A person who, without authority, cuts wood from public lands of
the
United States, not mineral, or purchases such wood so cut, and
leaves it, when cut or purchased, upon such public lands near a
railroad, has no right of possession of, or title to, or ownership
in it, and cannot maintain an action against the corporation owning
such railroad for its destruction by fire caused by sparks from
locomotives of the company.
This action was brought by the defendants in error against the
railroad company to recover damages for the destruction of some
10,000 cords of wood by fire communicated to the wood by sparks
from the engines of the company.
It was alleged in the amended complaint that the railroad
company neglected and failed, for a long time prior to the
happening of the fire, and while using and operating their
railroad, to keep each side of the railroad track free from dead
grass, weeds, brush, and other dangerous and combustible material,
as by law they were required to do, and that the company used
locomotives which threw from their smokestacks large amounts of
live cinders and sparks, and that the company carelessly and
negligently operated and used its road, and by reason thereof, and
on the 5th day of August, 1890, in Jefferson County, Montana, set
fire to the grass, weeds, and other combustible and dangerous
material which the defendant had negligently and carelessly allowed
to remain by the side of the track, and the fire spread rapidly,
and consumed and destroyed the cordwood belonging to the
plaintiffs, as partners, then being in Jefferson County, Montana,
and along and near the railroad track, of the amount of 9,400 cords
and of the value of $25,350.
The defendant, by its answer, denied all negligence and
denied
"that on or about the date aforesaid or on any other
Page 162 U. S. 367
day or date the defendant set any fire which consumed or
destroyed any cordwood belonging to the plaintiffs or any or either
of them."
The defendant also put in issue the value of the cordwood, and
alleged that whatever was lost was lost through the contributory
negligence of the plaintiffs.
The case came on for trial at the Circuit Court of the United
States for the Ninth Circuit, for the district of Montana, held in
December, 1891, and January, 1892, and resulted in a verdict for
the plaintiffs for the sum of $21,487.83. The company sued out a
writ of error from the United States Circuit Court of Appeals for
the Ninth Circuit, and that court affirmed the judgment. 51 F. 658.
The company then sued out a writ of error from this Court.
Upon the trial of the action, the plaintiffs, to maintain the
issues on their part, introduced evidence tending to show that in
the month of April in the year 1889, they entered upon a portion of
the unsurveyed public domain of the United States lying on the
easterly slope of the Rocky Mountains in the County of Jefferson,
State of Montana, and there chopped and caused to be chopped about
10,000 cords of wood from the timber then standing and growing upon
such public lands; that the wood was cut over an area of country
about three miles, north and south, and about two by two and a half
miles, east and west; that the wood so cut was white pine, and much
of it was made of trees of less diameter than eight inches. The
plaintiffs also gave evidence that they were citizens of the United
States, and that the plaintiff George S. Lewis at the date of the
cutting of said wood, was a resident of Butte, Montana, and that
the other plaintiffs resided at White Sulphur Springs, in the State
of Montana. It was further shown that after the wood was cut, it
was drawn to a point near the railroad, and there piled; that the
place where the wood was so piled was on the unsurveyed public
lands of the United States, and about 200 yards south of the
railroad operated by the defendant.
Plaintiffs also gave evidence tending to show that they had
purchased from various parties, during the summer of 1890, about
5,000 cords of white pine cordwood, which had also
Page 162 U. S. 368
been cut on the public unsurveyed lands of the United States,
some of it on the tract of country from which plaintiffs had cut,
and the remainder was cut on the north side of the railroad track
above mentioned, and over a strip or area of country about two
miles in length. Further evidence was given on the part of
plaintiffs tending to show negligence on the part of the defendant
either in the construction or in the management of its engines, and
tending to show that the fire which destroyed the wood in question
was communicated to it as alleged in the amended complaint.
Evidence was given on the part of the defendant tending to show
that it was not guilty of any negligence in the premises, and that
it was not liable for the results of any fire which may have
destroyed the wood in question.
