UNlTEDsrA'l'EB' ti. EUREKA &; 1'.
thereof, such a use is not a mihing use properly; that reducing ores r mill or fumaceprocess, and refining the 'bullion, is not a part of If not prbperly a part of mining, it certainly is incident to it, and close1y connected with it. In a very restricted sense it may be true that minir,g is limited to the breaking down or 'digging up of ore in place. Ini ts ordinary and usual sense mining embraces many things connected the! &0 with, and it calls to its aid the services of many classes of persons not at all skilled in, or wholly ignorant of, the manual labor of mining. Jut not to dwell upon this point, we may concede that reducing ores and r&o fining the product may not be strictly mining. Still this business by itself is a domestic industry of the highest importance to the, miner .md to the public. Without reduction works it would profit the miner or the public but little to mine the ore. Reducing ores is certainly a lawful pursuit or business, and those engaged in it within the state are wit! in the benefits conferred by the statute, and entitled to use this wood or timber for this purpose. The; miner is not the only person benefitt,'li by the statute. It applies to all alike who use this wood or timber for domestic or local Use within the state. And it matters not whether such reduction works, mills, or furnaces are engaged in reducing ores from mines owned by the proprietors of the works, or are engaged in reducing purchased ores, or in what is usually called Ucustom work," for pay, toll, or tribute from the owner of the ores reduced. All industries within the state, not prohibited from such use, are within the protectioll of the statute. I have, therefore, no doubt, under the evidence in this case, but that the defendant had full right to purchase this coal and wood, and use the same at its reduction works, and that the statute above cited is a complete defense to this action. It follows, therefore, that judgment must be entered for the defendant, Rnd it is so ordered.
UNITED STATES f1. EtmEx:A
& P. R. Co.
(Cmmet Court,D. NevaOO. November 28,1889.)
L.ums-TIMBEB-eUT :rOB USB BY RAILROAD COMPANY. The defendant, a railroad corporation, ,Purchased for use upon Its tocomotlvllI and cars, wood severed from the public mmeral lands. HeM that such purchase and use was unlawful, and that the United States could recover from defendan' the value of the wood so severed and purchased by it. (8ylZabus by the Court.)
At Law. Replevin. J. W. Whitcher,U. S. Atty., and Henry River8, for plaintiff. Wren &: Cheaney, for defendant. SABIN, J. This is an action oheplevin, brought by plaintiff to recover from defendant the posse8,!jion of 2,000 cords of pine, cedar,and mahog--
any wood, or the value thereof, alleged at the sum of 810,000, in case recovery of possession of said wood cannot be had. The complaint alleges that said wood was severed from the public lands of plaintiff, in the state of Nevada, without the consent of plaintiff; that on or about December 1, 1888, at the county of Eureka, in said state, defendant plaintiff's consent took all of said wrongfully, unlawfully, and wood from the possession of plaintiff, to its damage in said sum of $10,000. The answer of defendant denies plaintiff's ownership of said wood, or that there was more than 550 cords of the same i denies that it was severed from the public lands of the United States i denies that at the date alleged, or at any other time, defendant wrongfully, unlawfully, or without plaintiff's consent took all or any of said wood from the possession of plaintiff. It alleges that defendant is operating its railroad, running from the town of Eureka to the town of Palisade, in said Eureka county, a distance of about 85 miles; that the wood used upon its locomotives was not cut by defendant, but the same was delivered to it by residents of the state, along the line of said road, for use upon its locomotives, and in operating its railroad i denies that said wood was or is of any greater value than four dollars per cord. The case was tried by the court, without a jury. The whole case is summed up in the findings of fact, which are as follows:
"(I) That the defendant is and was at all the times mentioned in the complaint a corporation dUly organized and eXisting under and by virtue of the laws of the state of Nevada, and engaged in doing business as a common carrier exclusively in the county of Eureka, in said state; that on the 1st day of December, .A.. D. 1888, and for a long time prior thereto, the abovenamed plaintiffs were, ever since have been, and now are, the owners of thirteen hundred cords of pine, cedar, and mahoganj' wood which lies along the line and within one hundred feet of the track of the Eureka & Palisade Railroad Company, in Eureka county, state of Nevada, between the towns of Eureka and Palisade, in said county, and at and between the various stations on said road between said towns,and which said wood was and is of the value of fi ve thousand and two hundred ($5,200) dollars in gold coin of the government of the United States. (2) Said wood was severed from the pUblic lands of the United States; which lands are situated within the state and district of Nevada, and are unsurveyed and mineral in character, and not subject to entry except fOl' mineral entry; that said wood was so severed by bona fide residents, of the state of Nevada, and by them sold to defendant. (3) That on or about the 1st day of December, A. D. 1888, at the county and state aforesaid, said defendant wrongfully, unlawfully, and without the consent of plaintiff took all of said into its p6ssession ,lU1d now does wrongfully, unlawfully. and against the wishes of plaintiff withhold and detain from the possession of the plaintiff seven hundred and fifty (750) cords of said wood of the value of four ($4.00) dollars per cordi and there was seized at said time, under a writ of replevin, in said action, five hundred and fifty cords of the wood described in the complaint, which said five hundred and fifty cords of wood is now in the possession of the United States marshal in and for said district. Said five hundred and fifty cords of wood is of the value of four ($4.00) dollars per cord. (4) That during all of the times mentioned in the complaint the defendant owned and operated a rail way between the towns of Eureka and Palisade, in said county and state, of about the length of eighty-five (85) miles; that during all of said times said railroad was largely engaged iu the transportation of
UNITED STATES fl. EUREKA' & P. R. CO.
