US SUPREME COURT DECISIONS

A person who, without authority, cuts wood from public lands of the

United States, not mineral, or purchases such wood so cut, and leaves it, when cut or purchased, upon such public lands near a railroad, has no right of possession of, or title to, or ownership in it, and cannot maintain an action against the corporation owning such railroad for its destruction by fire caused by sparks from locomotives of the company.

This action was brought by the defendants in error against the railroad company to recover damages for the destruction of some 10,000 cords of wood by fire communicated to the wood by sparks from the engines of the company.

It was alleged in the amended complaint that the railroad company neglected and failed, for a long time prior to the happening of the fire, and while using and operating their railroad, to keep each side of the railroad track free from dead grass, weeds, brush, and other dangerous and combustible material, as by law they were required to do, and that the company used locomotives which threw from their smokestacks large amounts of live cinders and sparks, and that the company carelessly and negligently operated and used its road, and by reason thereof, and on the 5th day of August, 1890, in Jefferson County, Montana, set fire to the grass, weeds, and other combustible and dangerous material which the defendant had negligently and carelessly allowed to remain by the side of the track, and the fire spread rapidly, and consumed and destroyed the cordwood belonging to the plaintiffs, as partners, then being in Jefferson County, Montana, and along and near the railroad track, of the amount of 9,400 cords and of the value of $25,350.

The defendant, by its answer, denied all negligence and denied

"that on or about the date aforesaid or on any other

Page 162 U. S. 367

day or date the defendant set any fire which consumed or destroyed any cordwood belonging to the plaintiffs or any or either of them."

The defendant also put in issue the value of the cordwood, and alleged that whatever was lost was lost through the contributory negligence of the plaintiffs.

The case came on for trial at the Circuit Court of the United States for the Ninth Circuit, for the district of Montana, held in December, 1891, and January, 1892, and resulted in a verdict for the plaintiffs for the sum of $21,487.83. The company sued out a writ of error from the United States Circuit Court of Appeals for the Ninth Circuit, and that court affirmed the judgment. 51 F.6d 8. The company then sued out a writ of error from this Court.

Upon the trial of the action, the plaintiffs, to maintain the issues on their part, introduced evidence tending to show that in the month of April in the year 1889, they entered upon a portion of the unsurveyed public domain of the United States lying on the easterly slope of the Rocky Mountains in the County of Jefferson, State of Montana, and there chopped and caused to be chopped about 10,000 cords of wood from the timber then standing and growing upon such public lands; that the wood was cut over an area of country about three miles, north and south, and about two by two and a half miles, east and west; that the wood so cut was white pine, and much of it was made of trees of less diameter than eight inches. The plaintiffs also gave evidence that they were citizens of the United States, and that the plaintiff George S. Lewis at the date of the cutting of said wood, was a resident of Butte, Montana, and that the other plaintiffs resided at White Sulphur Springs, in the State of Montana. It was further shown that after the wood was cut, it was drawn to a point near the railroad, and there piled; that the place where the wood was so piled was on the unsurveyed public lands of the United States, and about 200 yards south of the railroad operated by the defendant.

Plaintiffs also gave evidence tending to show that they had purchased from various parties, during the summer of 1890, about 5,000 cords of white pine cordwood, which had also chanrobles.com-red

Page 162 U. S. 368

been cut on the public unsurveyed lands of the United States, some of it on the tract of country from which plaintiffs had cut, and the remainder was cut on the north side of the railroad track above mentioned, and over a strip or area of country about two miles in length. Further evidence was given on the part of plaintiffs tending to show negligence on the part of the defendant either in the construction or in the management of its engines, and tending to show that the fire which destroyed the wood in question was communicated to it as alleged in the amended complaint.

Evidence was given on the part of the defendant tending to show that it was not guilty of any negligence in the premises, and that it was not liable for the results of any fire which may have destroyed the wood in question.

At the conclusion of all the evidence, the defendant moved the court to instruct the jury to return a verdict for it upon the grounds:

"1. That the title or ownership of the wood is directly in issue, and the testimony does not show that the plaintiffs had either a general or special property in the said cordwood or any thereof."

"3. The testimony shows that at the time said cordwood was destroyed, the same was the property of the United States, and that, in and about the cutting and removal thereof from the public unsurveyed lands of the United States, the said plaintiffs were trespassers and wrongdoers."

"3. The testimony does not show that the lands whereon the cordwood was cut were distinctly mineral in character, or were more valuable for the mineral therein contained than for agricultural purposes, or for the timber growing thereon."

"4. The testimony does not show that such cordwood was cut under the license granted by the act of Congress of June 3, 1878, or in compliance with the rules and regulations established thereunder by the Secretary of the Interior, but, on the contrary, the evidence clearly shows that the said cordwood, and the whole thereof, was cut in utter disregard of said act of Congress and the said rules and regulations of the Secretary of the Interior. "

Page 162 U. S. 369

"5. Because the testimony shows that said cordwood was the property of the United States, and that plaintiffs have neither right nor title thereto nor the possession thereof."

Other grounds were stated not material to be now considered.

The court denied the motion and refused to so instruct the jury, and the defendant duly excepted.

The defendant then, among other requests, asked the court to charge the jury that,

"it being shown conclusively by the testimony in this case that plaintiffs cut said cordwood on lands belonging to the United States, that such cordwood was so cut without license or authority of the United States, and was not removed from such lands at the date it was consumed, the plaintiffs did not have either the actual or constructive possession of such wood at the date of its destruction, and are therefore not entitled to recover."

This request was refused, and defendant duly excepted.

The court was further asked to charge that

"if you should find from the testimony that plaintiffs purchased some of this wood from other parties, who had cut it from trees growing in that vicinity, this will make no difference so far as their right to or ownership of such wood is concerned. The region of country where this cutting was done being public unsurveyed lands of the United States, the plaintiffs were bound at their peril to take notice of the fact that the timber growing thereon was the property of the United States, and could only lawfully be severed therefrom under the provisions of the act of Congress of June 3, 1878, and in compliance with the rules and regulations established thereunder. In order to prove their title to so much of the wood as was purchased, it is not enough to show that they bought it of a certain named person, but plaintiffs must go further and show that the person had acquired title to it by compliance with the act of Congress and rules and regulations prescribed by the Secretary of the Interior. If the person cutting such wood was himself a trespasser, he acquired no title to the wood cut, and could convey none to plaintiffs. The rightful owner of such wood could follow it and reclaim it no matter where or in whose possession it might be found, so long as he could identify it. "

Page 162 U. S. 370

This request the court refused, and the defendant duly excepted to such refusal.

Among many other assignments of error made by the defendant is the following:

"The court also erred in refusing to give the instruction requested by the defendant in the following words, to-wit:"

"It being shown conclusively, by the testimony in this case, that plaintiffs cut said cordwood on lands belonging to the United States, that such cordwood was so cut without license or authority of the United States, and was not removed from such lands at the date when it was consumed, the plaintiffs did not have either the actual or constructive possession of such wood at the date of its destruction, and are therefore not entitled to recover.

Page 162 U. S. 372

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