35 F. 484 -

.484-

REPORTER.

raised for general county expenses. The application in this (lase, however, is not to obtain a warrant against the general fund, but to compel a special levy in addition to the rate prescribed by the statute under which the bonds were issued. The writ must, of course, be denied. The relator's counsel seems to have been misled to some extent bv the decision ohbis court iIi U. 'S.Y. 32 Fed. Rep. 714: In that case the court was dealing with a statute which authorized county courts to issue bonds, but did not, limit the power of taxation for their payment. What was said in'that case must be understood in its relation to osuch a statute as was then under consideration. That decision bas no bearingon the present controversy. The statute under which the bonds involved in this required the bondholder to depend on the special tax of one-twentieth of one per cent. and the general county revenue for their payment. A peremptory writ is denied, and the proceeding is dismissed at relator's cost.

UNITED STATES fl. TAYLOR. IOircuit OQurt, S. D .
1. PtmLIC LANDS -TRESPASS HOMESTEAD.

June 23.1888.)

RIGIiT OF GOVERNMENT TO SUE - POSSESSION--

Possession by a homestead claimant, and a receiver's receipt issued since -bringing the action, do not divest. 'the government of possession or title, so . that it cannot maintain 'an action of 'trespass for cutting timber on the land.
S; SaME-BURDEN OF PROOF.

In an actiop brought by the United States for trespass committed on gov. ernment lands, the burden. of proof is on the government to show that the acts of trespass complained of were committed by defendant or by his com· mand, or. that they were doneio r his benefi.t,or with his knowledge and con· .. sent, and were subseq\l:en,ljIy ratified by him.

'

SAME-MEASURE OF P R O O F . . .

In such a the acts need not be proved beyond a reasonable dOUbt, as hi criminal cl\.Ses; The proof need only be such as will reasonably convince the . jury l,l.fter applying the ordinary tests for the ascertainment of the truth. In sucqa'Citse, evidenCe that the employes of defendant, under his direc· tion or superintendence, erthat of his partner for their joint benefit, entered on the lands described in the complaint, and cut turpentine boxes in the trees thereon, or chipped such tree,9 for turpentine purposes, or removed therefrom crude turpentine, is sufficient to warrant a verdict against defendant. But if defendant merely bought turpentine from homestead claimants, havinp; noth.. ing to do witlj. hiring hands, or chippinl!," trees, or dipping or hauling turpento pay for this work at the request of said claimants, and deducting the amouht so paid from the agreed price of the turpentine, de· fendant is not liable.
. .

case

.:

4.

BAMB-EvIDENCE.

G.

6.

In 'f:juchaca.se,'merely entering the land, and cutting boxes or chippinp; trees, '''andremoving'therefrom crude turpentine, entitles plaintiff to' nominal damages, though no actual damages were done. . In an action for cutting growing trees, if their value can be ascertained without reference to the value of the soil on which they stand, the measure of damages 'is. the injury done them, and not the difference in value of the JJ.nd pe,fottl inj ury.
DAMAGES.

SAME-NoMUUL I>.uuGES.

lJNITED S1'ATi!:S tI. ':U.ytoB.

486

," ,

'1.

SAME-'-ExEMPLARY DAMAGES.

In such a case the government is entitled to exemplary damages. if the go: ing on the land and cutting and chipping the trees, or dipping and removing the turpentine, was done by defendant willfully, or if sucb acts were'the result of a negligence so gross as to show willfulness or a reckless indifference to the rigbts of the government. 1
, ,

8.

Statements in writing of absent witnesses, introduced in evidence in a ci\'il action under an admission that the witnesses, if present, would testify totba facts therein stated. are subject to contradiction, the same as though thll nesses had testified in open court.
JURY-CONFLICTING EVIDENCE-PROVINCE OF JURY.

9.

Where there isa conflict of evidence it is the duty of the jury to reconcile it. if possible, so as to make all the witnesses speak the truth; but if this can. not be done, then the jury are to say which they will believe and which disbelieve, and in doing tbis they must consider how the evidence of the wit,' nesses is corroborated by the facts and circumstances of the case; the interest and motives of the witnesses,and their means and opportunities of knowing what they have testified to.

