CONWAY. V. UNITED STATES.
CONWAY v. UNITED STA'I'ES. (Circuit Court 'of Appeals. l!lighth Olrcuit. June 19, 1899.) No. 1,On
PUBr,lC LANDS-RIGHTS OF HOMESTEAD SETTLER-SALE OF TIMBER.
In an action by the United States to recover the value of timber alleged to have been wrongfully cut from the pUblic lands, an answer alleging that defendant purchased the timber from one who had entered the land in good faith under the homestead law, and was proceeding in good faith to fit the same for pasturage and cultivation; that the character of the land was such as to render it eXpedient, proper, and necessary to remove the timber for that purpose; that the homesteader, by reason of his age and poverty, was unabie to do the clearing, and for that reason and in good faith made a contract with defendant by which the latter purchased the timber for $800, agreeing to remove the same and to expend the money in a house and buildings on the land, in breaking such land as could be cultivated, and in furnishing the settler with stock and provisions, which agreement had been carried out in good faith by defendant,-alleges 'sufficient facts to constitute a defense. PJ,EADING-SUFFICIENCY of<' DENIAL. In an action for unliquidated damages a general denial In the answer, together with a special denial that plaintiff has been damaged in the amount claimed, is sufficient to put the plaintiff upon his proof as to dam.ages.
In Error to the District Court of the enited States for the District of :Minnesota.
This Is au action at law instituted by the United States of America, the defendant in error, against Hugh Conway, the plaintiff in errol', to recover the value. of certain' pine logs ·alIeged to have been by him Unlawfully. cut and from certain lands belonging to the United States. It is averred in the petition that said'!ogs' contained 336,230 feet, board rrteasute, and Were and are of the value of $1,681.15, all of Which said logs, it is alleged, the defendantdid then and there convert and dispose of to his own use, to the damage of the' plaintiff In the sum .of $1,(;81.15, together' 'with thereon. The answer filed by the defend::mt consists of a general dellial, with a special denial that the plaintiff has been injured or danlflged in the sUlll of $1,681.15, or in 'any sum whafsoe"er.By way of pleading IlU affirmative defense" the answer contains averments' in substance as follows: That on the 25th day of :May, 1895, one Currer Boyington, with a bona fide intention of acqulrlng title to lands described in the petition umler the homestead laws of the United States, duly filed his allP!ication to enter said lands as a homestead, and that the application s6 made by him was accepted by the local land officers in the state of Minnesota, where the lands were sitnated; that afterwards, in August, 1895, Boyington cOmmenced Ilis residence on the laiJds, and. has ever since resided and now resides thereon; that shortly before so commencing his residence he built a smail log house, and in the month of Xovember, ·1895, there was growing on the lands scattered timber, a large portion of which was and had been dnmaged by fire; that it was necessary to cut the same in order to realize therefrom, and.;;:we the timber from becoming a total loss by reason of decay; that a large portion of the land was fit principally for pasturage and meadow lands, and that it was expedient, proper, and necessary, in order to cultivate and improve said lands, to cut and remove the scattered and burned timber, so that the lands might be prepared for pasturage and cultIvation; that in the month of November, 1895, Boyington and the defendant, Conway, entered into a contract, by the terms of which Boyington, for the Inn'pOS(! of dearing and CUltivating said lands, covenanted and agreed to sell to Conway the sca1tered and burned timber thereon for. the sum of $800, to be paid for in the follOWing manner: Conway was to erect and construct a frame dwelling house on the lands for Boyington, and such other buildings as he should desire thereon, and also to break for Boyington such portions of the lands as could be cultivated, and also to furnish Bo.yington with sufficient
