United States v. Price Trading Co.

THAYER, Circuit Judge, after stating the case as above, deliv- . ered the opinion of the court. 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 tl\at 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 Fed. 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 from the place where the timber was taken; that timber 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 — 243 — 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. 3Siow, 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 the defendants in error well observe, the “'main line” and the “branch line,” so termed, together constitute a single railroad, just as the trunk and branches of a tree constitute a single tree. If the work of constructing what is termed the “main' line” had been suspended for a season after some sections thereof were completed and in operation, and work thereon had been afterwards resumed, we think that it could not ha,ve been successfully claimed that the right to take timber from public lands adjacent to the completed sections for the extension of the road to its authorized termini was lost, and we can discover no greater reason for denying the right of the railway company to take timber from land adjacent to its completed main line for the original construction of the branch line which it was authorized by its charter to construct. The same reasons of public policy which induced congress to authorize the use of timber standing on public lands for the construction of what are termed “main lines” exist with respect to the construction of authorized branch lines, and, in the absence of any provision limiting the privilege to the construction of main lines, it will be presumed that congress intended it to extend to the original construction of branch lines. The entire authorized structure, consisting of main line and branches, must be regarded as forming a single railroad, and the privilege granted to take timber from public lands adjacent thereto must be considered as applicable to the original construction of any part of the road which was authorized to be built. It follows, therefore, that there was no error in the court’s instruction. The second instruction of the trial court of which complaint is made enunciated the proposition as applied to the agreed facts of the present case, or, at least, it warranted such an inference, that if the timber was such as the railroad company might have taken for the construction of its branch line, then it mattered not whether — 244 — the timber had been rightfully or wrongfully cut and removed from government land, and sold to the Price Trading Company, inasmuch as it had eventually come to the possession of one who had the right, so long as it was standing, to cut and appropriate it We feel constrained to hold that this is an erroneous doctrine. The government asserted its title to the timber in controversy through an agent of the land department on March 20, 1899, and warned the trading company at that time not to dispose of it. It further asserted its title by bringing this action in replevin about two months later. The appointment which the trading company obtained from the railroad company to cut fence posts on public lands for the fencing of its road, and under which the trading company turned over the posts in controversy to the railroad company, was not received until the latter part of April or early in May, 1899, long after the posts had been cut and removed. The cutting, removal, and sale of the timber, if wrongful, did not devest the government of its title, but, at most, merely changed what had before been realty into personalty, without affecting the owner’s title to the property in any respect. The law to this effect is well settled. Bolles Wooden-Ware Co. v. U. S., 106 U. S. 432, 435, 1 Sup. Ct. 398, 27 L. Ed. 230. The timber being the property of . the United States, notwithstanding its sale to the trading company, it is impossible to admit-that it could be devested of that title by any arrangement between the trading company and the railroad company to which it did not give its assent. The instruction, therefore, was well calculated to mislead the jury. It is urged, however, in behalf of the defendants in error, that the timber was rightfully cut and sold, and that the trading company acquired a good title by its purchase, and, if this position is well taken, the misleading character of the instruction last mentioned is immaterial, and may be disregarded. Hence it becomes necessary to determine if under the evidence this view is tenable. The contention on the part of the trading company is, in substance, that the cutting and removal of the timber, under the circumstances disclosed in the agreed case, was authorized by the act of June 3, 1878 (20 Stat. 88, c. 150), entitled “An act authorizing the citizens of Colorado, Nevada and the territories to fell and remove timber on the public domain for mining and domestic purposes.” This act provides that all citizens of the United States and other persons who are bona fide residents of the states of Colorado or Nevada, or the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and other mineral districts of the United States, “are * * * 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 which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the secretary of the interior may prescribe for the protection- of the timber and of the undergrowth growing upon such lands, and for other pur — 245 — poses.” Pursuant to the authority conferred by this statute, the secretary of the interior, on August 5, 1886, prescribed, among others, the following regulations: “(4) Every owner or manager of a sawmill, or other person felling or removing timber under the provisions of this act, shall keep a record of all timber so cut or removerá, stating time when cut, names of parties cutting the same or in charge of the work, and describing the land from whence cut by legal subdivisions if surveyed, and as near as practicable if not surveyed, with a statement of the evidence upon which it is claimed