United States v. Loughrey/Opinion of the Court
To entitle the plaintiff to recover in this action, which is substantially in trover, it is necessary to show a general or special property in the timber cut, and a right to the possession of the same at the commencement of the suit.

There is no question that the lands belonged to the United States prior to June 3, 1856. By an act of congress passed upon that date (11 Stat. 21), it was enacted that 'there be, and hereby is, granted to the state of Michigan, to aid in the construction of railroads from Little Bay De Noquet to Marquette, and thence to Ontonagon, and from the last two named places to the Wisconsin state line [with others not necessary to be mentioned], every alternate section of land designated by odd numbers; for six sections in width on each side of each of said roads; * * * which land * * * shall be held by the state of Michigan for the use and purpose aforesaid: provided, that the lands to be so located shall in no case be further than fifteen miles from the lines of said roads, and selected for, and on account of each of said roads: provided, further, that the lands hereby granted shall be exclusively applied in the construction of that road for and on account of which said lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever.' By the third section it was enacted that the 'said lands hereby granted to the said state shall be subject to the disposal of the legislature thereof, for the purposes aforesaid, and no other.' Provision was made in the fourth section for a sale of the lands for the benefit of the railroads as they were constructed. The last clause provided that 'if any of said roads is not completed within ten years no further sales shall be made, and the lands unsold shall revert to the United States.'

1. Under this act, the state of Michigan took the fee of the lands to be thereafter identified, subject to a condition subsequent that, if the roads were not completed within 10 years, the lands unsold should revert to the United 1 Washb. Real Prop. (5th Ed.) 95. As was Professor Washburne says that, 'so long as the estate in fee remains, the owner in possession has all the rights in respect to it, which he would have if tenant in fee simple, unless it be so limited that there is properly a reversionary right in another,-something more than a possibility of a reverter belonging to a third person, when, perhaps, chancery might interpose to prevent waste of the premises.' 1 Washb. Real Prop. (5th Ed.e 95. As was said in De Peyster v. Michael, 6 N. Y. 467, 506, a right of re-entry 'is not a reversion, nor is it the possibility of reversion, nor is it any estate in the land. It is a mere right or chose in action, and, if enforced, the grantor would be in by a forfeiture of a condition, and not by a reverter. * * * It is only by statute that the assignee of the lessor can re-enter for condition broken. But the statute only authorized the transfer of the right, and did not convert it into a reversionary interest, nor into any other estate. * * * When property is held on condition, all the attributes and incidents of absolute property belong to it until the condition be broken.' Had the state, through its agents, cut timber upon these lands, an action would have lain by the United States upon the covenant of the state that the lands should be held for railway purposes only, and devoted to no other use or purpose; but the state was not responsible for the unauthorized acts of a mere trespasser, and it was no violation of its covenant that another person had stripped the lands of their timber.

In the case of Schulenberg v. Harriman, 21 Wall. 44, an act immediately preceding this, granting public lands to the state of Wisconsin to aid in the construction of railroads in that state, and precisely similar to this act in its terms, was construed by this court as a grant in praesenti of title to the odd sections designated, to be afterwards located, so that, when the route was fixed, their location became certain, and the title, which was previously imperfect, acquired precision, and became attached to the lands. As it is stipulated in this case that the lands from which the timber was cut were a part of the grant of June 3, 1856, to the state of Michigan, and were a part of the lands within the six-mile limit, certified and approved to the state by the secretary of the interior, no question arises with respect to the identity of the lands.