money to purchase stock to stock said lands, and to furnish him provIsIOns sufficient to keep himself and his mall until lIe should have, in the several ways specitiell,paid to .the total of said $800.. It.is furtlIe).' averred in the answel' that Conway, pursualltto said contract, erected at a cost of $330 a dwelling house and other buildingS' on lands. and also furnished Boyington the IW9yisions required by the contraet, apd. the money withwhic:h to pm'chase stock, according to the requirements, of. the contract; that, during the fjeasou of 1896,Conway, in further eJl:ec:utionof his contract. broke 5 acres of :said for Boyington; which he (Boyington) cultivated by. planting and .raising a CI:OP of potatoes, cabbages, beans, onions, and corn thereon, and that during the season of 189ti cut about 10 acres of hay therefrom; that in the;spring of 1896 Boyipgton dug a ditch of considerable length for the ]JUl'pose of draining part of tlle lands, and cleared about 50. acres of the lands from :which ConwaY had cut tne pine logs, and sowed the same with gra.ss seed. His further alleged in the answer that, by reason of the roots of the trees intl1e ground from which the timber was cut, it was impossible during the Slime season to break up the lands, and that it .will be impracticable to do so until. the stumps and roots have rotten; that the only practical way of cultivatin.g lind improving such lands upon which timber had been growing is to seed the same and pasture it for several years, and during that time to allow the stumps to rot so that they can be easily extracted anq.. the la.nd plowed; that Boyington has cultivated the lands froD;l which timber was cut as fast as stump extraction and clearing the same would allow; that up to the present has in good faith. kept his contract with Boyington, time the defendant and performed all the conditions thereof; that Boyington has on said lands 6 head of cattle, 2 hogs, and 23 chickens. It is further alleged in the answer In words and figures as follows: "That the said Boyington is a single man over sixty years of age, and at tlle time he made the contract with defendant, Conway, had no means with \"hich to improve said lands, an(l it was neces'sary Jtnd essential that he, in order to cultivate and improve tile same, should J;i1ake a contract similar to the one made with the said Conway.; that the said 'Boyington has acted in perfect good faith in entering and residing upon said lands. and .in making saId contract, with the honest intention. of improving lands and 'making the same fit for a stock farm, and to cultivate the same to .suchan extent as is that all the cutting oj' timber and logs Clone on said lands by the defendant, Hugh Conway, was. done nnder said contract made with said Boyington, and that he did so in perfect good faith. believing, as he still believes, that the saId BoyIngton was acting in good faith as a homesteader, and was clearing said lands for the purpOSe of cultivation." TO,this answer a reply was filed by the plaintiff, denying each and every ailegationof the answer,except such as were admitted or qualified in the petition, 3.Jld thereafter in the reply so filed. It is subsequently averred in the reply as follows: UThat said Crnway erected certain buildings on said land, but .plaintiff, .on information and belief, alleges the fact to be that said Conway, under said contract, agreed to pay for said logs and timber in cash, and that the QUildlngs so erected were erected by said Conway for his own use and conven,ience while cutting and removing the logs from said lands and from other lands. alld not for the purpose of improving- said land." Still further replying, the ptaintiff q.lleges "that aU"pf the material used in the construction of said buildings 'was cut upon the land ill the complaint described, and that none of the material used illthe construction of said building constituted any part of the timber for the recovery of the value of which this action is' brought; that the value of'said building, and the of the construction thereof, did not exceed the sum of Such were thepleadin.gs in the case, and when it was brought on for trial the plaintiff moved for. jUdgment on the pleadings. This motion was sustaine.d by. the court lJelow, and judgment was ren(lered in favor of the vlaintiff for $1,853.77; the saD;le being the $1,681.15 mentioned in the petition, with interest thereon from the 1st day of April, 1806, as prayed for by the plaintiff. In due course a. writ of error was sued out by the defendant, and the case brought to this court. , .
Jphn Jenswold, Jr., for plaintiff in error. Robert G. Evans, for defendant in error.
CONW AY V. UNITED STATES.
