reversed, and cause remanded to the latter court | gave evidence that they were citizens of the with instructions for a new trial.

See same case below, 7 U. S. App. 254.

Statement by Mr. Justice Peckham: This action was brought by the defendants in error against the railroad company to recover damages for the destruction of some 10,000 cords of wood by fire communicated to the wood by sparks from the engines of the company.

It was alleged in the amended complaint that the railroad company neglected and failed, for a long time prior to the happening of the fire, and while using and operating their railroad, to keep each side of the railroad track free from dead grass, weeds, brush, and other dangerous and combustible material, as by law they were required to do, and that the company used locomotives which threw from their smokestacks large amounts of live cinders and sparks, and that the company carelessly and negligently operated and used its road, and by reason thereof, and on the 5th day of August, 1890, in Jefferson county, Montana, set fire to the grass, weeds, and other combustible and dangerous material, which the defendant had negligently and carelessly allowed to remain by the side of the track, and the fire spread rapidly and consumed and destroyed the cord wood belonging to the plaintiffs, as partners, then being in Jefferson county, Montana, and along and near the railroad track, of the amount of 9,400 cords, and of the value of $25,350.

United States, and that the plaintiff, George S. Lewis, at the date of the cutting of said wood, was a resident of Butte, Montana, and that the other plaintiffs resided at White Sulphur Springs in the state of Montana. It was further shown that after the wood was cut it was drawn to a point near the railroad and there piled. That the place where the wood was so piled was on the unsurveyed public lands of the United States and about 200 yards south of the railroad operated by the defendant.

Plaintiffs also gave evidence tending to show that they had purchased from various parties during the summer of 1890 about 5,000 cords of white pine cord wood, which had *also[368 been cut on the public unsurveyed lands of the United States, some of it on the tract of country from which plaintiffs had cut, and the remainder was cut on the north side of the railroad track above mentioned, and over a strip or area of country about 2 miles in length. Further evidence was given on the part of plaintiffs tending to show negligence on the part of the defendant either in the construction or in the management of its engines, and tending to show that the fire which destroyed the wood in question was communicated to it as alleged in the amended complaint.

Evidence was given on the part of the defendant tending to show that it was not guilty of any negligence in the premises, and that it was not liable for the results of any fire which may have destroyed the wood in question.

At the conclusion of all the evidence, the defendant moved the court to instruct the jury to return a verdict for it upon the grounds:

The defendant by its answer denied all neg. ligence, and denied "that on or about the date 367] aforesaid, or on any other *day or date, "1. That the title or ownership of the wood the defendant set any fire which consumed or is directly in issue, and the testimony does not destroyed any cord wood belonging to the plain-how that the plaintiffs had either a general or tiffs or any or either of them." The defend- special property in the said cord wood or any ant also put in issue the value of the cord thereof. wood, and alleged that whatever was lost was lost through the contributory negligence of the plaintiffs.

"2. The testimony shows that at the time said cord wood was destroyed the same was the property of the United States, and that in and about the cutting and removal thereof from the public unsurveyed lands of the United States the said plaintiffs were trespassers and wrongdoers.

"3. The testimony does not show that the lands whereon the cord wood was cut were distinctly mineral in character, or were more valuable for the mineral therein contained than for agricultural purposes or for the timber growing thereon.

The case came on for trial at the circuit court of the United States for the ninth circuit for the district of Montana, held in December, 1891, and January, 1892, and resulted in a verdict for the plaintiffs for the sum of $21,487.83. The company sued out a writ of error from the United States circuit court of appeals for the ninth circuit, and that court affirmed the judgment. 7 U. S. App. 254. The company then sued out a writ of error from this court. Upon the trial of the action the plaintiffs to "4. The testimony does not show that such maintain the issues on their part introduced cord wood was cut under the license granted evidence tending to show that in the month of by the act of Congress of June 3, 1878, or in April, in the year 1889, they entered upon a compliance with the rules and regulations esportion of the unsurveyed public domain of tablished thereunder by the Secretary of the the United States, lying on the easterly Interior, but, on the contrary, the evidence slope of the Rocky mountains, in the clearly shows that the said cord wood, and the county of Jefferson, state of Montana, and whole thereof, was cut in utter disregard of there chopped and caused to be chopped said act of Congress and the said rules and about 10,000 cords of wood from the tim-regulations of the Secretary of the Interior. ber then standing and growing upon such public lands; that the wood was cut over an area of country of about 3 miles, north and south, and about 2 by 24 miles, east and west; that the wood so cut was white pine, and much of it was made of trees of less diameter than 8 inches. The plaintiffs also

5. Because the testimony shows that[369 said cord wood was the property of the United States, and that plaintiffs have neither right nor title thereto nor the possession thereof.