At Law. Action brought by the United States against E. S. Taylor for trespass on government land. , John D. Burnett, U. S. Diet. Atty., for plaintiff. R. H. Olarke and M. B. Kelly, for defendant. TOlJLMIN, J., (charging jury.) This suit is called an action of and is brought by the United States against the defendant to recover damages for trespasses aUf-ged to have been committed by him in years 1883 and 1884, on lands specifically described in the complaint; ilnd belonging to the government of the United States. The Vnited States charges the defendant with the trespass set forth in the says he is not guilty of it. Under the plea of not guilty the government must be prepared to prove the commission by the defendant, his'serV':' ants, employes,or agents, of the trespass of which it complains. ,Itmust ,be proved that the acts of trespass complained of were done by the de:. fendant, or by his command, or that they were done for his benefit and with his knowledge and consent, and he subsequently adopted and ratified them. ' , It is not required that the acts of trespass should be proved beyond a. reasonable doubt, as in a criminal case. This is a civil suit, and all that is required is that you should be reasonably convinced from the evidence in the case 'that the defendant is guilty. The plaintiff's case shOUld be satisfactorily proved. It is not necessary that the proof should Le elusive, but must be such as to reasonably convince you. If your judg.,. ments are thus convinced, after applying the ordinary tests for the ascertainment of truth, it would be your dtityto find a verdict against the

He

lAs to wben exemplary damages may be allowed, see Clarke v. Improveme!1t Co. ante, 478, and no.te; Railroad Co. v. Roberts, (Ky.) 8 S. W. Rep. 459, and note; RailroiJ Co. v. Arnold, (Ala.) 4 South. Rep. 359; Webb v. Gilman, (Me.) 18 At!. Rep. 688 and note; Railway CQ. v. O;ar?ia, (Tex.) 7 S. W. Rep. 802; Haines v. SchUltz, (N.J.) 144t!. Rep. 488; Wliite v. StrIbling, (Tex.) 9 S. W. Rep. 81, and note. '

--,----"-

,;f$PJi)I\A.L

defendant. If your judgments are not thus convinced, it would be your duty to return. a verdict of not guilty. Now, to enable a party tq maintain an action of trespass·, he must have either actual or constructive posseesion of the land trespassed on at the time of the trespass. Constructive possession is such as the law annexes to the title, and will authorize this action. It is undisputed that the United States had the title to the land described in the complaint at the time of the alleged trespass. But it is contended on the part of defendant that the United States were not in such pOElsession of the homes.tead lauds mentioned in the. cOmplaint as to entitle them to bring this suit; that the occupancy of.snidlands by the homesteaders spoken of in the trial gave them the possession, and deprived the United States of the right to pring this particular suit; and it isfurthercontended by the defendant that the receipts of the receiver of the land-office, issued since this suit was brought, and which are submitted in evidence, divested the United States of the title to such homestead lands, and vested it in the homestead claimants, and that, for that reason, the United States are debarred from recovering, so far as the homestead lands are concerned. I charge you that the right of the homesteader is one of occupancy only, but with certain rights and privileges, subject to the right and duty of government to protect and preserve the tim ber on the land. He is not in adverse possession of the land until he is vested with the title to it by the government. In the meantime he has the privilege of clearing it for cultivation, and of cutting the timber down for that purpose, and but it sale and such timber may be sold if not needed for traffic is the only reason for cutting the timber on the land, or for removing any material therefrom, the law would be broken, and the person would be a trespasser. Hence I charge you that the United States had, when this suit was brought, and now have, such possession as entitles them to maintain this action; that the receipts of the receiver of the landoffice are not, of themselves, sufficient evidence that the government's title has been divested, and that it has vested in the homestead claimants. Until they have made the final proof and acquired the title,-that is, so fulfilled their obligations under the law as to entitle them to patents,-it is not allowable to them to cut the timber on the lands, or take any crude turpentine or other material therefrom for the purpose of sale or speculation. The certificate of the receiver and register would be sufficient evidence of their right to a patent, and would be a defense to this action so far as the homestead lands are concernedj but the receiver's receJpt alone is not. sufficient. Any person who cuts or removes timber or other material, or who hires others to cut or remove timber or other material, or who incites or timber or other material from governinduces others to cut or ment land, for his personal benefit or advantage, or for the purpose of gain, (except he has the right or permission to do so from the government) is a timber trespasser upon government lands. And any person who commits timber trespass upon government land is liable to civil suit for the value of the materil1ltaken, .and the damages sustained by

UNITll:D STAT:ES fl. TAYLOR.