The case of Schulenberg v. Harriman was also an action for timber cut upon lands granted to the state, against an agent of the state who had seized the logs, which had been cut after the 10 years had expired for the construction of the railroad, but before any action had been taken by congress to forfeit the grant. The complaint in the case alleged property and right of possession in the plaintiffs. It was stipulated by the parties that the plaintiffs were in the quiet and peaceable possession of the logs at the time of their seizure by the defendants, and that such possession should be conclusive evidence of title in the plaintiffs against evidence of title in a stranger, unless the defendant should connect himself with such title by agency, or authority in himself. The title of the plaintiffs was not otherwise stated. It was held that the title to the lands did not revert to the United States after the expiration of the 10 years, in the absence of judicial proceedings in the nature of an inquest of office, or a legislative forfeiture, and that, until a forfeiture had taken place, the lands themselves and the timber cut from them were the property of the state. Said Mr. Justice Field, in delivering the opinion of the court (page 64): 'The title to the land remaining in the state, the lumber cut upon the land belonged to the state. While the timber was standing, it constituted a part of the realty. Being severed from the soil, its character was changed. It became 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 affords in other cases of the wrongful removal or conversion of personal property.' The same rule regarding the construction of this identical land grant was applied by this court in Iron Co. v. Cunningham, 155 U.S. 354, 15 Sup. Ct. 103. Indeed, the principle is too well settled to require the citation of authorities. The case of Schulenberg v. Harriman, 21 Wall. 44, differs from the one under consideration in the fact that no act forfeiting the grant was ever passed; but it is pertinent, as showing that, under a statute precisely like the present, the title to the timber cut before such forfeiture is in the state, and not in the general government.

It follows that the United States, having no title to the lands at the time of the trespass, and no right to the possession of the timber, are in no position to maintain this suit. Neither a deed of land nor an assignment of a patent for an invention carries with it a right of action for prior trespasses or infringements. Such rights of action are, it is true, now assignable by the statutes of most of the states, but they only pass with a conveyance of the property itself where the language is clear and explicit to that effect. 1 Chit. Pl. 68; Gardner v. Adams, 12 Wend. 297, 299; Clark v. Wilson, 103 Mass. 219, 223; Moore v. Marsh, 7 Wall. 515; Dibble v. Augur, 7 Blatchf. 86, Fed. Cas. No. 3,879; Merriam v. Smith, 11 Fed. 588; May v. Juneau Co., 30 Fed. 241; Engraving Co. v. Hoke, Id. 444.

So, where a landowner intrusts another with the possession of his lands, either by lease, by contract to sell, or otherwise, the right of action for trespasses committed during such tenancy belongs to the latter, and, except under special circumstances, an action for a trespass, such as the cutting of timber, will not lie in favor of the landlord. Greber v. Kleckner, 2 Pa. St. 289; Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468; Cutts v. Spring, 15 Mass. 135; Lienow v. Ritchie, 8 Pick. 235; Ward v. Macauley, 4 Term R. 489; Revett v. Brown, 5 Bing. 7; Harper v. Charlesworth, 4 Barn. & C. 574; Graham v. Peat, 1 East, 244; Lunt v. Brown, 13 Me. 236; 2 Greenl. Ev. § 616.

Although, as was said by Lord Kenyon in Ward v. Macauley, 4 Term R. 489, 'the distinction between the actions of trespass and trover is well settled,-the former are founded on possession; the latter, on property,'-yet they are concurrent remedies to the extent that, wherever trespass will lie for the unlawful taking and conversion of personal property, trover may also be maintained. The plaintiff is bound to prove a right of possession in himself at the time of the conversion, and, if the goods are shown to be in the lawful possession of another by lease or similar contract, he cannot maintain trover for them. Smith v. Plomer, 15 East, 607; Wheeler v. Train, 3 Pick. 255; Gordon v. Harper, 7 Term R. 9; Ayer v. Bartlett, 9 Pick, 156; Fairbank v. Phelps, 22 Pick. 535.

It does not aid the plaintiff's case to take the position (the soundness of which we by no means concede) that the state held the lands as trustee, to deliver them over to the railroads upon certain contingencies, and to return them to the United States in case the condition subsequent were not performed, since nothing is better settled than that a trustee has the legal title to the lands, and that actions at law for trespasses must be brought by him, and by him alone. 1 Perry, Trusts, § 328, and cases cited; Fenn v. Holme, 21 How. 481.

Certain cases having a contrary bearing will now be considered. Several of these are to the effect that if a man leases an estate for a term of years, and the tenant unlawfully cuts timber, the lessor may sue in trespass, and perhaps in trover, upon the ground that the title to the land remains in the lessor during the pendency of the lease.

