202 F. 491 | 5th Cir. | 1913
This was an action by the defendant in error, the United States, against the plaintiff in error, defendant in .the court below, for damages for the conversion of certain turpentine .and resin, taken in crude form from pine trees on the homestead entry of Lewis Freeland by H. M. Rayford, and by him manufactured .and sold to the plaintiff in error. There was a judgment in the court below for the market value of turpentine and resin at the time of its sale and delivery to the plaintiff in error, with interest from the date of purchase to the time of trial.' There are 50 assignments of error. Upon examination we find none of sufficient merit to justify .a reversal of the judgment.
“Tbe boxing of trees by a settler on public land covered by an unperfected homestead entry and the extracting of crude turpentine therefrom constitutes in law a willful trespass, although the settler may have acted in good faith and without knowledge of the illegality of tbe act.”
We adhered to this principle in the case of McKenzie v. U. S., 184 Fed. 988, 106 C. C. A. 666, and see no reason to depart from it now.
“Where he is a purchaser without notice of wrong from a willful trespasser, the value at the time of such purchase.”
In the case of U. S. v. Perkins (C. C.) 44 Fed. 670, we stated the rule as follows:
•‘In an action by the United States for the value of timber bought by defendant from a trespasser, who had knowingly cut it from public land, the measure of damage is the value of the timber at the time of the purchase.”
We direct that a remittitur be entered upon the judgment in the amount of that part of the interest included in it, computed from the time of the purchase of the turpentine and resin by the plaintiff in error up to the date of the filing of the suit, and that the judgment be thereupon affirmed, with costs.