Other grounds were stated not material to be now considered.

The court denied the motion and refused to

so instruct the jury, and the defendant duly | 1134; Murphy v. Sioux City & P. R. Co. 55 excepted. Iowa, 473, 39 Am. Rep. 175.

The defendant then, among other requests, asked the court to charge the jury that "it being shown conclusively by the testimony in this case that plaintiffs cut said cord wood on lands belonging to the United States; that such cord wood was so cut without license or authority of the United States, and was not removed from such lands at the date it was consumed, the plaintiffs did not have either the actual or constructive possession of such wood at the date of its destruction, and are therefore not entitled to recover." This request was refused, and defendant duly excepted.

Defendants in error had no property, general or special, in the wood destroyed.

Deffeback v. Hawke, 115 U. S. 392 (29: 423); Davis v. Wiebbold, 139 U. S. 507 (35: 238); Caha v. United States, 152 U. S. 211 (38: 415); Bolles Woodenware Co. v. United States, 106 U. S. 432 (27: 230).

The possession of defendants in error being shown, upon their own case, to have resulted solely from their own theft of the property, it cannot avail them.

The fire having been communicated to the wood in question through the burning of tops and branches left by defendants in error in the "draw" leading to the piles, in violation of law, they cannot recover.

Simpson v. Bless, 7 Taunt. 246.

Defendants in error were guilty of contributory negligence.

United States v. Stone, 49 Fed. Rep. 848; The Arrogante Barcelones, 20 U. S. 7 Wheat. 496 (5: 507); Hall v. Coppell, 74 U. S. 7 Wall. 542 The court was further asked to charge that (19: 244); Desmare v. United States, 93 U. S. "if you should find from the testimony that 605 (23: 959): Burbank v. Conrad, 96 U. S. 291 plaintiffs purchased some of this wood from (24: 731); Meguire v. Corwine, 101 U. S. 108 other parties who had cut it from trees grow- (25: 899); Oscanyan v. Winchester Repeating ing in that vicinity, this will make no differ- Arms Co. 103 U. S. 261 (26: 539); McGrath v. ence so far as their right to, or ownership of, | Merwin, 112 Mass. 467, 17 Am. Rep. 119. such wood is concerned. The region of country where this cutting was done being public unsurveyed lands of the United States, the plaintiffs were bound at their peril to take notice of the fact that the timber growing thereon was the property of the United States, and could only lawfully be severed therefrom under the provisions of the act of Congress of June 3, 1878, and in compliance with the rules and regulations established thereunder. In order to prove their title to so much of the wood as was purchased, it is not enough to show that they bought it of a certain named person, but plaintiffs must go further and show that the person had acquired title to it by compliance with the act of Congress and rules and regulations prescribed by the Secretary of the Interior. If the person cutting such wood was himself a trespasser, he acquired no title to the wood cut, and could convey none to plaintiffs. The rightful owner of such wood could follow it and reclaim it, no matter where, or in whose possession it might be found, so long as he could identify it.' 370]*This request the court refused, and the defendant duly excepted to such refusal.

Among many other assignments of error made by the defendant is the following: "The court also erred in refusing to give the instruction requested by the defendant in the following words, to wit: 'It being shown conclusively by the testimony in this case that plaintiff's cut said cord wood on lands belonging to the United States, that such cord wood was so cut without license or authority of the United States, and was not removed from such lands at the date when it was consumed, the plaintiffs did not have either the actual or con structive possession of such wood at the date of its destruction, and are therefore not entitled to recover.'

Mr. William J. Curtis, for plaintiff in

error:

Defendants in error, unless they had some special or general property in the wood destroyed, could not recover.

St. Louis, I. M. & S. R. Co. v. Hecht, 38 Ark. 857; Ohio & M. R. Co. v. Jones, 27 Ill. 41; Prescott & A. R. Co. v. Rees (Ariz.) 28 Pac.

