Opinion of the Court.

was delivered with the transportation requests to the agent of the Southern Pacific. Why it should have been delivered without demand, under the circumstances, does not to our satisfaction appear. It is true that there is in the record a statement made five years subsequent to the transaction by the then regimental quartermaster in a letter to the Assistant Attorney General, in the record by stipulation, to the effect that he accepted a new bill of lading at El Paso on telegraphic instructions from "superior authority" received by him on or immediately preceding his arrival at El Paso, but (1) this telegram is not in the record. It is reasonable to assume that under such circumstances he would have preserved the telegram for his own protection, especially in view of the explicit instructions given him as to his procedure, and if he did not preserve it there is recourse to the files of the office from which it emanated, and almost constant consideration of matters involving reports from the departments familiarizes us with the practice of preserving office copies of all instructions sent out. (2) That the telegram contained such instructions is in conflict with other statements in the record, and (3) no reason is shown for the abrogation of or departure from the instructions set out in Finding IV. We have therefore declined to find the fact in reference to this telegram as stated. If anything had transpired subsequent to the issuance of the instructions referred to which necessitated a change of policy to obviate delay and resulted in peremptory instructions to the regimental quartermaster to accept a new bill of lading at El Paso, it was the duty of the defendant to present the facts to the court, and if it suffers by reason of its failure the fault is its own. It is difficult, however, to conceive a reason for such peremptory instructions to avoid delaying a train, which, allowing ample time for the transmission of the telegram, must have been well on its way west of El Paso before the telegram was sent.

The bill of lading upon which the Southern Pacific Co. predicated its claim for the payment made to it for the movement from El Paso to San Francisco is in the record, and, as indicated in the findings, has peculiar features. The channel through which it traveled until it was finally found

Opinion of the Court.

in the hands of the quartermaster at San Francisco does not appear. If it came into life at El Paso and was there and at the time that the troop train was there, signed by the representative of the Southern Pacific Co., it was then a bill of lading issued for freight already many miles on its travels toward its destination under another bill of lading. The whole procedure with reference to it is such as to furnish some room at least for question as to the good faith of its issuance and acceptance. With that, however, we are not necessarily concerned.

At San Francisco plaintiff's through bill of lading and the Southern Pacific Co.'s bill of lading from El Paso were both accomplished, as shown in the findings, and certain indorsement was put on each bill of lading referring to the other, but these indorsements were placed thereon some time after the bills were both accomplished, and it seems to us can have no bearing on the question involved. The Government's relations primarily were with the plaintiff, and upon receipt of the shipment at San Francisco it accomplished the plaintiff's bill of lading. This, it would seem, accompanied by performance by the plaintiff of its contract within the required time, entitles the plaintiff to payment of its contract price for the service rendered unless something had intervened which brought the transaction within the provisions of the supplemental agreement, and entitled the United States to deduct some necessarily incurred expense therefrom. We think the facts found show quite clearly not only that there was no delay at El Paso but that there was no such threatened delay as justified the United States in incurring any additional expense in avoidance thereof, and whether or not by its procedure in the matter it obligated itself to make a separate payment at an increased rate to the Southern Pacific Co. for the service performed by it, a question we do not decide, it seems quite clear that it did not incur such additional cost under any such circumstances as entitled it to make a charge thereof against the plaintiff.

We conclude that the plaintiff is entitled to recover the sum of $3,940.79, and a judgment is awarded accordingly. HAY, Judge, BARNEY, Judge, BOOTH, Judge, and CAMPBELL, Chief Justice, concur.

Argument for the Plaintiffs.

L. G. CALDWELL AND J. A. DUNWODY, COPARTNERS TRADING AS CALDWELL & DUNWODY, v. THE UNITED STATES.

[No. 32439. Decided December 3, 1917.]

On Defendants' Demurrer.

Removal of timber.-A railroad, under the right conferred by the act of March 3, 1875, 18 Stat., 482, cut and manufactured certain railroad ties " necessary for the construction of said railroad," and granted to plaintiffs the right to use and sell certain portions of the timber remaining, known as tie slash. Thereafter by presidential proclamation the land upon which the ties had been cut was included in a national forest and the Forest Service allowed the plaintiffs to remove the portions already cut over a width of 200 feet along said railway for 2 miles, but refused to allow them the remainder of said slash, took possession of the same, sold it, and the proceeds were received by the United States. Suit for the recovery of said proceeds.

Title; statute construed.-The railroad acquired no title under the act of March 3, 1875, supra, to tops of trees from which the tie slash was made, and hence could confer none on plaintiffs. Title. An official of the General Land Office had no authority to bestow upon plaintiffs such tie slash as a gift, as no such authority is lodged in anyone to give away the property of the Government.

