222 F. 857 | 8th Cir. | 1915
“But, I think we will all agree that, under the testimony in this ease, long before the cutting of this timber — nine years before the cutting of this timber — everybody knew, or ought to have known, that those lots there, with that area and that length of line, could not possibly come to that water.
“What I mean by that, I don’t think everybody should know the principles of law governing the caso. I am talking about the facts now. If you understood me to say that everybody should know the principles of law governing the case — Great Heavens! how could they? You understand the facts? There was the plat, and any man looking at that plat knew that those lines were not as long as they would be if they went to the actual lake. Everybody knew — after they found out about that lake being there as it was — that if they gave the man that bought the land on the plat all (lie land to the lake, he would get a great deal more land than the plat showed there was in the subdivision.”
“Q. Before the timber was cut you did know that all this land on which Bums was living, and which he claimed, was between the Howe meander line and the lake? A. Yes, sir. Q. And you knew then that it never was a part of the lake, didn’t you? A; It was all high ground. Q. Could not have been a part of the lake? A. Could not have been, no sir — impossible. * * * Q. Do you know when the first cutting was done of timber under that deed? A. Not exactly. Q. Well, approximately? A. About 1S93. Q. And you didn’t cut down to the meander line at that time, or anywhere near it? A. No, sir. Q. Then your men went back about 1S97? A. Yes, sir. Q. And cut more timber? A. Yes, sir. Q. At that time you stopped, as near as you could figure it, at the Howe meander line? A. Yes, sir. Q. Then you went on there in 1900 and 1901? A. Yes, sir. Q. And cut all of the timber from Mr. Burns’ land? A. Yes, sir. * * * Q. It comes right down to this, doesn’t it, Mr. Hornby — that when you cut that timber, it hadn’t been finally decided by any court what yohr rights were? A. Had not been any final courts. Q. That is what I mean — court of last resort? A. No. Q. You know that? A. Yes, sir. Q. You simply went on there, and cut that timber, and took your chances on what the final decision yould be? A. We went on and cut the timber. Q. You took— A. We cut the timber, and it had not been finally decided. Q. And you took your chances when you cut it? A. We certainly did.”
The court’s remarks were based upon the testimony in the case, and while the testimony did not show that everybody knew, the word “everybody” is only material as including the lumber company, and so far as Hornby was concerned there is not much, if any, question under the testimony but that Hornby knew the lots upon which he had a right to cut timber did not extend to the lake, so far as could be determined by an observation of the surrounding country and the plat. After using the language above quoted from the charge, counsel for the lumber company asked the court the following question:
“Would it be proper for tbe court to say to the jury, which has been held by these courts, that the area is indicated there, not as a limitation of the amount, but simply to notify the government officials what amount the party should pay for the land?”
In answer to this question of counsel the court used the following language, which was also excepted to:
“What the Supreme Court of the United States said — I will read again— was that in truth no such survey as was called for by the contract between*861 the government and the surveyor was made. I think under this evidence— however, you are to be the judges — that before 1900 and 1901 everybody knew that there was in truth no such survey as was called for by the contract between the government and the surveyor of the exterior lines, with the excoi> tion of the south line of the township, run; but no survey of the interior of the township was ever made, and no section lines thereof were ever run, with one possible exception, and in truth the survey as a whole was a fraud. No such body of water at the place indicated on the plat of survey then existed or now exists. I don’t think Ihese people could he said to know that the courts would hold that that survey was a fraud. I don’t think so, but they Knew the facts about that survey. I don’t mean to say that Mr. Hornby, the representative of this company, would know that that survey was a fraud in law, or that the courts would hold it a fraud in law; but he knew the facts in regard to that survey, as I remember it — what it showed.”
The refusal of the trial court to receive in evidence the agreement between Mr. Burns and wife and Mr. Van Derlip, of date January 24, 1905, and deed from Mr. Burns and wife to Mr. Van Derlip of date January 24, 1906, was not error, as this court decided on the former appeal that those transactions did not defeat the right of Burns as a homesteader, so far as recovering the value of the timber in controversy was concerned.
Finding no error in the record, the judgment below must be affirmed; and it is so ordered.