Illinois C. R. Co. v. McClelland, 42 Ill. 355. Messrs. Thomas C. Bach and William Wallace, Jr., for defendants in error:

The action is one of trespass, or trespass on the case. It was brought against a wrongdoer for its negligent destruction of the cord wood. Plaintiffs were in possession of the property when it was so destroyed, and the defendant did not seek to connect itself with the title. Under such a state of facts, the plaintiffs, by proof of their possession, also proved their title against the wrongdoing defendant.

Graham v. Peat, i East, 244; Lambert v. Stroother, Willes, 221; Jeffries v. Great Western R. Co. 34 Eng. L. & Eq. 122; Kissam v. Roberts, 6 Bosw. 163; Hoyt v. Gelston, 13 Johns. 151; Cook v. Howard, 13 Johns. 276, 284; Aikin v. Buck, 1 Wend. 466; Demick v. Chapman, 11 Johns. 132; Squire v. Hollenbeck, 9 Pick. 551, 20 Am. Dec. 506: Hanmer v. Wilsey, 17 Wend. 91; Parker v. Hotchkiss, 25 Conn. 821; Todd v. Jackson, 26 N. J. L. 525; Ashmore v. Hardy, 7 Car. & P. 501; Whittington v. Boxall, 5 Q. B. 139; Cary v. Holt, 2 Strange, 1238; Wustland v. Potterfield, 9 W. Va. 438; Craig v. Gilbreth, 47 Me. 417; Gilson v. Wood, 20 111. 37; Gardiner v. Thibodeau, 14 La. Ann. 742; Boston v. Neat, 12 Mo. 125: Crawford v. Bynum, 7 Yerg. 381; Fuller v. Bean, 30 N. H. 181; Golden Gate Mill. & Min. Co. v. Hendy Mach. Works, 82 Cal. 184: Criner v. Pike, 2 Head, 398; Tarry v. Brown, 34 Ala. 159; Kemp v. Seeley, 47 Wis. 688; 2 Greenl. Ev. § 618.

The rule is the same in trover, a mere wrongdoer is not permitted to question the title of a person in the actual possession and custody of the goods whose possession he has wrong. fully invaded.

Greenl. Ev. & 639; Ward v. Carson River Wood Co. 13 Nev. 44; Jeffries v. Great Western R. Co. 34 Eng. L. & Eq. 122; Bartlett v. Hoyt, 29 N. H. 319; Burke v. Sarage, 13 Allen, 408; Shaw v. Kaler, 106 Mass. 448; First Parish in

Mr. Justice Peckham delivered the opin-right and title sufficient to support this action, ion of the court: the plaintiffs made out their case. It may be The cases cited by the defendants in error assumed that possession alone is sufficient, show the doctrine to be quite clearly estab-even in an action of this nature, in the absence lished that an action of trespass de bonis aspor of any evidence explaining that possession or tatis does not technically involve the question showing that plaintiffs had no title to the prop of title. It relates to the possession only of erty. In this case the plaintiffs, in the course personal property, and it is brought to recover of making out their cause of action, showed for the injury to that possession. In such ac- the facts which proved that they had neither tion it is held that an allegation of the owner- the title nor the possession. ship of the property is not material and that it need not be made, or if made that it need not be proved. Proof of possession simply is sufficient upon the theory that possession is prima facie evidence of some kind of rightful own

as any other article of property possessed by the government. Entering upon those lands by the plaintiffs for the purpose of cutting trees was a plain act of trespass, illegal in its nature, and unjustified by any fact appearing in this case. The plaintiffs in cutting down trees committed an illegal act, and while the title to the standing timber was in the United States, the plaintiffs by severing the trees from the freehold acquired no right, title, or interest in them by reason of such severance.

In Schulenberg v. Harriman, 88 U. S. 21 Wall. 44-64 [22: 551-558], it was held that where title to land upon which the lumber was cut was in the state, severing the timber from the realty did not change the title. Its character was changed from realty to personalty, but its title was not affected. It continued as previously the property of the owner of the land and could be pursued wherever it was carried. All the remedies were open to the owner which the law afforded in other cases of the wrongful removal or conversion of personal property. See also Turley v. Tucker, 6 Mo. 583, 35 Am. Dec. 449. It is plain, therefore, that the plaintiffs obtained no right or tifle to the trecs by cutting them on the lands owned by the United States under circumstances such as are set forth in this bill of exceptions.

tempted to comply with the provisions of the above act or with the rules or regulations prescribed by the Secretary of the Interior.

