¶1This action was brought by the state against the appellees to recover from them damages for timber taken from land alleged to be of the public domain of the state, and to enjoin the appellees from a further taking or cutting timber from the land.
¶2The defendants pleaded in defense that P. A. Work, on the 17th December, 1882, filed in the office of the surveyor for Hardin county his application to buy the land, under the act of July 14, 1879 (General Laws, p. 48), and the act of March 11, 1881 (General Laws 1881, p. 25), which was amendatory of the former act.
¶3They further alleged that the application was duly recorded, and that a survey of the land was made March 5, 1883, and that the field notes of the survey, with the application and sketch of the *149survey, were returned to the general land office and filed therein May 4, 1883, and that on July 2, 1883, he tendered to the state treasurer the price fixed by the act, which the treasurer refused to receive.
¶4The other defendants set up claim to the timber on the land through a purchase from their co-defendant Work.
¶5A demurrer was filed to this answer, which, being heard, was overruled, after which a trial was had on the merits, and a judgment was rendered in favor of the defendants, and vesting in the defendant Work title to the land, he having tendered into court the price of the land.
¶6The facts were proved as alleged in the answer, and it appeared that the defendants other than Work, but under contract with him, had felled and removed timber from the land continuously until the time of the trial, and that this was of the value of $1,125.
¶7The land in question was withdrawn from sale by the act of January 22, 1883 (General Laws, 2), and prior to that time it does not appear that Work had done anything tending towards the acquisition of the land, further than to file his application with the surveyor.
¶8In the case of Campbell v. Blanchard (decided at the present term) it was held that such fact gave no vested right to the land, and that the act withdrawing the land from sale would prevent the subsequent acquisition of title to the land by compliance with the terms of the acts by which the land was put upon the market.
¶9The decision in that case is decisive of this.
¶10The judgment should have been in favor of the state, perpetually enjoining the appellees or either of them from felling or removing-timber from the land, and giving damages for the value of timber felled or removed prior to the institution of the suit.
¶11The record before us does not show the value of such timber, but, shows the entire value of timber felled or removed up to the time of. trial; hence, the judgment cannot be here rendered, and the judgment of the court below will be reversed and the cause remanded, that inquiry may be made as to the value of timber felled or removed from the land prior to the institution of the suit, as under the pleadings there is no prayer for value of timber cut and removed to time of trial; after which judgment should be rendered enjoining the appellees or either of them from felling or removing timber from. . the land, and for the value of timber felled or removed prior to the institution of the suit.
¶12If, however, the appellant shall desire to do so, its pleading may *150be so amended as to entitle it to have an inquirjr as to the entire damage sustained until time of trial, and a judgment for the damage thus shown may then be entered.
¶13It is accordingly so ordered.
¶14Reversed and remanded.
¶15[Opinion delivered January 27, 1885.]