NATIONAL FOREST MANUAL LAWS. 71 



FROM LIEU SELECTION. 



Prior to the approval of a selection under the indemnity school and 

 university land grants title in the land remains in the United States 

 and no one has a right to go upon the land and cut the timber there- 

 from. (1 Sol. Op., 468.) 



DAMAGES INNOCENT AND WILLFUL TRESPASSES. 



One innocently purchasing timber unlawfully and willfully cut from 

 Government lands and transported to market by his vendor is liable 

 for its value at the time and place of his purchase without any deduc- 

 tion for value added by the acts of the willful trespasser. (Wooden- 

 ware Co. v. United States, 106 U. S., 432.) 



In a case of innocent trespass the measure of damages is the value of 

 the timber after it was cut at the time and place where it was cut. 

 (United States v. St. Anthony R. R. Co., 192 U. S., 524; 1 Sol. Op., 298; 

 40 L. D., 518, 525.) 



In a letter of instructions to the United States attorney at Helena, 

 Mont., dated September 7, 1910, the Acting Attorney General, after 

 reviewing the authorities and discussing the conflicting cases, says: 



"After a somewhat careful examination of the authorities cited and 

 many others, the department is of the opinion that, where timber has 

 been inadvertently cut from the public lands, (1) the timber imme- 

 diately after felling becomes the personal property of the United 

 States (Sampson v. Hammond, 4 Cal., 184); (2) an action of trover will 

 lie for its conversion (Sampson v. Hammond, supra; White v. Yawkey, 

 108 Ala., 270, 275); (3) the value of the property when first taken is 

 the measure of damages recoverable (Wooden ware case, 106 U. S., 432, 

 434); and (4) the value of the property when first taken, within the 

 meaning of the Woodenware case, is its value immediately when it 

 takes the form of personal property i. e., immediately after severance 

 from the freehold (White v. Yawkey, 108 Ala., 270, 274, 275)." 



In Pine River Logging Co. v. United States (186 U. S., 279, 293) the 

 doctrine of the Woodenware case as to willful trespasses is stated to be 

 that ' ' if the trespass be willfully committed the trespasser can obtain 

 no credit for the labor expended upon it, and is liable for its full value 

 when seized;" and this rule was applied in the case under considera- 

 tion, the parties in the possession of the timber at that time being 

 found to have participated in the trespass. 



Where timber is cut upon public land by one who knows that the 

 land belongs to the Government, or who has no reasonable ground to 

 believe that it belongs to himself or to some one under whom he 

 claims, the trespass is a willful one. (Ely v. United States, Fed. case 

 No. 1581, 4 Dill., 464.) 



In actions of trespass where the injury has been wanton and mali- 

 cious or gross and outrageous, courts permit juries to add to the meas- 

 ured compensation of the plaintiff, which he would have been entitled 

 to recover had the injury been inflicted without design or intention, 

 something further by way of punishment or example, which has some- 

 times been called "smart money." (Day v. Wood worth, 13 How., 

 362, 371; see also Barry v. Edmunds, 116 U. S., 550.) 



Where the defendant admits the cutting and removal of timber from 

 public lands, the Government is entitled to at least nominal damages, 

 in the absence of direct evidence of the value of the standing trees. 

 (United States v. Mock, 149 U. S., 273; see also United States v. Tay- 

 lor, 35 Fed., 484.) 



In trover for crude turpentine unlawfully but not willfully taken 

 from pine trees, the measure of damages is its value at the time of 

 conversion with interest. (Quitman Naval Stores Co. v. Con way, 

 58 So. Rep., 840; Solicitor to his Assistant at Albuquerque, Dec. 26, 

 1912.) 



FIRE TRESPASSES. 



In United States v. Henry Clay (unreported), Southern District of 

 California, the defendant was indicted under section 52, of the Criminal 

 Code, and the jury were charged by Judge Wellborn in part as follows: 