At the conclusion of all the evidence, the defendant moved the
court to instruct the jury to return a verdict for it upon the
grounds:
"1. That the title or ownership of the wood is directly in
issue, and the testimony does not show that the plaintiffs had
either a general or special property in the said cordwood or any
thereof."
"3. The testimony shows that at the time said cordwood was
destroyed, the same was the property of the United States, and
that, in and about the cutting and removal thereof from the public
unsurveyed lands of the United States, the said plaintiffs were
trespassers and wrongdoers."
"3. The testimony does not show that the lands whereon the
cordwood was cut were distinctly mineral in character, or were more
valuable for the mineral therein contained than for agricultural
purposes, or for the timber growing thereon."
"4. The testimony does not show that such cordwood was cut under
the license granted by the act of Congress of June 3, 1878, or in
compliance with the rules and regulations established thereunder by
the Secretary of the Interior, but, on the contrary, the evidence
clearly shows that the said cordwood, and the whole thereof, was
cut in utter disregard of said act of Congress and the said rules
and regulations of the Secretary of the Interior. "
Page 162 U. S. 369
"5. Because the testimony shows that said cordwood was the
property of the United States, and that plaintiffs have neither
right nor title thereto nor the possession thereof."
Other grounds were stated not material to be now considered.
The court denied the motion and refused to so instruct the jury,
and the defendant duly excepted.
The defendant then, among other requests, asked the court to
charge the jury that,
"it being shown conclusively by the testimony in this case that
plaintiffs cut said cordwood on lands belonging to the United
States, that such cordwood was so cut without license or authority
of the United States, and was not removed from such lands at the
date it was consumed, the plaintiffs did not have either the actual
or constructive possession of such wood at the date of its
destruction, and are therefore not entitled to recover."
This request was refused, and defendant duly excepted.
The court was further asked to charge that
"if you should find from the testimony that plaintiffs purchased
some of this wood from other parties, who had cut it from trees
growing in that vicinity, this will make no difference so far as
their right to or ownership of such wood is concerned. The region
of country where this cutting was done being public unsurveyed
lands of the United States, the plaintiffs were bound at their
peril to take notice of the fact that the timber growing thereon
was the property of the United States, and could only lawfully be
severed therefrom under the provisions of the act of Congress of
June 3, 1878, and in compliance with the rules and regulations
established thereunder. In order to prove their title to so much of
the wood as was purchased, it is not enough to show that they
bought it of a certain named person, but plaintiffs must go further
and show that the person had acquired title to it by compliance
with the act of Congress and rules and regulations prescribed by
the Secretary of the Interior. If the person cutting such wood was
himself a trespasser, he acquired no title to the wood cut, and
could convey none to plaintiffs. The rightful owner of such wood
could follow it and reclaim it no matter where or in whose
possession it might be found, so long as he could identify it.
"
Page 162 U. S. 370
This request the court refused, and the defendant duly excepted
to such refusal.
Among many other assignments of error made by the defendant is
the following:
"The court also erred in refusing to give the instruction
requested by the defendant in the following words, to-wit:"
"It being shown conclusively, by the testimony in this case,
that plaintiffs cut said cordwood on lands belonging to the United
States, that such cordwood was so cut without license or authority
of the United States, and was not removed from such lands at the
date when it was consumed, the plaintiffs did not have either the
actual or constructive possession of such wood at the date of its
destruction, and are therefore not entitled to recover.
