Waters-Pierce Oil Co. v. United States

YOUMANS, District Judge.

The United States brought five separate suits in conversion against the plaintiff in error in the court below for the value in manufactured form of turpentine and rosin taken from timber on unperfected homesteads. These suits were consolidated and tried as one. The first two assignments of error are based on the contention that the testimony was not sufficient to sustain a recovery on either one of the five suits separately, or as consolidated. We have carefully read the evidence, and find that there was testimony sufficient to sustain the verdict of the jury.

The six assignments of error following the first two related to alleged erroneous instructions to the jury. The essential part of the instructions embodies the identical language used by the Supreme Court of the United States in the case of Union Naval Stores v. United States, 240 U. S. 284, 36 Sup. Ct. 308, 60 L. Ed. 644. In that opinion the Supreme Court approved the following charge:

‘"The boxing oí trees by a settlor on public land covered by an unporfected homestead entry, or by any person who knew it was public land (which an unperí'ected homestead entry is), and the extracting of crude turpentine therefrom, constitutes in law an intentional, willful trespass, although he may have acted without knowledge of, the illegality of the act, and that from such persons the United States are entitled to recover the value of the product manufactured from such crude turpentine by the settler, or from any person into whose possession the same may have passed.”

The testimony clearly shows that the turpentine and rosin in question were taken from public lands, and that in so doing the persons so taking the same committed willful trespass, and that the turpentine and rosin so taken passed into the possession of the plaintiff in error.

We have examined the other assignments of error, and find them to be without merit.

The case will be affirmed.