In Richard Liford's Case, 11 Coke, 46, which was an action of trespass by a tenant against the agent of the owner of the inheritance for certain trees cut, it was said 'that, when a man demises his land for life or years, the lessee has but a particular interest in the trees, but the general interest of the trees remains in the lessor; for the lessee shall have the mast and fruit of the trees, and shadow for his cattle, etc., but the interest of the body of the trees is in the lessor as parcel of his inheritance; and this appears in Dyer, 36 (29 Hen. VIII.), where it is held in express words that it cannot be denied that the property of great trees, scil the timber, is reserved by the law to the lessor, but he cannot grant it without the termor's license, for the termor has an interest in it, scil. to have the mast and fruit growing upon it, and the loppings thereof for fuel, but the very property of the tree is in the lessor as annexed to his inheritance.' Again, speaking of disseisin and the respective rights of the disseisee and disseisor when the former regains possession, it is said: 'That, after the regress of the disseisee, the law adjudges, as to the disseisor himself, that the freehold has continued in the disseisee, which rule and reason doth extend as well to corn as to trees or grass, etc. The same law, if the feoffee or lessee or the second disseisor sows the land, or cuts down trees or grass, and severs and carries away or sells them to another, yet, after the regress of the disseisee, he may take as well the corn as the trees and grass to what place soever they are carried; for the regress of the disseisee has relation as to the property, to continue the freehold against them all in the disseisee ab initio, and the carrying them out of the land cannot alter the property.'

In Gordon v. Harper, 7 Term R. 9, it was held that where goods had been leased as furniture with a house, and had been wrongfully taken in execution by the sheriff, the landlord could not maintain trover against the sheriff pending the lease, because he did not have the right of possession as well as the right of property at the time. The case was distinguished from one where the thing was attached to the freehold, and the doctrine of Liford's Case was reiterated,-that, where timber is cut down by a tenant for years, the owner of the inheritance may maintain trover for the timber notwithstanding the lease, because the interest of the lessee in it remained no longer than while it was growing on the premises, and determined instantly when it was cut down. See, also, Mears v. Railway Co., 11 C. B. (N. S.) 850; Randall v. Cleaveland, 6 Conn. 328; Elliot v. Smith, 2 N. H. 430; Starr W. Jackson, 11 Mass. 519.

These cases obviously have no application to one where there has been a conveyance of the fee of the land prior to the cutting of the timber, and no re-entry or analogous proceeding on the part of the vendor for a breach of a condition subsequent.

The same distinction was taken in Farrant v. Thompson, 5 Barn. & Ald. 826, in which certain mill machinery, together with the mill, had been demised for a term to a tenant, and he, without permission of his landlord, severed the machinery from the mill, and it was afterwards seized under execution by the sheriff, and sold by him. It was held that no property passed to the vendee, and the landlord was entitled to bring trover for the machinery, even during the continuance of the term, upon the ground that the machinery attached to the mill was a part of the inheritance which the tenant had a right to use, but not to sever or remove.

So, in U.S. v. Cook, 19 Wall. 591, it was held that timber standing upon lands occupied by Indians, cannot be cut by them for the purposes of sale, although it may be for the purpose of improving the land, as the Indians had only the right of occupancy, and the presumption was against their authority to cut and sell the timber. In such case the property in the timber does not pass from the United States by severance, and they may maintain an action for unlawful cutting and carrying it away. To the same effect is Woodenware Co. v. U.S., 106 U.S. 432, 1 Sup. Ct. 398.

In Wilson v. Hoffman, 93 Mich. 72, 52 N. W. 1037, the same principle was extended to a plaintiff in ejectment, who was held entitled to maintain an action for trover for logs cut by the defendant during the pendency of the suit which had been determined in the plaintiff's favor, although the defendant was in possession of the land under a bona fide claim of title adverse to the plaintiff. This is but another application of the doctrine which allows the plaintiff in ejectment to recover mesne profits upon the theory that the land has always been his, and that the defendant illegally obtained possession of it. See, also, Morgan v. Varick, 8 Wend. 587; Busch v. Nester, 62 Mich. 381, 28 N. W. 911; Id., 70 Mich. 525, 38 N. W. 458.