Page 162 U. S. 372
"
MR. JUSTICE PECKHAM, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The cases cited by the defendants in error show the doctrine to
be quite clearly established that an action of trespass
de
bonis asportatis does not technically involve the question of
title. It relates to the possession only of personal property, and
it is brought to recover for the injury to that possession. In such
action it is held that an allegation of the ownership of the
property is not material, and that it need not be made, or, if
made, that it need not be proved. Proof of possession simply is
sufficient, upon the theory that possession is
prima facie
evidence of some kind of rightful ownership or title. Therefore it
is held that proof of title to property in a stranger, with whom
the defendant does not connect himself in any way, is no defense to
the action, as the injury is to the possession. Trespass
de
bonis asportatis assumes a taking of the property by the
defendant out of the possession of the plaintiff, and, if the title
be in a stranger, with which the defendant does not connect
himself, that fact is no answer to the cause of action. The
possession of the plaintiff is enough, under such circumstances,
against a wrongdoer. If the defendant cannot connect himself with
the title in the third person, he is, as to the plaintiff, a
wrongdoer, having no right to disturb the possession of the
plaintiff.
Aiken v. Buck, 1 Wend. 466;
Hammer v.
Wilsey, 17 Wend. 91;
Kissam v. Roberts, 6 Bosworth
[Superior Court
Page 162 U. S. 373
N.Y.] 154. Many other cases are to the same effect. The rule is
said to be different in trover and replevin, on the theory that
those actions are not actions grounded on the mere possession, but
founded upon a right or title in the plaintiff, upon the strength
of which he must recover, and that hence title in a third party may
be a defense even though the defendant is not in any way connected
with it.
But this action is not an action of trespass
de bonis
asportatis. There has been no asportation, and that fact must
be proved, in such an action. The cause of action here alleged and
proved was a negligent act on the part of the defendant, committed
on the defendant's own land, and causing, in its results, the
burning up and destruction of the wood in question. The action is
therefore more accurately and properly described as an action of
trespass on the case, instead of trespass
de bonis
asportatis.
The ground of the plaintiffs' right of action is the damage
which has been caused them by the negligent act of the defendant,
and unless they are able to prove some damage consequent upon such
negligent act, the plaintiffs are not entitled to recover. This is
not an action where they would be entitled to nominal damages if no
damages whatever were in fact sustained or proved. They must prove
the nature and extent of the damage, and if the property destroyed
were not owned by them, and if they had no special property
therein, and did not have possession thereof, it is entirely plain
that no cause of action was proved. The plaintiffs claim that, so
far as the defendant is concerned, they did prove property in the
wood, and that such proof was made by showing that they were in
possession thereof at the time of its destruction, and, as simple
possession is
prima facie evidence of right and title
sufficient to support this action, the plaintiffs made out their
case. It may be assumed that possession alone is sufficient, even
in an action of this nature, in the absence of any evidence
explaining that possession or showing that plaintiffs had no title
to the property. In this case, the plaintiffs, in the course of
making out their cause of action, showed the facts, which proved
that they had neither the title nor the possession.
Page 162 U. S. 374
The bill of exceptions states that the wood was cut upon the
unsurveyed public lands of the United States. The lands were owned
by the United States, and the trees growing thereon were its
absolute property, as much so as any other article of property
possessed by the government. Entering upon those lands by the
plaintiffs for the purpose of cutting trees was a plain act of
trespass, illegal in its nature and unjustified by any fact
appearing in this case. The plaintiffs, in cutting down trees,
committed an illegal act, and while the title to the standing
timber was in the United States, the plaintiffs, by severing the
trees from the freehold, acquired no right, title, or interest in
them by reason of such severance.
In
Schulenberg v.
Harriman, 21 Wall. 44,
88 U. S. 64, it
was held that where title to land upon which the lumber was cut was
in the state, severing the timber from the realty did not change
the title. Its character was changed from realty to personalty, but
its title was not affected. It continued, as previously, the
property of the owner of the land, and could be pursued wherever it
was carried. All the remedies were open to the owner which the law
afforded in other cases of the wrongful removal or conversion of
personal property.
See also Turley v. Tucker, 6 Mo. 583.
It is plain, therefore, that the plaintiffs obtained no right or
title to the trees by cutting them on the lands owned by the United
States under circumstances such as are set forth in this bill of
exceptions.
It is urged, however, that under the Act of June 3, 1878, c.
