the title to the land remains in the lessor dur- | certain mill machinery, together with the ing the pendency of the lease.

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 inheritance 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 interest 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 inheritance." Again, speaking of disseisin and the respective rights of the disseisee and disseisor when the former regains possession, it is said: "That after the regress of the disseisee the law adjudges, as to the disseisor himself, 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 second 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 disseisee has relation as to the property, to continue the freehold against them all in the disseisee ab initio, and the carrying them out of the land cannot alter the property."

In Gordon v. Harper, 7 T. R. 9, it was held that where goods had been leased as furniture with a house, and had been wrongfully taken in execution by the sheriff, the landlord could not maintain trover against the sheriff, pending the lease, because he did not have the right of possession as well as the right of property at the time. The case was distinguished from one where the thing was attached to the freehold, and the doctrine of Liford's Case was reiterated, that where timber is cut down by a tenant for years the owner of the inheritance may maintain trover for the timber notwithstanding the lease because the interest of the lessee in it remained no longer than while it was grow ing on the premises, and determined instantly when it was cut down. See also Mears v. London & S. W. Rwy. Co. 11 C. B. N. S. 850; Randall v. Cleaveland, 6 Conn. 328; Elliot v. Smith, 2 N. H. 430; Starr v. Jackson, 11 Mass. 519.

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

mill, had been demised for a term to a tenant, and he, without permission of his landlord, 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 continuance 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.

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]

same principle was extended to a plaintiff
In Wilson v. Hoffman, 93 Mich. 72, the
in ejectment, who was held entitled to main-
tain an action for trover for logs cut by the
which had been determined in the plaintiff's
defendant during the pendency of the suit,
favor, although the defendant was in pos-
session of the land under a bona fide claim
of title adverse to the plaintiff. This is but
another application of the doctrine which al-
lows 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 Moores v. Wait, 3 Wend. 104, a person
entered into possession of wild lands under a
contract of sale giving him the right of entry
and occupancy, reserving to the landlord the
land as security until the payment of the
consideration by withholding the deed. It
was held that he had a right to enter and en-
joy the land for agricultural purposes, but
that he had no right to cut timber for any
other purpose than for the cultivation, im-
provement and enjoyment of the land as a
farm; and that the owner of the inheritance,
who had never parted with his title, might
maintain an action of trover for it against
anyone in possession, although a bona fide
purchaser under the occupant. This was al-
so upon the principle that the vendor had
never parted with title to his land.
Scott v. Wharton, 2 Hen. & M. 25; Moses
Bros. v. Johnson, 88 Ala. 517.

But see

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,

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 forfeitthe remainderman, or reversioner in fee, is ure not been passed, there could be no quesentitled 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 Michland, 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.

While these cases run counter to some of those previously cited, they are all distinguishable from the one under consideration in the fact that the plaintiff was the owner of the inheritance, and had the legal title to the land at the time the trespass was committed. We see nothing in them to disturb the doctrine announced by this court in Schulenberg v. Harriman, 21 Wall. 44 [22: 551], that timber cut upon the lands prior to the forfeiture belongs to the state. The fact is that nothing remained of the original title of the United States but the possibility of a reversion, a contingent remainder, which would be an insufficient basis for an

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 in volved 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

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 revested in the United States. As was said in Schulenberg v. Harriman, the title to the timber remained in the state after it had been severed. But it remained in the state as a separate and independent piece of property, and if the state had elected to sell it a good title would have thereby passed to the purchaser, notwithstanding the subsequent act of forfeiture. It did not remain the property of the state as a part of the lands, but as a distinct piece of property, although the state took its title thereto through and in consequence of its title to the lands. From the moment it was cut the state was at liberty to deal with *it as with any other piece of[218] N. C. (10 Ired. L.) 490 [51 Am. Dec. 400]. personal property. Brothers v. Hurdle, 32

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 recovers the value of such timber, it might be accountable to the United States for the proceeds in case the government resumed title to the lands.

Two cases cited by the Solicitor General lend support to the doctrine that the resumption 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 principles, to relate back to the date of application. The defendant knew he had no title to the lot or right to cut the timber. The plaintiffs were held entitled to recover.

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.

