Sullivan v. Schultz

BRANTLY, C. J. 1. Defendant asks that the judgment and order appealed' from herein be reversed, for the reason that the proof shows that plaintiff took the stone in controversy from the public domain, but fails to show that he did so under license or permission from the government of the United States, and that, therefore, he has not made out a case upon which he is entitled to recover. He stands, defendant insists, in the attitude of one who has neither title nor right of possession but such as is founded upon his own tortious act as a •trespasser upon the lands of the United States. Defendant cites, as conclusive in support of this position, N. P. Railroad Co. v. Lewis, 162 U. S. 366, 16 Sup. Ct. 831; Schulenberg v. Harriman, 21 Wall. 44; Turley v. Tucker, 6 Mo. 583; U. S. v. Cook, 19 Wall. 591; Murphy v. Sioux City Railroad Co., 55 Iowa, 473, 8 N. W. 320; but an examination of these cases shows that they are not applicable to the facts of this case. In Murphy v. Sioux City Railroad Co. the plaintiff sought to recover the value of hay cut and stacked upon the land of another, and burned by the negligence of defendant. All the other cases involve controversies arising out of the unlawful cutting of timber upon public lands, and were suits, either by .the owner of the fee for the recovery of the timber cut and removed, as in Schulenberg v. Harriman, and U. S. v. Cook, or by a trespasser upon the public domain to recover for timber cut and left there by him, and afterwards removed or destroyed by the defendant, as in N. P. Railroad Co. v. Lewis, and Turley v. Tucker. These cases all follow the general rule applicable to cases of like character. But we do not find anything in them contrary to another general rule that mere possession, though wrongful, is sufficient to maintain an action in [545] replevin as against a mere stranger. (Cobbey on Replevin,. Sec. 786.) This rule is also distinctly recognized in N. P. Railroad Co. v. Lewis, supra. Under the facts in this case defendant stands in no attitude to dispute the title or the possession of plaintiff. She contracted with him for a certain quantity of cut stone, to be used for a certain purpose. He hired Theriau to cut it at a stipulated price, thus incurring a liability upon the strength of his contract with her. He furnished the necessary tools for the work, and gave it his attention to see that it was done according to the contract. She knew that Theriau was working for him. She discharged a part of her obligation, under her contract with him, by paying Theriau a part of his contract price at plaintiff’s request. She consulted with plaintiff from time to time as the work progressed, and she was shown the work by plaintiff after it was finished. Having discovered that by collusion with Theriau^ and by paying him $30 more than plaintiff had agreed to pay- ■ him, she could save $102, as she supposed, she concluded to disregard her contract with plaintiff, and at the same time to take the fruits of his thrift and industry without compensation. In all fairness Theriau could not be permitted to disre- ■ gard his employer’s rights, and thus, for his own profit, dispose of what, so far as he was concerned, and according to-every principle of right and fair dealing, belonged to his employer. His act amounted to a conversion of his employer’s property. Having obtained possession of the stone from Theriau by collusion with him, defendant stands upon no higher ground, and therefore should be held to abide by the terms of her contract with plaintiff. But whether this principle applies here or not, and apart from these considerations, we think the plaintiff entitled to recover. The cutting of timber upon the public domain is prohibited by law, but there is no such prohibition touching the deposits of mineral upon the public lands. Under the law they are all free and open to exploration and occupation by the citizen for his own profit. This applies to all lands containing valuable deposits, including building stone. (Revised [546] Statutes U. S. Sec. 2319; Act Congress Aug. 4, 1892, 27 Stat. 348.) The right thus granted necessarily carries with it the license to take what may be found in the course of exploration and apply it to the discoverer’s own use. The option is left to him to acquire the exclusive right to the land containing the deposit; but, if he does not choose to do so, he may still avail himself of the deposit, exclusively or in common with others, until some one else acquires the exclusive right from the government. We are not aware that this right has ever been drawn in question. Therefore, in getting the stone upon the public domain, the plaintiff was not a trespasser. By taking it, and bestowing his labor upon it, or causing labor to be bestowed upon it by Theriau, his employe, he became the owner of it in fact as against every person. Theriau’s custody or possession of it was his. The defendant stands in the same position as if she had gotten it from the plaintiff. Having failed to pay for it, she was subject to have it taken from her possession, upon demand, after the price was due. 2. The contention is also made that the court erred in not permitting defendant to introduce evidence tending to show that, at the time the stone was delivered to defendant and set up by Theriau, it did not belong to plaintiff, but to Theriau, ■Though error may have been committed in this regard, this Court will not consider it, for the reason that the brief of counsel fails to- set forth, in heeo verba or in substance, the proof offered and rejected, in conformity with Subdivision 3 of Rule Y of this Court. Let the judgment and order appealed from be affirmed. Affirmed. Hunt and Piuott, JJ., concur.