that the land is mineral in character, and stating also the kind and quantity of lumber manufactured therefrom, together with the names of parties to whom any such timber or lumber is sold, dates of sale, and the purpose for which sold, and shall not sell or dispose of such timber, or lumber made from such timber, without taking from the purchaser a written agreement that the same shall not be used except for building, agricultural, mining, or other domestic purposes within the state or territory; and every such purchaser shall further be required to file with said owner or manager a certificate, under oath, that he purchases such timber or lumber exclusively for his own use and for the purposes aforesaid. (5) The books, files, and records of all millmen or other persons so cutting, removing, and selling' such timber or lumber, required to be kept as above mentioned, shall at all times be subject to the inspection of the officers and agents of this department. (6) Timber felled or removed shall be strictly limited to building, agricultural, mining, and other domestic purposes within the state or territory where it grew.” In view of the form in which these regulations are cast, it is urged that, by virtue of a well-known rule of construction (ejusdem generis, —Suth. St. Const. § 268), the persons who are required to keep a record of timber cut and removed are the proprietors or managers of sawmills, or persons of a like class who are engaged all the time or to a considerable extent in cutting standing timber and manufacturing it into some form for sale; that as the persons who cut the fence posts in controversy were not persons of that class, and that inasmuch as there was an understanding between them and the Price Trading Company that the posts would he disposed of to fanners and ranchmen in Carbon county, Utah, for fencing, the cutting and removal was lawful, and the trading company acquired a good title, although no record was kept. We are of opinion that the construction of the regulation aforesaid which is contended for by the defendant company is correct; that is to say, that the rule contemplates that a record shall be kept by those who are engaged in operating sawmills or who are engaged to a considerable extent in felling timber on mineral lands, and cutting it into some form suitable' for building, agricultural, mining, or other domestic uses. This is not only the interpretation óf the regulation which the rule of law above mentioned requires, but, in our judgment, it would be unreasonable to place a construction on the regulation which would require every ranchman who goes on mineral land to cut a little timber for his own use, and every occupant of such land' who occasionally cuts a small quantity of timber thereon, and sells it to his neighbor for fencing and other domestic uses, to keep the elaborate record which the regulation prescribes. The act of congress was intended to enable settlers in those regions where timber is scarce to utilize it so far as is necessary for domestic and mining purposes, and it will not be presumed — 246 — that the regulation was intended to place embarrassing and unnecessary obstructions in the way of such use. Some persons, perhaps, who would have occasion to use timber for the pui’poses defined by the act, might not be able to keep the prescribed record, or to keep it in such exact form as would protect them from prosecution as trespassers. The regulation, then, so far as the keeping of the prescribed record is concerned, must be held applicable to those persons who, like the proprietors of sawmills, are engaged to a considerable extent or who make a business of cutting timber on mineral land and selling it. It was intended to impose on persons of that class the duty of providing themselves with suitable books, and keeping a record of timber cut and removed, so that the government could readily ascertain, by an inspection of the record, the amount cut, and whether it had been devoted to lawful uses. The agreed statement of facts on which the case was tried below recites that the persons who cut the fence posts in controversy were residents of the county of Carbon, and that the posts were taken by the Price Trading Company in exchange for merchandise; and, as no further facts are disclosed by the record, we must infer that the residents referred to were occupants of small tracts of land in Carbon county; that they were engaged in mining or farming on the lands which they severally occupied; that to maintain themselves and their families they severally cut small quantities of cedar posts on the land, and bartered them to the trading company for such supplies as they needed; and that the latter company purchased them with the expectation of selling them to other farmers and ranch-men of Carbon county for fencing. Assuming such to be the circumstances under which the timber was cut and removed, and that It was taken from mineral lands, as the jury appear to have found, we think that the fact that no record was kept of the.cutting did not in itself impair the trading company’s title. Counsel for the government contend, however, that the act of June 8, 1878, last above mentioned, does not at the present time authorize any one to take timber from mineral land, except for his own immediate use, and that under no circumstances can one cut timber for sale to other persons, either for mining, building, agricultural, or other domestic purposes. This conclusion is deduced in the following manner: On the same day that the act last aforesaid was passed, to wit, on June 3, 1878, congress enacted another law (20 Stat. 89, c. 151), entitled “An act for the sale of timber lands in the states of California, Oregon, Nevada and in Washington territory.” The first section of the latter act provided, in substance, that the surveyed public lands of the United States within the states and the territory mentioned in the title of the act, which were chiefly valuable for timber and were unfit for cultivation, might be sold to citizens of the United States, or persons who had declared their