424
.,
FlllDER.&LREPOltTER,
vol.
41.
. UNITED STATES 'V. NORRIS.
(Oircuit Court, W. D. Louisiana. January Term, 1890.) . . P1JBLICi LANDS-HoMESTEAD ENTRY-SALE· Oll' TIMBER-LIABILITY OJ!' PUROHASER ll'ROM TRESPMisER.
In 1879, G. 'made application, aftIdavit, and paid fee required under homestead laws to public land. G. did not go upon the lands, or in any way after that comply with his obligations as a homesteader. In 1883 and '84, G. sold to L. & N. the right to cut the lumber from The latter cut and sold to Norris 500 timber logs, worth $1.25 per thousand,lying cut on the ground; worth U.50 per 1,000 in the float at the mills. Norris purchased them in good faith at the mills. In 1889, G. was allowed by the depal'tment to. become a beneficiary under the act of 1880, by recei>;ingfrom him $1.25 per acre, less the fee paid in 1877, for the land, and gave hIm a patent for the land. Plaintiftnow sues Norris for the value of the timber at the place he bought it from L. & N. Held,thatG., having been shown to have made apJ;lll.catip,n, etc., in 1877, in bad faith, and for the purpose only of appropriating the·timber on the lands, without in any further way complying with the duties imposed on a homesteader. was neither the legal nor eqUItable owner of the land or tl.lIlbe.r .thereon when. L. & N. cut and sold the timber to Norris, in 1883 and 1884' that, *ithout passing upon G.'s title under his patent to the lands, there is nothing iuth.a law forbidding the .{llai.ntiff to hO.ld Norris liable for the. timber cut by L. trespassers on publ1c land, and sold to Norris; that Norris, having bought in good faith, should be held liable for the value of the timber logs at the time they oecame severed from the, landi-that is, for $1.25 per 1,000.
M. Elatner, U. S. Atty. J. L. Bradford, for defendant. BOARMAN, J. At law. Jury being waived, the court finds the following facts: Henry Gill, in 1877, made application and affidavit, and paid required fee under the homestead laws, to enter certain lands lying in Louisiana, then public lands. Gill did not at any time go upon, or in any way improve, the lands. That in 1883 and 1884 he sold to La& Nixon, for a trifling sum,. all his right to cut the timber on said lands. That Lanier & Nixon cut 500 pine from the land, measuring, in all, 125,000 feet. The logs lying cut on the land were worth $1.25 per 1,000, and when placed in the bayou for floating they were worth $5.50 'per 1,000. That W. B. Norris, as the agent of the defend. ant, bought' the said logs for mill timber from Lanier & Nixon at the usual placew'here he bought logs for defendant's mill, in the bayou, in open market, a.t $5.50 per 1,000, and he knew nothing of the fact that they were cut from the said lands. Gill, in i889, was allowed by the land department to become a beneficiary of the'law of June 15, 188D. In making payment for said lands, under that law, he was credited with ·the amount which he had paid in 1877 as the fee required under homestead laws. Gill now has a patent for the lands under provisions of that law. Under this statement of facts, defendant denies liability, at any price, for the said logs. He relies for relief in this suit upon the factsFirst, that Gill made his affidavit and application, paying the fee required of him for said lands, under the homestead laws; second, that he, notwithstanding his failure to go upon, orin any way improve, the lands, was allowed by the land department to become the owner of the landa, in 1889, by e()1nplyingwith the act ofJune 15,1880. The government
a.