487

the cutting of the timber. Now, gentlemen, if you belleve from theevidence that the employes of the defendant entered on the lands described in the complaint, or any ofthem, and cut turpentine boxes in the trees on such land, or chipped such trees for turpentine purposes, or removed therefrom crude turpentine, and this was done by his direction or superintendence, or by that of IUs partner for their joint benefit, it would be your duty to find him guilty in this suit. If he had the right or permission from the government to do so, it devolved on him to show it. But, if you believe from the evidence that the defendant's arrangement with the homesteaders was simply to buy the turpentine from them, he having nothing to do with having the hands hired, or the trees chipped, or the turpentine dipped, or hauled from the land, further than to pay for this work at the request of the homesteaders, for and on their account and at their request, deducting the amount so paid from the agreed price of the turpentine, then he would not be liable in this suit as a trespasser on the homestead land. The evidence before you,and which you are to be consider, is both of a positive and circumstantial character; and as a part of this evidence you have a statement in writing of what it is admitted certain absent witnesses would testify if they. were present. This admission is if the witnesses were personally present, they would testify to the facts stated. This statement of the facts. the witnesses would prove stands in the place, and is the substitute for, the oral testimony the witnesses would give if personally present. The witnesses being personally present, the evidence given by them would be subject to contradiction, and the substitute for that evidence is equally open to contradiction. There is some conflict of evidence in this case. It is your duty to reconcile it if you can, so as to make all the witnesses speak the truth. If you cannot do this, if you find it impossible to harmonize the testimony, then it is for you to say which you will believe and which you will disbelieve, which you will accept as true and act upon, and which you will reject. In determining this question, you will look at the other facts and circumstances as shown by the evidence, and see which of the witnesses has been corroborated or sustained by these facts and circumstances; what interest they have, or what motives actuate them in testifying one way or the other; what means and opportunities they had of knowing what they have testified to. Now, when you have considered all these things, you say where the truth is; for you, gentlemen, are the exclusive judges of the sufficiency and weight of the evidence in this case. You say what weight you will give it, both positive and circumstantial, and whether it is sufficient to reasonably satisfy you that the defendant had turpentine boxes cut or trees chipped on the lands described in the complaint, or any of them, and had removed therefrom the crude turpentine; and it would be equally a trespass if he entered on the land and chipped trees and removed therefrom crude turpentine which accumulated in boxes which had been before cut in the trees by other persons, if you should find from the evidence that there were any such. Now, if you believe from the evidence that the defendant's employes entered on the

488

," F:I!:DERAL REPORTER.

