« ForrigeFortsett »
that the value of the same when manufac- | necessary to be mentioned, "every alternate tured was $7.00 per thousand, board meas- section of land designated by odd numbers; for six sections in width on each side of each Fifth. That the lands above described of said roads; which lands were a part of the grant of lands made to the shall be held by the state of Michigan for state of Michigan by an act of the Congress the use and purpose aforesaid: Provided, of the United States approved June 3, 1856, That the lands to be so located shall in no being chapter 44 of volume 11 of the United case be further than fifteen miles from the States Statutes at Large, and that said lands lines of said roads, and selected for, and on were accepted by the state of Michigan by an account of each of said roads: Provided, furact of its legislature approved February 14, ther, That the lands hereby granted shall be 1857, being public act No. 126 of the laws of exclusively applied in the construction of Michigan for that year, and were a part of that road for and on account of which said the lands of said grant within the six-mile lands are hereby granted, and shall be dislimit, so called, outside of the common lim- posed of only as the work progresses, and the its, so called, certified, and approved to said same shall be applied to no other purpose state by the Secretary of the Interior, to aid whatsoever." By the third section it was in the construction of the railroad mentioned enacted that the "said lands hereby granted *in said act No. 126 of the laws of Michigan to the said state shall be subject to the dis
of 1857, to run from Ontonagon to the Wis-posal of the legislature thereof, for the purconsin state line, therein denominated "The poses aforesaid, and no other." Provision Ontonagon & State Line Railroad Company." was made in the fourth section for a sale of the lands for the benefit of the railroads as they were constructed. The last clause provided that "if any of said roads is not completed within ten years no further sales shall be made, and the lands unsold shall revert to the United States."
The finding of facts by the court was in accordance with the foregoing stipulation, with the additional finding that said railroad was never built, and said grant of lands was never earned by the construction of any
And as conclusions of law the court found: First. That the cause of action sued on in this case did not, at the time of the commencement of this action, and does not now, belong to the United States of America.
Second. That the defendants are entitled to judgment herein for the dismissal of the complaint upon its merits.
No exceptions were taken to the findings of fact, and no further requests to find were made. Exceptions were only taken to the conclusions of law found by the court, and for its failure to find other and contrary conclusions.
Upon writ of error sued out from the circuit court of appeals, the judgment of the circuit court dismissing this complaint was affirmed. 34 U. S. App. 575.
Whereupon the United States sued out a writ of error from this court.
Messrs. George Hines Gorman and John K. Richards, Solicitor General, for plaintiff in error.
Mr. W. H. Webster for defendants in
 *Mr. Justice Brown delivered the opinion
of the court:
To entitle the plaintiff to recover in this action, which is substantially in trover, it is necessary to show a general or special property in the timber cut, and a right to the possession of the same at the commencement of the suit. There is no question that the lands belonged to the United States prior to June 3, By an act of Congress passed upon that date (11 Stat. at L. 21, chap. 44), it was enacted that "there be, and hereby is granted to the state of Michigan, to aid in the construction of railroads from Little Bay de Noquet to Marquette, and thence to Ontonagon, and from the last two named places to the Wisconsin state line," with others not
1. Under this act the state of Michigan
is only by statute that the assignee of the les-
In the case of Schulenberg v. Harriman, 21
ceding this, granting public lands to the state of Wisconsin to aid in the construction of railroads in that state, and precisely similar to this act in its terms, was construed by this court as a grant in præsenti of title to the odd sections designated, to be afterwards located; that when the route was fixed their location became certain, and the title, which was previously imperfect, acquired precision and became attached to the lands. As it is stipulated in this case that the lands from which the timber was cut were a part of the grant of June 3, 1856, to the state of Michigan, and were a part of the lands within the six-mile limit, certified and approved to the state by the Secretary of the Interior, no question arises with respect to the identity of the lands.
no title to the lands at the time of the trespass, and no right to the possession of the timber, are in no position to maintain this suit. Neither a deed of land nor an assignment of a patent for an "invention carries with it a right of action for prior trespasses or infringements. Such rights of action are, it is true, now assignable by the statutes of most of the states, but they only pass with a conveyance of the property itself where the language is clear and explicit to that effect. 1 Chitty, Pl. 68; Gardner v. Adams, 12 Wend. 297, 299; Clark v. Wilson, 103 Mass. 219, 223 [4 Am. Rep. 532]; Moore v. Marsh, 7 Wall. 515 [19:37]; Dibble v. Augur, 7 Blatchf. 86; Merriam v. Smith, 11 Fed. Rep. 588; May v. Juneau County, 30 Fed. Rep. 241; Kaolatype Engraving Company v. Hoke, 30 Fed. Rep. 444.
