FERRY v. MECEANICS' MUTUAL INS. CO. PERRY and Wife v. MECHANICS' MUTUAL INs. CO! (Circuit Court, D. Rhode Island.
J
March 25, 1882.)
1.
INSURANCe-WIFE'S SEPARATE ESTATE.
Where the property insured was the sole and separate estate of the wife, the refusal of the court to admit evidence tending to show that her husband in her absence, and without her complicity, wilfully set fire to the buildings, is not erroneous.
2.
SAME-HuSBAND'S ACT NOT TO DEFEAT RIGHTS OF WIFE.
A husband has no power to affect his wife's title by any act or neglect, nor can she be held responsihle for his criminal acts; and his joinder with his wife in an action for the recovery of the insurance will not constitute a defence. S. SAME.
If a statute makes the husoand a stranger to his wife's property during her life, excepting as to a veto upon her conveyance thereof, it does not give him power to destroy her house and thereby vitiate her insurance.
4.
SAME-VALUATION, CONCLUSIVENESS OF.
If the insurance agent takes upon himself the whole responsibility of the valuation of the property insured, and was not induced to fix the amount of insurance by the reprcsentations or acquiescence of the insured, or if the valuation is agreed between the parties fairly and without deception, it is conclusive on both. 5. SAME-MEASURE OF RECOVERY.
The recovery on a policy of fire insurance is to be for the value of the property at the time of the loss; and where there was no offer to prove a deprecia. tion since the policy was issued. the valuation is conclusive of the amount to be recovered in case of a total loss, "as well as conclusive that there was no overvaluation.
Motion for aNew Trial. Tkos. A. Jenckes, Chas. A. Wilson, Wm. G. Roelker, and F" TV. Miner, for plaintiffs. Beach ff Allen, for defendant. Before LOWELL. and COLT, JJ. LOWELL, C. J. This case involves less than $5,000, and we have therefore carefully examined the defendant's exceptions to the rulings and charge of the presiding judge. The property insured was the sole and separate estate of the wife, and the first exception is to the refusal to admit evidence tending to show that the husband, in hili wife's absence, and without her complicity, wilfully set fire to the buildings. In this ruling we find no error. The title of the wife was held under chapter 152 of the General Statutes of Rhode Island, which we have discussed in the case against the Faneuil Hall Insurance Company, ante, 482.' The husband has a revocable agency to collect rents and profits of his wife's estate until she chooses to revoke it,
486
FEDERAL REPORTER.
and he has a vested remainder for life in her realty if children have been born alive. In '1'e The Voting Laws, 12 R. 1. 586. He has no power to affect her title by any act or neglect, and we think it would be contrary to the w):lOle intent of the statute to hold her responsible for his criminal conduct. If this money is recovered it will belong exclusively to the wife, and a trustee may be appointed at any time to protect it from the husband. It is true that until such appointment the statute requires him to join in the action, and as the action survives, by the words of the statute, it is possible that upon the death of the wife, before a recovery was had, the defendants might avail of this defence against the husband. But it is too narrow a view of the subject to make the defence depend upon the joinder of the husband in the suit. It is argued that the wilful destruction to the property by any tenant or agent in lawful occupation or charge of the premises will defeat the action; but authority is not furnished for a statement so general. In the absence of special provisions in the contract the liability of the principal must depend upon the character of the agency. If the statute has made the husband a stranger to his wife's property during her life, excepting as to a veto upon her conveyances, we cannot admit that he has the power to destroy her house and thereby vitiate her insurance. The remaining exception relates to the defence of overvaluation. There was much evidence on both sides concerning the cost and the value of the building insured. The agent of the company, who has been in the business for 30 years, testified that he examined the property and formed his judgment about it. And the judge charged that if the agent took the whole responsibility upon himself, and was not induced to fix the amount of insurance by the representations or acquiescence of the assured, the company were bound to pay the amount stated in the policy. He defines his meaning of acquiescence to be a refusal to answer a question, or in any other way deceiving or misleading the agent, and refused to rule that acquiescence might also be, if in any way Perry allowed the agent to be deceived as to the value of the property, or if he knew that the agent was putting on an amount of insurance substantially greater than the value of the property. The ruling was sound. Whether the learned judge used the word "acquiescence" in its ordinary sense or not is unimportant. The word is not in the policy, and all that ne was to do was to lay down the law correctly for the guidance of the jury. It has been decided,
UNITED STATES 'V. SMITH.
upon reasons which are entirely satisfactory, that if the valuation is agreed on between the parties fairly and without deception, it is con. elusive upon both. Ins. Co. oj N. A. v. McDowell, 50 Ill. 120; Fuller v. Boston Ins. Co. 4 Mete. 206; T'l'lill v. Roxbury Ins. Co. 8 Cush.263. The argument for the defence assumes that value is a simple fact of observation, like the existence of a fire-escape, and .that it was a fraud on the assured to permit the agent to estimate the property higher than he himself did. If it is a fraud in a seller to permit one to buy his goods for more than he thinks they are worth, or for the buyer to offer less than he thinks them worth, no doubt the argument is sound; otherwise not. The facts were aU left to the jury. The cases above cited decide the point that the recovery is to be for the value at the time of the loss. There was no offer to prove a depreciation since the policy was issued, and these decisions make the valuation conclusive in such a case if the amount be recovered, in case of So total loss, 8S weU ali conclusive that there was no overvaluation. Judgment on the verdict.
