40 F. 419 | U.S. Circuit Court for the District of Nevada | 1889
This is an action of replevin, brought by plaintiff to recover from defendant the possession of 2,000 cords of pine, cedar, and mahog
“(1) That the defendant is and was at all the times mentioned in the com-, plaint a corporation duly organized and existing under and by virtue of the laws of the state of Nevada, and engaged in doing business as a common carrier exclusively in the county of JEureka, in- said state; that on the 1st day of December, A. D. 1888, and for a long time prior thereto, the above-named plaintiffs were, ever since have been, and now are, the owners of thirteen hundred cords of pine, cedar, and mahogany wood which lies along the line and within one hundred feet of the track of the Eureka & Palisade Railroad Company, in Eureka county, state of Nevada, between the towns of Eureka and Palisade, in said county, and at and between the various stations on said road between said towns, and which said wood was and is of the value of five thousand and two hundred ($5,200) dollars in gold coin of the government of the United States. (2) Said wood was severed from the public lands of the United States, which lands are situated within the state and district of Nevada, and are unsurveyed and mineral in character, and not subject to entry except for mineral entry; that said wood was so severed by bona fide residents of the state of Nevada, and by them sold to defendant. (3) That on or about the 1st day of December, A. D. 1888, at the county and state aforesaid, said defendant .wrongfully, unlawfully, and without the consent of plaintiff took ali of said wood into its possession, and now does wrongfully, unlawfully, and against the wishes of plaintiff withhold and detain from the possession of the plaintiff seven hundred and fifty (750) cords of said wood of the value of four ($4.00) dollars per cord; and there was seized at said time, under a writ of replevin, in said action, five hundred and fifty cords of the wood described in the complaint, which said five hundred and fifty cords of wood is now in the possession of the United States marshal in and for said district. Said five hundred and fifty cords of wood is of the value of four ($4.00) dollars per cord. (4) That during all of the times mentioned in the complaint the defendant owned and operated a railway between the towns of Eureka and Palisade, in said county and state, of about the length of eighty-five (85) miles; that during all of said times said railroad was largely engaged in the transportation of*421 the gold, silver, and lead products of the Eureka and other adjacent mining districts to a market, and in transporting mining and other supplies in said region. (5) That at all of said times all of the locomotives used upon said road were what is known as ‘ wood burners,’ and that a considerable quantity of wood is necessarily consumed in operating said locomotives. (6) That said wood was cut from cedar trees of a length of from ten to twelve feet, including the branches, the bodies of which are from four to eight feet ⅛ length, and the largest of which do not exceed ten or twelve inches in diameter at the roots. That said trees are of a stunted, irregular growth, and unlit for timber, lumber, or manufacturing purposes. That said trees aro valuable only for firewood and other domestic purposes. That said cedar trees, and trees of nut pine, and what is called ‘ mountain mahogany,’ of similar character and dimensions as said cedar trees, comprise all the trees that grow upon said lands.”
These findings of fact are admitted to be correct, as shown by the evidence submitted. Defendant seeks to justify its purchase and possession of said wood under an act of congress approved June 3, 1878, (20 II. S. St. p. 38, o. 150.) The first section of this act, and under which justification is sought, reads as follows:
“That all citizens of the United States, and other persons, bona fide residents of the state of Golarado or 'Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be. and are hereby, authorized and permitsed to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United Staten, except for mineral entry, in either of said states, territories, or districts of which such citizens oí persons may bo at the time bona fide residents, subject to such rules and regulations as the secretary of the interior may prescribe for the protection of the timber and of the undergrowth growing upon such lauds, and for other purposes: provided, the provisions of this act shall not extend to railroad corporations. ”
Unfortunately for the defendant, the proviso contained in the last lines of the section renders it impossible for the court to entertain this defense. The proviso is clear, certain, and unambiguous. There is no place for interpretation or construction as to its meaning. It means just what, it says: “The provisions of this act shall not extend to railroad corporations.” No exceptions are made. It applies to all alike, and it must be enforced against all alike. If this defendant can, under this act, purchase and use this wood and timber, in like manner can every other railroad in the state do so. There are within the limits of the stale nearly or quite 900 miles of railroads, to-wit: The Central Pacific, 44f' miles; the Eureka & Palisade, 85 miles; the Nevada & Oregon, 28 miles; the Virginia & Truckoe, 52 miles; the Carson & Colorado, 192 miles; iiie Nevada Central, 93 miles. There are other projected lines of road which may be built in the near future. If any one of these companies can. under this act, obtain its supply of fuel from the public lands of the United States, then all can, and it matters not whether the lands are mineral or non-mineral lands from which the fuel is severed. This act, the first section of which is above quoted, originated in the senate. The
Judgment must be entered for the plaintiff for the recovery of the possession of 1,300 cords of wood mentioned in the complaint, or for the