The case of Schulenberg v. Harriman was also an action for timber cut upon lands granted to the state, against an agent of the state who had seized the logs, which had been cut after the ten years had expired for the construction of the railroad, but before any action had been taken by Congress *to forfeit the grant. The complaint in the case alleged property and right of possession in the plaintiffs. It was stipulated by the parties that the plaintiffs were in the quiet and peaceable possession of the logs at the time of their seizure by the defendants, and that such possession should be conclusive evidence of title in the plaintiffs against evidence of title in a stranger, unless the defendant should connect himself with such title by agency, or authority in himself. The title of the plaintiff's was not otherwise stated. It was held that the title to the lands did not revert to the United States after the expiration of the ten years, in the absence of judicial proceed ings in the nature of an inquest of office, or a legislative forfeiture, and that until a forfeiture had taken place the lands themselves and the timber cut from them were the property of the state. Said Mr. Justice Field, in delivering the opinion of the court, p. 64: "The title to the land remaining in the state, the lumber cut upon the land belonged to the state. While the timber was standing it constituted a part of the realty; being severed from the soil its character was changed; it became personalty, but its title was not affected; it continued, as previously, the property of the owner of the land, and could be pursued wherever it was carried. All the remedies were open to the owner which the law affords in other cases of the wrongful removal or conversion of personal property." The same rule regarding the construction of this identical land grant was applied by this court in Lake Superior Ship Canal, R. & I. Co. v. Cunningham, 155 U. S. 354 [39: 183]. Indeed, the principle is too well settled to require the citation of authorities. The case of Schulenberg v. Harriman, 21 Wall. 44 (22: 551], differs from the one under consideration in the fact that no act forfeiting the grant was ever passed; but it is pertinent as showing that under a statute precisely like the present the title to the timber cut before such forfeiture is in the state, and not in the general government.
It follows that the United States, having
So, where a landowner, intrusts another with the possession of his lands, either by lease, by contract to sell, or otherwise, the right of action for trespasses committed dur ing such tenancy belongs to the latter, and except under special circumstances an action for a trespass, such as the cutting of timber, will not lie in favor of the landlord. Greber v. Kleckner, 2 Pa. 289; Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468; Cutts v. Spring, 15 Mass. 135; Lienow v. Ritchie, 8 Pick. 235; Ward v. Macauley, 4 T. R. 489; Revett v. Brown, 5 Bing. 7; Harper v. Charlesworth, 4 Barn. & C. 574; Graham v. Peat, 1 East, 244; Lunt v. Brown, 13 Me. 236; 2 Greenl. Ev. § 616.
Although, as was said by Lord Kenyon in Ward v. Macauley, 4 T. R. 489, "the distinction between the actions of trespass and trover is well settled; the former are founded on possession; the latter on property;"—yet they are concurrent remedies to the extent that, wherever trespass will lie for the unlawful taking and conversion of personal property, trover may also be maintained. The plaintiff is bound to prove a right of possession in himself at the time of the conversion, and if the goods are shown to be in the lawful possession of another by lease or similar contract he cannot maintain_trover for them. Smith v. Plomer, 15 East, 607; Wheeler v. Train, 3 Pick. 255; Gordon v. Harper, 7 T. R. 9; Ayer v. Bartlett, 9 Pick. 156; Fairbank v. Phelps, 22 Pick. 535.
It does not aid the plaintiffs' case to take the position (the soundness of which we by no means concede) that the state held the lands as trustee to deliver them over to the railroads upon certain contingencies, and to return them to the United States in case the conditions subsequent were not performed, since nothing is better settled than that a trustee has the legal title to the lands, and that actions at law for trespasses must be 1 Perry, brought by him, and by him alone. Trusts, § 328, and cases cited; Fenn v. Holme, 21 How. 481 [16: 198].
Certain cases having a contrary bearing will now be considered. Several of these are to the effect that if a man leases an estate for a term of years, and the tenant unlawfully cuts timber, the lessor may sue in trespass, and perhaps in trover, upon the ground that
the title to the land remains in the lessor dur-
certain mill machinery, together with the
In Richard Liford's Case, 11 Coke, 46,
So, in United States v. Cook, 19 Wall. 591
same effect is E. E. Bolles Wooden-Ware Co.
