The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-05-20
THAT PILE OF WOOD
The Suit Brought By John Caplice
Against Fanny Nelson.
CUT ON GOVERNMENT LAND
Defendants Action Was Based on
a United States Supreme Court
Decision Made Recently-Ex-
cerpts From the Opinion.

The suit brought in the district court
Monday by John Caplice against Fanny
Nelson to restrain her from "appropriat-
ing about 10000 cords of wood piled at
Bernice, in Jefferson county. involves sew
eral matters of considerable Interest to
large number of persons in Butte and
other parts of the state. The wood was
cut so IL is claimed, on government land
and without a permit. 1t was cut for Ca
plice & Co.. and paid for by them, but
Mrs. Nelson discovered that IL had been
cut without permission of the government
and that, therefore, she had as much
right to the wood as any one, and started
to remove IL to Butte and open a wood
yard with IL. She acted on legal advice,
based on a United States supreme court
decision made very recently In the case of
George s. Lewis and others of Butte
against the Northern Pacific Railroad
company.
The Lewis case was an action for s25,-
$50 damages for the destruction OF 9,4o9
cords of wood at Whitehall, which had
been set on fire by locomotive. In the
United States circuit court at Helena
Lewis secured a judgment for 2l, 4SI.SS
and the railroad company took an APP
peal, on the ground. as had been devel-
oped at the trial. that the plaintiffs had
no right to the wood, as 1t had been cut
without permission from the government.
The supreme court decided the case in ia
vor of the railroad company and the fol-
lowing excerpts from copy of the opin-
ion just received by Attorney Callahan
will be of general interest in the state.
Persons cutting trees growing on the
lands of the United States, without per-
mission, are mere trespassers, performing
an Illegal act, and acquire not right. title
or interest in the wood by reason Of the
severance.
Where persons have cut timber from
lands belonging to the United States
there is no presumption that they have
ecomplied with and come under the con-
ditions of the act of June 3, 1875, aui nor
izsng bona fide residents of mineral dis
tricts to cut timber for building. agricul-
tural or other domestic purposes, under
regulations to be prescribed by the secre-
tary of the interior. on the contrary. the
right to cut being narrow and exception
al. the presumption in the absence of any
evidence OF right, is that the cutting was
illegal.
"one Illegally cutting cordwood from
the lands of the United States or pur-
chasing the same from others who have
so cut II. and removing and piling the
same on another part of the public lands,
acquires thereby neither any right nor IT,
tie. nor any possession such as will ena-
bic him to maintain an action for dam
ages for its negligent destruction by fire
from railroad locomotives.
THE ground of plaintiffs right of ac-
ton is the damage which has been caused
them by the negligent act of the defend
ant, and, unless they are able to prove
some damage, consequent upon such neg
ligent act, the plaintiffs are not entitled
to recover. They must prove the nature
and extent OF their damage. and IL the
property destroyed were not owned by
them. and II they had no special prop
erty right therein and did not have pos
session thereof. 1t is entirely plain that
no cause of action was proved.
THE bill of exceptions states that the
wood was cut upon the unsurveyed pub
lie lands of the United States The lands
were owned by the United States and the
trees growing thereon were it's absolute
prooerty. as much so a. any other arti-
Gle of property possessed by the govern
ment. Entering upon those lands by the
plaintiffs for the purpose of cutting trees
was plain act of trespass, illegal in its
nature and unjustified by any fact ap-
pearing in this case The plaintiffs, In cut
ting down trees, committed an illegal act,
and while the title to the standing tim
Der was in the United States, the plant
iffs, by severing the trees from the free
hold, acquired no right, title or interest
in them by reason OF such severance.
THE absolute ownership of these lands
being at the time I'm the United States,
IL had, as owner. the same right and do
minion over them as any other owner
would have. No one had the right TO en-
ter upon the lands. No one had the right
to cut a stick of timber thereon without
its consent Any one 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 I'm favor of certain class
es of people to whom were given the
right to cut timber for certain purposes
NhaxF e. H.. 4
States; CD bona nde residents OF the
state or territory mentioned in the act
and CD 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 en-
try 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.
I'VE have. then. an act OF pure tres
pass, committed by the plaintiffs, in en-
tering upon the lands OF the government.
and cutting down trees belonging to the
owner of such lands. We find that the IL
tie 10 the tlinper was IN the EoNernmen mt
before IL was cut and that the title re-
manned in the government subsequently
TO the cutting. The plaintiffs, still being
trespassers; still being utterly without IL
tie 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 cut
ting or removing timber. are trespassers.
They neither own IL nor claim to own IT,,