United States v. Loughrey/Dissent White
Mr. Justice WHITE, with whom concurs Mr. Chief Justice FULLER and Mr. Justice HARLAN, dissenting.

The United States donated the land from which the timber was cut to the state of Michigan in aid of a contemplated railroad. The donating act dedicated the property thus conveyed to the state, for the sole purpose of aiding in the construction of the railroad, and it contained a provision that, if the road was not built within a designated period, the land conveyed was to revert to the United States. The road was never built, and the granted land was forfeited by act of congress, because of noncompliance with the conditions contained in the grant.

The issue presented for decision is the right of the United States to recover in an action of trover the proceeds of timber cut from the land by a trespasser while the legal title was in the state, but after the period had elapsed when the right in the United States to assert a forfeiture had arisen. The decision of the court is that a recovery cannot be had, because at the time of the severance of the timber by the trespasser the legal title was in the state. It is thus, in effect, decided that it was in the power of a trespasser, while the legal title to the land and its incidents was in the state, to destroy the value of the land, by severing and appropriating the timber, and that there exists no remedy by which the right of property of the United States can be protected. Such a consequence strikes me as so abnormal that I cannot bring my mind to assent to its correctness; and thinking, as I do, that it involves a grave denial of a right of property, not only harmful in the case decided, but harmful as a precedent for cases which may arise in the future, I state the reasons for my dissent.

At the outset it becomes necessary to determine the nature of the rights of the state and those of the United States created by and flowing from the act of donation. That the land from which the timber was cut belonged to the United States at the time of the grant goes without saying. It was conveyed by the act of congress to the state, not for the use and benefit of the state, but for the sole purpose of aiding in the construction of a railroad. The state had no right to dispose of the land except for the declared object; and, while it is true that a power to sell the land was vested by the act in the state, it was a power which the state could only call into being as the work progressed, and, to quote from the act, 'for the purposes aforesaid, and no other,'-that is, the specific object stated, namely, the construction of the railroad referred to. The granting act clearly imported that, in the event of a forfeiture before the land had been earned and conveyed by the state, the land should be restored to the United States in its integrity.

I submit that the effect of the act of congress was to create a trust in the land, and to vest the legal title thereto, with the incidents such as timber, in the state of Michigan, for the purposes of the trust, to hold, primarily, for the benefit of the owners of a line of railroad if constructed, and, secondarily, for the benefit of the United States, in the contingency that a forfeiture was declared for a breach of the condition subsequent as to the time of completion of the road. The state, in all reason, was bound to restore the land and timber which passed to its possession to the United States, upon the declaration of the forfeiture, retaining no benefit whatever from the land for itself by reason of such custody and control. Being clothed with the legal estate in the land, the state, while it so held the land, 'possessed all the power and dominion over it that belonged to an owner.' Stanley v. Colt, 5 Wall. 167. As the timber, when severed, belonged to the true owner of the land, the state, as the trustee of an express trust and representing such owner, was the proper party, during the continuance of the trust, to recover any portion of the inheritance wrongfully converted by a trespasser; and this would have been the case even if the United States had stipulated to retain possession until a conveyance of the land by the state. Wooderman v. Baldock, 8 Taunt. 676; White v. Morris, 11 C. B. 1015; Barker v. Furlong [1891] 2 Ch. 172; Myers v. Hale, 22 Mo. App. 204. Clearly, this was so, because, to maintain replevin or trover, it is essential that the plaintiff have, at the time of suit brought, the legal title to the property, and, until the enactment of the forfeiting act, the legal title to this timber was in the state of Michigan.

It was manifestly because the legal title was in the state that this court, in Schulenberg v. Harriman, 21 Wall. 44, declared that a state was the owner of timber which had been wrongfully cut by trespassers from land granted in aid of a railroad by a statute similar to the one above referred to. The Schulenberg action was instituted, however, at a time when no forfeiture had been declared, and the controversy was simply between a trespasser and the state as to their respective rights in timber which had been unlawfully severed from the granted land. That land so conveyed, with all that formed part thereof, was deemed to be held upon trust, is manifest from the opinion; for, speaking through Mr. Justice Field, the court said (page 59):

'The acts of congress made it a condition precedent to the conveyance by the state of any other lands that the road should be constructed in sections of not less than twenty consecutive miles each. No conveyance in violation of the terms of those acts, the road not having been constructed, could pass any title to the company.'