In Wilson v. Hoffman, 93 Mich. 72, the same principle was extended to a plaintiff in ejectment, who was held entitled to maintain an action for trover for logs cut by the defendant during the pendency of the suit, which had been determined in the plaintiff's favor, although the defendant was in possession of the land under a bona fide claim of title adverse to the plaintiff. This is but another application of the doctrine which allows the plaintiff in ejectment to recover mesne profits upon the theory that the land has always been his, and that the defendant illegally obtained possession of it. See also Morgan v. Varick, 8 Wend. 587; Busch v. Nester, 62 Mich. 381, 70 Mich. 525.
In Gordon v. Harper, 7 T. R. 9, it was held In Moores v. Wait, 3 Wend. 104, a person that where goods had been leased as furniture with a house, and had been wrongfully entered into possession of wild lands under a taken in execution by the sheriff, the landlord contract of sale giving him the right of entry could not maintain trover against the sher- and occupancy, reserving to the landlord the iff, pending the lease, because he did not land as security until the payment of the have the right of possession as well as the consideration by withholding the deed. It was held that he had a right to enter and enright of property at the time. The case was distinguished from one where the thing was joy the land for agricultural purposes, but attached to the freehold, and the doctrine of that he had no right to cut timber for any Liford's Case was reiterated, that where other purpose than for the cultivation, imtimber is cut down by a tenant for years the provement and enjoyment of the land as a owner of the inheritance may maintain farm; and that the owner of the inheritance, trover for the timber notwithstanding the who had never parted with his title, might lease because the interest of the lessee in it maintain an action of trover for it against remained no longer than while it was grow- anyone in possession, although a bona fide ing on the premises, and determined instant-purchaser under the occupant. This was also upon the principle that the vendor had ly when it was cut down. See also Mears v. never parted with title to his land. But see London & S. W. Rwy. Co. 11 C. B. N. S. 850; Scott v. Wharton, 2 Hen. & M. 25; Moses Randall v. Cleaveland, 6 Conn. 328; Elliot v. Smith, 2 N. H. 430; Starr v. Jackson, 11 Bros. v. Johnson, 88 Ala. 517.
In Burnett v. Thompson, 51 N. C. (6 Jones, L.) 210, the plaintiff had a life estate pur autre vie in a lease of Indian lands for ninety-nine years, and also a reversion after the expiration of the term. A stranger entered and cut down *cypress trees and carried them off. The plaintiff was permitted to recover. It was held that "if there be a tenant for years or for life, and a stranger cuts down a tree, 423
These cases obviously have no application to one where there has been a conveyance of the fee of the land prior to the cutting of the timber, and no re-entry or analogous proceeding on the part of the vendor for a breach of a condition subsequent.
The same distinction was taken in Farrant v. Thompson, 5 Barn. & Ald. 826, in which
the particular tenant may bring trespass, with the property in the timber which had
But conceding all that is contended for by
We know of no principle of law under which it can be said that timber which was the property of the United States by an act the property of the state when cut becomes of Congress resuming title to the land from in the meantime have been removed hundreds which it was cut, although the timber may of miles from the lands, and passed into the hands of one who knew nothing of the source from which it was derived. It may be, in such a case, that if the state sues for and reaccountable to the United States for the procovers the value of such timber, it might be ceeds in case the government resumed title to the lands.
action of trover. Gordon v. Lowther, 75 N. C. 193; Matthews v. Hudson, 81 Ga. 120;
Farabow v. Green, 108 N. C. 339; Sager v. Galloway, 113 Pa. 500. To sustain this action there must be an immediate right of possession when the timber is cut. This might arise if the severance of the timber involved a breach of obligation on the part of the tenant, but if the timber were cut by a third person, the question would be as to the right to the timber so cut as against the trespasser, and unless the case of Schulenberg v. Harriman is to be overruled, it must
be held to be that of the state.
2. As the United States can take title to the timber involved in this case only through its ownership of the lands, it remains to consider whether the act of March 2, 1889, (25 Stat. at L. 1008, chap. 414), forfeiting the lands granted by this act to aid in the construction of a railroad from Marquette to Ontonagon, operated by relation to revest in the United States title to the timber which had been cut during the winter of 1887 and 1888 and prior to the act of forfeiture. This act provided that "there is hereby forfeited to the United States, and the United States hereby resumes title thereto, all lands heretofore granted to the state of Michigan which are opposite to and coterminous with the uncompleted portion of any railroad, to aid in the construction of which said lands were granted or applied, and all such lands are hereby declared to be a part of the public domain."
