. -
Under the timber act of March 2,
1831 (4 Stat 472, 24G1 E S.), the
cuttingor removal of any timber from
the public lands, other than for the
use of the United Stales, was abso
lutely prohibited, udder a penalty of
not lees than three times the value of
the timber and imprisonment not ex
ceeding twelve months.
I But the courts treated the pre-einp-tK,-liomestead
and mining acts, sub
sequently passed, as law3 upon the
s&aae subject, by which tho latter act
"irV modified, so as to permit the
occupants of the public lands,
under these several jcte, to cut and
remove timber therefrom for the par
poses for which they were thus occu
pied, but pot otherwise. And Hie
timber so cut might lie disposed of
rather than destroyed, U. S. ra. Nel
son, 5 Saw.. GK.
On June 3. 187S, congress passe 1 a
special timber act f2ft stat. 89) fo the
Pacific sSalss. The first three sec
tions of this act provide for the sale
of the unsurveyed public kinds, valu
able chieflv for timber, but unfit for
cultivation. Section 4 provides "that
after the s iage of this act it shall
be unlawful to cut or cane or pro
cure to b? cut or wantonly destroy
anv limler irrowinjr on any land of
1 lie United States. in said states, "or
remove or cause to be removed, any
timber from such public lands with
intent io cxjxrt or dispose of the
same." under train of punishment as
therein provided -with a provii that
nothing therein "shall prevent any
miner or agriculturist irotn clearing
his land iu the ordinary working of
Iris miiiiiuf claim or preparing his
farm for tillage, or from taking the
limber necessary to npport hi im
provements." v "
This proviso dors not apply to any
but lawful settlers ou the public
land under the pre-mptkro, home
stead or mining nets with the inten
tion r acquiring tho title thereto.
By this proviso. cngr;s in effect de
clared, as the courts had held, that
notwithstanding the general prohibi
tion against cutting timber on the
public kinds, such settlers might out
ttuuVr thereon in I lie ordinary eowve
of working a mine or pre string a
farm for tillage. But in either case
the cutting of the timbre must be
subordinate, if not merely incidental
io the mining r cultivation. The
latter must In used as a cloak or pre
text for th former. U. S. vs. Smith.
S Saw., 107.
The proviso does not license the
cutting of timber for the-11"!5 t,r
with the intention of disposing of the
same. The section expressly forbids
this, and the proviso doe-: not allow
it A mere settler on the public
lands has no right, as such, cut
timber thereou for tlie purj,"?
disKsing of it b side or otherwise.
And yet 1 think the act of 2K7H ought
io 1m? construed as authorizing a set
tler to disjsose of limber which he
cuts in good faith for the purpose of
clearing his land for present cultiva
t ion. Whatever t itnber it is necessary
to cut io prcjiarc the land for tillage,
the settler ought io be allowed to dis
pose of it to the most advantage to
himself- to sell it rather than de
23tit this Is a privilege easily abused
and the temptation to do so is very
strong. Therefore it ought not to le
allowed except upon clear proof that
the tillage or cultivation, has kept
pace, acre by jet or field by field,
y jicro or neld by acid,
with the cutting aad removal. Other- jinto logs $410, with interest from
wise the public lands will noda bp December 31, 3882- -and if the case
pillaged or their valu.il timber by J stated had gone as far as it might and
the contractors and employees of j probably ought, the measure of dam
mill men. working under the guise of ages would have lieen tlie value of
prcempiors and honiwtcaders, we-' the h when delivered at the saw
paring their so-called "farms ot till- mill in Springfield.
But "ullage m.-ans husban;!-
ry the cultn-aoon or tho land, jar
ticnlcrl y by the plow.
In Wooden-wane Go. t. U. UK
V. H. 132, it tras held by the fmiircmc
court that iu an action to recover
damages for cnttinjr and carry in::
away limber from ilieimlilic lands,
the rule for :iRscsinir them is as fol
lows -,'1; When the defendant i :i
wilful trespMr. 1hc fall vslnv of tli,
)roHJrty at the time of briuirin l!.c ,
action, vntii no dlHin for
labor and exionse: 2j When the de-1
fentlant in an nninteiitioTial or mi '
iaken tresjas.scr, the value at the :
lime of the conversion, lea ho
amount which sneh tresiser h;:
added to its value.
it iff admitted (hat tlie timber i i
question was ent and resaoAvnl
5rom the public luids unlawfully,
lint it i claimed that the tresp.:'
was not wilful bnt tle result of .i
mutake, and therefore the dam:.Lv
oiifht to be einfined to the v.dne o'
the limber in the tree.
On the argument it was practically ;
admit Uvl by the conmel for the
plaintiff that ihe tiialie cat by Hie
defendants in Ihe snmmer of 18S1. '.
was cut by mistake. Bui it is not
anjiareid how the mbtnke was made:
nor is it shown that any pains or eare
was taken io prevent or avoid the
miHuiKe. xl ine nusvuie was rue re
suit of carelessness or indifference, I '
not think it k Huo'u a miMako'as
iZkl to oxense t!n defendant fnmi
lyinjr d:unaes as wilf nl tresnaavr..
i)ayiuir d:unae as wilfnl trespaaw
Winchester v. Crais, 3S Mich. 'Xfi. j
Bui the claiming that this two -
hundrtnl thousand feet of limber was i
cnt bv miKtake is not contested hvi
the co'uiwel for tho lLuiniin; and the J
finding of the court will Ikj that the 1
plaintiff is entitled to recover $"30 ;
damages on that account, with inte- i
rest from December 81. 18SI. .
