ure.

.

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 [208]*in said act No. 126 of the laws of Michigan to the said state shall be subject to the dis

the title to the land remains in the lessor dur-
ing the pendency of the lease.

certain mill machinery, together with the
mill, had been demised for a term to a ten-
ant, and he, without permission of his land-
lord, severed the machinery from the mill,
and it was afterwards seized under execu.
tion by the sheriff and sold by him. It was
held that no property passed to the vendee,
and the landlord was entitled to bring trover
for the machinery, even during the continu-
ance of the term, upon the ground that the
machinery attached to the mill was a part
of the inheritance which the tenant had a
right to use, but not to sever or remove.

In Richard Liford's Case, 11 Coke, 46,
which was an action of trespass by a tenant
against the agent of the owner of the inherit-
ance for certain trees cut, it was said "that
when a man demises his land for life or
years the lessee has but a particular interest
in the trees, but the general interest of the
trees remains in the lessor; for the lessee
shall have the mast and fruit of the trees,
and shadow for his cattle, etc., but the inter-
est of the body of the trees is in the lessor
as parcel of his inheritance; and this appears
in 29 Hen. VIII. [Malever v. Spinke] 1
Dyer, 36, where it is held in express words
that it cannot be denied that the property of
great trees, scil. the timber, is reserved by
the law to the lessor, but he cannot grant it
without the termor's license, for the termor
has an interest in it, scil. to have the mast
and fruit growing upon it, and the loppings
thereof for fuel, but the very property of the
tree is in the lessor as annexed to his inherit-
ance." Again, speaking of disseisin and the
respective rights of the disseisee and disseis-
or when the former regains possession, it is
said: "That after the regress of the dissei-
see the law adjudges, as to the disseisor him-
self, that the freehold has continued in the
disseisee, which rule and reason doth extend
as well to corn as to trees or grass, etc. The
same law, if the feoffee, or lessee, or the sec-
ond disseisor, sows the land, or cuts down
trees or grass, and severs, and carries away,
or sells them to another, yet after the regress
of the disseisee he may take as well the corn
as the trees and grass to what place soever
[214]they are carried; for the regress of the dis-
seisee has relation as to the property, to con-
tinue the freehold against them all in the
disseisee ab initio, and the carrying them out
of the land cannot alter the property."

So, in United States v. Cook, 19 Wall. 591
[22: 210], it was held that timber standing
upon lands occupied by Indians cannot be
cut by them for the purposes of sale, although
it may be for the purpose of improving the[215]
land, as the Indians had only the right of
occupancy, and the presumption was against
their authority to cut and sell the timber.
In such case the property in the timber does
not pass from the United States by severance,
and they may maintain an action for unlaw-
ful cutting and carrying it away. To the

same effect is E. E. Bolles Wooden-Ware Co.
v. United States, 106 U. S. 432 [27: 230]

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.

Mass. 519.

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[216] 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
and recover damages for breaking his close, been cut while the lands belonged to the
treading down his grass, and the like. But state of Michigan. Had this act of forfeit-
the remainderman, or reversioner in fee, is ure not been passed, there could be no ques-
entitled to the tree, and, if it be converted, tion that, under the case of Schulenberg v.
may bring trover and recover its value. The Harriman, 21 Wall. 44 [22:551], this timber
reason is, the tree constituted a part of the would have belonged to the state of Mich-
land, its severance was waste, which is an in-igan, and no other action therefor could have
jury to the inheritance, consequently the been brought by the United States.
party in whom is vested the first estate of
inheritance, whether in fee simple or fee tail
(for it may last always), is entitled to the
tree, as well after it is severed, as before;
his right of property not being lost by the
wrongful acts of severance by which it is
converted into a personal chattel." See also
Halleck v. Mixer, 16 Cal. 574.

But conceding all that is contended for by
the plaintiffs with respect to the revestiture
of the title to the lands by this act, it does
not follow that the title to the timber which
had been cut in the meantime was also re-
vested in the United States. As was said in
Schulenberg v. Harriman, the title to the
timber remained in the state after it had been
While these cases run counter to some of severed. But it remained in the state as a
those previously cited, they are all distin- separate and independent piece of property,
guishable from the one under consideration and if the state had elected to sell it a good
in the fact that the plaintiff was the owner title would have thereby passed to the pur-
of the inheritance, and had the legal title to chaser, notwithstanding the subsequent act
the land at the time the trespass was com- of forfeiture. It did not remain the proper-
mitted. We see nothing in them to disturb ty of the state as a part of the lands, but as
the doctrine announced by this court in a distinct piece of property, although the
Schulenberg v. Harriman, 21 Wall. 44 [22: state took its title thereto through and in
551], that timber cut upon the lands prior consequence of its title to the lands. From
to the forfeiture belongs to the state. The the moment it was cut the state was at liber-
fact is that nothing remained of the original ty to deal with *it as with any other piece of[218]
title of the United States but the possibil-N. C. (10 Ired. L.) 490 [51 Am. Dec. 400].
personal property. Brothers v. Hurdle, 32
ity of a reversion, a contingent remainder,
which would be an insufficient basis for an

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 [217]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-
Two cases cited by the Solicitor General
tion of title by the United States operates
upon the timber already cut, as well as upon
the lands. In the first of these, Heath v.
Ross, 12 Johns. 140, the action was in trover
for a quantity of timber cut upon lands for
which the plaintiff had applied for a patent
before the timber was cut. The patent was
not granted until after the timber was cut.
The patent was held, upon well-settled prin-
ciples, to relate back to the date of applica-
tion. The defendant knew he had no title
to the lot or right to cut the timber.
plaintiffs were held entitled to recover.

The

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 [219]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[221] 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
Mr. Chief Justice Fuller and Mr. Justice
Harlan, dissenting:

The United States donated the land from
which the timber was cut to the state of
Michigan in aid of a contemplated railroad.
The donating act dedicated the property thus
conveyed to the state, for the sole purpose of
aiding in the construction of the railroad,
and it contained a provision that if the road
was not built within a designated period the
land conveyed was to revert to the United

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,