The plaintiffs claim that in the absence of any evidence to the contrary, the presumption is that when they cut the timber they complied with and came under the conditions provided for in the above cited act, and that the burden rested upon the defendant to show that the conditions mentioned in the act had not been complied with by them. If the plaintiffs are right in this contention, then it must be presunied that the cutting of the timber was lawful and the plaintiffs thereby acquired title to it. If, however, they are in error in their claim, then it appears that the timber never belonged to them, and that fact would have a most material bearing upon the question whether they had, in fact or in law, any possession of the timber at the time of its destruction.

*The absoluteownership of these lands[376 being at the time in the United States, it had as owner the same right and dominion over them as any owner would have. No one had the right to enter upon the lands; no one ha 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 It is urged, however, that under the act of commission of an act of trespass. The gov June 3, 1878 (1 Supp. to U. S. Rev. Stat. 1874-ernment, however, chose to make some excep1881, p. 327), where no evidence is given upon the subject, the presumption is that the plain tiffs had complied with the provisions of that act, and that the cutting was therefore legal, and the timber was their own property.

tions in favor of certain classes of people to whom was given the right to cut timber for certain purposes: (1) They were to be citizens of the United States; (2) bona fide residents of the state or territory mentioned in the act; (3) The 1st section of that act reads as follows: they were to be permitted to fell and remove "Sec. 1. Be it enacted, etc., That all citizens any timber or trees growing or being on the of the United States and other persons, bona public lands, provided they were mineral, and fide residents of the state of Colorado or not subject to entry under existing laws of Nevada, or either of the territories of New the United States; and they were authorized Mexico, Arizona, Utah, Wyoming. Dakota, and permitted to fell and remove such timber Idaho, or Montana, and all other mineral dis-only for building, agricultural, mining, or other tricts of the United States, shall be, and are hereby, authorized and permitted to fell and 375 remove, *for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral and not subject to entry under the existing laws of the United States, except for mineral entry, in either of said states, territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, The provisions of this act shall not extend to railroad corporations."

domestic purposes. The cutting and remov ing were to be done under rules and regalations 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.

The right to cut is exceptional and quite nar. row, and for specified purposes only. The broad general rule is against the right. If the plaintiffs had acquired the right by reason of a compliance with the provisions of the stat ute, the facts should have been shown by them. The presumption in the absence of evidence is that the cutting is illegal. United States v. Cook, 86 U. S. 19 Wall. 591 [22: 210].

In the case last cited it was held that the timber upon the lands occupied by the Indians The 3d section of that act reads as follows: could not be cut by them for purposes of sale "Sec. 3. Any person or persons who shall alone, but that it could be cut for the purpose violate the provisions of this act, or any rules of improving the land and the better adapting or regulations in pursuance thereof made by it to convenient occupation, and that when the Secretary of the Interior, shall be deemed the timber had been cut incidentally for the guilty of a misdemeanor, and, upon convic-improvement of the land, and not for the purtion, shall be fined in any sum not exceeding pose of cutting and selling it, there was no $500, and to which may be added imprison ment for any term not exceeding six months." There was no evidence tending to show that the lands where the wood was cut were min eral, or that in cutting, handling, or removing the wood the plaintiffs had complied or at

restriction on the sale of it. The Indians having only the right of occupancy in the lands, and, therefore, presumptively no right to cut timber for the purpose of selling, it was further held that if they cut *timber in the process[377 of improving the land, that fact must be shown;

