Francis v. United States (96 U.S. 354)

APPEAL from the Court of Claims.

This suit was brought by Charles Francis, for the use of Nathan Myrick, to recover damages on account of extra expenses incurred in the performance of a contract entered into, May 8, 1869, between Francis and the chief quartermaster of the military department of Dakota, for the delivery by the former, on or before Jan. 15, 1870, of a number of cords of wood at certain military posts; among others, at Fort Ransom, Dakota Territory, one thousand cords. The contract 'stipulated and agreed that no traders, sutlers, contractors, civilians, or others should be allowed to cut timber about the post of Fort Ransom, D. T., until all required by the United States, for certain purposes herein specified, should have been secured.' This stipulation was inserted pursuant to General Order No. 18, which is as follows:--

'HEADQUARTERS DEPARTMENT OF DAKOTA,

'SAINT PAUL, MINN., May 12, 1868.

'Post commanders in this department will assume control of all timber, wood, hay, and grazing upon the public lands adjacent to their respective posts, which are required for the public use thereat. Notice of the reservation of the timber, wood, &c., thus made will be thoroughly circulated in the manner best calculated to inform all who are or may become interested, in order to avoid all disputes of rights which might arise through ignorance.

'On all such reservations sutlers, traders, and civilians generally will not be allowed to cut timber, wood, nor hay, nor be allowed to graze animals, until the wants of the garrison are supplied for the year.

'By command of Brevet Major-General Terry.

'O. D. GREENE,

'Assistant-Adjutant-General.'

The Court of Claims found that the post of Fort Ransom was situated on the public domain, surrounded by the public lands of the United States, and had, by an order from the head-quarters of the department of Dakota, dated May 18, 1869, which was approved by the Secretary of War and by the President Jan. 11, 1870, been declared a military reservation by that name, with the following boundaries: 'The initial point is eight miles due south of the south-west angle of the fort; thence due east five miles; thence due north ten miles; thence due west ten miles; thence due south ten miles; thence due east five miles to the initial point.'

That, prior to June 1, 1869, but near that time, the claimant commenced cutting wood on said reservation, at a point about a mile and a half from the fort, and had cut about forty cords, when he was ordered by the post commander to desist, and remove beyond the lines of the reservation. He then removed to a point within them, about four miles from the fort, and there cut three hundred and ten cords, when the post commander ordered him to stop cutting at that place, move off the reservation, and not to cut any wood within the lines thereof, but to cut wherever he pleased outside of them. The contractor then and there claimed the right, under his contract, to cut on the reservation; which claim the post commander refused to recognize. Thereupon, he cut the remaining six hundred and fifty cords required to be furnished by him at a point about seven miles from the fort, and from half a mile to a mile beyond the lines of the reservation.

That, in September, 1869, the claimant commenced hauling to the fort the wood which he had cut on the reservation at a point four miles from the fort, when the post commander stopped the work, and would not permit him to haul the wood, because it had been cut within the lines of the reservation, in disobedience of positive orders.

The claimant appealed to General Hancock, who overruled the post commander, decided that the contractor had a right to cut wood on the reservation, and to haul what had been so cut. By reason of the order of the post commander, nine teams of the claimant remained idle thirteen days, to his expense of $468; but it does not appear that he might not have employed them during that time in hauling the vood cut off the reservation, which he was not prohibited from moving.

That there was sufficient wood on the reservation for the known wants of the post; and the claimant could have obtained, either at or near the place where he cut the first forty cords, or at the place where he cut the three hundred and ten cords, the whole quantity required by the contract, had he not been interfered with by the orders of the post commander.

That, by reason of said orders, and by being compelled thereby to cut the remaining quantity of wood at greater distances from the fort, he was subjected to an additional expense of $2,132, in hauling the same to the place of delivery.

That it does not appear how much more expense, if any, the claimant was subjected to by reason of cutting the six hundred and fifty cords outside of the reservation, over and above what he would have incurred had he been permitted to cut them within it, at the place where he cut the three hundred and ten cords, and from which he was ordered away by the post commander.

That the claimant has been paid for one thousand and three cords of wood, delivered under the contract, the money therefor having been paid at different times, and a receipt therefor given in full for the quantity delivered.

On the foregoing facts, the court concluded, as a matter of law, that the claimant was not entitled to recover, and it dismissed his petition. He thereupon appealed to this court.

Mr. John B. Sanborn for the appellant.

The Solicitor-General, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.