THE UNITED STATES v. REDY.

United States circuit court (5 McLean, 358).

Under the act of Congress, it is not necessary to describe in an indictment for trespass on the public lands, every kind of timber that was cut.

It is sufficient to name one or more species, and in the words of the statute allege other timbers.

An indictment will lie for cutting timber on any of the public lands, though it may not have been reserved for naval purposes.

OPINION OF THE COURT.

This is an indictment for cutting walnut and other trees on the public lands of the United States. It was objected that no other timber except what is named in the indictment can be proved. But the court held that under the allegation of other timber, proof other than walnut trees was admissible to the jury.

An objection was also made, that an indictment would not lie for a trespass on the public lands, unless such lands had been reserved for naval purposes. But the court ruled an indictment could be sustained, under the decisions, for the cutting of timber on the public lands which had not been reserved for naval purposes.

The court instructed the jury must be satisfied that the person who cut the timber was employed by the defendant, and that the timber was cut by his direction. If this be proved, the defendant is answerable, under the law, the same as if the defendant had in person committed the trespass.

The jury found the defendant not guilty.

UNITED STATES v. THOMPSON.

In the circuit court of the United States (6 McLean, 56.)

Not necessary, in an indictment for cutting timber, to state the class of lands from which the trees were cut.

Such a description as shows the accused the offense with which he is charged, is sufficient.

Where a statute creates an offense, and the indictment charges the same in the precise words of the statute, it is unnecessary to prefix to the charging words, the word "unlawful," or any other word showing a wrongful intention.

UNITED STATES v. STONE.

District court, district of Idaho (49 Fed. Rep., 848).

PUBLIC LANDS-TIMBER TRESPASS.

Criminal proceedings may be maintained under section 2461, U. S. R. S., for a violation of its provisions; and it is sufficient to allege in the indictment that the cutting and removing of the timber was for use other than that of the Navy of the United States. It is not necessary to allege that defendant was not justified under any of the various land laws of the United States.

SAME.

Charging the "cutting and removing" of timber does not constitute the allegation of two offenses to one count.

TRESPASS THROUGH NEGLIGENCE.

In an action to recover a statutory penalty for the cutting of trees, defendant is liable for careless as well as wilful cutting, and can not escape liability by showing that he turned his servants into an unenclosed lot, with instructions to cut only his trees, without approximately indicating to them the boundaries of his land. (United States Digest, Vol. XIV, 803; Keirn v. Warfield, 60 Miss., 799.)

SECTION 2461, U. S. R. S., NOT REPEALED BY THE ACTS OF JUNE 3, 1878 (20 STAT., 89), AND AUGUST 4, 1892 (27 STAT., 348).

See Commissioner of the General Land Office to the Secretary of the Interior, May 16, 1896, cited on page 74.

CRIMINAL LIABILITY FOR PUBLIC TIMBER TRESPASS CAN NOT BE COMPROMISED.

DEPARTMENT OF JUSTICE,

OFFICE OF THE SOLICITOR OF THE TREASURY,

Washington, D. C., March 3, 1884.

SIR: I have the honor to return herewith a communication addressed to you by the honorable Secretary of the Interior with its inclosures relating to the offer of W. S. Harrison to pay $50 in compromise of a criminal action pending in the northern judicial district of Florida, brought because of a trespass on the public lands.

The papers were referred to this office the 25th ultimo.

A criminal liability of this nature can not be compromised, and I have informed the United States attorney of this fact.

UNITED STATES ENTITLED TO CIVIL REMEDIES.

Attorney General Wirt, in an opinion of the 27th of May, 1821, holds as follows:

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Independent of positive legislative provisions, I apprehend that, in relation to all property, real or personal, which the United States are authorized by the Constitution to hold, they have all the CIVIL remedies, whether for the prevention or redress of injuries, which individuals possess. (See 3 Wheaton, 181.) So the United States, being authorized to accept and to hold these lands for the common good, must have all the legal means of protecting the property thus confided to them that individuals enjoy in like cases. They are, therefore, in my opinion, entitled to the injunction of waste by way of prevention, and to the action of trespass by way of punishment, in like manner as individuals, similarly situated, are entitled to them. Attorney-General Taney, afterwards Chief Justice of the United States, in an opinion of 22d of August, 1833, cites this opinion of Mr. Wirt, and concurs in it.

UNITED STATES v. LEE.

(106 U. S., 222.)

*

Another consideration is, that since the United States can not be made a defendant to a suit concerning its property, and no judgment in any suit against an individual who has possession or control of such property can bind or conclude the Government, as is decided by this court in the case of Carr v. United States, already referred to, the Government is always at liberty, notwithstanding any such judgment, to avail itself of all the remedies which the law allows to every person, natural or artificial, for the vindication and assertion of its rights.

RIGHT TO PURSUE AND RECLAIM PROPERTY.

Justice demands, therefore, and the law concedes that the owner of personal property may pursue and reclaim the chattel wherever he can find and identify it. (Schouler's Personal Property, vol. 2, p. 21.)

COTTON v. UNITED STATES.

(11 Howard, 229.)

The United States have a right to bring an action of trespass quare clausum fregit against a person for cutting and carrying away trees from the public lands.

This case was brought up, by writ of error, from the district court of the United States for the northern district of Florida.

It was an action of trespass quare clausum fregit brought by the United States for cutting trees upon public lands, commenced in the superior court of West Florida in 1844, to which the defendant pleaded not guilty on the 26th of March, 1845. The cause remained pending in said court until the 15th of January, 1848, when, in pursuance of the act of the 22d February, 1847 (ch. 17, sec. 8), it was transferred to the United States district court for the northern district of Florida, and was ordered to stand for trial at the ensuing March term.

At that term the defendant appeared, and on leave filed a demurrer to the declaration, which, after argument, was overruled, and the cause set down for trial on the plea of not guilty.

The cause having come on, the defendant requested the court to charge the jury—

First. That the only remedy for the United States for cutting pine timber on the public lands was by indictment.

Second. That the United States have no common-law remedy for private wrongs.

Third. That the right of the United States to bring this action must be derived either from an act of Congress or from the law of some State in which the contract was made by which it acquired the property on which this trespass is alleged to have been committed.

Fourth. These lands were acquired by treaty from Spain, and that the United States has no common-law remedy for trespass committed thereon; and that Congress not having authorized the exercise of this remedy the plaintiff ought not to recover any damages.

Which charge the court refused to give, whereupon the defendant excepted.

The jury found the defendant guilty of the trespass, and assessed the damages of the United States at $362.50, for which amount, and $122.22 costs, judgment was entered up. A motion in arrest of judgment was overruled.

The Supreme Court having at the last term decided that it had jurisdiction in cases like this under the act of the 27th of February, 1847, without reference to the amount in controversy, the case now came before the court on the points raised by the bill of exceptions. (9 How., 579.)

It was argued by Mr. Walker for the plaintiff in error and Mr. Crittenden (Attorney-General) for the United States.

Mr. CRITTENDEN. For the proper understanding of the points in the case, it is necessary to call the attention of the court to the act of the 2d of March, 1831 (4 Stat., 472), which was before it at the last term in the case of the United States v. Briggs (9 Howard, 351), in which it was decided that the cutting or procuring to be cut, removing or procuring to be removed, or aiding, or assisting, or being employed in the cutting of all descriptions of timber trees on the public lands, is an indictable offense under the said act and punishable by fine and imprisonment.

No defence arising out of the passing of this act was pleaded either by way of abatement or specially.

The United States have the same right as any other proprietor to sue for trespasses on the public lands, and that right is not merged or lost by such trespasses having been made an offense punishable by indictment under the act of 1831. (Dugan v. United States, 3 Wheat., 181; United States v. Gear, 3 Howard, 121; Manro v. Almeida, 10 Wheat., 494; Cross v. Guthrie, 2 Root, Con. R., 90; Smith v. Weaver, 1 Taylor, 58; Blassingame v. Glaves, 6 B. Monroe, 38; Foster v. The Commonwealth, 8 Watts and Serg., 77.)

Mr. Justice Grier delivered the opinion of the court:

This is an action of trespass quare clausum fregit brought by the United States against Loftin Cotton, in which he is charged with cutting and carrying away a large number of pine and juniper trees from the lands of plaintiff.

On the trial below, the counsel for defendant requested the court to instruct the jury: First, "that the only remedy for the United States for cutting pine timber on the public lands was by indictment." Second, "that the United States have no common-law remedy for private wrongs." The refusal by the court to give these instructions is now alleged as error.

11023- -2

Every sovereign State is of necessity a body politic, or artificial person, and as such capable of making contracts and holding property, both real and personal. It is true that in consequence of the peculiar distribution of the powers of government between the State and the United States, offenses against the latter, as a sovereign, are those only which are defined by statute, while what are called common-law offenses are the subjects of punishment only by the States and Territories within whose jurisdiction they are committed. But the powers of the United States as a sovereign, dealing with offenders against their laws, must not be confounded with their rights as a body politic. It would present a strange anomaly indeed, if, having the power to make contracts and hold property as other persons, natural or artificial, they were not entitled to the same remedies for their protection. The restraints of the Constitution upon their sovereign powers can not affect their civil rights. Although as a sovereign the United States may not be sued, yet as a corporation or body politic they may bring suits to enforce their contracts and protect their property in the State courts, or in their own tribunals administering the same laws. As an owner of property in almost every State of the Union, they have the same right to have it protected by the local laws that other persons have. As was said by this court in Dugan v. United States, 3 Wheat., 181, "it would be strange to deny them a right which is secured to every citizen of the United States." In the United States v. The Bank of the Metropolis, 15 Peters, 392, it was decided that when the United States, by their authorized agents, become a party to negotiable paper, they have all the rights and incur all the responsibilities of other persons who are parties to such instruments. In the United States v. Gear, 3 Howard, 120, the right of the United States to maintain an action of trespass for taking ore from their lead mines was not questioned.

Many trespasses are also public offenses by common law, or are made so by statute, but the punishment of the public offense is no bar to the remedy for the private injury. The fact, therefore, that the defendant in this case might have been punished by indictment as for a public offense is no defense against the present action. Whether, if he had actually been indicted and amerced for this trespass in a crimi nal prosecution in the name of the United States, such conviction and fine could be pleaded in bar to a civil action by the same plaintiff, is a question not before us in this case, and is therefore not decided. The judgment of the district court is therefore affirmed.

ORDER.

This cause came on to be heard on the transcript of the record from the district court of the United States for the northern district of Florida, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court that the judgment of the said district court in this cause be, and the same is hereby, affirmed, with damages at the rate of six per centum per annum.