intention to become such, in quantities not exceeding 160 acres to any one person, at a minimum price of $2.50 per acre. The second and third sections of that act prescribed the manner in which such timber lands as were made subject to sale might be acquired, and among other things required an applicant for purchase to show by his ap — 247 — plication that the land was unfit for cultivation, and was chiefly valuable for timber and stone; that the purchase was made in good faith, for his own exclusive use, and not for the purpose of speculation; and that he had not entered into an agreement with any person by which the title that he wished to acquire from the government was to be transferred to, or inure to the benefit of, any other person. Then followed a fourth section, which was as follows, so far as it is deemed necessary to quote the same in haec verba: “Sec. 4. That alte)’ the passage of this act it shall he unlawful to cut, or cause or procure to he cut, or wantonly destroyed, any timber growing on any lands of the United States, in said states and territory or remove, or cause to he.removed, any timber from said public lands, with intent to export or dispose of the same; and no owner, master, or consignee of any vessel, or owner, director, or agent of any railroad, shall knowingly transport the same, or any lumber manufactured therefrom; and any person violating the provisions of this section shall be guilty of a misdemeanor, and on conviction, shall be fined for every such offense a sum not less than $100 nor more than $1,000.” .By an act of congress which was approved on August 4, 1892 (27 Stat. 348, c. 375), the act last above mentioned was amended by striking out the words, “states of California, Oregon, Nevada and Washington territory,” where the same occur iu the second and third lines of the act, and inserting in lieu thereof the words “public-land states.” It is very clear that the act of June 3, 1878, relating to the sale of timber lands, which for convenience will he termed the “second act” passed on that day (although it does not appear which act was first passed), had no effect upon the first act, because it related to different states, except the single state of Nevada, which is mentioned in both enactments. It is claimed, however, that when the second act was amended by the act of August 4, 1892, it then operated to take away certain privileges that had been conferred by the first act, and that after August 4, 1892, no occupant of mineral land in the states named in the first act of June 8, 1878, to wit, Colorado, Nevada, Utah, Wyoming, Dakota, Idaho, and Montana, and the territories of New' Mexico and Arizona, could cut a single stick of timber and sell it to his neighbor for building, agricultural, mining, or other domestic purposes without committing a criminal offense. We have not been able to adopt that view of the legislation in question. The first act of June 8, 1878, was in its nature a special act, limited in its operation, and designed for the benefit of the inhabitants of states and territories in many parts of which timber is exceedingly scarce. The second act of the same date dealt with a different subject-matter. It authorized the sale of timber lands in small tracts in four states where timber is more abundant; and having exposed such lands for sale, and provided a means whereby timber could be lawfully acquired, it prohibited, under suitable penalties, the cutting of timber on public lands in those states with intent “to export or dispose of the same.” The amendment to that act on August 4, 1892 (27 Stat. 348, c. 375), was only intended, in our judgment, to extend the provision authorizing the sale of timber iands to all “public-land states.” We can discover nothing in — 248 — the act of August 4, 1892, which leads us to suppose that congress intended to withdraw the privilege which it had conferred by the first act of June 3, 1878, on residents Of those states and territories where there was a dearth of timber, to devote such, timber as was found standing on mineral lands to building, agricultural, mining, and other domestic uses. We are of the opinion that the privilege so conferred was not intended to be affected, and was not in fact affected, by subsequent legislation. Repeals by implication are not favored, especially when a privilege like the one now under consideration is conferred by an act which is limited in its operation, and is in its nature special. If it was the intention of congress to qualify or place any restrictions upon the exercise of the right which was conferred by the first act of June 3, 1878, the intent should have been more clearly expressed and not left clouded with so much of doubt and uncertainty. These views are confirmed by the provisions of an act of congress approved March 3, 1891 (26 Stat. 1093, c. 559), which latter act, as amended by a recent act approved on March 3, 1901, so as to include the state of Nevada, declares that in the states of Colorado, Montana, Idaho, North Dakota, South Dakota, Nevada, and the district of Alaska, in any criminal prosecution or civil action by the United States for a. trespass on timber lands or to recover for timber or lumber cut thereon, it shall be a defense if the defendant shows that the timber was so cut or removed from such lands for use in such state or territory by a resident thereof for agricultural, mining, manufacturing, or domestic purposes, under rules and regulations prescribed by the secretary of the interior, and has not been transported out of the same. It results from what has been said that the present record discloses, presumptively at least, that the trading company had a good title to the posts in controversy when the government first saw fit to challenge its title to the same; and it cannot be said that its subsequent election to sell them to the railroad company instead of disposing of them to farmers and ranchmen of Carbon county for fencing purposes, as it at first intended to do, alters its rights in any respect. Finding no material error in the record, the judgment below is affirmed.