The Cl0,009 feel cnt upon the same
tract in the summer of IS82 bj' the '
defendant. Gmrgc WilliamR, was also J
cut by mktake; that is, it was cut '
upon the norUieast quarter of section j
22 instead ot the northwest one,
where it k stated lie intended to
"Udce up" a homestead in May of!
that year. j
Leaving out of consideration l'i" !
fact that more or less of this timber
was cuL rolably a month before tin , j
homestead is alleged to have lnvij
taken, the district attorney insists t4;it
there is no such mistake or inadver-!
tence in the case ns will excuse the j
defendant from the eonrsequencs f j
a wuuui iressiass.
There is no fact or circumstance in
the case tending to show that the de
fendant ever attempted in rood faith
to make a farm on either the north
east or west quarter section. Inciden
tally, it is mentioned in the state
ment of facts that lie built a house on
the northeast quarter, but for aught
that appears it was a mere loggers'
hut. There is no- evidence- of
residence or cultivation or even in
tent to do sq. The land was purvey
ed, but the defendant does not appear
to have made any application or filed
any statement, in the land office, evi
dencing his intention to make a
homestead thereon. In short, noth
ing was done on either quarter - sec
tion bnt wlial; is consistent wiUi the
idea-lhat'thdofondanl was upon the
laud simply as a "logger engaged in
getting out logs for the Springfield
Bat admitting that the defendant
was actually on the northwest quar
ter for ihe purpose of claiming it as a
homestead, that tact did not entitle
him to cut timber from it with intent
to dispose of Ihe same, or otherwise,
only ko East and far ;s lie put the
land in cultivation. If is not practi
cable to lay down any absolute rule
as to how near the cultivation shall
keep to 'the clearing how close the
plow shall follow tho axe, but it is
clear that whoever cuts timber on the
public lands and removes it there
from or disposes of it, must be pre
pared to show that he is a lawful scf
t!er thereon, and that the timber was
cut for the purpose of clearing and
cultivating the land and not other
wise. And in case the timber is sold
or otlierwL disposed of for gain, the
father the clearing is ahead of the
cultivation the stronger is the pre
sumption thct it was cut with such
intent and not to prepare the land
If the defendant then had cut this
timber upon his alleged homestead, it
would, under the eircumstanceo. have
been a wilful trespass. His mistake
is immaterial. It only amounts to
this, . that whereas, be intended to
tresass upon the northwest quarter,
he inadvertently got over the line
and trespassed upon the northeast
But it is claimed that tlie defend
ant acted in good faith: and it is so
admitted in the statement. This is
relied upon by counsel to repel tlie
interence from the circumstance, that
the defendant was a wilful trespasser.
But (his general statement of good
faith is necessarily qualified by ihe
admitted facts of the case. Judged
by thes, it may be tuliniited that the
defendant so far acted in good faith
that when he was cutting on one
quarter he tiionght he was cutting on
the other. And this is probably ?
far as it was intended to go. But the
facts of the case prevent the conclu
sion that he could have hones'. ly be
lieved 'that be was entitled to cut
limlter for sale on cither quartc. The
timlier on these lands probably con
stitute their chief value. Atnjde pro
vision is made for their sale to those
who want to urchase them, and ako
tor the use of the timber by the
miner a ad agriculturist who settle
upon them for these purposes. But
tlie liberality of the government in
this respect ought not to lie used to
screen tltose lawless depredators who
go upon the public land in the guise
of settlers, and then cut apd remove
the liraler therefrom upon the pre
tence of preiKtring it for "tillage."
Wooden ware Co. vs. U. S. supra, 437.
The finding in this case will be that
the plaintiff is entitled to recover tlie
i value oi tno timber after, it was cut
l-1' ; s j j
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Polite clerks will be found in attendance and no trouble to show goods.
KEMKMIlESt 1 Vl'ILIi A'lT BK IT.V:F.I!S01.J.
The Crystal Palace.
ASTORIA IRON WORKS.
Bextoj Stjiekt, Nkak Pakker HtmsE,
ASTORIA. - OREGON.
GENERAL MACHINISTS AHD
LAND aiifl MABINE EUG1ES
BoilerWork, Steamboat Work
and Cannery Work a spe
cialty. Of all llPMcriptious made to Order
at Short Notice.
A. D. Wass. President.
J. G. HusTiiKB, Secretary,.
I. W. Case, Treasurer.
Prices Hold Good
vark-ty. A fine dlsplav or Cold and Silver
- . SHvenvan Ifnlvivu Kurku mil smmnc
cheaper than anywhere else. '
STONE & DAVESOI
Advances made on Consignments.