done by the defendant wilfully, or was the result of negligence so gross as to show wilfullness or a reckless indifference to the rights of the Government, you may, in your sound discretion, go beyond the boundary of mere compensation for the injury done and award exemplary damages. Now, gentlemen, take the case. Ascertain from the evidence what the truth is as to the guilt or innocence of the defendant, and as you find that truth so let your verdict be. And if you find the defendant guilty, say by your verdict what damages the Government is entitled to recover from him for the injury done.

Special Agent R. A. Vancleave to Commissioner General Land Office, November 28, 1888.

In the United States court for the southern district of Mississippi, November term, 1888, * * * His Honor Judge R. A. Hill ruled in the cases tried at this term of said court as follows:

When the purchaser bought crude gum with a knowledge of the trespass, he was liable for the manufactured value without deduction for the expense of manufacturing. That an innocent purchaser of crude gum, without knowledge of the trespass, from a wilful trespasser is liable only for the value of the crude gum at the time of the purchase, and that the price paid by said purchaser is the amount the Government is entitled to recover.

INJURY, PRESENT AND PROSPECTIVE, INFLICTED UPON TREES BY "BOXING," ETC. [4 L. D., 1.]

In determining the amount of damages resulting from "boxing" trees for turpentine, the injury, present and prospective, inflicted upon the trees should be included.

Acting Secretary Muldrow to Commissioner Sparks, July 1, 1885.

I am in receipt of your letter of the 15th of June last, inclosing report of Special Agent Griffin, dated June 4, 1885, relative to the matter of the measure of damages in case of trespass by "boxing" trees upon the public land for turpentine.

For years past the Department has at intervals been called upon to examine into cases of turpentine trespass presented for its action, and has, as a general rule, recommended suit for the recovery of the value of the material taken. Experience, however, clearly shows that such action has entirely failed to accomplish the suppression of such unlawful operations. Parties against whom judgments have been obtained have continued to violate the law even upon an enlarged scale, defying the agents of the Government to their faces, and other parties in the immediate vicinity have entered upon the work of destruction, in no way deterred by the punishment previously visited upon their neighbors.

The report of Agent Griffin, full and explicit as it is, simply corroborates the information already received from other sources, that a pine forest, when used as a "turpentine orchard," is doomed to entire destruction. A "box" or gash is cut into the side of a tree, perhaps 10 inches wide and 6 inches deep, and of such a shape as to catch and retain a considerable quantity of the crude turpentine gum. The next year another "box" is cut at another point in the circumference of the tree, and so on. Besides this, the tree is subjected to a "chipping" process, the bark being cut through down into the woody portion for 12 or 18 inches above the upper edge of the "box," in order to keep a fresh bleeding surface continually exposed. In four or five years the life of the tree is exhausted. Even should the process of "boxing" be discontinued decay will ensue from the action of the weather and worms upon the portion of the wood already exposed. There can be no healing process and no future growth to a pine tree once tapped by the turpentine gatherer's ax. Drippings of gum accumulate in the "boxes" and about the root of the dying tree. From the carelessness of some traveler or from lightning striking some tree in the forest fires originate and the entire timber is consumed. After its destruction the land will be covered in a few years with a growth of worthless scrub oaks, rendering it entirely valueless.

In view of these considerations I concur in your opinion that the measure of damages heretofore estimated in such cases, based upon the value of the material procured, is insufficient to indemnify the Government for the actual loss resulting from the boxing of trees for turpentine; and you are hereby authorized and directed to assess upon depredators of this class hereafter a measure of damages which shall include the injury, present and prospective, inflicted upon the trees which have been subjected to the operation.

TIMBER UPON ACCRETIONS THAT ARE PUBLIC LANDS. Accretions formed by washing or recession become part of the lands they adjoin.

Removing timber from accretions that are public lands, except for improvement of the same or other domestic use, is trespass upon such lands, and liable to punishment as such. (See 1 L. D., 596.)

TIMBER FOR RAILROAD PURPOSES.

[Act of March 3, 1875; 18 Stat., 482.]

AN ACT granting to railroads the right of way through the public lands of the United States.

Be it enacted, &c., * * * That the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any State or Territory, except the District of Columbia, or by the Congress of the United States, which shall have filed with the Secretary of the Interior a copy of its articles

of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad;

*

* * *

SEC. 4. That any railroad company desiring to secure the benefits of this act shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office; and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way: Provided, That if any section of said road shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road.

SEC. 5. That this act shall not apply to any lands within the limits of any military park, or Indian reservation, or other lands especially reserved from sale, unless such right of way shall be provided for by treaty stipulation or by act of Congress heretofore passed.

SEC. 6. That Congress hereby reserves the right at any time to alter, amend, or repeal this act, or any part thereof.

By the above act all duly organized right-of-way railroads are authorized to take timber from the public lands adjacent to the line of the road for construction purposes. All land-grant railroads are likewise authorized, in the several granting acts, to take timber from the public lands adjacent thereto for construction purposes. The act of September 29, 1890 (26 Stat., 496), forfeited the grants to all uncompleted railroads to the extent of the grants for the unconstructed portions of such roads.

No authority is granted to take public timber for use as fuel or for repairs, except in the case of the grant to the Denver and Rio Grande Railway Company by the act of June 8, 1872 (17 Stat., 339), which allows the taking of public timber for purposes of repair on the portion of the line constructed thereunder.

