221 F. 234 | 8th Cir. | 1915
[1] This was an action brought by the United States against the Cooperage Company to recover the value of certain timber after it had been manufactured into staves on the ground, as charged in the petition, that the timber was willfully and intentionally cut by one Lay from his homestead entry and sold to the. defendant by him before his right had been perfected by the requisite residence and cultivation. The proof tended to show that Lay made his entry in 1904, and that in December, 1904, and January, 1905, he cut timber and built a house thereon, and moved into it with his wife and three children, intending to make a home there; that he afterwards built two outbuildings, and cleared and cultivated about five acres of ground for a garden; that he continued to live there with his family until March, 1907, when, finding himself in debt and unable to make a living, he voluntarily relinquished his claim to one Grantham, who entered it as a homestead, perfected his entry, and received a patent. There was testimony tending to show that after Lay had occupied the premises and had done the work just referred to, for a period of about a year, a person representing himself to be an agent of the defendant, the Williams Cooperage Company, offered to loan him $200 to buy a team with and to take his pay in sections of while oak timber called “stave bolts.” A trade of that sort was then made between them. There were two other tracts of land from which Lay had acquired the right to cut timber, and from these two tracts, as
The same rule of damages is applicable to a purchaser of timber from the original trespasser. Woodenware Co. v. United States, supra. The court charged the jury among other things as follows:
“A man. cannot go on the land and, because he has not got any money, cut off the timber on that land and sell it to a man who sells him the mules. He has got no right to do it, and therefore under the law, while an honest man and a straightforward man, which I think he is, under the law he was a willful trespasser, and that is what the government charges in the second count of the petition—that he was a willful trespasser.”
“If you believe from the evidence that the defendant had no knowledge, at the time said timber was purchased from Lay, that it had been cut from an unperfeeted homestead, and that Lay cut said timber innocently and in good faith, then, if you find for the plaintiff, you will assess the damages only at what you believe from the evidence to be the reasonable value of the timber, at the time it was cut by said Lay.”
To the refusal to give this instruction, defendant’s counsel at the time duly excepted.
In view of the law as hereinbefore stated by us, we think the trial judge erred in declaring as a matter of law that Lay was a willful trespasser, and that he also erred in directing the jury to find for the government the value of the staves manufactured out of the timber cut and sold by Lay. We think the court should have given an instruction substantially as requested by defendant’s counsel.
The judgment is reversed, and the cause remanded to the District Court, with instructions to grant a new trial.