#### ST. JAMES TIMBER CO. v. THE UNITED STATES

[No. 33151.

Decided July 7, 1926]

*On the Proofs*

*Settlement; money paid, under mutual mistake.*— 'Where railroad crossties, in plaintiff’s possession, are seized by the Government under the erroneous belief that they were cut from Government land, and plaintiff also believing said ties had been cut from Government land pays their value with a reservation of the right to sue for refund if it should be found that said ties had been cut from plaintiff’s land, and it is afterwards discovered that they had been cut from plaintiff’s land, the plaintiff may recover.

*530
      *The Reporter’s*statement of the case:

*Mr. Duane E. Fox*for the plaintiff. *Mr. Robert J. Per-Mns*was on the brief.

*Mr. Dan M.*Jaelcson, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

The court made special findings of fact, as follows:

I. The plaintiff is a corporation organized and existing under the laws of Louisiana, its principal business being the manufacturing of crossties and the buying of lands from which these ties were manufactured.

II. On June 3, 1856, Congress (11 Stat. 18) granted to-the State of Louisiana, “ for the purpose of aiding in the construction of a railroad,” every alternate odd-numbered section of land for six sections in width on each side of the railroad, with a proviso that any and all lands theretofore reserved to the United States by any act of Congress, or in any other manner, by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be reserved from the operation of the act; and, further, if the railroad should not become completed in ten years, the lands granted should revert to the United States. Said grant involved sections 71, 75, and 109, township 13 south, range 20 east, southeast district, west of the Mississippi River.

III. On the 28th day of October, 1856, the State of Louisiana, under the acts of March 2, 1819 (9 Stat. 352), and September 28, 1850 (9 Stat. 519), selected as swamp lands said sections 71, 75, and 109, and such selection, being approved by the surveyor general of Louisiana, was submitted to the General Land Office.

The State of Louisiana, on November 7, 1856, conveyed said section 109 to Richard Taylor, whose title, through mesne conveyances, was acquired by the said St. James Timber Company, Ltd., June 19, 1891. On November 8, 1856, said section 75 was conveyed to Richard Taylor, whose title, through mesne conveyances, was acquired by the said St. James Timber Company April 11, 1892. On November 26, 1856, said section 71 was conveyed to Joseph Belson, *531whose title, through mesne conveyances, was acquired by said St. James Timber Company April 11, 1892.

The State’s selection of swamp lands October 28, 1856, not having been acted upon by the General Land Office, the act of March 3,1857 (11 Stat. 251), was passed, confirming the selection of swamp lands theretofore made and reported to the General Land Office.

Patents were issued for sections 71 and 75 on September 20, 1912, by the United States to the State of Louisiana, and for section 109 on April 27, 1914.

Since acquiring titles to the land the St. James Timber Company, Ltd., has not transferred same.

IV. During the night of October 26-27, 1909, a special agent of the United States General Land Office seized 23,700 crossties in the camp of the St. James Timber Company, believing that they had been cut on said sections 71, 75, and 109. These ties had been sold to the Southern Pacific [Railroad Company and were being loaded on local freight cars of the Texas & Pacific Railway Company going west. Part of the ties were loaded and empty cars were waiting to be loaded. The land office had a cruise made of the amount of timber cut from sections 71, 75, and 109, and estimated from the stumps that 5,273,571 feet of cypress timber had been cut worth $2 per 1,000 feet as stump age. The president of the plaintiff company, believing that the crossties seized had been cut on sections 71, 75, and 109, accepted the Government’s figures of 5,273,571 feet cut, and its stumpage valuation of $2 per 1,000 feet, amounting to $10,547.14, and on November 11, 1909, offered to settle the trespass claim of the Government in that amount. On November 18, 1909, the Commissioner of the General Land Office acknowledged the filing of plaintiff’s offer to settle the claim and its check for $10,547.14. The crossties seized as aforesaid were thereupon released to plaintiff. On December 28, 1909, the commissioner receipted for the sum of $10,547.14 in payment of the claim.

In the settlement made by the plaintiff with the Government the following language occurs: “ The St. James Timber Company reserves the right to apply to the United *532States of the proper department, and ask for a repayment •of the said sum in case it shall hereafter be determined that the title to said lands is not at this time in the United States.”

Y. The 23,700 crossties in the camp of the St. James Timber Company, Ltd., which were seized by the special agent of the Government, and which were paid for by the plaintiff as 5,273,571 feet board measure at $2 per thousand feet, amounting to $10,547.14, were not cut from the said lots of land, but were cut from lands to which the plaintiff had title, and about which there is no controversy. The ties belonged to the plaintiff when they were taken by the Government agent from it, and the money for said ties was paid through a mutual mistake of fact.

VI. The plaintiff applied to the Government for the return of the said sum of $10,547.14, but the sum was refused, and the plaintiff thereupon brought suit in this court do recover said amount.

The court decided that plaintiff was entitled to recover.

Hay, Judge,

delivered the opinion of the court:

The plaintiff is suing to recover the sum of $10,547.14, which it paid to the Commissioner of the General Land Office in 1909. At the time the money was paid to the Government it was claimed that the plaintiff had cut 23,700 ties from lands belonging to the United States.

When the money was paid the plaintiff reserved the right to apply for a repayment of said money in case it should be determined that the title to the lands from which the ties were cut were not in the United States, and the Commissioner of the Land Office in receiving said money stated that the check representing the money had been deposited for collection, and that the money collected on said check

will be held subject to be returned to you or covered into the Treasury, accordingly as your offer is accepted or rejected.” The money was thereafter covered into the Treasury, and although the plaintiff has made repeated demands for it, it has never been returned to it.

The General Land Office regarded the money as payment for depredation on the public lands.

*533Both the plaintiff and defendant have filed extended and learned briefs as to whom the land belonged at the time of the taking of these ties. They confine themselves to the question of the title of lots 71, 75, and 109, from which it was alleged by the Government agent that the ties were cut. But upon reading the evidence in the case it appears that the ties were not cut from lots 71, 75, and 109 at all, but were cut from lands from which the plaintiff had an undisputed right to cut the ties which are the subject matter of this suit.

Therefore it would appear that the money paid for these ties was paid through a mutual mistake of fact. As the plaintiff reserved the right to apply for a repayment of the money, and the Government agreed to hold the money subject to be returned to the plaintiff if such a mistake had occurred, for that is in effect what the Government did, it is right that this money, which never belonged to the Government, should be returned to the plaintiff.

A judgment will be entered for the plaintiff in the sum of $10,547.14. It is so ordered.

Geaham, *Judge;*Booth, *Judge;*and Campbell, *Ghief*Justice, concur.