St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1895-07-11
TO CANCEL NUMEROUS IRREGU-
LAR PERMITS FOR CUTTING
TIMBER
A PIVOTAL CASE DECIDED.
MISTAKE MADE IN SEEKING TO
RECOVER THE VALUE OF. =
LOGS IN BOOM.
d. NJ. sABIN LOSES ON APPEAL.
NJ. j. BOfferdingss Executor Sc
cures u Verdict for Insurance
Money.


called lumber cases. growing out
of alleged stealing of state pine,
was decided by the supreme court
yesterday. The opinion is written
by the chief justice and the order of
the lower court, finding for the
Sheylin-Carpenter company, is re-
versed and the case is remanded for
re-trial.
While that is regarded as only
partial victory for the state, it is a
decided victory for the state auditor
in the position he took in the legis-
lature Of 1898. At that time, it will
be remembered, Mr.. Dunn introduced
a resolution in the house calling for
an investigation Of the validity Of
the permit under which the c. A.
Smith company was cutting timber
from state lands in the Mile Laos
district. He claimed that the per-
nit was invalid because it was not
signed by a majority of the state
board, controlling the sale of state
pine land stumpage, which is COM
posed of the state auditor, the state
treasurer and the governor. This
eventually led to the appointment
of the pine land investigating COM
mittee, which in turn brought the
suit against the Shevlin-Carpenter
company, of Minneapolis. 1t was
tried before Judge Russell, of the
lost. An appeal was then taken to
the supreme court, in which the de-
cision is now flied, finding for the
state, but directing new trial on
the ground that the state sued to
recover the value of the logs in the
boom in Minneapolis, where they
were worth 81 per thousand, instead
of the stumpage rate of 81 per thou
sand as they stood on the land.
The Shevlin-Carpenter company
has offered repeatedly to settle for
the value of the logs on the land,
and State Auditor Dunn has been
willing to accept a settlement on that
plan, as he has done in other cases,
whereby the state has recently re-
ceived more than $4,000 without the
cost of going to law, but the pine
land committee insisted on pushing
the case in the courts for the full
value of the logs as they were found
in the Minneapolis boom. The Shev-
lin-Carpenter company will, it is
said, fight the case again on the
same ground.
The result of the supreme court $
decision of the validity of permits
issued without the signature Of more
than the auditor or treasurer will
| affect a good many permits now
outstanding, as they will be can
celed unless properly signed. The
syllabus follows:
| State of Minnesota, appellant, VS..
The acknowledgements Company, re-
| spondent.
1.-General Statutes 1894, S. S. 4011, 4O12
! construed and held: (a) That the sale
of any pine timber on state lands is
prohibited except in special cases where
4 the timber is liable to waste. (b) That
| the state auditor, acting as commits
sioner of the state land Office, has no
] authority to sell any pine timber under
| any conditions, unless the governor,
| the treasurer, and commissioner, or a
sign a statement to be Endorsed upon
! the appraisal and estimate of such
pine timber as it is proposed to sell,
! to the effect that a sale thereof is nee
essary to protect the state from loss.
(c) That if such commissioner does
/ attempt to sell any pine timber and
issues a permit to the purchaser to
cut and remove the same, without such
| official statement and sanction, such
sale and permit are void.
2. Such void permit may be at
tackled collaterally, although it re-
cites on its face facts showing that the
| law has been complied with.
g In an action of claim and de-
livery by the state to. recover the pos
session of logs cut from state lands
under sucn void permit, the defendant
! is entitled to show, if he can, that he
acted in good faith without any knowl-
! edge in fact of the invalidity of his
| hermit. and that in reliance thereon,
and in the honest and reasonable belief
! that he had legcl right so to do, he
cut the logs; and further, that by his
labor and money expended in cutting
such logs and Transporting them to a
proper market he materially increased
their value. If he establishes such
facts the alternati tive value OF the logs
is to be assessed as of the time and
place of the original taking, that Is at
! their stumpage value, with interest
thereon from the time of the taking TO
! the date of the verdict, and the Judg-
ment so framed as to protect the IN
] terest of both parties. Order reversed.
| START, c. j.
sABINS APPEAL FAILS.
T. C. O'Gorman, as receiver of Sey-
mour. Sabin & Co., respondents, vs.
d. NJ. Sabin ct al, appellants.
Evidence held sufficient to justify the
verdict. The plaintiff as receiver of
an insolyent corporation was or
| dered by the court to sell all its prop
| ery at public auction and upon con-
! firmation of the sale and the payment
| of the purchase money to execute to
the purchaser the proper instruments
! of conveyance. After the sale but be-
! fore it was confirmed, the defendants
| executed to the receiver AN undertake
ing whereby they promised and agreed
! that. if after the confirmation OF the
sale. he would transfer and deliver the
| property to the purchaser or hold it
| in readiness to be so transferred and
delivered they would pay him the
j amount of the purchase money bid at
1 the sale After the sale was confirmed
| the receiver in reliance on this under
| taking but without authority from the
court and in violation of its order
transferred and delivered the property
to the purchaser without having re-
ceived payment of the purchase
money. Held, that the undertaking
can be enforced by the receiver in his
official capacity as an officer of the
court, Notwithstanding that the con-
| sideration for which it was executed
was the doing of an act on his part
which was in violation of the order of
the court and a breach of his official
duty.
His recovery is not in his own right,
but in that of the court whose officer
he is. After trial the plaintiff, by leave
Of the court, amended his cornplaintso
that instead of alleging that he ac-
copied the undertaking in lieu of the