Arizona weekly citizen., 1882-04-30
To Cut or NOt 10 Cut.

To Cut or Not to Cut.
 The great wood case of Thompson vs. Marshals Dake and Evans, was argued before Judge Stilwell yesterday, and oc- cupied the attention of the court almost the entire day. c. c. Stephens and Judge Campbell were employed to pros- ecute tine case. ]. A. Zabriskie on be- half Cf the Government and Marshals ! conducted the defense. Because of its importance in settling in this Territory the rights of companies or individuals to cut timber on government or public lands for any other pu.pose than domes- tic use, a brief review of the case from the commencement to its. present progress, will not be inappropriate.
 The wood was cut on Government land by parties in the employ of Lord x ! Williams, vi O had entered into contract with the Southern Pacific Railroad to furnish them tbe wood in question. which amounts to 1000 cords, and it Was ID various places stack'd alongside the track, but as the " cd had not been delivered 1t was, previous to the failure or Lord < Williams, transferred to Mir. Thompson, the prosecutor in tine present case, as part payment of the indebted ness of the firm to the Bank of Cali fornia. The Government, however, be- ing appraised of the fact, laid claim to the wood, as having been cut on public lands, and as pr cautionary measure against possible loss by depredat- OTIS or destruction by fire, ordered its Marshals to sell or cause the wood to be sold and the proceeds to be placed in the Government treas ury. Acting under such advice deputy
 Marshal Evans advertised the wood and afterwards sold it to J. H. Campbell who on attempting its removal was restrained by writ of replevin and the legality Of the writ or the right of its issuance and to settle to whom the title of the wood
 belonged, the present suit was brought.
 As the case had no precedent and invoked not only the right to cut the wood under similar circumstan.
 ces but considerable money, as there are 4000 cords of it and the contract pnce with the railroad was four dollars a cord.
 The case came up yesterday and
 was opened by Judge Campbell who cited many authorities and strenuously urged that the definition of the word timber did not include frewood within the legal meaning of the law. He also insisted that as the plaintiff claimed the wood be had right to replevin C from the posses sIOn of the Governmers and that there was no law nor penalty tn prevent any one, who willed from cutting frewood on the public lands, and that the action of the Marshal in seizing and holding this wood was violation of the Consti- tuition of the United States and an in- fringement upon the rights of the peO- pie and surpassed in tyranny anything of the kind ever known in the annals of autncratic Russia.
 Col Zabriskie in his reply defended the action of the Government and pre- sented the decision of the Supreme Court to the effect that the Government could not be sued except by its own consent and that no direct proceedings can ever be instituted against the Government except by special act Of Congress. He also introduced the deci- sion of Judge Deadly of the Circuit Court of Oregon relating to the rights Of parties tn cut wood on public lands and the extent Of those rights after they had established their claims as actual settlers. He also stated that by act Of Congress the Secretary of the In terfor had tn right to make provisions for the proper carrying out Of the law relating to the cutting Of timber on pub lie or Government lands, and tat the Secretary Of the Interior had issued his circular defining what timber meant which includes mezquit and cottonwood, and that peremptOry ord-rs had been is- sued to Government officers to prosecute all persons cutting wool for traffic on the public laDis under the timber act.
 The foll wing telegram which xplains itself, was also read and commented on: Washington, D. C., April pr J. 4. | Zabriskie, Special Counsel, Tues n, A. T.-The wood was sold as prop erty of the United States. It was not taken under authority of any revenue law. The possession was m the possession of the United States, not of the Mar shaFs The wood cannot be replevined as against the Marshals because the possession WAS not theirs. Move their discharge on this ground. See depart ment letter of twenty-fifth of Fehruary, and enclosures. See Carr vs. United States. EIPht Otto, four, thrity-three B. H. Brewster, attorney general"
 Judge Stillwell took the case under advisement and will render a decision to- morrow.