152 F. 87 | 9th Cir. | 1907
after stating the facts, delivered the opinion of the court.
On the trial the plaintiffs in error introduced evidence for the purpose of showing that the land from which the timber was cut was mineral land. The record contains numerous assignments of error relating to the admission and exclusion of evidence upon that branch of the case. It is not necessary to consider them all in detail. It is assigned as error that, after a certain witness had testified that he owned mining claims on Feather river, he was not permitted to tell the jury by what method he proposed to work them, and that, when he liad testified about a certain mineral lode on Marsh Creek, objection was sustained to the question ; “Did you take any steps or were you taking any steps toward procuring it?” Both these questions related to mining claims entirely outside the area of the lands on which the timber was cut, and, in any view of it, the evidence so excluded was wholly immaterial. The same is true of the exclusion of evidence concerning the extent of the working of the Bonaparte mine. That mine was several miles distant from the lands on which the timber was cut.
A series of assignments of error relate to the admission of evidence as to the cutting of timber by Baker and Anderson prior to the time, of the contract which is involved in the present action. It was shown that about the time of making the contract with Goodwin, Baker and Anderson located a number of placer mining claims on the South Fork of Boise River, both above and below Junction bar, and elsewhere within the area of lands on which the timber in question in the present action was cut, and that the timber was removed from these placer claims and the land immediately adjoining the same. It was the theory of the government that the placer mining locations were not made by Baker and Anderson in good faith but as a blind to cover their contemplated timber cutting. As tending to sustain that theory, the court permitted the defendant in error to show the former timber operations
“That evidence was introduced for the purpose of showing that they had located scrip upon certain lands, and then, regardless of the lines of that scrip location, they cut timber upon lands outside of its boundaries, using the location as a blind for the purpose of giving them a license to cut where they pleased. One of the witnesses, Mr. Baker, said he did not know, where the lines were. That makes no difference. He was bound by it just the same. It w¿s his duty to know where the lines were, and he had no right to cut until he did know, and if he cut beyond those lines he is just as guilty without knowledge as if he had known. Now, if he cut in bad faith in that instance, you may infer that he cut in bad faith in this. That is the only reason that that evidence was introduced.”
Plaintiffs in error contend that there are several laws under which timber may be cut from unsurveyed public lands, that under a railway fight of way, for instance, timber may be cut for right of way purposes, and also under the law of June 3, 1878, timber may be cut from mineral lands for general local and domestic purposes, etc., and argue that while if the plaintiffs in error were defending an action for cutting timber from the land in Long Gulch they would be called upon to show their right so to do, the rule does not apply here, because, first, the cutting and removal of timber in Long Gulch could have no bearing upon the issues involved in the present case, and, second, if admissible for any purpose it must be shown that the timber was unlawfully cut. But the plaintiffs in error made no-attempt to justify their action under any law, and it having been shown that they cut timber, as much timber, if not more, from adjoining unsurveyed government land as upon the land so located by scrip, the presumption at once attached that the cutting upon the former was unlawful. It was for them to show that it was not. They were in the possession of the facts.
It is contended that the court erred in excluding testimony offered by the plaintiffs in error as to conversations between Baker, Anderson, and Sandlin and Goodwin, at the time of the execution of the contract, concerning the particular lands upon which the timber was to be cut. The contract itself provided that the logs were to be cut on the lands owned by Baker and Anderson. There was no error in excluding the conversations between the parties, since at most they were self-serving, and nothing that was said could excuse a trespass Aereafter committed by Baker, Anderson, and Sandlin in cutting timber on public lands. The questions'for the jury to determine were whether the logs were
It is assigned as error that the court permitted a witness, an expert miner of long experience, to express the opinion that the ground where the timber was cut was not worth locating for placer mining purposes. We find no error in admitting such testimony. One of the issues of the case was whether the land on which the timber was cut was mineral land. The evidence was that Baker and Anderson located between 1,100 and 1,200 acres of land as placer mining claims, in the names of their friends and members of their families, that the land was covered with valuable timber, and that no work was done on these placer claims except the assessment work necessary to hold them. The court in reviewing the testimony alluded to the fact that there was not a paying mine, either placer or quartz, in the whole section of country in the region in which the timber was cut, that the ledge mines had been located and abandoned and thereafter relocated and abandoned again, and that in the last 15 or 20 years there had not been $1,000 worth of ore taken out or shipped from that country, and said:
“There is virtually nobody at work there now. There is not a paying mine, either placer or quartz, in that section of country.”
Error is assigned to the refusal of the court to instruct the jury that if they found that the property was converted by the Page-Mott Lumber Company, Limited, at the time when it took title, to wit, as soon as it was converted into saw logs, then the measure of damages is the value of the logs on the ground, provided that the transaction, so far as the corporation was concerned, was an innocent one. This requested instruction was not applicablé to the facts. There was no proof that the corporation had converted the logs prior to their delivery. By the contract, the logs were to be delivered at the company’s pond at Boise City. It was there that they were delivered, and it was there that thev were converted by the corporation. The provision in the contract that the title to the logs “should be in the second party as soon as cut” did not amount to a conversion. There could be no conversion until there was an appropriation to the corporation’s own use. Nor does the decision in Wooden-Ware Co. v. United States, 106 U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230, sustain a different conclusion. In that case the sale and delivery were coincident. The court held that the right to recover against the vendee was just what it was against his vendor “the moment before he interfered and acquired possession.”
But the contention principally relied upon is that the court erred in its instructions to the jury on the general question of what constitutes mineral land within the meaning of the act of June 3,1878. This court fully considered that question in United States v. Basic Co., 121 Fed. 507, 57 C. C. A. 624, and United States v. Rossi, 133 Fed. 380, 66 C. C. A. 442. But the plaintiff in error contends that the instructions given by the court in the present case were not in harmony with those decisions. On a careful consideration of the charge, we are convinced that the contention cannot'be sustained. In those cases we held, it is true, that in determining the right to remove timber from mineral lands it is not necessary to establish the presence of mineral in paying quantities
It is urged that the court charged the jury in substance that the locator of a mining claim must, in order to show the good faith of his location, do more than the assessment work on his claim.. But that is not what was said or implied in the instruction. The court did not announce as a rule that the failure to do> more than the assessment work was to be taken as evidence of bad faith on the part of the locator, but that the jury, in view of all the facts disclosed in the present case, might take that fact into consideration in determining whether the locations were made in good faith or merely as a blind fio cover timber depredations.
It is contended that the court erred in instructing the jury in substance that the Page-Mott Lumber Company cannot protect itself by the defense that it was acting in good faith. But the instruction given was clearly within the authority of the Wooden-Ware Casej in which the court said:
“It is also plain that by purchase from the wrongdoer, defendant did not acquire any better title to the property than his said vendor had. It is not a case where an innocent purchaser can defend himself under that plea. If it were, ho would be liable to no damages at all, and no recovery could be had. On the contrary, it is a "case to which the doctrine of caveat emptor applies, and hence the right of recovery in plaintiff.”
We find no error for which the judgment should be reversed. It is accordingly affirmed.