Under these acts timber can only be taken from public lands for railroad purposes by the railroad companies direct, through their contractors or duly appointed agents.

No timber may be taken from public lands for the purpose of selling the same to a railroad company. No railroad company is authorized by the above acts to procure or cause to be procured timber from public lands for sale or disposal either to other companies or to the general public.

LANDS ADJACENT, &C.

STONE v. UNITED STATES.

Circuit court of appeals, ninth circuit (64 Fed. Rep., 667).

RAILROAD COMPANIES-CONSTRUCTION OF ROAD-RIGHT TO TIMBER ON ADJACENT PUBLIC LANDS.

Act of March 3, 1875 (18 Stat., 482), which grants to railroad companies the right of way through public lands and the right to take from the public lands "adjacent to the line of said road" timber necessary for its construction, does not authorize the taking of timber for the construction of a road from public lands 50 miles distant from the road.

See also United States v. Henry Hazlett, cited on page 85.

UNITED STATES v. LYNDE ET AL.

Circuit court, district of Montana (47 Fed. Rep., 297).

PUBLIC LANDS-NORTHERN PACIFIC RAILROAD-RIGHT TO CUT TIMBER FOR

CONSTRUCTION.

* * *

Act Congress, section 2 (13 Stat., 365), granting to the Northern Pacific Railroad Company "the right, power, and authority to take from the public lands adjacent to the line of road material of earth, stone, timber, etc., for construction thereof," was not intended to apply only to public lands contiguous to or adjoining the line of the road, but may extend to other lands. SAME-USE OF TIMBER ON ANY PART OF LINE.

Timber taken from lands adjacent to the line of the railroad may be used for construction upon any part of it.

UNITED STATES v. DENVER & R. G. Ry. Co.

SAME v. DENVER & R. G. R. Co. AND OTHERS.

District court, district of Colorado (31 Fed. Rep., 886).

PUBLIC LANDS-GRANT OF MATERIALS TO RAILROAD COMPANIES.

Defendant, a railroad company, was empowered by special act of Congress to take timber from the public lands adjacent to its right of way, for the repair and construction of its road, with the proviso that the road should be built to a certain point within a certain time. Defendant, having forfeited its rights under the special act, continued to take timber; and upon being sued by the Government for the value of the timber taken after such forfeiture, justified its action under the provision of a subsequent general act of Congress giving railroad companies generally a right of way over public lands, and the privilege of taking material therefrom for the construction of their roads. Held, that the two acts were not inconsistent, and that the defendant, having enjoyed the bounty of the special act, was not thereby disqualified from claiming the privileges granted by the general law.

SAME-ADJACENT PUBLIC LANDS.

Under the provisions of the special act of Congress of June 8, 1872 (17 Stat., 339), and of the general act March 3, 1875, the defendant railroad company was authorized to take from the public lands "adjacent" to the line of its road the timber and other material necessary for the construction and repair of its railway. Held, that the language used was intended to indicate such timber and other materials as could be conveniently reached by ordinary transportation by wagons, and that the privilege granted did not include the right to take timber from public lands, and transport it by rail to distant parts of the road, for use in construction and repairs.

PUBLIC LANDS-ACTION OF TRESPASS-BURDEN OF PROOF.

In an action of trespass by the Government against a railroad company, for cutting timber upon public lands, the burden is upon the Government to show that the timber was taken from public lands. That it was taken from public lands "adjacent" to defendant's road and used at a point authorized by the statute granting the privilege of taking it is a matter of defense peculiarly within the knowledge of the defendant, and in the absence of evidence to that effect plaintiff is entitled to judgment.

HALLETT, J.:

In these actions the Government sues for the value of timber taken from public lands, and defendants justify the taking under certain acts of Congress. The facts as to the alleged trespasses are not in dispute; the matter for consideration is the proper construction of the acts of Congress. In the year 1870, defendant in the first suit, the Denver and Rio Grande Railway Company was incorporated under a general law of the Territory of Colorado relating to corporations, and afterwards built the road and operated it until sometime in the year 1886, when the property was sold under foreclosure proceedings to a new company— defendant in the second suit and the present owner. In this discussion the old company will be called the railway company and the new company the railroad company, as their names differ only in these words. June 8, 1872, Congress granted to the railway company "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." The act is one section, and subject to a proviso:

* * *

That said company shall complete its railway to a point on the Rio Grande as far south as Santa Fe within five years of the passage of this act, and shall complete fifty miles additional south of said point in each year thereafter, and in default thereof the rights and privileges herein granted shall be rendered null and void as far as respects the unfinished portion of said road. (17 Stat., 339.)

On

By act of March 3, 1877 (19 Stat., 405), the term mentioned in the proviso was extended to ten years. The road was not completed to a point on the Rio Grande as far south as Santa Fe within the ten years limited by the act, and it may be assumed that, except as to the road built within that time, the grant came to an end June 8, 1882. behalf of the railway company, it was suggested in argument that the proviso quoted above relates only to the next antecedent, a clause conferring on the company the right to condemn lands in a manner specified in an earlier act of Congress; but it is not necessary to waste time on that point. The proviso was inserted to enforce diligence on the part of the company, and its meaning is not doubtful. The trespasses alleged in each of these actions occurred after June 8, 1882, and except in so far as the timber taken was used in repairing the road built before that date the act of June 8, 1872, can have no application or effect. And as to timber so used for repairs, we shall presently consider whether it was taken from lands adjacent to the right of way, within the meaning of the act of 1872.

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