150, 20 Stat. 88 (1 Supp.Rev.Stat. U.S. 1874-1881, p. 327), where
no evidence is given upon the subject, the presumption is that the
plaintiffs had complied with the provisions of that act, and that
the cutting was therefore legal, and the timber was their own
property.
The first section of that act reads as follows:
"SEC 1.
Be it enacted, etc., that all citizens of the
United States and other persons,
bona fide residents of
the State of Colorado or Nevada, or either of the Territories of
New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho or Montana, and
all other mineral districts of the United States, shall be, and are
hereby, authorized and permitted to fell and remove,
Page 162 U. S. 375
for building, agricultural, mining or other domestic purposes,
any timber or other trees growing or being on the public lands,
said lands being mineral and not subject to entry under the
existing laws of the United States, except for mineral entry, in
either of said states, territories, or districts of which such
citizens or persons may be at the time
bona fide
residents, subject to such rules and regulations as the Secretary
of the Interior may prescribe for the protection of the timber and
of the undergrowth growing upon such lands, and for other purposes,
provided the provisions of this act shall not extend to
railroad corporations."
The third section of that act reads as follows:
"SEC. 3. Any person or persons who shall violate the provisions
of this act, or any rules or regulations in pursuance thereof made
by the Secretary of the Interior, shall be deemed guilty of a
misdemeanor, and upon conviction shall be fined in any sum not
exceeding five hundred dollars, and to which may be added
imprisonment for any term not exceeding six months."
There was no evidence tending to show that the lands where the
wood was cut were mineral, or that in cutting, handling, or
removing the wood, the plaintiffs had complied, or attempted to
comply, with the provisions of the above act or with the rules or
regulations prescribed by the Secretary of the Interior.
The plaintiffs claim that in the absence of any evidence to the
contrary, the presumption is that when they cut the timber, they
complied with and came under the conditions provided for in the
above-cited act, and that the burden rested upon the defendant to
show that the conditions mentioned in the act had not been complied
with by them. If the plaintiffs are right in this contention, then
it must be presumed that the cutting of the timber was lawful, and
the plaintiffs thereby acquired title to it. If, however, they are
in error in their claim, then it appears that the timber never
belonged to them, and that fact would have a most material bearing
upon the question whether they had, in fact or in law, any
possession of the timber at the time of its destruction.
Page 162 U. S. 376
The absolute ownership of these lands being at the time in the
United States, it had, as owner, the same right and dominion over
them as any owner would have. No one had the right to enter upon
the lands. No one had the right to cut a stick of timber thereon
without its consent. Anyone so going upon the lands and cutting
timber would be guilty of the commission of an act of trespass. The
government, however, chose to make some exceptions in favor of
certain classes of people to whom were given the right to cut
timber for certain purposes: 1st. They were to be citizens of the
United States, 2d.,
bona fide residents of the state or
territory mentioned in the act, and 3d., they were to be permitted
to fell and remove any timber or trees growing or being on the
public lands, provided they were mineral, and not subject to entry
under existing laws of the United States, and they were authorized
and permitted to fell and remove such timber only for building,
agricultural, mining, or other domestic purposes. The cutting and
removing were to be done under rules and regulations prescribed by
the Secretary of the Interior. Outside of these exceptions, there
was no right in any person to cut a particle of timber on these
public lands of the government.
The right to cut is exceptional, and quite narrow, and for
specified purposes only. The broad, general rule is against the
right. If the plaintiffs had acquired the right by reason of a
compliance with the provisions of the statute, the facts should
have been shown by them. The presumption, in the absence of
evidence, is that the cutting is illegal.
United
States v. Cook, 19 Wall. 591.
