St. Paul daily globe., 1893-09-15

that long prior to the delivery OF the
permit, the timber was estimated and
appraised according to law, and was
estimated at 700,0J0 feet and appraised
at Sl.75 per 1000 feet. The defendants
aliege that they are informed that the
governor, treasurer and commission
waived the estimate and appraisal, aud
that the officers stated it to be- f0E the
best interests of the state to sell the
timber.
The answer says that the commits
Sioner offered the land at public auction,
but received no bids. The defendants
believe that sales book was and is
kept in the land once for the entry of
such lands with timber subject to waste
or damage, and that no lands are put
therein until the law is complied with
in every respect. Defendants further
allege that the timber was in great dan
ger from fire and windtail, and that aft
er Offering the timber and getting no bids
Mr.. .Bierman ascertained that defendants
were cutting on their lands in the close
vicinity of section Sc. 1t was then too
late to again advertise and offer the tim
ber on the land for sale at public auc-
ton iii time to have it cut and removed
in whole or i'll part that season. and the
commissioner determined that private
sale at fair price was an advisable
measure to protect said timber from
damage or loss by fire or windfail. and
would best protect the interests Of the
state.
THE DEFENDANTS ALLEGE
that the commissioner entered INTO ne
gotiations with defendant, Smith, for
the sale of the timber TO him at price
largely in excess of the appraiSement,
and the result was that OH OF about Jan.
S, 1892, the commissioner executed and
delivered to Smith the permit or inStru-
ment. Defendants admit Dec. as the
date of the permit, but allege that the
instrument was dated without their
knowledge or suggestion, and that they
never knew or noticed the date
of the instrument until long aft
er its delivery. They admit
that there was considerable more than
7OO.OO0 feet and between 5, ,00U, 600 and
6.C0O,000 feet of pine timber on the land,
but deny any knowledge of the amount
at the time of the taking of the con-
tract, though Mr.. Smith then supposed
that the timber thereon would operrun
the estimate. as is usually the case. The
defendants expressly deny that the
timber is now or ever was worth more
than 50 per LOCO feet as standing timber,
or That the instrument was wrUngfully
dated Or made through any mistake.
Smith ~ Co allege that they made
written agreement with one Lindsay,
and say that they are informed and be-
lIeve tnat Lindsay. during the winter of
1928, cut and removed about 2,432, ,0l0
feet OF timber. and that The timber was
cut into logs and marked M n, 7" as
called for by the laws Uf Minnesota.
The surveyor general, they claim, on or
before May l, 1898,
SCALED THESE LOGS
and made q report of the same accord
ing to law, all of which had been done
according to terms OF the permit. They
| also alIege that the auditor of the state
| of Minnesota made his draft OH G. A.
| Smith fo, 81, ,S46 02, being the agreed
| price of SIS per 200 feet, for all of the
| logs cut by Lindsay on section SO: that
this draft has been accepted and that
| they have paid TO the state treasurer
large sums of money on account
thereof. Defendants further state that
| improvements in the way of roads
made by them and camps built there
or have increased the value thereof
more than $4,000; that they; have paid
| to said Lindsay for cutting, hauling and
driving the logs S1l,95S, aud have In
Cured liability to Lindsay for the cut
ing, hauling and driving of all lumber
| on section 81. Defendants allege that
| State Auditor Biermann and his pred
eceSSOrS have repeatedly sold timber at
| private sale when in their judgment
the best interests of the state were
| served or loss prevented; that
the legislature of 1898 appoint
ed committee of five TO in
vestigate, etc.; that the house by a
large majority approved the majority re-
| port of said committee, and rejected the
minority report, etc, and with full
knowledge of the same ratified said sale;
that the attorney general on March 23,
1898, by his opinion, ratified the sale;
| that subsequent TO the. action of the
| Legislature approving said sale, de-
PENDANTS have paid out large sums of
money to Lindsay in good faith, relying
upon the opinion and action of the
| legislature; that in all their acts and
dolngS III respect to the timber. they
have acted i'll good faith and in the be-
q
valid agreement. 49,
TLAINTIFF'S REJOINDER
The reply to the above SAYS that the
| plaintiff denies any appraisal or esti-
| mate; the advisanility of sale; tor pro-
date came to notice of defendants, but
admits that c. A. Smith supposed there
was 100000 feet on the land, in fact,
that he knew there was 5000, 600 feet at
the time the permit was granted.
The plaintiffs deny all knoWI-
edge of the Lindsay transac-
tionS or whether any timber
cut on section 50 was marked M, |. NJ
! The state also denies any knowledge of
the scale by the surveyor general, but
admits that A. Bierman made draft on
G. A. Smith for S4.S46.O2 but has received
thereon only S213. i5, and that the S2l3. Is
was paid to the state treasurer on Aug.
%, 1898, one day prior to The answer in
this case, and that by mistake and
inadVertence the state treasurer re-
ceiVed this sum from Smith. Plaintiff
denies any knowledge of improvements
OH section SO made py~IindSay, or that
if made they are reasonably worth the
sum stated or any other sum. The
plaintiff denies any knowledge relative
to having paid Lindsay the sum men,
| lIOliCu VI any OthC4 SuHlt vi IIldI QGIGUQ-
| ants have
INCURRED ANY LIABILITIES
to Lindsay. 1t is also denied that the
state had any knowledge as to whether
the land commissioner or his prede-
cessors have ever sold pine timber from
lands of the state at private sale.
as alleged in the answer. or not.
and expressly deny that the peo-
pie of the state or the legfsla-
lures thereof have known, acquieSced
in or approved Of any such construction
of the laws 10y the lano commissioner OF
either of them that would permit private
sales, whether under the circumstances
of this case or any other circumstances
as alleged in the answer. 1t is further
denied tnat all the facts in regard to the
sale and permit were placed before the
Legislature in 1898, but expressly ad.
mits that some of the facts
| uQIn D1onnd hofora @bo