United States v. Loughrey

This was an action originally begun by the United States in the circuit court for the Eastern district of Wisconsin, to recover the value of timber cut from the N. 1/2 of the N. W. 1/4 of the N. E. 1/4 of section 13, township 44 N., of range 35 W., in the state of Michigan. The complaint charged the cutting of the timber by one Joseph E. Sauve, and that he removed from the lands 80,000 feet of timber so cut, and left the balance skidded upon the lands. The defendants were charged as purchasers from Sauve. The amount of timber cut by Sauve was alleged to have been 600,000 feet, and the time of the cutting in the winter of 1887-88, and prior to the 1st day of March, 1888.

The case was tried by the court without a jury, upon facts stipulated as follows:

'First. The defendants, prior to the 1st day of March, 1888, cut and removed from the north half (1/2) of the northwest quarter (N. W. 1/4), and the northwest quarter (N. W. 1/4) of the northeast quarter (N. E. 1/4), and the southeast quarter (S. E. 1/4) of the northeast quarter (N. E. 1/4), of section thirteen (13), in township forty-four (44) north, of range thirty-five (35) west, in the state of Michigan, four hundred thousand (400,000) feet of pine timber, and converted the same to their own use.

'Second. That such cutting and taking of said timber by the defendants from said land was not a willful trespass.

'Third. That none of the lands in question were ever owned or held be any party as a homestead.

'Fourth. That the value of said timber shall be fixed as follows: That the value of the same upon the land or stumpage, at $2.50 per thousand, board measure; that the value of the same when cut and upon the land, $3 per thousand, board measure; that the value of the same when placed in the river was $5 per thousand, board measure; that the value of the same when manufactured was $7 per thousand, board measure.

'Fifth. That the lands above described were a part of the grant of lands made to the state of Michigan by an act of the congress of the United States approved June 3, 1856, being chapter 44 of volume 11 of the United States Statutes at Large; and that said lands were accepted by the state of Michigan by an act of its legislature approved February 14, 1857, being Public Act No. 126 of the Laws of Michigan for that year, and were a part of the lands of said grant within the 'six-mile limit,' so called, outside of the 'common limits,' so called, certified and approved to said state by the secretary of the interior, to aid in the construction of the railroad mentioned in said Act No. 126 of the Laws of Michigan of 1857, to run from Ontonagon to the Wisconsin state line, therein denominated the 'Ontonagon and State Line Railroad Company."

The finding of facts by the court was in accordance with the foregoing stipulation, with the additional finding that said railroad was never built, and said grant of lands was never earned by the construction of any railroad.

And, as conclusions of law, the court found:

'First. That the cause of action sued on in this case did not, at the time of the commencement of this action, and does not now, belong to the United States of America.

'Second. That the defendants are entitled to judgment herein for the dismissal of the complaint upon its merits.'

No exceptions were taken to the findings of fact, and no further requests to find were made. Exceptions were only taken to the conclusions of law found by the court, and for its failure to find other and contrary conclusions.

Upon writ of error sued out from the circuit court of appeals, the judgment of the circuit court dismissing this complaint was affirmed. 34 U.S. App. 575, 18 C. C. A. 391, 71 Fed. 921.

Whereupon the United States sued out a writ of error from this court.

Sol. Gen. Richards and George H. Gorman, for the United states.

W. H. Webster, for defendants in error.

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