In the case last cited, it was held that the timber upon the
lands occupied by the Indians could not be cut by them for purposes
of sale alone, but that it could be cut for the purpose of
improving the land and the better adapting it to convenient
occupation, and that when the timber had been cut incidentally for
the improvement of the land, and not for the purpose of cutting and
selling it, there was no restriction on the sale of it. The Indians
having only the right of occupancy in the lands, and therefore
presumptively no right to cut timber for the purpose of selling, it
was further held that if they cut
Page 162 U. S. 377
timber in the process of improving the land, that fact must be
shown. The presumption was against the authority to cut and sell
the timber. Every purchaser from them, it was held, was charged
with notice of this presumption, and that, to maintain his title,
it was incumbent on the purchaser to show that the timber was
rightfully severed from the land. So here. As the government was
the sole and absolute owner of these lands, and of the timber
growing thereon, the presumption would be against the right of any
third person to cut the timber, and if he claimed the right by
virtue of any authority or license given him by the owner -- that
is, the government -- he would be compelled to show it. There was
no evidence given on this subject by either party, and hence the
plaintiffs did not satisfy the burden of proof which rested upon
them in this behalf.
Again, the consent to cut timber, granted by the act of 1878,
being upon the conditions and for the purposes therein specified,
and to the classes of persons therein described, whether the
plaintiffs, who did this cutting, had complied with those
conditions and had cut timber for the purposes mentioned, and were
within the class of persons described in the statute, were facts
which rested peculiarly within their own knowledge, the burden of
showing which would naturally and rightfully be cast upon them. As
the plaintiffs failed to show that they came within the conditions
and exceptions specified in the act of 1878, the presumption that
they cut the timber illegally became conclusive. Nor did the
plaintiffs obtain any rights under section 8 of the law of
Congress, approved March 3, 1891, entitled "An act to repeal timber
culture law and for other purposes." 26 Stat. 1099. That section
was amended by the act approved on the same day, March 3, 1891, c.
559,
ibid., 1093. Neither section grants any relief to one
situated like the plaintiffs. The section, in either act, looks to
a criminal prosecution or civil action by the United States for
trespass upon public timber lands to recover for the timber and
lumber cut thereon, and it is provided that it should be a defense
if the defendant should show that the timber was so cut or removed
by a resident of the
Page 162 U. S. 378
state or territory for agricultural, mining, manufacturing, or
domestic purposes, and had not been transported out of the same. If
the plaintiffs had shown these facts, they would have proved enough
to sustain their case on this point. They showed nothing upon the
subject. It is not a case of condonation. It is simply a question
whether the plaintiffs have brought themselves within any of the
exceptions provided for in the statute of 1878, and we hold that
the burden was upon them to show the facts which constituted the
exception if they existed.
We have, then, an act of pure trespass committed by the
plaintiffs in entering upon the lands of the government and cutting
down trees belonging to the owner of such lands. We find that the
title to the timber was in the government before it was cut, and
that the title remained in the government subsequently to the
cutting. The plaintiffs, still being trespassers, still being
utterly without title to the wood thus cut, changed its situs from
one part of the land belonging to the government to another part of
the land belonging to the same owner. The plaintiffs, in going or
being upon the land at all for the purpose of illegally cutting or
removing timber, are trespassers. They neither own it, nor claim to
own it, nor have they the slightest title to or interest in it, nor
any ownership of or title to the timber which they have illegally
cut. They have carried property which did not belong to them, which
they acquired and took by means of this trespass, from one part of
the owner's domain to another part thereof. Can they be said under
such circumstances to be in possession of such property? Can they
be in possession of property to which they have not the slightest
title, while that property remains upon the land of the owner, from
which land the trees were cut, and upon which land the plaintiff
could not (for the purpose of illegally cutting or removing timber)
enter or remain for one moment without the commission of a
trespass? These facts being proved, is there any such possession as
is
prima facie evidence of title, right, or ownership in
the plaintiffs such as will enable them to maintain an action
against a wrongdoer for the negligent destruction of this
Page 162 U. S. 379
property? We think not. It is not a case for the application of
the principle that mere possession is sufficient in order to
maintain an action against a wrongdoer. There is no possession in
this case. The plaintiffs, in the course of their evidence, show
that they have no title to the wood, and at the same time they show
that they were not in possession of it. As the wood in question
belonged to the United States at the time of its destruction and at
that time was piled on its own lands, we fail to see why the
government could not now commence an action against the company to
recover the value of the wood, and if negligence were proved,
succeed in its suit. If plaintiffs' action could be sustained, the
judgment herein would be no bar to the maintenance of an action by
the government, and the company would find itself subject to the
payment of damages twice over. It seems to us quite clear that the
plaintiffs have shown no such possession as would be necessary to
sustain this action, even if the defendant were not permitted to
show title in a third person without connecting itself with the
stranger. It is unnecessary to say whether the plaintiffs would
have proved a good cause of action by proof of possession merely,
if the facts in regard to the illegal character of the cutting had
also been proved.