lands described in the complaint, or any of them, and cut boxes in the trees thereon, or chipped the trees, and removed the crude turpentine therefrom, nominal damages would be recoverable, even though no dam:age in fact was done. The theory of a suit like this is that the brE'aking of the'''close'' (as it is caned) is the cause of action. Breaking into the close of another means an unauthorized intrusion into the land of another, and this will authorize nominal damages in any event; and any injury to the timber on the land, either by boxing or chippitig or any removal of crude turpentine therefrom, merely enhances the damages, and all damages which naturaily result from the wrongful act, and are directly traceable thereto, are recoverable. In an action for damages in cutting growing timber or trees the recovery is not limited to their actual value for firewood, turpentine purposes, or for timber or lumber purposes. but the actual injury to the estate by the cutting of the trees; and in determining the question it is proper to show the purpose for which the trees were designed and could have been used. ; Hthe trees, although they are part of the realty,have a value which can be accurately measured and ascertained without reference to the soil on which they stand, may be of the value of the trees destroyed, (if any were dethe strayed,) or of the injury done to them, and not for the difference in the value of the land before and after such injury'. You determine the value of the trees after cutting and working, with reference to the peril to which they were then exposed from fire, ravages of worms, or decay, caused or traceable to the trespass oithe defendant, if he committed any. The inquiry is, what is the amount ofinjury which the government has suffered from the whole trespass taken as a continuous act?-going on the land, cutting the trees, chipping them, and removing the crude turpentine therefrom, during the years 1883 and 1884. Now, it is claimed here that the government is entitled to more than actual damages; that exemplary damages, or "smart money," as it is called, should be given. If the going on the land and cutting and chipping the trees, or the dipping and removing of the turpentine, was done by the defendant willfully, or as the result of negligence so gross as to show willfullness or a reckless indifference to the rights of the government, you may, in your sound discretion, go beyond the boundary of mere compensation for the injury done, and award exemplary damages. Now, gentlemen, take the case. Ascertain from the evidence what the truth is as to the guilt or innocence of the defendant, and as you find that truth 80 let your verdict be. And if you find the defendant guilty, say by your verdict what damages the government is entitled to recover from him for the injury done.

tlNITED STATES UNITED STATES

fl.

MORGAN.

489

t'.

MORGAN et al. 1 June 26, 1888.)

MINGLING FUNDS UNAU-

(Oircuit Court, S. D. New York.

BONDS-OFFlCIAL BONDS-DISBURSING OFFICERS TaORIZED TRANSFER-LIABILITY OF SURETY.

A fed,eral officer, the chief of the bureau of accounts in the department of state, gave bond for the faithful discharge of his duties, which included the disbursing of certain appropriations. He also received certain moneys from passport fees and the sale of United States Statutes, which were independent transactions, for which no bond was required. At the end ofa month he drew his draft on the appropriations fund. to cover a in the passport fund. Held, in an action, after his death, against his sureties on the bond, that such drfl,ft was\lnauthorized. illegal. and void; and, no act!lal transfer of moqey appearing, ,defendants bad a right to ,have the draft CI;tJ)celed, and the accounts readjusted, which would shOw no deficit in the apPropriatitlris account. ' ...

Errol' to District Court, S. D. New York. ,In the trial of this case in the district court, which waS brought against the suretieS! on Morgan's bond, after his death, it appeared that Motgan in his life-time drew on the appropriations account to pay a shortage to the passport uccount, and, after the proper debit and credit of the draft, Jeft'a .deficit to the former account. It appeared also that no actui.tl transfer of money in the treasury had taken place. The district COt1tt held that 'the transactions were independent; that defendants were 'liable fodhe apparent deficiency in the appropriations account; thaHhe dmfi therebnwas illegal a:ndvoid; and defendants had -a right to haveJj; canceled, and the accounts reformed. The government brings error."" Stephen A. Walker, U. S. Atty., and Abram J. Rose, Asst. U. S. Atty., for the United States, plaintiff in error. Thomas Osborn. for defendants in error.

not

LACOMBE, J. This action is brought to recover on II. surety bond conditioned for "the faithful discharge of his duties" by Robert C. Morgan, as chief of the bureau of accolllits in the- department of state. Defendants had judgment in the district court, and the plaintiff has taken a writofett6r. . Morgan while holding received mOriey froro two difThere was; frotU time to time, placed to his credit with the treasurer or assistant treasurer, and subject to his draft, certain funds appropriated by congress to certain specified objects, connected with, disdepartment of state for the contingent expenses ,of foreign missions,-consulates, and similar purposes. The receipt and disbUfsementQf'these moneys 'Were within the duties wh,ose faithfUl'discharge the bond sued on was given to secure. He also ,receiveel from time to time certain passport fees, and moneys for ,the sale of theUJlltEld StatesStatutes,'whicb he was required by law to cover into the treasury. in connection with thesefees andlIl,9neyll
!

I

'.y;;

?

Affirming 28 Fed. Rep. 48.