And this view was reiterated by this court, speaking through Mr. Justice Brewer, in Iron Co. v. Cunningham, 155 U.S. 354, 15 Sup. Ct. 103, when, in interpreting the very statute now under consideration, it was said (page 373, 155 U.S., and page 110, 15 Sup. Ct.):

'Further, the grant to the state of Michigan was to aid in the construction of a railroad. Affirmatively, it was declared in the acts of congress that the lands should be applied by the state to no other purpose. Even if there had been no such declaration, such a limitation would be implied from the declaration of congress that it was granted for the given purpose. As the state of Michigan had no power to appropriate these lands to any other purpose, certainly no act of any executive officer of the state could accomplish that which the state itself had no power to do.'

To reason, however, to establish that, in so far as the granting act restricted the state to the use of the land and that which adhered in it for a particular purpose, it engendered an express trust, is wholly unnecessary, since it is admitted that had the state, through its agents, cut timber upon the land before the passage of the forfeiture act, a right of action would have arisen on behalf of the United States against the state as upon a covenant by the state that it would keep the land and its incidents for railway purposes only. This conclusion necessarily carries with it, as a legal resultant, the proposition that the granting act contained an express trust. How, then, I submit, can it in reason be held that there was a right which could only exist upon the hypothesis of an express trust arising from the granting act, and yet it at the same time be decided that there was no trust whatever implied in the act, or that the rights which would obtain if there were a trust have no being? It cannot be doubted that the act restricted the use to a particular purpose, nor can it be gainsaid that the right of re-entry was stipulated only as respects the noncompletion of the railroad. But the failure to preserve a right of re-entry in case of the misuse of the property did not destroy the terms of the act restricting the use; and as, therefore, the restriction as to use was unaccompanied with a clause of re-entry, the effect was to give rise to a trust upon the grantee with reference to such use. This last principle, I submit, is sustained by authority. Stanley v. Colt, 5 Wall. 116, 165; Packard v. Ames, 16 Gray, 329, and cases citted; Sohier v. Trinity Church, 109 Mass. 119.

As the state held the land with power simply to sell on the happening of a particular event, until the occurrence of that event the state had no greater rights in the land than would have existed in favor of one who was entitled to the mere use and occupancy of the land. It could not therefore sell the timber for purposes of mere profit, for, as said in U.S. v. Cook, 19 Wall. 591:

'The timber, while standing, is a part of the realty, and can only be sold as the land could be. The land cannot be sold; * * * consequently the timber, until rightfully severed, cannot be.'

If, therefore, the state could not rightfully acquire the absolute ownership, in its own right, of timber the cutting of which it had authorized, it is clear that it would not become such owner by reason of the unlawful act of an unauthorized person. As the state of Michigan was without power to have authorized a sale of the timber contrary to the purpose of the trust, it is obvious that the act of a mere trespasser, without authority from the state, in denuding the land of its timber, could not operate to vest the state or the trespasser with the absolute ownership, in its or his own right, of said timber; and it is the settled doctrine of this court that the sale of timber by a trespasser does not devest the title of the real owner, and that a purchaser, even though acting in good faith, is liable to respond to the true owner for the timber or its value. U.S. v. Cook, 19 Wall. 591; Woodenware Co. v. U.S., 106 U.S. 432, 1 Sup. Ct. 398; Stone v. U.S., 167 U.S. 192, 195, 17 Sup. Ct. 778.

The simple question presented, then, is this, and this alone: Where the legal title to land, with its incidents, is in one person, burdened with an express trust in favor of another, can the cestui que trust, upon the cessation of the trust, when the title to the land and its incidents has revested in him, recover from a wrongdoer the value of timber cut, without color of right, and unlawfully removed from the land while the legal title and possession thereto was in the trustee?

This question is, I think, fully answered by the rulings of this court in Schulenberg v. Harriman and Iron Co. v. Cunningham, supra, because, as already stated, in the first case it was said that 'no conveyance in violation of the terms of these acts, the road not having been constructed, could pass any title to a grantee of the state'; and, in the second, that, 'as the state of Michigan had no power to appropriate these lands to any other purpose, certainly no act of any executive officer of the state could accomplish that which the state itself had no power to do.' Now, no one will gainsay that this court in those cases declared that, if the land was conveyed in violation of the terms of the act of congress, an occupant under such an unlawful grant might be ousted by the United States, either forcibly or by suit in ejectment. With this doctrine thus settled by this court in opinions which are now approvingly cited, is it yet to be held that if the occupant under a void grant from the state, before forfeiture, denuded the land of all its timber,-that is, of one of its material incidents,-the land might be recovered by the United States from the trespasser, but not the timber or its value? I submit that, upon general considerations, as between the wrongdoer and the cestui que trust, the better right is in the latter; that such right can be enforced; and that though, ordinarily, in an action of trover it is essential that the plaintiff should have had at the time of the unlawful conversion the legal title and right of possession to the property claimed by him, yet, under such circumstances as I have indicated, a title by relation is a sufficient basis for the action.