Before CALDWELL and SANBORN, Circuit Judges, and ADAMS, District Judge. ADAMS, District Judge, after stating the case as above, delivered the opinion of the court. Several errors are assigned, but they appear to be comprehended in two of tbem, namely: First, that the court erred in holding that the answer of the defendant, Conway, did not set f(}rth a defense; and, sec(}nd, that the C(}urt erred in holding that up(}n the pleadings the plaintiff was entitled to a jndgment for $1,853.77. The test of the sufficiency of the answer must be found in a consideration of the rights of Boyington, under whom the defendant was acting, and of the rights acquired by, and obligations imposed upon, Conway, by the contract alleged to have been entered into between him and Boyington. It appears that Boyington had duly entered the lands from which the logs were taken, under the homestead laws of the United States, and was in the year 1896 residing on said lands, and engaged generally in performing such acts as were required to ripen his entry into a patent. It is a well-settled construction (}f the homestead statute that while a settler acquires no title to the lands entered by him until the issue of the patent, at the expiration of five years after the entry, he has nevertheless a right during these five years to treat the lands as his own, in a certain qualified sense,-to the extent, at least, of performing those acts which are required under the law to entitle him to a patent therefor. He must reside and continue to reside upon the lands entered, and cultivate and continue to cultivate the same for a period of five years. To perform these conditions necessary to the acquisition of title, he clearly has the right to utilize the timber growing upon the land for the purpose of building himself a house to live in, and such outhouses and fences as may be reasonably necessary for his initial and progressive farming operations. He may also, and must, in the performance of the condition of cultivation, first prepare the land therefor. If there be growing trees or dead timber, which are impediments to successful husbandry. he may clearly remove the same, or cause them to be removed, so far as the legitimate purpose of cultivation reasonably warrants; and he may, subject to such limita,ions, sell the same, and appropriate the money realized therefrom. 'Vhile a settler may avail himself of these necessary privileges, he must at all times act in good faith in the exercise of them. He cannot invoke or pretend to exercise them as a cover to despoil the lands of their timber, or to make profit out of them, without regard to the legitimate purpose of building him a home, outbuildings, and fences, and fitting the soil for cultivation and use. Shiver v. U. S., 159 U. S. 491, 16 Sup. Ct. 54; The Timber Cases, 11 Fed. 81; U. S. v. Yoder, 18 Fed. 372; U. S. v. Lane, 19 Fed. 910; U. 8. v. Ball, 31 Fed. 667; U. S. v. Murphy, 32 Fed. 376; U. 8, v. Nelson, 5 8awy. 68, Fed. Cas. No. 15,864. In the case of Shiver v. U. S., supra, the supreme court remarks as follows:
"With respect' to the standing timber. his [the settler's] privileges are analogous to those of a tenant for life or years."
,:>QU6ting',from Washburn,' in his' work onr Real· Property', 'the; court, referring to lands which are new and covered with forests,. and wbich cannot, be cultivated until cleared of the timber, continues as follows:
".IIItSllchcllseIt seems to be laWful'for the tenant'todeartheland i if it would be in conformity with good husbandry to do so; the;.qtle'$tion depending ripon the custom of farmers, the situtttion .of the couutry,an4 the v,al of the ... ... ... analpgy, we thiflk that the upon a homestead Jlll!.yplt such timber as is to'Clear the land for cultivation, or to build 111m '8, house, outbUildingS',' and fences; aM perhaps, as indicated in the charge of-the court below, to exchange such timber for lumber. to be devoted to the same purposes, but not to, sell moueY"except SO filt as the timber mjty have,. been cut for .the pur:PQl>e9f cultivation. ... * * A reasonable constru.ction of the stllJute,-a construction . consonant both' with the protection of the property of tHe government' in the land and 01' the rights of the 'think, restrlots him to the use· of the timber actually cut, or to the lumber exchanged for such timber,aJi!d .used for, his improvements, and to such as is cut in clearing the land for cultivation."
