Shiver v. United States

Shiver was tried upon an information filed in the district court for the Southern district of Alabama for cutting and removing 200 pine trees from a quarter section of land in Monroe county, which he had entered as a homestead on January 26, 1894. It appeared that the cutting began about the 1st of April, and that all the standing timber, amounting to about 500 trees, had been, either before or after complaint was made against him, cut and removed from the land; that the defendant and his family were living on the land, and had erected a box house worth about $100; that the lumber was cut and hauled from the land by defendant's procurement; that it had been cut all over the land; that the land cleared amounted to about an acre; that the house was not yet completed; that the timber was taken to the mill of the Bear Creek Mill Company, of which defendant was an employ e; that defendant was not living on the land when the cutting began, and that the trees would make upwards of 150,000 feet of lumber; that they were not cut for the purpose of clearing the land for cultivation, and that such timber was cut within four months after defendant had made his homestead entry; that the trees yielded an aggregate of the sum of $126, while the improvements made upon the land cost $229. The lumber put into the building amounted to 9,765 feet.

There was conflicting evidence as to the motives of the defendant in cutting and selling the timber. He claimed that the logs were exchanged for lumber and building material, all of which were put into his improvement, the government claiming that it was cut for the purpose of sale and profit.

The court instructed the jury that defendant had the right to cut timber on his homestead suitable and sufficient to build necessary and convenient houses, fences, etc., for a home, and to have that timber sawed into suitable lumber to make such improvements on his homestead; that he could have exchanged timber for lumber to make such improvements, but only so much as was necessary; and that if he only did this, and did it in good faith, he should be acquitted. On the contrary, that any cutting in excess of the lumber necessary to make his improvements would be unlawful, that he had no right to cut trees for the purpose of sale for profit, or to pay debts or loans of money, or to pay his expenses, or to buy supplies; in short, he had no right to cut them for sale for any such purpose.

Defendant was convicted, and appealed to the circuit court of appeals (12 C. C. A. 689), which certified to this court the following questions:

(2) Whether lands duly and properly entered for a homestead under the homestead laws of the United States are from the time of entry, and pending proceedings before the land department, and until final disposition by that department, so appropriated for special purpose, and so segregated from the public domain, as to be no longer lands of the United States, within the purview and meaning of section 2461 of the Revised Statutes of the United States.

(2) Where a citizen of the United States has made an entry upon the public lands of the United States under and in accordance with the homestead laws of the United States, which entry is in all respects regular, can such citizen he held liable in a criminal prosecution onder section 2461 or section 5388 of the Revised Statutes of the United States, or either of said sections, for cutting and removing, after such homestead entry, and while the same is in full force, the standing trees and timber found and being on the land so entered as a homestead?

J. W. Smith and M. D. Wickersham, for plaintiff in error.

Asst. Atty. Gen. J. M. Dickinson, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.