250 U.S. 14

39 S.Ct. 397

63 L.Ed. 816


No. 325.

Submitted April 23, 1919.

Decided May 19, 1919.

Mr. William C. Prentiss, of Washington, D. C., for appellants.

[Argument of Counsel from pages 15-17 intentionally omitted]

Mr. Assistant Attorney General Frierson, for the United States.

Mr. Justice McKENNA delivered the opinion of the Court.


This action was brought by appellants to recover the value of certain timber cut from the public lands of the United States in the state of Colorado, called 'tie slash' or 'tie slashing,' the term being used to describe the tops of trees the bodies of which have been used for making railroad ties.


The right of recovery is based upon contracts with the Denver, Northwestern & Pacific Railway Company which had been given the right to cut timber upon the public lands adjacent to the line of its road by the Act of Congress of March 3, 1875, c. 152, 18 Stat. 482 (Comp. St. §§ 4921-4926).


The Court of Claims sustained a demurrer to the petition and dismissed it. To review that action this appeal has been prosecuted.


Appellants were, in June, 1906, by due appointment of the railway company, its timber agents, to cut timber from the public lands for construction of the railroad under the act of Congress, and by agreement with the company they were given all of the 'tie slash' of the trees cut down for the purpose. Pursuant to the contract, and prior to October, 1906, they manufactured and delivered to the company 88,797 ties, which left a large amount of 'tie slash.'


By a letter from one N. J. O'Brien, describing himself as 'Chief, Field Division, G. L. O.,' and expressed to be by instructions from the Commissioner of the General Land Office, there was granted to appellants authority to cut timber under the act of Congress and 'to sell and dispose of all tops and lops of trees that' they 'might cut for construction' of the road which could not be used for road construction purposes. Inquiry first was to be made of the officers of the railway company if they would purchase the tops and lops appellants had on hand.


The letter contained a ruling of the Land Office that contractors should confine their cutting strictly to such timber as was needed by the railway company and that such 'refuse' as resulted from such cutting might 'be disposed of by the railroad company or by the contractors without violation of existing law.' A violation of the law, it was stated, would require a notice to the company to nullify the contract and agency and would subject the contractors to be proceeded against 'as in ordinary cases of timber trespass.'


Thereafter appellants entered into another contract with the company under which they manufactured additional ties and delivered them to it, and a further amount of 'tie slash' was left. A large amount of this appellants agreed to sell to the Fraser River Timber Company of Denver, Colorado, and to the Leyden Coal Company of the same place they sold 200 cars of mining props cut by them from the 'tie slash,' all to be used in the state of Colorado.


March 7, 1907, the land from which the ties had been cut was by presidential proclamation included in the Medicine Bow National Forest and the officers of the Forest Service permitted appellants to remove the poles already cut from the 'tie slash' and also to have all of tops and refuse on the so-called 'fireguard' 200 feet wide along the railway for a distance of two miles, but refused to allow them to have any of the remainder of the 'tie slash,' and took possession of and sold it; and the proceeds were covered into the Treasury of the United States. To recover the sum of the proceeds thus covered into the Treasury, or such other amount as might be found to have been received by the United States from such sale, this action was brought.


The elements for consideration are not many. The first of these is the act of 1875, supra. It grants as right of way to the railway company [the grant is to railroad companies of a certain description—we make it particular for convenience] through the public lands of the United States to the extent of 200 feet on each side of its central line, and the right to take from the public lands adjacent to its line '* * * timber necessary for the construction of said railroad.' The right given is to take 'timber,' and this, it is argued, necessarily means 'trees,' and as there is no provision for disposition of what shall be left of them after using such portions for railroad purposes, it must be determined by 'reason and analogy,' and from these appellants argue that the railway company was entitled to the 'tie slash' as incident to its right to cut under the act of Congress. They adduce United States v. Cook, 19 Wall. 591, 22 L. Ed. 210; Shiver v. United States, 159 U. S. 491, 16 Sup. Ct. 54, 40 L. Ed. 231; Stone v. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127.


The instances of the cases, however, are not in analogy to that of the case at bar. In the first the right was given to Indians as a legitimate use of land reserved by them from the cession of a larger tract to the United States, the right of use and occupancy being unlimited. The second case involved the cutting and sale of timber by a homesteader and they were considered a use of the land, his privileges with respect to standing timber being analogous to those of a tenant for life; the third case was of like kind, and the other two cases were cited. Other cases referred to by appellants struggled with the problem without solving it and we need not review or comment upon their reasoning nor consider some state cases.


The contention of appellants encounters the rule that statutes granting privileges or relinquishing rights are to be strictly construed; or, to express the rule more directly, that such grants must be construed favorably to the government and that nothing passes but what is conveyed in clear and explicit language inferences being resolved not against but for the government. Wisconsin Central Railway v. United States, 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399; United States v. Oregon, etc., Railway, 164 U. S. 526, 17 Sup. Ct. 165, 41 L. Ed. 541. And the government invokes the rule in the present case and cites in implied support of the invocation United States v. Denver, etc., Railway, 150 U. S. 1, 14 Sup. Ct. 11, 37 L. Ed. 975, and in express support of it United States v. Denver, etc., Railway (C. C.) 190 Fed. 825, 826. And these cases were cited by the Court of Claims for its judgment.


The rule, it seems to us, is particularly applicable. There was a grant of timber by the Cat of March 3, 1875, not of trees, but of timber for purposes of railroad construction, not as a means of business of of profit; nor could it be made an element, as contended, of compensation to the agents employed to cut it.


Appellants invoke the Act of March 3, 1891, c. 561, 26 Stat. 1095, 1099, in justification and as giving them a right independently of their asserted right derived through the railway company. Section 8 of that act (Comp. St. § 5114) provides that in criminal prosecutions for trespass on public timber lands in Colorado (and some other states) or to recover timber or lumber cut, it shall be a defense to show that the timber was cut or removed from the lands for use in the state by a resident thereof for agricultural, mining, manufacturing or domestic purposes under the rules of the Interior Department, and had not been transported out of the state. But it is provided that nothing in the act contained shall operate to enlarge the rights of any railway company to cut timber on the public domain, and there are other provisions giving the Secretary of the Interior the power to designate the tracts from which the timber may be cut or to prescribe the rules and regulations for the cutting.


We think it is clear that appellants are not within the provisions of the act. They are not and were not in the designated classes nor contemplated the uses which the act protects. They were agents of the railway company for so much of the timber as was to be used in railroad construction; of what was left they were simply vendors for profit. To enable them to so use the act or to use it for any but the designated purposes would be a violation of that provision of the act which forbids its operation 'to enlarge the rights of any railway company to cut timber on the public domain'; it would make the act available to a railroad as a means of profit or other purpose than road construction. And its value would be a temptation to do so. In this case it is alleged that the value of the 'tie slash' that the officers of the Forest Service took possession of (it was only part of that which was cut) 'was, and is, $26,454.90.'


Finally, appellants rely upon the letter of the Chief, Field Division, General Land Office, supra. The immediate answer is that made by the Court of Claims: the want of power in the officer to enlarge the Act of March 3, 1875, and to give rights in the public lands not conferred by it.


Judgment affirmed.


Mr. Justice McREYNOLDS took no part in the decision.

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