Such' being the principles cohtrolling the rights of a S'ettler under the homestead act, it now becomes necessary to analyMthe defendant's i:fnswer, a.nd see if the facts there disclosed exonerate him or Boyingtohi'Uilder whom he was-acting, from'liabilitydor cutting the logs in 'ql1e'stion. The a.uswer, as hereinbefore substantial1y set out, containsn1uch'lmnecessnry narration, and some found in it possiblysuggestieveof facts'which maybe "evoked ,at: a trial in disproof of the'defensesollght to'M pleaded; but we have reached the. eonC!llsiontnat there .found·in. the, answer,. which, if a defense. His 'alleged, that the chalJa of the ter lands frbm'which the ldgj;llwere suchms to .render'itexpedient, proper, good husbandry, to remove timber inidl'der toditithe:land for pastnrageand cultivation; alleged to have bean; theTpurpose' oftthe setHer. in making hisentry.J,':Et 'is· further"a.Heged' that Boyington-tvasunable, by reasono.f the:necessary clearing; and for that reason made fa i contract with Goir1wriy to: clear the·.sam,e; II agreeing to give' him th"e timber to be cut train, said land, provided Conway would, erect aframie:d.welling house a.rid. other' buildings. thereon' for Boying' ttm,' 'bl'ea.k' finlcnportions 'of the land as could be eultivated, furnish BoyiIigtonm01ley for the purchase of the requisite stock'.10 outfit his wi'thprovisions sufficient,t<) him l'ttldbis hlrediman, to the extent,'aU told" 'of, the vlIlue, of $800. In other words, Oohway wag to pay $800 for the tiinber, and make pay, itierit. thereof' in doing tMwork 'and furnishing the', money and pro' Wtlions 'for the purposejnstspooifl.ed. ' It is further aIleged that Conway pel'f,ol'med the tellrns of con:f'raet,and partieularly .alleged that in making the e ffiltract, acted in' good, fa'ith;with the bf thereby improving' the,lands andrna:kin"g the same flUor a and' for'- cultivation, to 'such an extetit aswas practicable,and tliat COllWay, ih theperforriuinceof his part of the contraH,aCl'ted in good faith, belieVing ,that: 'Boyington was clearing the lands in good faith for the 'purposeof in ouropinidn,are, the equhratent of saying that the timber was caused to be cut by the settler in order tofl.tand prepare the landfor culti'
CHICK V. ROBINSON.
vation. " ! If these averments are must so treat them for the purposes of this case,-and if the defendant, was engaged iil doing the work of clearing in good raith, for the'purpose of preparing the land for cultivatioll , then, even though the settler was to receive in money the value of the timber SO cut, the act would be justifiable, under the law, and the person employed to do it would not be liable to the United States therefor. As has been frequently expressed in judicial utterances found in the cases above cited, the question is one of good faith on the part of the settler. The cutting, to be justifiable, must be fairly and reasonably an incident to real cultivation and improvement, as distinguished from a denuding of the land of its timber merely for the purpose' of selling the timber and securing the purchase price. The portion of the answer already considered was intended to state a complete defense or a bar to the cause of action, but there is another feature of the answer which sets forth, in QUI' opinion, a partial defense. That is the portion of the answer averring that CODway was to employ and did employ the timber cut,either directly or indii1 ctly, in erecting a dwelling house and necessary outbuildings for the settler. To the extent to which' the logs cut went into cobstruction of such dwelling house and outbuildings,' under the authorities already cited, or to t4e extent to which the money received for the logs )vas in good faith employed to construct a dwelling h9use and outbuildings, there could be no recovery in this case. The construction which we have placed upon the answer of Conway seems to be the same as that given it by the plaintiff in the case Its replication apparently concedes that the defendant had stated a valid defense, but by its general denial and affirmative averments it challenges the good faith of the alleged cultivation, and denies the alleged use of timber cut for outfitting the lands with requisite buildings for farming operations. We are also of the opinion that the amount of the plaintiffls damages was fairly put in issue by the pleadings. Defendant not only denied, in and by his general denial, the allegation that the logs cut were of the value of $1,681.15, but he specially denied that plaintiff had been damaged in the amount claimed by it. Under the authority of the cases of Stone v. Quaal, 36 Minn. 46, 29 N. W. 326, Nunnemacker v. Johnson, 38 Minn. 390, 38 N. W. 351, and Bank v. White, 38 Minn. 471, 38 N. W. 361, this pleading put the plaintiff upon its proof of damages. It results that the judgment must be reversed, and the cause remanded for a new trial, and it is so ordered.
CHICK et aI. v. ROBINSON et aI. (Circuit Court of Appeals, Sixth Circuit.
No. 645. 1.
EVIDJ;:NCE-PAUTNERSRIP BOOKS-ADMISSIBILITY AGAINST SPECIAL PARTNER.
June 6, 1899.)
Entries. in the books of a PllItnership in Michigan are admissible against a special partner who is ghen the right by statute to "examine into the state anpprogress of the partnership concerns" from time to time, and to advise as to their management.