3. Nor are the plaintiffs entitled to avail themselves of the rule that in an action of trover a mere trespasser cannot defeat the plaintiff's right to possession by showing a superior title in a third person without showing himself in privity or connecting himself with such third person. The cases in which this principle is applied are confined to those where the plaintiffs were either in possession of the property or entitled to its immediate possession, and thus showed a prima facie right thereto. It has no application to cases wherein the plaintiff has shown no such right to bring the action. Jeffries v. Great Western Railway Co. 5 El. & Bl. 802; Weymouth v. Chicago & N. W. Railway Co. 17 Wis. 550 [84 Am. Dec. 763]; Wheeler v. Lawson, 103 N. Y. 40; Halleck v. Mixer, 16 Cal. 574; Terry v. Metevier, 104 Mich. 50; Stevens v. Gordon, 87 Me. 564; Fiske v. Small, 25 Me. 453. Counsel are mistaken in supposing that the plaintiffs had an immediate right to the possession of this timber. They had no right to the possession of the land until Congress passed the act of March 2, 1889, forfeiting the grant. Up to that time the title was in the state, and until then the United States had no more right to enter and take possession than they would have had to take possession of the property of a private individu


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 noncomplianc, with the conditions contained in the grant.

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 appropriating 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 correctness; and, thinking as I do that it involves a grave denial of a right of property, not only harmful in the case decided, but harmful as a precedent for cases which may arise in the future, I state the reasons for my dissent.

At the outset it becomes necessary to determine the nature of the rights of the state and those of the United States created by and flowing from the act of donation. That the land from which the timber was cut be longed to the United States at the time of the grant goes without saying. It was conveyed by the act of Congress to the state, not for the use and benefit* of the state, but[221] for the sole purpose of aiding in the construction of a railroad. The state had no right to dispose of the land except for the declared object; and while it is true that a power to sell the land was vested by the act in the state, it was a power which the state could only call into being as the work progressed, and, to quote from the act, "for the purposes aforesaid and no other,"that is, the specific object stated, namely, the construction of the railroad referred to. The granting act clearly imported that in the event of a forfeiture before the land had been earned and conveyed by the state, the land should be restored to the United States in its integrity.

I submit that the effect of the act of Con

gress 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 possession 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,

gendered an express trust, is wholly unnec
essary, since it is admitted that had the
the state through its agents cut timber upon
the land before the passage of the forfeiture
act, a right of action would have arisen on
behalf of the United States against the
state as upon a covenant by the state that
it would keep the land and its incidents for
railway purposes only. This conclusion nec-
essarily carries with it as a legal resultant
the proposition that the granting act contained
an express trust. How, then, I submit, can
it in reason be held that there was a right
which could only exist upon the hypothesis
of an express trust arising from the grant-
ing act, and yet it at the same time be de-
cided that there was no trust whatever im-
plied in the act, or that the rights which
would obtain if there were a trust have no
It cannot be doubted that the act

while it so held the land, "possessed all the power and dominion over it that belonged to an owner." Stanley v. Colt, 5 Wall. 167 [18: 510]. As the timber when severed belonged to the true owner of the land, the state, as the trustee of an express trust and representing such owner, was the proper party, during the continuance of the trust, to recover any portion of the inheritance wrongfully converted by a trespasser, and this would have been the case even if the United States had stipulated to retain possession until a conveyance of the land by the state. Wooderman v. Baldock, 8 Taunt. 676; White v. Morris, 11 C. B. 1015; Barker v. Furlong [1891] 2 Ch. 172; Myers v. Hale, 17 Mo. App. 204. Clearly this was so, because, to maintain replevin or trover, it is 22] essential that the plaintiff "have at the time of suit brought the legal title to the prop-being? erty, and, until the enactment of the forfeit-restricted the use to a particular purpose, ing act, the legal title to this timber was in nor can it be gainsaid that the right of rethe state of Michigan. entry was stipulated only as respects the

use was unaccompanied with a clause of reentry, the effect was to give rise to a trust upon the grantee with reference to such use. This last principle, I submit, is sustained by authority. Stanley v. Colt, 5 Wall. 119, 165 [18: 502, 509]; Packard v. Ames, 16 Gray, 329, and cases cited; Sohier v. Trinity Church, 109 Mass. 1, 19.

