The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1898-11-03

Error.
The United States circuit court of
appeals gives the defendants in half
million dollar trespass suit vigorous
exposition of it's views on the methods
used by lumbermen in obtaining the
pine timber upon Indian reservations.
In the case of the United States, plain
tiff in error, against the Pine River
Logging and Improvement company.
Joel B. Bassett and William L. Bas-
sett, co-partners as J. B. Bassett &
Co., and John S. Pillsbury and Charles
A. Smith, co-partners as c. A. Smith
d Co., mention of which was made in
this paper yesterday, a decision was
rendered by the judges Of the circuit
court of appeals which is likely to work
revolution in the methods used in
dealing with timber cut from Indian
reservations.
The case came before the court upon
writ of error to the United States
circuit court for the district of Min
nesota, where the cause was tried bv
jury and where the defendants had
verdict and judgment. The action
was brought in trover to recover of the
defendants the value Of 22,005,921 feet
of pine timber
OI(IOT1N Of' IE1E CASE,
1t appears that by virtue of an act
Of congress approved Feb. 16, 1889 the
president OF the United States was en-
powered to authorize Indians residing
on reservations to cut, fell, remove or
sell or otherwise dispose of dead tim
Der, standing or fallen Five contracts
were made in the autumn of 1891 with
the approval of the president of the
United States between certain Indians
and the defendants providing for the
cutting OF a total of 2,75O,00O feet of
pine timber on Indian reservations in
Minnesota, the respective quantities
named in the contracts being variously
quaIlhed by the words about" and
more or less The government claim
ed that more than 100000 feet vera
cut; the defendants admitted that
about 100000 feet were cut. It an
peared from the evidence that thirteen
separate logging camps were operated.
ano That in all of them large and ma
terial portions of the trees were alive
and growing when felied
AT the beginning Of the logging sea-
son of 1872 ore Tri9tram w Tidd was
appointed superintendent Of the opera
tons to be carried on under the five
contracts. His duty was thus outlined:
10 go Into the woods with the Ioggers
and superintend and dirtc their labors to the
end that no green or growing timber may be
cut, and that no live trees are DAMAGED in
any manner so as to cause them to die; that
tney may be marketed under the provisions
OF the act in question, and 20 inspect the
scaling of the logs"
The government claimed that under
the contracts the loggers were confined
to the 2,75O,00O feet of logs and the
Getendants claimed that because the
words about" and more or less" were
used in the contracts that they, the
defendants, had a right to cut the
quantity of logs they did cut.
Judge Thayer, in his opinion, held
that the words quoted did not enlarge
the quantity of logs the defendants
might cut under the contracts, but
were inserted simply to cover such
slight inaccuracies as might arise in
the performance of the contracts and
which could not well be avoided
The effect of the decision in this case
is to leave only the assessment of the
amount Of damages which the govern
ment is entitled to receive to be passed
upon at new trial. The law of the
case has all been found in favor of the
government and against the defend
ants.
EXTRACTS OF DECISION.
Below are given some extracts from
the opinion of Judge Thayer He says:
The five contracts that are involved In
tfe case at bar contain no provisions f.um
wbich it can reasonably be Inferred that the
several Quantities "a lumtCr therein .pcci.
ned were not intended to be determinative
OF the amount to be cut and delivered or
which would Justify the conclusion that tn
amount to be delivered was 20 be determined
by other circumstances Tested by the con-
tracts themselves, the inference is plain that
the stipulation as to quantity Is as material
and obligatory upon the parties as any 9TH
er stipulations which the contracts contain
and the qualifying words about and more
or less were inserted to cover slight Varia-
tions from the amounts specified in the sew
eral contracts which could not we'll be avoid
ed in making the deliveries
Until the passage Of the act of Feb. 16
1885, quoted above, in relation to dead and
down timber, no right had ever been con-
ferred upon Indians residing upon reserva-
tons to cut or dispose of the timber stand
ing or growing thereon. 1t was a well es-
tablished doctrine then, as it is now, that
the fee to all lands embraced in Indian reser-
vations is vested in the United States; that
the Indians residing thereon have merely a.
entitled to cut or sell timber without ex-
press Legislative sanction.
1.-THE act in question which authorized the
cutting and removal of dead and down tim
Der, under such regulations as might be
prescribed by the president, was passed for
the double purpose of preventing such tim
providing lucrative employment for such In
dams residing on reservations as might de-
sire to take advantage of its provisions.
INTENTION OF CONGRESS.
at must be presumed from the nature of
the law and the class of persons to whom it
relates and whom it was intended to benefit,
that it was the intention of congress that
such profit as might be realized from the
sale of dead and down timber. should as far
as possible, be shared alike by all reputable
Indians residing on a reservation; that equal
opportunities to cut and remove the dead
and down timber found thereon should at
least be afforded to all, and that in admin
istering the act care should be taken by the
executive department of the government in
granting licenses for the removal of timber
so that a few favored individuals backed by
large means, might not be able to appropriate
all the benefits Of the act to the exclusion
of the many.
at is altogether probable that the provi
sions found in the several contracts limiting
the total quantity of timber to be cut to
2,750,000 feet were. regarded by the executive
department OF the government as material
and obligatory and that the agreements were
approved by the president upon that theory.
Viewing the contracts. then in the light of
well established rules applicable to their in
depreciation and also in the light of the
statute under which they were executed Ii ia
clear, we think, that the quantity which
could be lawfully cut and removed was def
initely fixed by the contracts and there was
no warrant in law for cutting an amount of
timber which was to any considerable extent
in excess of the prescribed quantity.
TIMBER WRONGFULLY TAKEN.
'All timber which was appropriated In
excess @of the stipulated amount was wrong
fully taken and such payments therefor as
may have been made by the defendants to
third parties, by whom the timber was
wrongfully cut and removed, cannot be per-
mftted to prejudice. the right of the United
States to recover its value. Moreover, no
agent or officer of the United States who
was on the ground when the deliveries took
Mo Cd a of anti IN