United States v. Denver & Rio Grande Railroad Company

This was an action of trover brought by the United States against the railroad company for the value of certain logs cut upon the plaintiff's lands. The declaration averred simply that the 'defendant converted to its own use plaintiff's goods; that is to say, logs, lumber, and timbers,. . . manufactured out of trees theretofore standing and growing upon certain lands of the plaintiff,' therein described.

The defendant pleaded not guilty, issue was joined, the case tried before a jury, which was instructed to return a verdict for the defendant.

The case was submitted upon an agreed statement of facts, which showed that the New Mexico Lumber Company cut from the lands described in the declaration 2,100,000 feet of lumber, which was furnished to and received by the railroad company for its use.

Upon these facts, and proof of the ownership of the lands, and of the value of the lumber cut, the plaintiff rested.

The defendant also offered an agreed statement of facts, in which it appeared that it was the successor of the Denver and Rio Grande Railway Company, and that by act of Congress of June 8, 1872 (17 Stat. at L. 339, chap. 354) and amendatory act of March 3, 1877 (19 Stat. at L. 405, chap. 126), 'the right of way over the public domain. . . and the right to take from the public lands adjacent thereto, stone, timber, earth, water, and other material required for the construction and repair of its railway and telegraph line,' was granted to the Rio Grande Railway Company, of which the defendant was entitled to the benefit. The amendatory act of 1877 merely extended the time for the completion of the railway from five to ten years, and is not material to this controversy. Defendant also offered testimony showing the appointment of the New Mexico Lumber Company as its agent for the cutting of such timber for the purposes mentioned, and that the lumber delivered to the railroad company was furnished upon specific orders given to the lumber company as its agents. There were other facts included in the statement which are immaterial upon this writ of error.

No testimony was offered by either party tending to show whether the timber cut from the lands and received by the defendant was required for the construction and repair of its railway and telegraph line.

The jury, under instructions of the court, returned a verdict of not guilty, and judgment was entered for the defendant, which was affirmed by the supreme court. 66 Pac. 550.

The case was first tried in 1897, a verdict for plaintiffs returned, the case carried to the supreme court, which reversed the judgment of the court below upon the ground of erroneous instructions with respect to the burden of proof. 9 N. M. 382, 54 Pac. 241.

Mr. Marsden C. Burch for plaintiff in error.

Messrs. Joel F. Vaile, Edward O. Wolcott, Charles W. Waterman, Edward L. Bartlett and William W. Field for defendant in error.

Statement by Mr. Justice Brown:

[Argument of Counsel from pages 87-89 intentionally omitted]

Mr. Justice Brown delivered the opinion of the court: