The only errors alleged are in the charge. The specific portions to which the attention of the court was called at the time, and exceptions taken, are that which refers to the history of the attitude of the government towards pioneers and others who took timber from government lands for domestic use, and that which declared that no verdict could be returned in favor of the government, except for the value of the lumber manufactured. In these there was obvious error. Although there was no direct evidence of the value of the standing trees, yet it did appear that they were manufactured into lumber, and that the lumber had commanded a price of from eight to nine dollars a thousand feet; and when the government proved, or defendant admitted, that he cut and carried away some of the timber on this tract, the government was entitled to at least a verdict for nominal damages. As to any further right of recovery, see Wooden-Ware Co. v. U.S., 106 U.S. 432, 1 Sup. Ct. Rep. 398; Benson Min., etc., Co. v. Alta Min., etc., Co., 145 U.S. 428, 12 Sup. Ct. Rep. 877.
Nor were the observations of the court in reference to the attitude of the government justifiable. Whatever propriety there might be in such a reference, in a case in which it appeared that the defendant had simply cut timber for his own use, or the improvement of his own land, or development of his own mine, (and in respect to that matter, as it is not before us, we express no opinion,) there certainly was none in suggesting that the attitude of the government upheld or countenanced a party in going into the business of cutting and carrying off the timber from government land, manufacturing it into lumber, and selling it for profit; and that was this case. There is no pretense that the defendant cut timber for his own use. He says himself he sold it all. He ran a sawmill, cut timber, manufactured it into lumber, and made profit out of the sale of the lumber. There is nothing in the legislation of congress, or the history of the government, which carries with it an approval of such appropriations of government property as that.
The judgment must be reversed, and a new trial ordered.
Reversed.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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