Relation is a fiction of law, adopted solely for the purposes of justice (Gibson v. Chouteau, 13 Wall. 100), and by it one who equitably should be so entitled is enabled to assert a remedy for an injury suffered, which otherwise would go unredressed. The doctrine is considered at much length in Butler v. Baker, 3 Coke, 25, in resolutions of the justices of England and the barons of the exchequer, and 'many notable rules and cases of relations' (page 35b) are there stated. The action was trespass, and the refusal of a wife, after the death of the husband, to accept a jointure by which an estate tail had vested in her prior to the death of the husband, was held to relate back as to certain lands, and not as to others. It was laid down (page 28b): 'That relation is a fiction of law to make a nullity of a thing ab initio (to a certain intent), which in rei veritate had essence, and the rather for necessity, 'Ut res magis valeat quam pereat." And, in Lord Coke's comments on the case, he observes (page 30a): 'The law will never make any fiction, but for necessity and in avoidance of a mischief.'

Early in England the doctrine of relation was applied in favor of the king in cases where, until office found, the title or right of possession to property, real or personal, was not in the crown. Thus, Viner, in the eighteenth volume of his Abridgment, at page 292, tit. 'Relations,' states the following case:

'(2) In quare impedit, where the king is entitled to the advowson by office by death of his tenant, the heir being within age and in ward of the king by tenure in capite, this office shall have relation to the death of the tenant of the king; so that, if there be a mesne presentment, the king shall avoid it by relation. Brooke, Abr. tit. 'Relations,' pl. II., cites 14 Hen. VII. p. 22.'

Several instances of the application of the doctrine in favor of the king are referred to at length in the report of the case of Nichols v. Nichols, Plow. 488 et seq., one of which, I submit, is precisely parallel to the case at bar, and is thus stated in the report:

'In an action of trespass brought in 19 Edw. IV., for entering into a close and taking the grass, the defendant pleaded that it was found by office that the tenement escheated to the king before the day of the trespass, and there it seems that, as to such things as arise from the land, as the grass and the like, the action which was well given to the plaintiff was taken away by the office found afterwards, which by its relation entitled the king thereto; but, as to the entry into the land, or breaking of fences, which don't arise from the land, nor are any part of the annual encrease of it, the action was not taken away by the office.'

This last case is reviewed, approvingly, in the opinion of Bayley, J., in Harper v. Charlesworth, 2 Barn. & C. 587, where, in an action of trespass, brought by one in the possession of lands under a parol license from agents of the crown, which possession was not good as against the crown because not granted in conformity to statute, it was adjudged that, as the king had not proceeded against the occupant, the action might be maintained, though the right of such occupant to recover for the trees was denied in the opinion of Holroyd, J., presumably because they form part of the inheritance.

The doctrine was early enforced in England to vest a right of action, in trover, in an administrator. In 18 Vin. Abr. tit. 'Relations,' p. 285, it is said:

'(1) If a man dies possessed of certain goods, and after a stranger takes them, and converts them to his own use, and then administration is granted to J. S., this administration shall relate back to the death of the testator, so that J. S. may maintain an action of trover and conversion for this conversion before the administration granted to him. Trin. 10 Car. B. R., between Locksmith and Creswell adjudged, this being moved in arrest of judgment, after verdict for the plaintiff. Intratur. Hill, 9 Car. Rot. 729.'

In the marginal note it is stated: 'For this is to punish an unlawful act; but relations shall never devest any right legally vested in another between the death of the intestate and the commission of administration.'

An administrator has likewise been held, by relation, to have such constructive right of possession in the goods of the intestate before grant of letters as to be entitled to maintain an action of trespass. Tharpe v. Stallwood, 5 Man. & G. 760, and cases there cited. And in Foster v. Bates, 12 Mees. & W. 226, Parke, B., said (page 233):

'It is clear that the title of an administrator, though it does not exist until the grant of administration, relates back to the time of the death of the intestate; and that he may recover against a wrongdoer who has seized or converted the goods of the intestate after his death, in an action of trespass or trover. All the authorities on this subject were considered by the court of common pleas, in the case of Tharpe v. Stallwood, 12 Law J. (N. S.) 241(a), where an action of trespass was held to be maintainable. The reason for this relation given by Rolle, C. J., in Long v. Hebb, Style, 341, is that otherwise there would be no remedy for the wrong done.'

