Dunn v. Burleigh

Walton, J. The principal question is whether the European and North American Railway Company obtained a title to township No. 11, Range 3, by virtue of their deed from the State, of May 13, 1868. We think they did not. The deed to them is by its own terms made subject to all the reservations contained in the act of March 24,1864. Special Laws, vol. 9, c. 401. One of the reservations contained in that act, is of “all lands set apart and designated for settlement under existing laws.” See section 3 of the act above cited. By a then existing law — to wit, the resolve of April 4, 1859 — the township in question was set apart and designated for settlement. Resolves of 1859, c. 288. It is therefore clear that the township in question was not conveyed to the Railway Company. It was expressly reserved. A simple reading of the [36] deed and the act and the resolve referred to, will make this conclusion plain. Nor do we think the Railway Company obtained a title to the timber independent of the land. It is true that the timber standing and growing upon land may be sold, — that is, a license to cut it and take it away may be granted, when the land itself is not conveyed. But as standing trees are part of the realty, as much so as the soil itself, the presumption that they adhere to and pass with it will prevail, unless a contrary intention is clearly expressed. With respect to this land we think a contrary intention is not clearly expressed. On the contrary, the presumption that- the timber was not conveyed, is very much strengthened by a consideration of the purpose for which the land itself was reserved. It was reserved because it had been designated and set apart for settlement. Is it probable that the State intended that land reserved for such a purpose should be stripped of all its timber ? Could the Railway Company have understood’that such a result was intended ? We think not. There is nothing in the deed from the State to the Railway Company, nor in the acts and resolves of the legislature authorizing it, which in our judgment will justify such a conclusion. By the unconditional reservation of the township in question, the timber trees standing upon it were also reserved, no words being used expressive of a contrary intention. ' But while we thus find no difficulty in determining that neither the land of township No. 11, Range 3, nor the timber upon it, was conveyed to the Railway Company, we are unable to find any justification for the seizure and sale of the plaintiff’s property in the summary manner stated in the report. The constitution of the United States declares that no State shall deprive any person of life, liberty or property, without due process of law. Fourteenth amendment, section one. And while it may not be safe to undertake to determine in advance what, in every case, will be deemed due process of law, we feel no hesitation in saying that in a case like this, where the State undertakes to [37] confiscate a person’s property upon the ground that it has been used in committing a trespass upon the public lands, something more is necessary than an ex parte determination and command of the land agent. It will be noticed that the same protection is secured to property as to life and liberty. "Will any one contend that it is competent for the legislature to pass an act authorizing the land agent to seize the person of a trespasser upon the public lands, and hang him, or imprison him for life, without any other trial of his guilt than the ex parte determination of the land agent himself, and no other authority than his own personal command ? Of course not. No more is it competent for the legislature to pass an act authorizing the land agent to deprive a person of his property in such a summary mode; for what is due process of law in the one case must be equally so in the other. In the constitution, life, liberty and property are all grouped together in one sentence, and the same protection which is secured to one is secured to all. Nor do we think such an arbitrary and despotic mode of dispossessing one of his property is compatible with our own bill of rights. For if the proceeding cannot be regarded as a criminal prosecution, nor a civil suit, it certainly involves a “controversy concerning property”; and in such a case the constitution guarantees the right of trial by jury, unless it can be shown that at the time of the adoption of the constitution a different practice prevailed ; and it is believed that no such practice can be shown. Constitution, art. 1, secs. 6 and 20. Whether the right be tried by the United States constitution or our own, we find it impossible to justify such a summary proceeding against the property of a supposed trespasser as was had in this case. We do not mean to decide that the property used in perpetrating a trespass upon the public lands, may not be seized and held till judicial proceedings can be instituted to try the right to have it declared forfeited. Nor do we mean to decide that in this case legal proceedings might not have been had under the ninety-eighth [38] chapter of the Revised Statutes, which provides for libelling and obtaining a judgment of condemnation of personal property which is claimed to be liable to forfeiture. All we mean to decide is that the seizure and sale of the property of a supposed trespasser upon the public lands, without any other authority or proceedings whatever than the command of the land agent, is illegal; and that any statute authorizing such a summary proceeding is, to that extent, unconstitutional and void. The plaintiff, Scott, is therefore entitled to recover; and the action must stand for trial for the assessment of damages, as stated in the report. The plaintiff, Dunn, having no interest in the property seized, and suffering no other damage than the interruption of his businpss, which, for the reasons already stated, he had no right to pursue, cannot maintain his suit against the defendants, .and judgment must be rendered in their favor. Judgment accordingly. Appleton, C. «7., Cutting, Dickerson, Barrows and Peters, JJ., concurred.