In this action the plaintiff seeks to recover from defendant the sum of $30,000 as damages for cutting timber upon sections 29 and 30, in township 11 N., range 6 W. of the principal meridian in Montana, situated in Powell county, in said state. The plaintiff alleges that it was the owner 'of this land. The defendant admits that plaintiff is the owner of said section 30, but denies that it * the owner of said section 29, and avers that this last-
It appears from the evidence that the section 29. described in plaintiff’s complaint was -an odd section of unsurveyed land, and that if surveyed it would be within the limits оf the Northern Pacific Railway Company’s land grant. The government had therefore parted with its title to that section. It is difficult, under the decisions of the federal courts, to understand why a suit should have been brought for damages to that section of land, as the government had parted with its legal titlе to the same. The following cases establish this doctrine: Leavenworth, L. & G. R. Co. v. U. S.,
As to said section 30, there is no contention but that the title to the same is in the government, and plaintiff would be entitled to damages for wood cut upon the same, unless the defendant could present facts showing that it had a licensé to enter upon the same and cut wood thereon. In the amended answer in this case the defendant admits that it entered upon said section and cut some 500 cords of wood therefrom and converted the same to its own use. The evidence, however, shows that the amount cut and appropriated by defendant from said section was some 4,500 cords. There is a denial in the answer that the defendant unlawfully or wrongfully cut any of this wood. This, however, is a denial of a legal conclusion, and is of no avail. The defendant also alleges as a defensе that said section 30 was public mineral land of the United States, not subject to entry under any of the existing laws of the United States except mineral entries, and that defendant cut said wood for mining and domestic use in said
The statute—20 Stat. 88 [U. S. Comp. St. pt. 1528]—which gives the right to cut timber upon the mineral lands in the states and territories aforesaid reads as follows:
“Section 1. That all citizens of the United States and other persons, bona fide residents of the state of Colorado, or Nevada, or either of the territories, of New Mexico, Arizona, Utah, Wyоming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be and are hereby, authorized and permitted 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 nоt subject to entry under existing laws of the United States, except for mineral entry, in either of said states, territories, or districts of which such citizens or persons may be at the-time bona fide residents, subject to such rules and regulations as the secretary of the interior may prescribe for the рrotection of the timber and of the undergrowth growing upon such lands, and for other purposes: provided, the provisions of this act shall not extend to railroad corporations. * * *”
It will be seen by this section that trees may be cut “under such rules- and regulations as the secretary of the interior may prescribe for the protection of the timber and the undergrowth growing upon such lands, and for other purposes.” (The italics are mine.) Compliance with such rules and regulations as the secretary of the interior had power to make and adopt is necessary in order to give a license to сut trees, and this license, and all the facts necessary to constitute this license, should be specially set forth in the answer.
There is much doubt, I conceive, as to what rules and regulations the secretary of the interior was authorized to adopt under this statute. First, these rules and regulatiоns were to pertain to the protection of the trees and undergrowth growing upon such mineral lands, and next for other purposes. What could be included under this term “other-purposes” has never been fully determined by the courts. The secretary of the interior passed beyond the аuthority given him by the statute, and in his rules and regulations has undertaken to describe the land from which timber may be cut, and designated it as “strictly mineral.” What is meant by this description we are not enlightened by any judicial authority. If there is any difference between mineral land and strictly mineral land we have not bеen informed. The courts-have determined, to some extent, as to what evidence will be sufficient to determine what are mineral lands. In U. S. v. Edwards (D. C.)
*666 “Land returned on the government survey as mineral land, of broken and rugged surface, with every indication of mineral ground, hut on which no mines have been located, though in the vicinity of valuable mines, and which is unfit for cultivation and entry as agricultural lands, is within the meaning of Act Cong. June 3, 1878 [U. S. Comp. St. p. 1528], allowing timber to be taken from mineral lands on the public domain for building, agricultural, mining, or other domestic purposes.”
In U. S. v. Richmond Min. Co. (C. C.)
“The defendant, a corporation engаged in mining, reducing ores, and refining bullion, purchased wood and charcoal for use at its reduction works. 'The cord wood, and the wood from which the charcoal was manufactured, were cut upon unsurveyed public mineral lands, mineral in character, of little or no value except for the mineral therein, and within organized mining ■districts, or not far remote from known mines. This was mineral land, within the meaning of the act of congress of June 3, 1878, permitting timber to be taken therefrom for ‘building, agricultural, mining, or other domestic purposes,’ and that defendant could lawfully purchase such wood and coal for said use under the license given by said act.”
The mode of determining what is mineral lands adopted in the foregoing decisions was probably considered and approved by congress, in its legislation contained in 28 Stat. 683, entitled “An act to provide for the examination аnd classification of certain mineral lands in the states of Montana and Idaho.” In that act the commissioners were to •determine the mineral character of lands from the character of adjacent lands, and their mineral character and geological formation, etc., and the reasonable probability of such land containing valuable mineral deposits. These, I think, are better criterions for determining what is meant in the act of congress of June 3, 1878 [U. S. Comp. St. p. 1528], as to the lands upon which license was given to cut trees or timber. In U. S. v. Price Trading Co.,
It is not at all certain what power was granted to the secretary of the interior to make rules and regulations for other purposes than, the
I do not feel called upon at this time and in this case to determine whether the secretary of the interior had, under the authority above named, the right to regulate the sale or disposаl of cord wood cut from trees standing on the public mineral lands, and to require that-the person selling such wood should obtain an affidavit from the. purchaser as to the use to which he intends to put such wood, or to prescribe a system of bookkeeping for those engaged in that businеss. Rules and regulations upon the subject of cutting and disposing of cord wood should be reasonable and designed to promote the policy of congress in the statute under consideration. Anchor v. Howe (C. C.)
It is also claimed that it was error on the part of the court to admit in evidence the advice of counsel learned in the law, given to the defendant upon the question of a compliance by it with the rules and regulations of the secretary of the interior, with reference to' the keeping of a record of sales and other regulations pertaining to the sale of its cord wood, and in this connection the plaintiff contends that in this action the plaintiff is not seeking to recover punitive or exemplary damages, and that only in cases of this character is the defendant permitted to introduce such evidence. In this casе, however, plaintiff does seek to recover punitive or exemplary damages: It seeks to recover more than a compensation for the injury done. It is alleged in the complaint that the defendant willfully committed the trespass. In a case somewhat of the nature оf this (U. S. v. Eccles [C. C.]
Defendant has asked for leave to amend its pleadings so as to conform to the evidence adduced at the trial; but this evidence was given and received under the objection of the plaintiff, and I think, under
The view that evidence in mitigation of damages could be given without being pleaded was the error of both the court and counsel for the defendant. Under the" rules of the common law and in some of the states under the code practice, such evidence could be given under the general issue. Pom. Rem. & Rem. Rights, § 693; 1 Suth. Dam. pp. 256-258; 5 Enc. Pl. & Prac. p. 776, and cases cited in the note Beckwith v. Bean,
In conclusion, for the error above named I think a new trial should be awarded, and defendant be granted leave to amend its answer in accordance with the views above expressed; and it is so ordered.