Same.-Under the act of March 3, 1891, 26 Stat., 1095, residents of the States therein named were not authorized to traffic in timber upon the public lands, no matter what use may have been the purpose to make of it.

The Reporter's statement of the case:

The averments of the amended petition to which defendants demur will be found sufficiently set forth in the opinion of the court.

Mr. Richard P. Whiteley, with whom was Mr. Assistant Attorney General Huston Thompson, for the demurrer. Mr. William C. Prentiss opposed. Clark, Prentiss & Clark were on the briefs.

The jurisdictional question raised is disposed of by Thayer's case, 20 C. Cls., 137; and State Bank v. United States, 10 C. Cls., 519; 96 U. S., 30.

The timber was rightfully cut for railroad purposes, under the act of 1875, and the resulting tie slash was a necessary incident.

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Opinion of the Court.

The Government is estopped by the action of the Commissioner of the General Land Office and his subordinate, acting under his authority and direction, from claiming and withholding the proceeds of sale of the tie slash in question.

The subject was within the jurisdiction of the commissioner. Wells v. Nickles, 14 Otto, 444; 18 Op. Atty. Gen., 434; 19 Op. Atty. Gen., 710.

The commissioner had power to authorize the claimants to have and sell the tie slash in consideration of carefully piling the brush, so as to avoid danger of destruction of public timber by forest fires.

Furthermore, under the act of March 3, 1891, 26 Stat., 1095, 1099, the claimants, as residents of Colorado, had the right to cut and take public timber for agricultural, mining, manufacturing, or domestic purposes, for use in that State, under rules and regulations of the Secretary of the Interior (Regulations of Feb. 10, 1900, 29 L. D., 572, and Op. Asst. Atty. Gen. Van Devanter, 29 L. D., 322), and the action of the commissioner is also sanctioned by that act.

United States v. Denver & Rio Grande R. Co., 190 Fed., 825, is not in point. In that case tie slash, such as here, was not involved; express authority from the commissioner was absent; there was no reciprocal agreement to pile the brush, and the act of 1891 was not invoked.

The timber being cut under sanction of statutory and departmental authority, the tie slash became severed from the realty and was the property of the claimants, United States v. Cook, 19 Wall., 591, and did not come under the jurisdiction or control of the Forest Service when the land was included in the forest reserve, 19 Op. Atty. Gen., 710.

The Forest Service wrongfully seized the tie slash, to which the claimants were rightfully entitled, and the claimants are entitled to recover the proceeds of sale thereof. Thayer's case, supra.

BARNEY, Judge, delivered the opinion of the court:

The question for decision in this case arises from the demurrer of the defendants to the amended petition herein of the plaintiffs.

Opinion of the Court.

A demurrer was interposed to the original petition, which was sustained by this court with an opinion March 19, 1917. As the amended petition contains all of the averments of the original petition and more, the opinion on the first demurrer will be withdrawn and this opinion stand as the opinion upon both demurrers.

The facts set forth in the petition as amended are substantially as follows: The plaintiffs, in June, 1906, were the timber agents of the Denver, Northwestern & Pacific Ry. Co., for the purpose of cutting and manufacturing railroad ties on the public lands adjacent to the line of said railway then under construction in Colorado to be used and which were used in the construction of said railway under the authority of the act of Congress of March 3, 1875, 18 Stat., 482. As a part of the consideration for the labor of cutting and manufacturing said ties said railway company agreed to give to the plaintiffs all the tops or "tie slash" of the trees cut down for that purpose. Pursuant to said contract and prior to October, 1906, the plaintiffs manufactured and delivered to said railway company 88,797 ties, leaving a large amount of said tie slash. On October 10, 1906, the plaintiffs received the following letter from an officer of the General Land Office:

"CALDWELL & DUNWODY,

"DENVER, COLO., Oct. 10, 1906.

"Arrow, Colo.

"SIR: As per instructions of the Commissioner of the General Land Office, you are hereby granted authority as agent of the Denver, Northwestern & Pacific Railway to cut timber under act of Congress of March 3, 1875, upon the public lands, to sell and dispose of tops and lops of trees that you may cut for construction of said road, which can not be used by said road for construction purposes.

"Before selling the same you must inquire of the proper officers of the said Denver, Northwestern & Pacific Railway if they will purchase said tops and lops that you may have on hand.

"You must also carefully pile the brush so as to avoid danger of destruction of public timber by forest fires, as heretofore instructed. You will report to this office from time to time the character and amount of timber sold under this authority, and to whom sold.