The title of an assignee in bankruptcy was also early held to relate back, for the purpose of maintaining trover, to the time of the commission of the act of bankruptcy. See the subject reviewed in Balme v. Hutton, 9 Bing. 471, particularly pages 524 and 525, where Tindal, C. J., observed that in Brassey v. Dawson, 2 Strange, 978, Lord Hardwicke (then chief justice of the kings bench) stated this relation to be a fiction of law, but that subsequently, when chancellor, in Billon v. Hyde, 1 Ves. 326, he seemed to be of opinion that the terms of the bankrupt act, by necessary construction, imported that such relation was intended.

Another illustration of the application of the doctrine is where a grantee or mortgagee ratifies an unauthorized delivery of a conveyance or mortgage to a third person, in which case it is held that the title may relate back to the unauthorized delivery, except as to vested rights of third persons. See a review of numerous authorities in Rogers v. Iron Foundry, 51 Neb. 39, 70 N. W. 527. See, also, Wilson v. Hoffman, 93 Mich. 72, 52 N. W. 1037, where it was held that a successful plaintiff in ejectment might maintain an action of trover for logs cut by the defendant from standing timber, and removed from the land during the pendency of the suit, and while in possession of the land under a bona fide claim of title adverse to the plaintiff. In that case the court said (page 75, 93 Mich., and page 1037, 52 N. W.):

'In the present case the true owner brings trover against the party who cut the logs, under a bona fide claim of title adverse to the owner, after the title to the land has been determined in favor of the plaintiff. * * * If in the present case the logs had been upon the land when the ejectment suit was determined, that determination would have established the title in the plaintiff. Suppose, however, that, before the determination of the ejectment suit, the logs had been skidded upon adjoining land; would the ownership or right of possession depend upon which party first reached the skids? As is said in the Busch Case, as between the wrongdoer and the true owner of the land, the title to what is severed from the freehold is not changed by the severance, whatever may be the case as to strangers. If the true owner may keep his own property when he gets it, why may not he get it if another has it?'

Many decisions of this and other courts illustrate the application of the doctrine to various conditions of fact. Thus, where one has claimed land under a donation act, or has entered upon land under homestead or preemption statutes, the legal title subsequently acquired by patent has been held to relate back to a prior period; to quote the language of this court in Gibson v. Chouteau, 13 Wall. 100, 'so far as it is necessary to protect the rights of the claimant to the land, and the rights of parties deriving their interests from him.'

Among the cases recognizing and applying the doctrine that the legal title, when acquired, may be held, for certain purposes, to relate back to the inception of an inchoate right in the land, which, however, was in no sense an estate in the land, may be cited the following: Ross v. Barland, 1 Pet. 665; Landes v. Brand, 10 How. 348; French's Lessee v. Spencer, 21 How. 228, 240; Grisar v. McDowell, 6 Wall. 363; Beard v. Federy, 3 Wall. 478; Lynch v. Bernal, 9 Wall. 315; Stark v. Starrs, 6 Wall. 402; Gibson v. Chouteau, 13 Wall. 92, 100; Shepley v. Cowan, 91 U.S. 330; Heath v. Ross, 12 Johns. 140; and Musser v. McRae, 44 Minn. 343, 46 N. W. 673. As was said in Gibson v. Chouteau, 13 Wall. 101, the doctrine of relation is 'usually' applied in this class of cases, but is so applied 'for the purposes of justice.' I submit it is clear that the inchoate rights in land held in the cases above cited to be sufficient to warrant the application of the doctrine of relation were of no greater legal or equitable merit or efficacy than the interest or expectant right in land with its incidents, reserved to the United States by virtue of the granting act of 1856 here considered, and this, it strikes me, is patent when it is borne in mind that it is conceded that the interest of the United States in the land was such that, if the timber had been cut by the state, the United States had the better right to the avails, and might, by an action for breach of covenant, recover the same from the state. But if the state, which held the legal title subject to an express trust, can be held to account by way of damages in an action of covenant for timber cut under its authority, why, 'for the purposes of justice,' should not the doctrine of relation be applied in favor of the United States at this time, when, otherwise, a naked trespasser, who had no title of any kind, and whom the state, while it was trustee, chose not to sue, and cannot now sue, will escape liability, and the United States be defrauded of the value of its property? To deny relief under such a state of facts is, I submit, to hold that if A. conveys land in fee to B. in trust, to be held for C. until the happening of a certain event, and after the contingency has happened, and the land has been conveyed to C., and the trust thus terminated, the former cestui que trust discovers that the land had been stripped of all its timber by a trespasser, and rendered practically valueless, he is without remedy, and must endure the pecuniary injury without complaint.