UNITED STAi1l:St1. NORRIS.
contends that when, in 1883 and 1884., the timbElr was cut and sold to defendant's agent by Lanier & Nixon, that they were without authority, and were trespassers upon the public lands; that the government had at that time been divested of neither the legal nor equitable title to the lands; that Gill's affidavit, application, etc., were made in bad faith; that the land department was not authorized, under the law and facts, to allow Gill to become il. beneficiary of the act of 1880; that, even if he D<>W has a title to the lands good against the government, the govern:ment'should'recover against Norris; because the legal and equitable title, at the time Lanier & Nixon sold the logs, was in the government, and the timber,having become severed from the realty, was personal property, aT,ld belonged to the government; that defendant is liable for the value, $5.50 per thousand, at the place of the purchase of the logs. These several recitals make substantially the issues of law and fact hi the case. . Considering these contentions, it may be sufficient for the court to determine but two of the questions,· under the law and facts: First, whether the government, in 1877, d,ivesteditself ofthe legal or equitable title to the land; second, whether the government, by reason of the fact that the land department allowed Gill to become a beneficiary under the law of 1880, \lnd triade legal title to him of the land in 1889, is estopped from prosecuting defendant for the value of the timber cut by Lanier & NixoD;, with Gill's consent, in 1883 and 1884. Upon the first matter, the facts suggest very clearly to me that GiWs acts in making the affidavit, application, etc., in 1877, under the homestead law, were mere pretenses and fraudulent devices adopted by him for the purpose of appropriating the lumbel'on the land; that he never intended to comply with any of the obligations imposed on him by those laws, and he was in bad faith ab initio. Gill not having legal title to the land, the court is forbidden, under the circumstances, which show bad faith and frlitud in him ab initio, to consider him as having any sort of right, equitable or otherwise, in 1883 and 1884, to authorize Lanier & Nixon to cut and sell the timber; and the defendant must be treated having bought the timber from trespassers on public land. Defendant's counsel, illustrating his views upon the second point, contends that theaot of 1880 says, substantially, to Gill, who became a beneficial'yunder it in'1889: "You can now become the owner of th'e lands in question, for \yhich you made application in 1877, notwithstanding yon are shown to have done nothing in good faith to comply with your 'obligations to the government, by paying $1.25 per acre to the government, less the amount of the fee paid by you in 1877; and, when you have become the owner of the land under that law, you, nor anyone else, will or can be held liable for timber cut and sold in 1883 and 1884' to defendant, when you had neither legal nor equitable title to the land." This is putting the counsel's contention strongly, but the statement is within the logical analysis of his expressed views. In applying the law of 1880, under the admitted facts, he treats it as an act of amnestry or condonement, and under its operation he contends t.hat defendant is relieved, notwithstanding that Lanier & Nixon, but
as
.. be' held to ,in ,1883 on pu1?li act of 1880.pr?vides ."tpat, persons,,,,ho of homestead laws, to suc1l.:.Elntry, **, ,may ,entered lapdi:l : themselves. to said, pay'!ng the,goyernment _ price, therefor. " , Considering in offering the public lands and the ,pprpose ill a,11owing certain persqns .I8BO.it js l!lotstraioing ','too cu.to become riously" afj;e]:! the ,spirit ,pi the sevElral laws relating to lands to ;hold ,that ilia persons seekjng the l:!epefit of the act of 1880 have ."entered lands",in gOQd faith and fraudulent purpose :of Gill attl].e'tinm -he ,ll-pplication, etq.,and ,his .fail.ure too do, qrlltte.mpt any availipg themselves ()f the policy of ,the government, forJ2 years,}lap,disqualified him so thatJp.Elland ,depa1)tment was with.Qut to allow hinLto tIle ,owneli QHMl",nds iJ,l Gill, being in ,ab iuiQ,shoull1 (not l:>eoeficiary ,oitha act of 1880. IJl this,suit the,qopr.tjs"nllu;thol'izedto pass upon Gill but thel'lil is no ,good l1eason lluggested for ho14co.qn¢, that,the p'Ynershipqow ,vested in him 'lates back to the date of his affidayit, were,Mthe ,proofsh9Wll". IIlltde purposes. If bad faith. merely .