the gold. silver. and lead products of the Eureka and other adjacent mining districts to a market, and in transporting mining and other supplies in, sa!d region. (5) That at all of said times all of the locomotives used upon said road were what is known as 'wood burners,' and that a considerable quantityof wood is necessarily consumed in operating said locomotives. (6) That said wOOd was cut from cedar trees of a length of from ten to twelve feet, including the branches. the bodies of which are from four to eight fpet in length, and the largest of which do not exceed ten or twplve inches in ater at the roots. 'fhat said trees are of a stunted, .irregular growth, and unlit for timber, lumber. or manufacturing purposes. That said trees are valuable only for firewood and other domestic purposes. That said cedar trees, and trees of nut pine, and what is called' mountain mahogany,' of similar character and dimensions as said cedar trees, comprise all the trees that grow upon said lands." These findings of fact are admitted to be correct, as shown by the evidence 8ubmitted. Defendant seeks to justify its purchase and possession ofsaio wood under an act of congress approved June 3,18'/8,(20 U. S. St. p. 88, c. 150.) The first section of this act. and under which justification is sought, reads as follows: "That all citizens of the United States, and other persons, bonafide residents of the state of Colarado or Nevada. or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other. mineral districts of the United States, shaH be. and are hereby, authorized and permitted to fell and remove, for bUilding, agriCUltural, mIning, or other domestic purposes, any timber or other trees growing or being on the priblic lands, said lands being mineral, and not subject to entry under eXisting laws of the United States. except for mineral entry, in either of said staks, territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and reg-ulations as the secretary of the terior may prescribe for the protection of the timber and of the undergrowth grOWing upon such lands. and for other purposes: provided, the. provisions of this act shall not extend to railroad corporations." - : Unfortunately for the defendant, the proviso contained in the last Unes of the section renders it impossible for the court to .entertain this defense. The proviso is clear, certain,and unambiguous. There is nO place for interpretation or construction as to its meaning. . It means just what it says: "The provisions of this act shall not extend to railroa<l corpo]:'a-:tions." No exceptions are made. It applies to all alike, and- it must be enforced ag;ainst all alike. If this defendant can, under this ach purchase and use this wood and timber. in like manner can every other railroad in the state do so. There are within the limits of the state nearly or quite 900 miles of railroads, to-wit: The Central Pacific, 448 miles; the Eureka & 85 miles; the Nevada & Oregon, 28 miles; the Virginia & Truckee, 52 miles; the Carson & Colorado, 192 !piles; the Nevada Central, 93 miles. There are other projected lines ,of road which maybe built in the near future. If anyone of these companiea can, under this act, obtain its supply of fuel from .the public lands of the United States, then all can, and it matters not whether the lands are mineral or non,:,minerallands from which the fuel is severed. This, act, the first.section of which above quoted, originated in the senate. The
discussibnditthe bill inL:the senate, was 'thorough and animated. The to the, house of represeritatjves. It was In some ,respects, and, among others,by the addItion of the provis() ,above quoted. .ThiS amendment was adopted in the house without discussion. The bill was returned to the senate, and there the amendment was accepted and adopted without debate. 