It was manifestly because the legal title non-completion of the railroad. But the was in the state that this court in Schulen-failure to preserve a right of re-entry in berg v. Harriman, 21 Wall. 44 [22: 551], case of the misuse of the property did not declared that a state was the owner of tim-destroy the terms of the act restricting the ber which had been wrongfully cut by tres-use, and as, therefore, the restriction as to passers from land granted in aid of a railroad by a statute similar to the one above referred to. The Schulenberg action was instituted, however, at a time when no forfeiture had been declared, and the controversy was simply between a trespasser and the state as to their respective rights in timber which had been unlawfully severed from the granted land. That land so conveyed, with all that formed part thereof, was deemed to be held upon trust is manifest from the opinion, for, speaking through Mr. Justice Field, the court said, p. 59 [22: 554]: "The acts of Congress made it a condition precedent to the conveyance by the state of any other lands that the road should be constructed in sections of not less than twenty consecutive miles each. No conveyance in violation of the terms of those acts, the road not having been constructed, could pass any title to the company."

And this view was reiterated by this court, speaking through Mr. Justice Brewer, in Lake Superior Ship Canal R. & I. Co. v. Cunningham, 155 U. S. 354 [39: 183], when, in interpreting the very statute now under consideration, it was said, p. 373 [39: 190]: "Further, the grant to the state of Michigan was to aid in the construction of a railroad. Affirmatively, it was declared in the acts of Congress that the lands should be applied by the state to no other purpose. Even if there had been no such declaration such a limitation would be implied from the declaration of Congress that it was granted for the given purpose. As the state of Michigan had no power to appropriate these lands to any other purpose, certainly no act of any executive officer of the state could accomplish that which the state itself had no power to do."

To reason, however, to establish that, in so far as the granting act restricted the state (223] to the use of the land and that which adhered in it for a particular purpose, it en

As the state held the land with power simply to sell on the happening of a particular event, until the occurrence of that event the state had no greater rights in the land than would have existed in favor of one who was entitled to the mere use and occupancy of the land. It could not therefore sell the timber for purposes of mere profit, for, as said in United States v. Cook, 19 Wall. 591 [22: 210]:

"The timber while standing is a part of the realty, and can only be sold as the land could be. The land cannot be sold, consequently the timber, until rightfully severed, cannot be."

If, therefore, the state could not rightfully acquire the absolute ownership, in its own[224] right, of timber, the cutting of which it had authorized, it is clear that it would not be come such owner by reason of the unlawful act of an unauthorized person. As the state of Michigan was without power to have authorized a sale of the timber contrary to the purpose of the trust, it is obvious that the act of a mere trespasser, without authority from the state, in denuding the land of its timber, could not operate to vest the state or the trespasser with the absolute ownership, in its or his own right, of said timber; and it is the settled doctrine of this court that the sale of timber by a trespasser does not devest the title of the real owner, and that a purchaser, even though acting in good faith, is liable to respond to the true owner for the timber or its value. United States v. Cook, 19 Wall. 591 [22: 210]; E. E. Bolles Wooden-ware Co. v. United States. 106 U. S.

432 [27: 230]; Stone v. United States, 167 | magis valeat quam pereat." And in Lord U. S. 192, 195 [42: 133, 134].

The simple question presented, then, is this, and this alone: Where the legal title to land, with its incidents, is in one person burdened with an express trust in favor of another, can the cestui que trust, upon the cessation of the trust, when the title to the land and its incidents has revested in him, recover from a wrongdoer the value of timber cut, without color of right and unlawfully removed from the land while the legal title and possession thereto was in the trustee?

Coke's comments on the case he observes (p. 30a): "The law will never make any fiction, but for necessity and in avoidance of mischief."

