UNITED STATES V. BALL.
667
employment I they get a judgment against him which they might have llad cumulatively 1:>Y goirig before a justioe of the peace, and suing for their fee8, notc08t8,in the first instance, if the 'demand for their payment were neglected or refused. I have thus called attention to the law of oosts in this regard, so thatit maybe .understoodthat in out federal practice the acts of congress proceed upon the fundamental, essential, and common-law doctrines and distinctions as to fcesand costs I ahd tHeir language plainly indicates that any de.parturefrom these doctrines is contrary to the statute itself, whatever may 'bethought of the state statutes I which, in my judgment, however, are substantiallYi the same when ·we 'eliminate the mere indulgences of practice,.anddistinguish between the rights growing out of those indulgences and-the teclmical, strict"and 'legal rights that grow out of the laws of foos and costs, as found in<the statutes themselves, which regulate the subject; Application refused.
UNITED STATES 17. BALL
and another.
(Ot"rcu# 06urt,D. Oregon. August ,5, 1887.)
PuBLIC
L.um8-RIGHT
OJ' SETTLER TO CUT TIMBER.
LeuYiB L. McArthur,
Action to Recover Damages for the Conversion of Timber. for the United States. H. Hurley and Arthur b. Frazer, for defendants.
DEAl>Y, J. This action is brought by the United States to recover {}amages for the conversion of timber alleged to have been cut from the public lands in Yamhill county. It is alleged in the complaint that on January 1,'1881, and on .divers days thereafter I and prior to February 1,1884, JohnW. Green unlawfully cut from the public lands designated in the surveys thereof as the N. E. t of the N. E. t, and the S. E. t of theN.E. t,ofsection 30, township 2 S. of range 5 W. of the Wallamet meridian, 840,000 feet of growing timber, and made the same into sawlogs,which,he removed to the defendants' saw-mill in Yamhill county;
'668
rEDERAL:' REPORTER.
that thedefendants, well knowing the premises(took possession of said logs, and inanufacturedthem into lumber, which theyc,onverted to their own use,1io.the damage of the plaintiff in the sum, oU6; 720. The answer of the defendants contains three defenses, the first of which is demurred to by the plaintiff. .In effect, the defense is that in November, 1880, said Green, being'qualified to enter land under the homestead act, took possession of the N. f of the N. E. t, and the E. t of the N. W. t, of the section aforesaid, and.filed his affidavit iIi the proper land-office as a settler thereon; under said act, and paid the fees required by law;. that in January , 1886, he :made his final proof of compliance with said act before the proper register and receiver, whe::> thereupon made and delivered to him a final certificate to that effect, and that he is entitled to a patent for the land; that ·the· defendants bought 239,680 feet of logs of said Green, which ,were cut off, said homestead during the time he occupied the same under the act, and that said logs are a part of those mentioned in the complaint, and were only worth 15 cents per 1000. On the argument of the demurrer, counsel for the plaintiff cited U.8. v. Minor, 114 U. S. 233, 5 Sup. Ct. Rep. 83"6, to prove that the United States are not precluded by the proceedings before the land-officers, under any of the various acts for the disposition of the public lands to settlers thereon, to show that such officers have, by the falsehood or fraud of the applicant, been imposed on, and induced to give him a final certificate in a case where he was not entitled to the same; while counsel for the defendant cite and rely on Smith v. Ewing, 23 Fed. Rep. 741; tQprOVe that such certificate cannot be questioned or set aside except on a direct proceeding. But no question of this kind arises here. Under any circumstances, the oertificate is at least'primafacie evidence of the facts arid conclusions stated therein. Neither does U. S. v. Minor countenancethe idea that the certificate is subject to a collateral attack, but can only be set aside or overcome by a suit in equity instituted for that purpose. . . .' The demurrer to the defense in this case 'admits the facts stated thereini the gist ,of which is that Green entered the premises under the stead act, andbaving duly performed the subsequent conditions required by the same, iurd made due proof thereof, he received, in due form, a certificate to that effect from the register and receiver of the proper landoffice. , ' . A settler on the public lands, under the homestead act, must reside on and cultivate the same for five consecutive years before he is entitled to a Section 2291, Rev. St. In the mean time, the title to the land,and the timber thereon, is in the United States. and the occupant is not entitled to cut or remove any timber therefrom except as allowed by seetion 4 of the act of June 3, 1878, (20 St. 90,) which provides, ineffect,that an "agriculturist" on the public land-a homesteader or pre-emptioner-shall not out or'remove timber therefrom except in the ordinary preparation of his "farm for tillage;" the manifest meaning of which is that the timber shall not be cut for the sake of the