Custer weekly chronicle. [volume] (Custer City, S.D.) 1890-1931, 1898-02-19

| pdtcut ndu not DcCu hCtually lssuSu u
the government, were government
lands. 1t matters not that lands may
| have been entered at the land office by
the claimant, or that the claimant may
have made final proof of this action, oil
lands are government lands until the
patent is actually issued by the govern
ment. The burden of proving that the
timber from which the lumber in ques-
ton was made was cut from government
land, is upon the government itself 1t
is bound TO establish that fact by pre-
ponderance of the evidence, and if you
shall find from the evidence that any OF
the lumber in question was cut from
private lands, as to that lumber you will
| find in favor of the defendant That,
gentlemen, is the first question. Was the
timber from which the lumber in ques-
ton was made, cut from government
land2
The second question is this: If you
| end from the evidence that the timber
in question was cut from government
land, you will then ass yourself whether
such timber was usst in the state Of
South Dakota by residents thereof, for
agricultural, mining, manufacturing or
domestic purposes. If it was, you will
find in favor of the defendant But If
you find that any of the timber in ques-
tion was cut from government land was
not SO used, as TO that timber you will
find in favor of the plaintiff, and will
assess the plaintiffs damages at the fair
market value of such timber or lumber
at the time and place AT which the same
was sold by the defendant, and bring in
verdict in favor Of the plaintiff for that
amount; but in no case TO exceed the
sum of IS, 10000.
The burden Of proving that timber cut
from government land was used in the
State of South Dakota, by residents Of
the State Of South Dakota, for agricul-
tural, mining, manufacturing or domes-
tic purposes, is upon the defendant, and
if he fails to establish that fact by a pre-
ponderence of the evidence, as to any
timber cut from government land, as to
that timber you will find in favor Of the
plaintiff,
There is no question in this case that
the defendant sold lumber to the amount
of $4,000 feet. His defense is, l) That
portion Of the timber, at least, was cut
from private property. (2) That all
lumber made from timber cut from gov
ernment land was actually used for the
purposes allowed by the statute, namely,
for agricultural, mining, manufacturing
or domestic purposes.
If YOU are satisfied from the evidence
that the timber was in fact cut from
government land and that the lumber,
or some part thereof. made from the
timber was not actually used for the
purposes allowed by the statute, then as
TO all such lumber you will find in favor
of the plaintiff, and fix its value at lis
fair market value at the time and place
at which it was sold by the defendant
If you find from the evidence that the
defendant in this case sold lumber
which was made from timber cut from
the government land, then In order to
find ia favor of the defendant as to that
lumber, you must find three facts: First
that il was actually used in the State OF
south Dakota. Secondly, that il was
used by residents of the State OF South
Dakota, and thirdly, that it was used for
the purpose Of agriculture, mining
manufacturing or other domestic uses.
All three of those facts must be estab-
lished AS to that lumber to warrant you
in finding in favor of the defendant as
to any such lumber. For example, if
YOU find that any lumber cut from the
public domain and sold by the defend
ant, was used outside Of the State Of
South Dakota, as to all that lumber he is
liable in this action for its fair market
value.
Gentlemen, you will take this case
and dispose of it according to the law
and the evidence. The fact that the
defendant is an old resident of the Black
Hills, or that the government of the
United States is rich and has great
deal Of timber, is wholly immaterial.
The interest Of the government in this
case is the interest of every resident OF
the Black Hills country. All the timber
that is here is needed in the develop
ment Of the country for the uses and
purposes mentioned in the statute, and
it is of the highest Importance that it
shall not be wrongfully misapplied by
persons dealing in it for speculative
purposes. l say this, gentlemen, with
out in the least intimating that the de-
| fendant is such per on, or that he has
in any way violated the law, but men.
ton it for the sole purpose Of directing
your attention to the importance Of a
| Just, fearless and impartial administra
| ton Of these timber laws.
1t has been suggested that TIE de-
fendant in this case may be preindiced
| by reason Of the loss Of a right Of action
against the persons to whom he may
have sold timber, in such case you FIND
he has sold timber. Gentlemen, |
charge you that is wholly immaterial in
the first place. and in the second place
that he would have no such right ot
action, if you find that he wrongfully
disposed of this timber. Ifother people
have assisted or aided him in any o.
this wrongful business in case you find
he has been guilty Of any wrong, he has
no right of contribution from them
The law does not compel contribution
among wrong doers.
Take the case, gentlemen, and decide
it as you have sworn to do, fairly arc
impartially. according to the evidence
and the law as given to you by thu
court.
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