A reference to a few cases in the state courts will not be out
of place.
In the case of
Turley v. Tucker, 6 Mo. 583, it appeared
that the plaintiffs were owners of a sawmill and cut down trees on
the public lands, and marked them, in convenient lengths, for their
purposes. While the logs remained where felled, a portion of them
was taken by Tucker to his mill, and the plaintiff sued the
defendant in an action of trover for the value of the logs thus
taken. The defendant requested the court to charge that if the jury
found that the plaintiff cut the timber taken by the defendant
without a
bona fide view to its use, and did not use the
same, the timber being and appertaining to the public domain and
lying at the place where felled, then the plaintiff was a
trespasser against the United States, and could not recover against
the defendant for using a part of said timber. This was refused,
and, on the
Page 162 U. S. 380
contrary, the court instructed the jury that
"although the logs might have been cut by plaintiff, on the
public ground, for their own use, yet they acquired such property
in the logs as would enable them to maintain an action of trover
for the logs against a wrongdoer."
The instruction actually given was held to be erroneous. It is
true the action is described as one of trover, but the principle
laid down in the opinion is quite pertinent here. The court says:
"The authorities are very clear that mere possession is only
prima facie evidence of property to maintain this action
against a wrongdoer." The question was whether the plaintiff, by
cutting timber on the land of the United States, acquired such
possession. There was evidence which, alone and unexplained, tended
to establish the fact of possession, but there were other facts
connected with the possession which at the same time proved it to
have arisen out of a tort, and that kind of possession was held to
be insufficient because the evidence, while tending to establish
possession, at the same time and thereby proved an absolute
property in another. In other words, the tortious possession was
held to be no possession in that case. In the case at bar, the
title to the property was at the time of its destruction in the
government, the property was then on land owned by the government,
the plaintiffs had no right or title to that land and made no claim
of title to or interest in it, and on these facts the plaintiffs
cannot be held to have been in possession of the property.
In
Ohio & Mississippi Railroad v. Jones, 27 Ill.
41, it was held that to authorize one to recover for an injury to
property, he must show that he is the absolute or qualified owner
thereof. It was stated in that case that there was no evidence that
the plaintiff was the owner of the property, or that he had
possession of it, and that although possession might be evidence of
ownership, there must be some evidence of possession. As there was
none, the court reversed the judgment for the plaintiff.
In
Murphy v. Railroad Co., 55 Ia. 473, it was held that
one who, without authority, cuts and stacks hay on unenclosed
prairie owned by others acquires no property in such hay, and
Page 162 U. S. 381
having neither ownership nor possession, cannot maintain an
action for its destruction. The plaintiff brought his action to
recover for an alleged negligent setting fire to the prairie and
permitting it to escape, thereby burning 168 tons of hay of which
the plaintiff alleged he was the owner. The answer denied that the
plaintiff was the owner of the hay alleged to have been burned. The
trial was by jury, and resulted in a verdict for the plaintiff for
the value of the hay. Respecting his ownership, the plaintiff
testified that the hay was on unenclosed prairie.
"The land upon which I cut this grass and stacked the hay was
not mine. I had gone onto the land, and cut the grass, and stacked
it. My claim to be owner of the hay is based on this. I cut it and
put it up. That is all the claim I have. I had no license to cut or
stack hay there."