If, as it seems to me is clearly the fact, the state of Michigan held title to the timber merely as an incident to the land, and could only exercise such powers with respect to the timber as it was entitled to exercise as respects the land itself, it results that the state did not stand in the attitude of a grantee of land upon condition subsequent, to whom an absolute conveyance had been made, for its sole use and benefit. Authorities, therefore, to the point that, in the case of such a conveyance, the only right of the grantor is to receive back, upon re-entry, the granted land in the condition in which it might then exist, have no pertinency in a case like the present, where the grant was to the state, not as absolute owner, but as a mere trustee. So, also, I submit that decisions which hold that upon the commission of a trespass on land where the legal title and possession is in the real owner, or upon an infringement of a patent the legal title to which is in the real owner, a right of action to recover damages for the trespass or infringement immediately vests in such owner, and becomes personal to him, so as not to pass upon a subsequent conveyance of the land or assignment of the patent, have no relevancy in cases like that at bar, where, at the time of the trespass or infringement complained of, the legal title and the possession was held by one who was but a trustee for another, and had no real, beneficial interest in the land.

Nor can I see the appositeness of the citation of authorities holding that, during the existence of a trust, the trustee, and not the cestui que trust, is the proper person to sue. This is readily conceded, and such was the decision of this court in Schulenberg v. Harriman and in Iron Co. v. Cunningham. The question here is not, who may sue during the existence of the trust? but what are the rights of the cestui que trust when the power of the trustee has ended, and the property has reverted under the terms of the trust?

The decisions are uniform that even where land is in the possession of a lessee, upon an unauthorized severance of growing timber, the title and right of possession to the severed timber is at once vested in the owner of the land, or, as it is sometimes expressed, the owner of the inheritance; and the latter may resort to the appropriate remedies against one who unlawfully removes the severed timber from the land (Liford's Case, 11 Coke, 46b, 48a; Ward v. Andrews. 2 Chit. 636, 4 Kent, Comm. 120; U.S. v. Cook, 19 Wall. 591, 594; Burnett v. Thompson, 51 N. C. 210, 213; Mathers v. Trinity Church, 3 Serg. & R. 515, and cases cited; Moores v. Wait, 3 Wend. 104, 108; Gordon v. Harper, 7 Term R. 13; 1 Chit. Pl. [16th Ed.] 217, *168; 1 Washb. Real Prop. [5th Ed.] 498, note T, *314); and the same principle applies to whatever is part of the inheritance, and is wrongfully severed and removed from the land (Farrant v. Thompson, 5 Barn. & Ald. 826, 828).

To summarize, therefore: The state of Michigan was not the beneficial owner of the land from which the timber in question was severed, but held the legal title merely as a trustee, though, by virtue of being vested with the legal estate, the state was entitled to enforce, for the benefit of the real owner, such remedies as the latter might have resorted to had he held the legal title. But if the owner, the United States, is not permitted to maintain the present action, it loses property which it had a clear right to receive, and the wrongdoer goes unpunished. These circumstances present all the elements which justify resort to the fiction of law by which a person who, in equity and good conscience, was the real owner at the time of an unlawful conversion, is to be regarded, as against the wrongdoer, to have had the legal title and possession, by relation, in him at the time of such conversion, and therefore as having had such a title and possession as, when his disability to assert his rights no longer exists, will entitle him to maintain an action of trover.

Indeed, it seems to me that, in reason, it is impossible to deny the right of the true owner to recover the timber, without involving the mind in irreconcilable propositions, and, in addition, making use of a complete non sequitur, that is to say First, that there was no trust, and yet that rights existed which could only arise by reason of a trust; and, second, that the trustee alone could sue during the existence of the trust; therefore, on the termination of the trust, the same doctrine applies. Reduced to its last analysis, the doctrine now announced is, I submit, really this: That the United States could not recover while the trust existed, because the trustee must assert the right, and that it likewise could not recover after the termination of the trust, and hence could not recover at all. The result in effect concedes the existence of a right of property, but holds that it cannot be protected because the law affords no remedy. The maxim, 'Ubi jus, ibi remedium,' lies at the very foundation of all systems of law; and because, as has been stated at the outset, I cannot believe that the common law departs from it, I refrain from giving my assent to the conclusions of the court, and express my reasons for dissenting therefrom. 

Notes