UNITED STATES V. SMITH.
(No. 771.)
(Oi'l'cuit Oourt, D. Oregon. April 21, 1882.) L TnmER ON PURLIC LANDS IN OREGON.
The act of June 3,1878, (19 St. 88,) giving permission to the residents of Colo· rado, Nevada, the territories, " and other mineral districts of the United States," to cut timber for certain purposes upon the mineral lands therein, does not apply to Olegon, but the subject of cutting timber on the public lands within such state is regulated by the act of the same date, (19 St. 89,) providing, among other things, for the sale of timber lands therein. 2. MINERAL DISTRICT.
This term, as used in the first of the said acts of June 3, 1878, (19 St. 88,) has no application to Oregon, there being no such division or district of (he state established either by law or common reputation. S. CuTTING TIMBER-WHO MAY AND WHAT FOR.
Under the act of June 3, 1878, (19 St. 89,) persons occupying the public lands in Oregon under the mining, pre-emption, or homestead laws of the United States may cut and use the timber thereon convenient for the purposes of such occupancy, and may also take other timber from the public lands, if need be, sufficient to maintain the necessary improvements on the lands so occupied; but any cutting or removing timber from the public lands .otherwise than this, as with intent to dispose of or wantonly to destroy the same, is a trespass for which the pc1rty guilty of the same is liable, civilly and criminally. 19 St. 90.
488
Action to Recover Damages. J. F. Watson, for plaintiff. John J. Balleray, for defendant. DEADY, D. J. This action is brought by the United States to l'ecover from the defendant the sum of $10,000 damages for wrongfully cutting and carrying away certain timber, between January 1, 1879, and the commencement of the action, August 17, 1881, then being and growing upon that parcel of the unsurveyed public lands of the plaintiff situated in Baker county, Oregon, which, if surveyed, would be township 11 south, of range 40 east of the Wallamet meridian, with intent to dispose of the same; and for that he "did convert and dispose of the same." The defendant, for answer to the complaint, denies the allegations thereof, and for a further answer says that at the time of committing the alleged unlawful acts the defendant was a citizen of the United States, over 21 years of age, and a bona fide resident of "a mineral district of the United States," consisting of Baker, Grant, Union, Umatilla, and Wasco counties, the same being "the fourth mineral district of the United States in the state of Oregon," and that while he was such a resident he did enter upon the unsurveyed tract of public land aforesaid, the same being within said mineral district, and "cut and remove therefrom a small number of trees growing thereon;" that said tract of land was mineral land, and not subject to entry under any law of the United States, "except for mineral entry;" that said trees were "cut and removed, and actually used, for bniJding, agricultural, mining, and domestic purposes by defendant and others within said mineral district;" and that the cutting and removing of said trees constitute the trespass mentioned in the complaint. The plaintiff demurs generally to this defence. The first act of congress which in terms authorized or permitted the cutting of timber upon the public lands by a private person for any purpose, was passed June 3, 1878, (20 St, 88,) and is entitled "An act to authorize the citizens of Colorado, Nevada, and the territories to fell and remove timber on the public domain for mining and domestic purposes." This act contains three sections. The first one authorizes any bona fide resident of the states aforesaid or either of the territories-naming them-"and all other mineral districts of the United States," "to fell and remove, for building, agricultural, mining, or other domestic purposes," any trees growing upon the public lands, "said lands being mineral," and not then subject to entry, "except for mineral entry;" subject to such regulations as the secretary
4:89
of the interior may prescribe for the protection of the timber upon said lands, and other purposes; with a proviso that the act should not "extend to railroad corporations." The second section makes it the duty of the offillers of any local land-office, "in whose district any mineral land may be situated," to ascertain whether timber is cut or used upon sucb mineral lands, "except for the purposes authorized by the act," and to give notice thereof to the commissioner of the general land-office. The third section prescribes the punishment for a violation of the act, or the rules made in pursuance thereof. The act is very loosely and unskillfully drawn, and abounds in unnecessary and indefinite phrases and clauses of the and-so-forth character. The privilege conceded by it is limited to citizens of the United States, "and other persons," resident in certain states and territories, naming them, "and all other mineral districts of the United States." It allows timber, "or other trees," to be cut for building, agricultural, mining, "or other domestic" purposes, subject to such regulations as the secretary of the interior may pre8cribe for the protection of the timber and undergrowth, "and for other purposes." On the same day another act was passed, (20 St. 89,) entitled "An act for the sale of timber lands in the states of California, Oregon, Nevada, and Washington territory." This act contains six sections. The first, second, and third ones provide for the sale of the "unsurveyed public lands" within these states and this territory not included in any reservations of the United States, valuable chiefly for timber or unfit for cultivation, which have not been offered for sale, in quantities not