In Moores v. Wait, 3 Wend. 104, a person entered into possession of wild lands, under a contract of sale giving him the right of entry and occupancy, reserving to the landlord the land as security until the payment of the consideration by withholding the deed. It was held that he had a right to enter and enjoy the land for agricultural purposes, but that he had no right to cut timber for any other purpose than for the cultivation, improvement, and enjoyment of the land as a farm, and that the owner of the inheritance, who had never parted with his title, might maintain an action of trover for it against any one in possession, although a bona fide purchaser under the occupant. This was also upon the principle that the vendor had never parted with title to his land. But see Scott v. Wharton, 2 Hen. & M. 25; Moses v. Johnson, 88 Ala. 517, 7 South. 146.

In Burnett v. Thompson, 51 N. C. 210, the plaintiff had a life estate pur autre vie in a lease of Indian lands for 99 years, and also a reversion after the expiration of the term. A stranger entered, and cut down cypress trees, and carried them off. The plaintiff was permitted to recover. It was held that 'if there be a tenant for years or for life, and a stranger cuts down a tree, the particular tenant may bring trespass, and recover damages for breaking his close, treading down his grass, and the like. But the remainder-man or reversioner in fee is entitled to the tree, and, if it be converted, may bring trover, and recover its value. The reason is the tree constituted a part of the land, its severance was waste, which is an injury to the inheritance; consequently, the party in whom is vested the first estate of inheritance, whether in fee simple or fee tail (for it may last always), is entitled to the tree, as well after it is severed as before; his right of property not being lost by the wrongful acts of severance by which it is converted into a personal chattel.' See, also, Halleck v. Mixer, 16 Cal. 574.

While these cases run counter to some of those previously cited, they are all distinguishable from the one under consideration in the fact that the plaintiff was the owner of the inheritance, and had the legal title to the land at the time the trespass was committed. We see nothing in them to disturb the doctrine announced by this court in Schulenberg v. Harriman, 21 Wall. 44, that timber cut upon the lands prior to the forfeiture belongs to the state. The fact is that nothing remained of the original title of the United States but the possibility of a reversion, a contingent remainder, which would be an insufficient basis for an action of trover. Gordon v. Lowther, 75 N. C. 193; Matthews v. Hudson, 81 Ga. 120, 7 S. E. 286; Farabow v. Green, 108 N. C. 339, 12 S. E. 1003; Sager v. Galloway, 113 Pa. St. 500, 6 Atl. 209. To sustain this action, there must be an immediate right of possession when the timber is cut. This might arise if the severance of the timber involved a breach of obligation on the part of the tenant; but, if the timber were cut by a third person, the question would be as to the right to the timber so cut as against the trespasser, and, unless the case of Schulenberg v. Harriman is to be overruled, it must be held to be that of the state.

2. As the United States can take title to the timber involved in this case only through its ownership of the lands, it remains to consider whether the act of March 2, 1889 (25 Stat. 1008), forfeiting the lands granted by this act to aid in the construction of a railroad from Marquette to Ontonagon, operated by relation to revest in the United States title to the timber which had been cut during the winter of 1887 and 1888, and prior to the act of forfeiture. This act provided that 'there is hereby forfeited to the United States, and the United States hereby resumes title thereto, all lands heretofore granted to the state of Michigan * * * which are opposite to and coterminous with the uncompleted portion of any railroad, to aid in the construction of which said lands were granted or applied, and all such lands are hereby declared to be a part of the public domain.'

The position of the plaintiffs must necessarily be that this act of forfeiture not only revested in the United States the title to the lands as of a date prior to the cutting of the timber in question, but also revested them with the property in the timber which had been cut while the lands belonged to the state of Michigan. Had this act of forfeiture not been passed, there could be no question that under the case of Schulenberg v. Harriman, 21 Wall. 44, this timber would have belonged to the state of Michigan, and no action therefor could have been brought by the United States.

