87 Ark. 80 | Ark. | 1908
(after stating the facts). The amount of the liability in this case depends upon the fact of whether or not George Gamey and the Flint Lumber Company were wilful trespassers acting in bad faith and for that reason ought to suffer some punishment for their depredation. Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302.
In the cases of Pine River Logging Co. v. United States, 186 U. S. 279, and of Woodenware Company v. United States, 106 U. S. 432, the rule is thus stated: The court held that where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property when first taken must govern; and that, upon the other hand, if the trespass be wilfully committed, the trespasser is liable for the full value of the property. This rule was approved and followed in the case of United States v. Anthony Railroad Co., 192 U. S. 524, the court saying that although, under the facts of that case, the defendants did not act under a mistake, meaning that the facts touching the status of the timber were known to them, yet what was done was in the belief that the cutting w.as legal, after having taken the advice of counsel on the question.
In the present case there is no attempt to justify the acts done. None of the persons who were guilty of the trespass were witnesses in the case. No excuse is given or attempted to to be given for not taking their testimony. A careful consideration of the testimony impels us to the conclusion that a clear preponderance of the evidence shows that the homesteader and the lumber company deliberately formed a design to enter the lands ostensibly for homestead purposes but in reality for the purpose of denuding the land of its timber for the benefit of the Flint Lumber Company, and that such design,was carried out.
The Lumber Company furnished the money for making the homestead entry. Only two little patches, comprising 5 or 6 acres, were cleared, and this was only cultivated for one season. No other permanent improvements were made. There was a small box house already on the land. It was moved to the point nearest the mill site of the ■ Lumber Company. Gamey abandoned the land as soon as it was stripped of the timber. He was in the employment of the Lumber Company during the whole time he resided upon the land. All .the facts and circumstances adduced in evidence show a concerted plan between' him and the Lumber Company to get possession of the timber and the lands by a pretended entry of Gamey for homestead purposes.
The decree of the chancellor was correct in so far as it holds that the claim of the intervener -was prior to the other claims allowed. Sections 3466 and 3467, Revised Statutes of United States; United States v. Barnes, 31 Fed. Rep. 705; Field v. United States, 9 Peters, 182; In re Vetterlein, 44 Fed. Rep. 57.
Reversed and remanded with directions to enter a decree in accordance with this opinion.