The position of the plaintiffs must necessarily be that this act of forfeiture not only revested in the United States the title to the lands as of a date prior to the cutting of the timber in question, but also revested them
lend support to the doctrine that the resump-
The other case is that of Musser v. McRae, 44 Minn. 343. In that case an act of Congress granting lands to the state of Wisconsin in aid of the construction of railroads, provided that it should be lawful for the agents appointed by the railway company, entitled to the grant, to select, subject to the approval of the Secretary of the Interior, from the public lands of the United States, "deficiency" lands within certain indemnity limits. It was held that the issuance of a patent to the railway company for the lands
so selected was evidence that the company had complied with all the conditions of the grant, and was entitled to the lands described therein, and that the title passed from the United States at the date of the selection. And it was further held that where, after the lands had been so selected, but prior to the issue of the patent, *timber had been wrongfully cut and removed by trespassers, the title acquired by the patents must be held to relate back to the selection of the lands, so as to save the purchasers to whom the lands had been granted, a right of action for the timber wrongfully removed from the land, or its value.
These cases are distinguishable from the one under consideration in the fact that the plaintiffs had an inchoate title to the lands, a title which no one could disturb, and which the state was bound to perfect by the issue of a patent, provided the plaintiffs followed up their application. We do not think the doctrine of these cases ought to be extended.
The issue presented for decision is the right of the United States to recover in an action of trover the proceeds of timber cut from the land by a trespasser while the legal title was in the state, but after the period had elapsed when the right in the United States to assert a forfeiture had arisen. The decision of the court is that a recovery cannot be had, because at the time of the severance of the timber by the trespasser the legal title was in the state. It is thus in effect decided that it was in the power of a trespasser, while the legal title to the land and its incidents was in the state, to destroy the value of the land by severing and appropriat ing the timber, and that there exists no remedy by which the right of property of the United States can be protected. Such a consequence strikes me as so abnormal that I cannot bring my mind to assent to its cor3. Nor are the plaintiffs entitled to avail rectness; and, thinking as I do that it inthemselves of the rule that in an action of volves a grave denial of a right of property, trover a mere trespasser cannot defeat the not only harmful in the case decided, but plaintiff's right to possession by showing a harmful as a precedent for cases which may superior title in a third person without show-arise in the future, I state the reasons for ing himself in privity or connecting himself my dissent. with such third person. The cases in which At the outset it becomes necessary to dethis principle is applied are confined to those termine the nature of the rights of the state where the plaintiffs were either in possession and those of the United States created by of the property or entitled to its immediate and flowing from the act of donation. That possession, and thus showed a prima facie the land from which the timber was cut be right thereto. It has no application to cases longed to the United States at the time of wherein the plaintiff has shown no such right the grant goes without saying. It was conto bring the action. Jeffries v. Great West-veyed by the act of Congress to the state, ern Railway Co. 5 El. & Bl. 802; Weymouth not for the use and benefit of the state, but v. Chicago & N. W. Railway Co. 17 Wis. 550 for the sole purpose of aiding in the con[84 Am. Dec. 763]; Wheeler v. Lawson, 103 struction of a railroad. The state had no N. Y. 40; Halleck v. Mixer, 16 Cal. 574; right to dispose of the land except for the Terry v. Metevier, 104 Mich. 50; Stevens v. declared object; and while it is true that a Gordon, 87 Me. 564; Fiske v. Small, 25 Me. power to sell the land was vested by the 453. Counsel are mistaken in supposing act in the state, it was a power which the that the plaintiffs had an immediate right to state could only call into being as the work the possession of this timber. They had no progressed, and, to quote from the act, "for right to the possession of the land until Con- the purposes aforesaid and no other,"gress passed the act of March 2, 1889, forfeit- that is, the specific object stated, namely, the ing the grant. Up to that time the title was construction of the railroad referred to. in the state, and until then the United States The granting act clearly imported that in had no more right to enter and take posses- the event of a forfeiture before the land had sion than they would have had to take pos- been earned and conveyed by the state, the session of the property of a private individu-land should be restored to the United States al. in its integrity. As the plaintiffs failed to show title to or right of possession to the timber in question, there was no error in the action of the court of appeals, and its judgment is therefore affirmed.
220] *Mr. Justice White, with whom concur
The United States donated the land from
States. The road was never built, and the granted land was forfeited by act of Congress, because of noncompliance with the conditions contained in the grant.
I submit that the effect of the act of Congress was to create a trust in the land and to vest the legal title thereto, with incidents such as timber, in the state of Michigan for the purposes of the trust, to hold. primarily, for the benefit of the owners of a line of railroad if constructed, and, secondarily, for the benefit of the United States, in the contingency that a forfeiture was declared for a breach of the condition subsequent as to the time of completion of the road. The state, in all reason, was bound to restore the land and timber which passed to its possesion to the United States, upon the declaration of the forfeiture, retaining no benefit whatever from the land for itself by reason of such custody and control. Being clothed with the legal estate in the land, the state,