NORBIB .". UNtTED STATEs.
739
"When a thing has been formed by a mixture of other materials belonging to different proprietors. neither of which can be considered as the principal substance. if the materials can be separated. the proprietor, without whose consent. the mixture was made, may demand the separation. If the materials cannot be separated without inconvenience, their owners acquire in common the pro rata of t.he thing in proportion to the quantity, quality. and value of the materials belonging to each of them." Rev. Civil Code, art. 528.
Under this article, after the logs of the United States were commingled with those of other log-owners, so that the materials of the mass could not be separated without inconvenience, the United States acquired, in common with the other log-owners,. the pro rata ownership of the mass. The evidence shows that by agreement this same pro rata ownership was allowed to Airhart, the trespasser, and that this same share was sold to defendant's testatrix, and was received and converted lby her. It was for this share that the charge held the defendant liable. The suit is one in which the United States are following their property practically stolen from them, and they have the right to follow it through all the changes it went through, as long as identity was possible. Upou consideration of the whole case, this court is not prepared to bold that there was error in the charge given, or in the refusal to charge as requested. The jurlgment of the district court will be affirmed, with costs; and it is so ordered.
NORRIS
et al.
tl. UNITED STATES.
(Circuit COWI't, W. D. Lou1.8iana. January 5, 189L) AmON POB TIMBER CUT FROlll PUBLIC LAND-VERDIOT.
In an action by the United States against an executor for the value ot' timber cnt from public land and sold by the trespasser to. defendant's testator a verdict finding that the trespasser cut the logs, and that defendant got them without finding that the logs were cut from the land described in the petition, or from government land, or that they ever came into the posses"ion of defendaD"s. testator, is insufficient to sustain a.JudgmeJ;lt agaiDst defendant.
At Law. Error to district court. J. L. Bradford, for plaintiff in error. M. O. E18tner, Dist. Atty., for defendant in error. PARDEE, J. The United States brought suit against Mrs. Annie E. Norris, wife of William B. Norris, executrix of the last will and testament of her deceased mother, Mrs. Matilda B. Jones, to recover the value of certain, timber or trees cut from the public lands of the United States, viz·· N. E. ! of N. W. i, and N. W. i of N. E. i, sec. 7, T. S. 7, R. 7 W., La. meridian, N. O. land district, and also E. f of N. E. i of said section, being vacant public lands, by trespassers, and unlawfully converted by the said Mrs. M. B. Jones. in her life-time, to her own use. Said Mrs. Norris pleaded several exceptions and a generalde-
740
I'EDEBAL REPORTER,
vol. 44.
nial, arid thereafter, the case coming on before the court and jury for trial, thejury rendered the following verdict: "We. ,the jury, find as facts in this case that Parker cut two hundred and twenty logs from the land subseqUently entered. to-wit, S. i. N. E. i. s. E. i. N. W. i. sec. 7. T. S. 7. R. 7 W. This cutting was made in 18tl3 and 1884. anq that said.lands were entered and paid cash for entry September 27. 1886; that Parker never lived upon nor entered upon or improved the said lands. and is not Ii ving on said lands to-day; that Parker cut forty logs off E. i. same section. v3vant lands; that Norris thirty of the last-named logs and one hundred and eighty of the first-named logs. the logs averagmg two hundred and twenty-five feet. and worth five dollars ($5.00) per thousand at the bay where Norris received them. and fifty cents a tree standing. for one and five trees." Upon this verdict the court rendered the following judgment: "In this case. Uy reason of the verdict of the jury;and by reason of the law and the evidence being in favor thereof. it is ordered, adjUdged, and de· creed that the plaintiffs do' have and recover of the defendant, Mrs. Annie E. Norris. executrix. the sum of one hundred and eighty-nine dollars, ($H:l9.00,) with legal interest from May 13, A. D. 1887, until paid. and all costs of suit." From this judgment this writ of error is prosecuted. On the trial several bills of- exception were taken to the charges and refusals to charge on the part of the court. It does not seem necessary to consider them, because it does not appear that the verdict as above recited warranted any judgment whatever against the defendant. The 220 logs found to have been cut by Parker in 1883 and 1884 are not found to have been cut upon any lands describ,ed in the petition, and there is nowhere in the verdict a finding that any of the logs found to have been cut by Parker were cut off from government lands, or ever came to the possession of defendant's testatrix. The verdict does not appear to warrant any judgment whatever against the defendants. It is therefore ordered, adjudged, and decreed that the judgment of the district court in the case Of Mrs. AnnieE.Norris be avoided and reversed ,and that the case be remanded to thec:iistrict court, with directions to award a trial
de novo..
.
UNITED STATES
v.
NORRts
et aZ.
,Circuit Court, W. D. Louisiana. January 5, 1891.) RBVIEW ON ApPEAL-EVI;DENCE NOT PRESERVED IN RECORD-INSTRUCTIONS.
Where, in an action by the United states to recover the value of timber wrong. fully taken from public land and sold by the trespassers to the defendant, the evidence not preserved in the bill of exceptions, the ruling on instructions as to measure of damages, based upon the assumption that defendant.boughtthe timber in good faith, cannot be assigned as error. Following U. S. v. Wingate. ante, 1211.
At Law. Error to distrtct court. M. ,a, Elstner, for the United States. 'J. L. JJr:adJord, for defendant in error.