exceeding 160 acres, to one person or association, at the minimum price of $2.50 per acre; with a proviso that the act should not, among other things, authorize the sale of a "mining claim, " or "lands containing gold, silver, cinnabar, copper, or coaL" Section 4 provides "that after the passage of· this act it shall be unlawful to cut, or cause or procure to be cut, or wantonly destroy, any timber growing on any lands of the United States" in the states or territory aforesaid, "or remove or cause to be removed any timber from such public lands with in tent to export or dispose of the same;" · · · and that any person so offending shall, on conviction, be fined for every such offence not less than $100 nor more than $1,000, with a proviso that the act shall noi; "prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim, or preparing his farm for tillage, or from taking the timLer necessary to support his improvements." Section 5 provides for the :relief of persons prosecuted in said states and territory for the viola-
4:90
FBDERAL REPORTER.
tion of the timber act of March 2, 1831, (4 St. 472; section 2461, Rev. St.,) and repeals section 4751 of the Revised Statutes, providing for the disposition of penalties and forfeitures incurred lender said act or section, and directs that all moneys collected under that act shall be . covered into the treasury of the United States. Section 6 provides that all acts and parts of acts inconsistent with such act are repealed. In support of this plea or defence counsel for the defendant contends: (1) that the first-named act applies to Oregon, as well as the states and territories therein expressly named, because it is included in the phrase "all other mineral districts of the United States;" and (2) that the permission contained in the first section of such act to fell and remove timber is not limited to the land occupied by the party cutting or removing it, nor to the quantity needed for his individual use, but that it is a license to every resident of a "mineral district," so called, in the United States to fell and remove all the timber he may from any portion of the public lands in such district, whether mineral, agricultural, or timber, to be used by any one within the district for building, agricultural, mining, or other domestic purposes; and further, that the second act, although made applicable to Oregon by name, in no way affects or limits the operation of the first one therein. If this is the law, then all the timber on the public lands in Oregon may be cut and removed therefrom with impunity, provided it is not done for the purpose of being exported from the state or mineral district where cut. No adequate reason is given or suggested why congress should thus suddenly dep:ut so far from the traditional policy of the government to preserve the timber on the public lands for the use of those to whom it might ultimately dispose of them. The argument hinges upon the meaning and application of the phrase "mineral district." The use of it in the United States Statutes is new, and confined to this act. As a matter of fact, so far as appears, there is no section of this state known and defined as the mineral district. Being neither known in law or fact as the designation of any well-defined or exact locality, it is as void of meaning and incapable of application as the phrase "tree district," "stone district," "alkali district," or "water district." The title of the act does not contain the phrase, but limits its operation to the citizens of Culorado, evada, and the territories; and it is not probable that there was any thought; in ths mind of congress of extending it any further. The phrase "IIlining district" is well known, and means a section of country usually designated by name.and or understood
4.91,
being confined within certain natural boundaries, in which goh!' or silver or both are found in paying quantities, and which is worked therefor, under rules and regulations prescribed by the miners therein, as the White Pine, the Humbolt, etc. This term, and the thing signified by it, are also recognized by the United States Statutes. Sections 2319, 2324, Rev. St. j Copp, U. S. Min. Lands, 471. There is no method of proceeding known to the law by which a district of country can be prospected, surveyed, and established, or declared to be a "mineral district." The ordinary surveys of the public lands do not include any examination or exploration of them for mineral deposits, the surveyor being only required "to note in his field book the true situation of all mines, salt licks, salt springs, and millseats which come to his knowledge." Sub. 7, § 2395, Rev. St. By section 12 of the act of May 10, 1872, entitled "An act to promote the development of the miuing resources of the United States," (17 St. 95; section 2334, Rev. St.,) it is provided that the surveyor general "may appoint in each land district, containing mineral lands, as many competent surveyors as shall apply for appointment to survey mining claims." This "land district" is a division of the state or territory, as the. case may be, created by law, in which is located a land-office for the disposition of the public lands therein. There are four of them in this state. It is probable that these "land districts," in the mining states like Colorado and Nevada, were sometimes familiarly spoken of as "the mineral districts," from whence the phrase found its way into the act of June 3, 1878. But although there are "some mineral lands" and "mining districts" in Oregon, it is not known that there are any considerable or contiguous sections of the country to which the term "mineral district" could properly be applied, and it is certain that there is none to which it is applied by law. It may be admitted that the use of the general words "all other mineral districts of the United States," immediately following the enumeration of the particular states and territories mentioned, is some evidence of an intention by congress to extend the operation of the act beyond the limits of said states and territories. But the difficulty is that the language used has no definite signification or local application, and therefore must fail to have any effect for want of certainty. Besides, this act is one in favor of individuals and in derogation of the rights of the public-the whole people of the United States--to whom these lands and· timber belong, and therefore is not to be enlarged by construction 80 as to include things oJ' persoDsDot