the presumption was against the authority to | upon the land at all for the purpose of illegally cut and sell the timber. Every purchaser cutting or removing timber are trespassers; from them, it was held, was charged with they neither own it nor claim to own it, nor notice of this presumption, and that to main have they the slightest title to or interest in it, tain bis title it was incumbent on the pur- nor any ownership of or title to the timber chaser to show that the timber was rightfully which they have illegally cut. They have severed from the land. So here. As the gov- carried property which did not belong to them, ernment was the sole and absolute owner of which they acquired and took by means of these lands and of the timber growing thereon, this trespass, from one part of the owner's dothe presumption would be against the right main to another part thereof. Can they be of any third person to cut the timber, and said under such circumstances to be in possesif he claimed the right by virtue of any au- sion of such property? Can they be in pos. thority or license given him by the owner, that session of property to which they have not is, the government, he would be compelled to the slightest title, while that property remains show it. There was no evidence given on this upon the land of the owner, from which land subject by either party, and hence the plain the trees were cut and upon which land the tiffs did not satisfy the burden of proof which plaintiffs could not (for the purpose of illegally rested upon them in this behalf. cutting or removing timber) enter or remain for one moment without the commission of a trespass? These facts being proved, is there any such possession as is prima facie evidence of title, right, or ownership in the plaintiffs such as will enable them to maintain an action against a wrongdoer for the negligent destruc tion of this property? We think not. It is[379 not a case for the application of the principle that mere possession is sufficient in order to maintain an action against a wrongdoer. There is no possession in this case. The plaintiffs in the course of their evidence show that they have no title to the wood, and at the same time they show that they were not in possession of it. As the wood in question belonged to the United States at the time of its

Again, the consent to cut timber granted by the act of 1878 being upon the conditions and for the purposes therein specified and to the classes of persons therein described, whether the plaintiffs, who did this cutting, had complied with those conditions and had cut timber for the purposes mentioned, and were within the class of persons described in the statute, were facts which rested peculiarly within their own knowledge, the burden of showing which would naturally and rightfully be cast upon them. As the plaintiffs failed to show that they came within the conditions and exceptions specified in the act of 1878, the presumption that they cut the timber illegally became conclusive. Nor did the plaintiffs obtain any rights under § 8 of the laws of Congress ap-destruction, and at that time was piled on its proved March 8, 1891, entitled "An Act to Repeal Timber Culture Law and for Other Purposes.' 26 Stat. at L. 1099. That section was amended by the act approved on the same day, March 3, 1891, 26 Stat. at L. 1093. Neither section grants any relief to one situated like the plaintiffs. The section in either act looks to a criminal prosecution or civil action by the United States for trespass upon public timber lands to recover for the timber and lumber cut thereon, and it is provided that it should be a defense if the defendant should show that the timber was so cut or removed by a 378]resident of the *state or territory for agricultural, mining, manufacturing, or domestic purposes, and had not been transported out of the same. If the plaintiffs had shown these facts they would have proved enough to sustain their case on this point. They showed nothing upon the subject. It is not a case of condonation. It is simply a question whether the plaintiffs have brought themselves within any of the exceptions provided for in the statute of 1878, and we hold that the burden was upon them to show the facts which constituted the exception if they existed.

We have, then, an act of pure trespass, committed by the plaintiffs in entering upon the lands of the government and cutting down trees belonging to the owner of such lands. We find that the title to the timber was in the government before it was cut, and that the title remained in the government subsequently to the cutting. The plaintiffs still being trespassers, still being utterly without title 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

own lands, we fail to see why the government could not now commence an action against the company to recover the value of the wood, and if negligence were proved succeed in its suit. If plaintiffs' action could be sustained, the judgment herein would be no bar to the maintenance of an action by the government, and the company would find itself subject to the payment of damages twice over. It seems to us quite clear that the plaintiffs have shown no such possession as would be necessary to sustain this action, even if the defendant were not permitted to show title in a third person without connecting itself with the stranger. It is unnecessary to say whether the plaintiffs would have proved a good cause of action by proof of possession merely, if the facts in regard to the illegal character of the cutting had also been proved.

A reference to a few cases in the state courts will not be out of place.

In the case of Turley v. Tucker, 6 Mo. 583, 35 Am. Dec. 449, it appeared that the plaintiffs were owners of a saw mill, and cut down trees on the public lands and marked them, in convenient lengths, for their purposes. While the logs remained where felled a portion of them was taken by Tucker to his mill, and the plaintiff sued the defendant in an action of trover, for the value of the logs thus taken. The defendants requested the court to charge that if the jury found that the plaintiff cut the timber taken by the defendant, without a bona fide view to its use, and did not use the same, the timber being and appertaining to the public domain and lying at the place where felled, then the plaintiff was a trespasser against the United States, and could not recover against the defendant for using a part of