But, conceding all that is contended for by the plaintiffs with respect to the revestiture of the title to the lands by this act, it does not follow that the title to the timber which had been cut in the meantime was also revested in the United States. As was said in Schulenberg v. Harriman, the title to the timber remained in the state after it had been severed. But it remained in the state as a separate and independent piece of property, and, if the state had elected to sell it, a good title would have thereby passed to the purchaser, notwithstanding the subsequent act of forfeiture. It did not remain the property of the state as a part of the lands, but as a distinct piece of property, although the state took its title thereto through and in consequence of its title to the lands. From the moment it was cut, the state was at liberty to deal with it as with any other piece of personal property. Brothers v. Hurdle, 48 N. C. 490.

We know of no principle of law under which it can be said that timber which was the property of the state when cut becomes the property of the United States by an act of congress resuming title to the land from which it was cut, although the timber may in the meantime have been removed hundreds of miles from the lands, and passed into the hands of one who knew nothing of the source from which it was derived. It may be in such a case that, if the state sues for and recovers the value of such timber, it might be accountable to the United States for the proceeds, in case the government resumed title to the lands.

Two cases cited by the solicitor general lend support to the doctrine that the resumption of title by the United States operates upon the timber already cut as well as upon the lands. In the first of these (Heath v. Ross, 12 Johns. 140) the action was in trover for a quantity of timber cut upon lands for which the plaintiff had applied for a patent before the timber was cut. The patent was not granted until after the timber was cut. The patent was held, upon well-settled principles, to relate back to the date of application. The defendant knew he had no title to the lot or right to cut the timber. The plaintiffs were held entitled to recover.

The other case is that of Musser v. McRae, 44 Minn. 343, 46 N. W. 673. In that case an act of congress, granting lands to the state of Wisconsin in aid of the construction of railroads, provided that it should be lawful for the agents appointed by the railway company entitled to the grant to select, subject to the approval of the secretary of the interior, from the public lands of the United States, 'deficiency' lands within certain indemnity limits. It was held that the issuance of a patent to the railway company for the lands so selected was evidence that the company had complied with all the conditions of the grant, and was entitled to the lands described therein, and that the title passed from the United States at the date of the selection. And it was further held that where, after the lands had been so selected, but prior to the issue of the patent, timber had been wrongfully cut and removed by trespassers, the title acquired by the patents must be held to relate back to the selection of the lands, so as to save the purchasers to whom the lands had been granted a right of action for the timber wrongfully removed from the land, or its value.

These cases are distinguishable from the one under consideration in the fact that the plaintiffs had an inchoate title to the lands,-a title which no one could disturb, and which the state was bound to perfect by the issue of a patent, provided the plaintiffs followed up their application. We do not think the doctrine of these cases ought to be extended.

3. Nor are the plaintiffs entitled to avail themselves of the rule that in an action of trover a mere trespasser cannot defeat the plaintiff's right to possession by showing a superior title in a third person without showing himself in privity or connecting himself with such third person. The cases in which this principle is applied are confined to those where the plaintiffs were either in possession of the property or entitled to its immediate possession, and thus showed a prima facie right thereto. It has no application to cases wherein the plaintiff has shown no such right to bring the action. Jeffries v. Railway Co., 5 El. & Bl. 802; Weymouth v. Railway Co., 17 Wis. 567; Wheeler v. Lawson, 103 N. Y. 40, 8 N. E. 360; Halleck v. Mixer, 16 Cal. 574; Terry v. Metevier, 104 Mich. 50, 62 N. W. 164; Stevens v. Gordon, 87 Me. 564, 33 Atl. 27; Fiske v. Small, 25 Me. 453. Counsel are mistaken in supposing that the plaintiffs had an immediate right to the possession of this timber. They had no right to the possession of the land until congress passed the act of March 2, 1889, forfeiting the grant. Up to that time the title was in the state, and until then the United States had no more right to enter and take possession than they would have had to take possession of the property of a private individual.

As the plaintiffs failed to show title to or right of possession to the timber in question, there was no error in the action of the court of appeals, and its judgment is therefore affirmed.

Mr. Justice WHITE, with whom concurs Mr. Chief Justice FULLER and Mr. Justice HARLAN, dissenting. 

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