<l.eNi!!,iqg governtpent's timber, thel'f,l in-laW' upq.er a,ctof 1880 apd fastljH,opto." Whatever may be;his title now,again,st Jhe, gOViefPPlen,t,· it carrying ,the doctrine..' conten<ieq. for by- deW .lengths to 8I1-Y. that.. the government i.s liable in fqr,theval1,1eQf ,the timber.cut fr;om :ppblic lands, .!'nd by him, ata in equity,. iI;!. the "The landsfrqlll.W111 Nixon cut thetimber,'purchase\i by defendant in not "entered lands,:".butpublic lands, policY' Gill's· title to them . In()w",Ul uQ,t,protE:ot in thislJJlit. bought in,gooqfaith; ,¥ill held liable for its 1,00P po thepllqlic land. Ina this VlOprt has held that a pnfqhaser in good faith [rqm, (lih)s ,sho1Jld be qeld lill-ble only for the tiIOber ,logs at the- time; tlley ,w.er.e lY1ng C¥?- the. puplic lands, became . Of course. be liable.Ij.ndel" ilUJias not been thought ,n.ecessary to interpretqr applY J..Jhe :actofl8&Olo. fMta.in this case., $156.25; and
'
.1;·"
..... , ;,
. .
.')
ATWArnlJR
'D.
WHITEMAN.
(Oircutt Oourt, D. Minnesota. February f!'l, 1890.) In an action for false representaj;ions, whereby was induced to buy lana. an instruction that the measure of damages is the between the fair casb Val\160f the land as it actually waS at the time of ·the conveyance, a[ld its fair casbi value at.that time had it been as represented, is erroneous, as the correct . of damages in such case is the between tbe fair cash value of the land and tbeprice paid. Following ,smith v. Bones, 10 Sup. Ct. Rep. 89. B..UIE-APPEU-REVIEW-HARMLES8 ERROR. . Where it appears from the the jury disregarded instruction" and estimated the damages according to the correct rule, the glVlDg of such' struction is harmless error. " ' .
At I-aw. On motion for new trial. Action by Linnie V. Atwate'r against Alonzo J. Whiteman. returned a verdict for plaintiff. , Hamm0n8 Ham'1lW'Tl8, for plaintiff. Cash Williams, for defendant.
The,jury;
SHffiAS,J. This action was brought to recover damages alleged' toi have been caused to plaintiff by reason of certain misrepresentations touching the character and value of some 1,600 acres of pine lands con-: veyedby defendant to plaintift. On the trial before the jury, it appeared that at the time the lands were, conveyed the, defendant was engaged' to; be married to, the daughter of plaintiff;' that plaintiff had about: 88,OOOtha.t she wished to safely invest, so as to secure a good :returnr thereon; that she consulted the' defendant in regard, to' such, investment;, that the defendant represented to her that he had the lal)ds in question; that they ,were cheap at $7.000, and would be a good investment ,for her;' that the:lands had on them good,merchantable pine; that the plaintiff;,; relying.on <.lefendant'srepresentations, took the lands at $6,964. The' jury found that the lands were not in character and quality what they; were rel>fesented to be, and, under the instructions of the Court,returned a. general and special verdict in favor of plaintiff. There was not any' substantial difference in the ·testimony of tbeplaintiff and defendant touching the manner in which the purchase was made, or the statements: of detimdant regarding the Jand. The main dispute in the testimony [ was over the actual character of the land, and the quality, quantity, and value of the,pine timber thereon. In charging the jury upon the rule of damages in case the main issue was found in favor of plaintiff, the' court, iii substance, instructed the jury that they were to find tile fair : cash value the land wou.ld have h'ad, had it in fact been of the character, quality,and value that the defendant represented it to be, and the' faircllsh value of the land as it actually was at the time of anee, and. the difference, between these sums 'Would be the damages which : plaintiff had so.ffered at the time of the conveyance of the lands. to which,: the jw:ymight, in their discretion, add interest aUhe legal ,Naf