The defendant asked the court to instruct the jury that if it
found
"from the testimony that the plaintiff had cut and stacked the
hay, for the burning of which he seeks to recover in this action,
upon land which he did not own, and if you further find that the
plaintiff had no license or permission to cut the grass upon said
land and stack the hay therefrom thereon, the title to said hay so
cut and stacked was not in the plaintiff, and he cannot maintain an
action to recover for the destruction thereof by fire which burned
over the prairie upon which the same was stacked."
This was refused. The court did instruct the jury that
"in the absence of some title or right of defendant in the land
upon which the grass was stacked, and from which it was grown and
cut, the ownership of the hay in plaintiff, as against the
defendant, is not disproved by showing that the said land from
which the grass was grown and cut, and upon which it was stacked,
was not the property of plaintiff; nor can the ownership of
plaintiff be disproved as against defendant by showing that the
plaintiff had no license or permit from the owner of the land to
cut the grass, or stack the same upon the land where it was
burned."
The court held that upon authority as well as upon principle, as
the plaintiff entered upon the land of another without license and
cut grass therefrom, and made hay, he acquired no property therein,
and that,
"as he did not own the
Page 162 U. S. 382
land upon which the hay was stacked, he had no constructive
possession of it. Having neither title nor possession, it seems to
be a necessary consequence that he cannot recover."
This seems to be very much such a case as the one at bar. In the
one case, the hay was cut from land not owned by the plaintiff, and
was stacked by him thereon, and was destroyed by fire alleged to
have been the negligent act of the defendant. In the other, the
wood is cut from land not owned by plaintiffs, and is piled upon
land not owned by them, and, while thus piled, is destroyed by the
negligent act of the defendant. And yet it was held in the Iowa
case that the plaintiff had no sufficient possession of the
property destroyed to maintain the action. We see no reason why the
same rule should not be applied to this case.
In
Missouri Pac. Railway v. Cullers, 81 Tex. 382, the
Supreme Court of Texas laid down the proposition
"that if it is established that the plaintiff was not the owner
of the property, and had no other interest therein than the bare
possession thereof, then where the measure of damage relied upon is
the value of the property injured, destroyed, or converted, in such
case the defendant would not be legally liable to compensate the
plaintiff for the value of property which he did not own, and ought
to be permitted to prove title in a third party not only for the
purpose of disproving the plaintiff's right (or, rather, claim) for
damages without an injury to himself, but also to avoid being
compelled to respond in double damages for the same injury to the
property. Until such outstanding title or a title in the defendant
is established, however, the possessory right of the plaintiff is
sufficient to justify a full recovery. Hence it is correctly said
that the actual possession of property is
prima facie
proof of the ownership thereof, but it amounts to no more than
this."
There is no actual possession in such a case as this, where the
property belongs to a third person and is still on the premises of
that third person, to go upon which is an act of trespass on the
part of the individual claiming to be in possession of the
property. Neither can any constructive possession be based upon
these facts. Hence, it would appear that plaintiffs had
Page 162 U. S. 383
failed to maintain their action for the wood cut by
themselves.
They do not occupy any more advantageous position in regard to
the wood purchased by them from those who had with their knowledge
cut it from the lands of the United States. Plaintiffs had the same
rights only as the persons from whom they purchased, and could
maintain no action which they could not maintain.
Wooden Ware
Co. v. United States, 106 U. S. 432,
106 U. S.
435.
The persons from whom the plaintiffs purchased cut the timber
under the same circumstances as the plaintiffs cut that which they
claim, and such persons had the same rights that the plaintiffs
had, and no more.
The court should have charged the jury as requested, both in
regard to the rights of the plaintiffs at the time of the fire in
and to the wood cut by them, and also as to their rights in and to
the wood purchased by them from others.
The judgment of the circuit court of appeals is
Reversed, the judgment of the circuit court is reversed, and
the cause remanded to that court, with instructions to grant a new
trial.