Early in England the doctrine of relation was applied in favor of the King in cases where, until office found, the title or right of possession to property, real or personal, was not in the Crown. Thus, Viner in the eighteenth volume of his Abridgment, at page 292, title Relations, states the following


This question is, I think, fully answered by the rulings of this court in Schulenberg v. Harriman and Lake Superior Ship Canal R. & 1. Co. v. Cunningham, supra, because, as already stated, in the first case it was said that "no conveyance in violation of the terms of these acts, the road not having been constructed, could pass any title to a grantee of the state;" and in the second, that, "as the state of Michigan had no power to appropri Several instances of the application of the ate these lands to any other purpose, certain-doctrine in favor of the King are referred to ly no act of any executive officer of the state at length in the report of the case of Nichols could accomplish that which the state itself v. Nichols, 2 Plowd. 488 et seq., one of which, had no power to do." Now, no one will gain- I submit, is precisely parallel to the case at say that this court in those cases declared bar, and is thus stated in the report: that if the land was conveyed in violation of the terms of the act of Congress, an occupant under such an unlawful grant might be ousted by the United States, either forcibly [225]*or by suit in ejectment. With this doctrine thus settled by this court in opinions which are now approvingly cited, is it yet to be held that if the occupant under a void grant from the state before forfeiture denuded the land of all its timber, that is, of one of its material incidents,-the land might be recovered by the United States from the trespasser, but not the timber or its value? I submit that, upon general considerations, as between the wrongdoer and the cestui que trust, the better right is in the latter, that such right can be enforced, and that though ordinarily in an action of trover it is essential that the plaintiff should have had at the time of the unlawful conversion the legal title and right of possession to the property claimed by him, yet, under such circumstances as I have indicated, a title by relation is a sufficient basis

“2. In quare impedit, where the King is entitled to the *advowson by office by death of[226] his tenant, the heir being within age and in ward of the King by tenure in capite, this office shall have relation to the death of the tenant of the King; so that if there be a mesne presentment the King shall avoid it by relation. (Br. Relations, pl. II. cites 14 H. VII. 22.)"

for the action.

"In an action of trespass brought in 19 Edw. IV. for entering into a close and taking the grass, the defendant pleaded that it was found by office that the tenement escheated to the King before the day of the trespass, and there it seems that, as to such things as arise from the land, as the grass, and the like, the action which was well given to the plaintiff was taken away by the office found afterwards, which by its relation entitled the King thereto; but, as to the entry into the land, or breaking of fences, which don't arise from the land, nor are any part of the annual encrease of it, the action was not taken away by the office."

This last case is reviewed, approvingly, in the opinion of Bayley, J., in Harper v. Charlesworth, 4 Barn. & C. 587, where, in an action of trespass brought by one in the pos session of lands under a parol license from agents of the Crown, which possession was not good as against the Crown because not granted in conformity to statute, it was adjudged that, as the King had not proceeded against the occupant, the action might be maintained, though the right of such occupant to recover for the trees was denied in the opinion of Holroyd, J., presumably because they form part of the inheritance.

The doctrine was early enforced in England to vest a right of action in trover in an administrator. In 18 Viner's Abr., title Relation, p. 285, it is said:

Relation is a fiction of law, adopted solely for the purposes of justice (Gibson v. Chouteau, 13 Wall. 100 [20: 537]), and by it one who equitably should be so entitled is enabled to assert a remedy for an injury suffered, which otherwise would go unredressed. The doctrine is considered at much length in Butler v. Baker, 3 Coke, 25, in resolutions of the Justices of England and the Barons of the Exchequer, and "many notable rules and "(1. If a man dies possessed of certain cases of relations" (p. 35b) are there stated. goods, and after a stranger takes them and The action was trespass, and the refusal of a converts them to his own use, and then adwife, after the death of the husband, to ac-ministration is granted to J. S., this admincept a jointure by which an estate tail had vested in her prior to the death of the husband, was held to relate back as to certain lands, and not as to others. It was laid down (p. 286) "that relation is a fiction of law to make a nullity of a thing ab initio (to a certain intent) which in rei veritate had essence, and the rather for necessity, ut res

istration shall relate back to the death of the
testator, so that J. S. *may maintain an ac-[227]
tion of trover and conversion for this con-
version before the administration granted to
him. Trin. 10 Car. B. R. between Locksmith
and Creswell adjudged, this being moved in
arrest of judgment, after verdict for the
plaintiff. Intratur. Hill, 9 Car. Rot. 729.)"

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