4:99
expressly e:;:lUmetated, mentioned, or described therein with reasona· ble certainty. Smith, Com. § 738 et seq. For these reasons the act, in my judgment, is not applicable to Oregon, but is confined to the states and territories therein expressly menti.oned. By act No.2 of the said acts of date of June 3, 1878, it is declared unlawful to cut any timber on any of the public lands in Oregon, with the exception of that cut by a "miner or agriculturist" in the ordinary working or clearing of his mining claim or farm, or that taken therefrom to support his improvements on such claim or farm. This provision is inconsistent with and repugnant to the license to cut timber contained in act No.1. Either the prohibition contained in act No.2 must be limited and restrained by construction so as not to apply to mineralland,-land subjected to "mineral entry,"-or act No.1 must be held not applicable to Oregon. Both cannot be in full force in the same place. It may be said that No.2, being subsequent in point of place in the statute, is presumed to have been passed sub, sequently to the other, and therefore repeals or modifies it so far as they are in conflict. But both acts being passed on the same day, and measurably upon the same subject, I think they may best be can· sidered as parts of one act, and each be allowed to stand, and have effect as far as it can without conflict with the other. It cannot be said that, in passing act No.1, congress expressly included Oregon in the license therein given to cut timber on the public lands, and it is only claimed that it contains some general words which may be interpreted so as to include it, while upon the very face of the act it is plain that, in the passage of No.2, it was the intention of congress to regulate the subject of the sale and use of the timber upon any of the public lands in Oregon. This being so, the only reasonable conclusion is that act No.2 excludes No.1, even if there was any ground for holding the latter applicable to this state under any circumstances. The subject is fully regulated by the former act, and there is nothing left for the latter one to operate upon without displacing some provision of the other. The provision for the sale of timbe.r lands, for the prevention of cutting timber on the public lands, for allowing the miner and farmer to cut and use the timber on their claims, and to take it from the public lands for the improvement of such claims, cover the whole ground, and if allowed to be in full force here must exclude the Colorado act from the state. The· plea is iI;lsufficient. A defence to an action for unlawfully cutting timber on the publio lands in this state must show that it was cut upon the mining or farming claim" or land of the defelld-
UNITED STATES
v.
YOUNG.
493
ant in the ordinary course of working the same or preparing it for iillage, as the case may be, or was taken from the public lands for the necessary improvements thereon. It does not appear from the plea herein that the defendant cut the timber in question from land then occupied by him for the pnrpose of mining or agriculture, or that it was cut from the public lands for maintaining the necessary improvements thereon. From all that appears, the defendant was unlawfully engaged in cutting timber from the public lands, and is at least liable to the plaintiff in damages equal to the value thereof. The demurrer is sustained.
UNITED STATES V. YOUNG
and others. tNo.773.)
(No. 772.)
SAME V. WHITE.
Action to Recover Damages. These two actions are also for trespasses upon the public lands in Baker county, and the demurrers to the defences thereto were argued and submitted at the same time as the demurrer in No. 771. In No. 772 the plaintiff claims $3,000 damages for the unlawful cutting of timber on that portion of the public lands that would, if' surveyed, be township 10 south, of range 37 east of the Wallamet meridian, with intent to dispose of the same, since January 1, 1879. The defence is that in 1872 each of the defendants entered upon 160 acres of public land, which, if surveyed, would be in townShip 9 south, of the range and meridian aforesaid, with intent to pre.empt the same, and erected thereon a dwelling-house and other improvements, of the value of $4,000, with timber cut therefrom; that in the same year the defendants located a placer mining claim in said township 9, and within a mineral district of the United States, of not more than 160 acres, for which they have since obtained a patent from the United States, upon which they cut timber to wQfk the same, and for the improvement of their agricultural claims, withIn the dates alleged; that the defendants, being citizens of the United States and residents of said township 9, did, within the dates alleged in the complaint, enter upon and cut and take from certain mineral lands situate in said township, and adjoining the mining claim of the defendants, for building, mining, agricultural, and domestic pnrposes, amounting to "certain trees and timber being and growing"