7 Congo Rec., ',15th Cong:, ,2'd pt.' 4, pp. 3328' and 3450. This shows the unan" ihlity of congress on this subject. The proviso had only to be suggested to- be adopted by both houses without debate. It i!!l the duty of the courts to enfOl'c6:this statute without equivocation. ;rWithout positive license by statute. or otheJ;competent authority, no person or corporation can lawfully cut or use the tim,ber cut upon the public lands, be they mineral lands or otherwise. The United States, as proprietor of the public lands, may call upon the courts, by injunction, andbj all other appropriate remedies, to stay and prevent waste and spoliation of the public domain; and to enforce any statutes, penal or other, enacted for that purpose. The policy coUhis amendment or proviso, its seeming hardship upon railroads, is pressed upon the attention of the court. The policy of a statute; its severity or hardship or inconvenience, is a matter for the consideration of congress, not of the courts. Courts are to 'Elnforce laws,not make thp-mj to execute, not avoid theIll' I am not, however, inclined to question the wisdom and prudence of this proviso to this statute. The supply of timber, even for fuel, in Nevada, is limited, and not evenly distributed. The consumption of fuel by railroads is large'and constant. If they are permitted to denude the public lands of theruel thereon, the actof congress referred to becomes of little benefit ,to the people of the state. and the result would be that the railroads, and the people also, residepts of the state, would ere long be compelled to seek their fuel supplies from abroad and beyond the limits of the state. This would be very oppressive to the great mass of the people Of the state. It is, however, not a difficult matter for the railroad companies, having their own ample means of transportation, to procure 'their fuelslipplies from lawful sources. This timber and wood mentioned in the statute is by the statute devoted to the lawful uses of the people, bO'flafide residents of the atate, to aid in the material development of the various. ibdustries of the ,sUtte. The statute is beneficent in its purpose and object, but from its benefits all railroads are excluded. It may be a serious question if those persons that cut this,wood upon the public lands, and sold and delivered it to the defendant, are not subject to criminal prosecution for so doing. It was not cut by them for a lawful purpose. It was cut in defiance of the statute, unlawfully and wrongfully, and in so cuWng and removing it they acquired no title thereto as against the rightful owner, the United States. And the defendant, in purchasing this wood, from parties having no lawful title thereto, acquired no title'that cari.1le maintained against the rightful owner, the plaintiff in this action. , Judgment must be entered for the plaintiff for the recovery of the possession-of 1,800' cords of wood mentioned in the complaint, or for the
EASTERN TOWNSHIPS BANK II. ST. JOHNSBURY & L. C. R. CO.
thereof in case delivery of possession cannot be" had, at the of $4 per cord, amounting in the aggregate to the sum of $5,200, lawful money, and for costs, and it is 80 ordered.
EASTERN TOWNSHIPS BANK
& L. C. R.
D. Vermont. November '1, 1889.)
SJ.ME-GU..U tANTY TO PAY INTEREST-CONSTRUCTION.
SAME-NEGOTIABILITY 011' GUARANTY.
Although the bonds and coupons are negotiable, the guaranty is not, it being neither a bill nor a note, which. instruments aTe alone negotiable under R. 'L. Vt. 552002,2008, and the guarantor may make any defense to an action on his contract by the transferee of the bonds or coupons that he could have made if sued by the original payee in the bonds. . .
Dickerman Young and Albert P. Or088, for plaintift. Stephen O. ShurUeff and Rii;hard Olney, for defendant.
in taking a lease of the railroad of the Canada Junction Railroad Com,.
pany, not built, but agreed to be btiilt by Bradley Barlow, and in the execution of this guaranty upon 150 $1,000 negotiable bonds of that coliipany, which Barlow was to have in payment for building the road: value received in the use and operating of tbe Canada Junction Railroad under a lease thereof and assignments of said lease, the Montreal, Portland & Boston Railway Company, the Southeastern Railway Company of Canada, and the St. Johnsbury & Lake Champlain road Company of Vermont, do hereby jointly and severally guaranty the payment of the interest upon the within bond, as specified in the interest coupons thereto attached at the place and at the several dates therein specified," The rent was equal to the coupons, which were them.,. selves negotiable, in amount and times of payment. The bonds; with the guaranty upon them, and coupons attached, were deliverlld to Barlow, and by him pledged to the Vermont National Bank of St. Albans, and by that bank to the plaintiff, to secure !lrclvances of money. Barlow failed without accomplishing but a small part 01 the building of the ;road, andbis failure caus\il4 ,the enterprise of building the· road, ll.Jld the
The defendant joined with other railroad companies