
    MONK’S CASE.
    John W. Monk v. The United States.
    
      On the Proofs.
    
    
      'The clamant alleges that the defendants entered upon his land and out therefrom 1,023,480 feet of lumber and used the same in the construction of Fort Richardson, in Texas, for ivhich he has not been compensated, On the trial he fails to show that quantity of tumben• used in the fart, and endeavors to recover for other lumber cut a/nd used by the defendants’ officers.
    
    "Where the petition alleges that the defendants entered upon the claimant’s land and out therefrom a certain quantity of lumber, and used the same in the construction of a certain fort, the claimant must he restricted in his proofs and recovery to the lumber used iu that fort.
    
      The Reporters' statement of the case:
    The following are the principal averments of the claimant’s petition:
    The petitioner, on and prior to the 1st day of July, 1868, to and since the 1st day of July, 1870, was and is the owner of two certain tracts or parcels of land lying and being in the •county of Wise, State of Texas, containing in all 1,280 acres.
    During the years 1868, 1869, and 1870, the United States Army cut 1,023,480 feet of lumber from said land, belonging to petitioner, and used the same in the construction of Port Richardson, Texas. Said lumber was then and there of the full value •of $50 per thousand feet, of which amount the cutting and sawing were worth $25 per thousand feet, and the timber $25 per thousand feet.
    By reason of the premises aforesaid the United States became and are indebted to the petitioner upon an implied contract in the sum of $52,587.
    The petitioner has received no compensation from the United States, or from any other source, for said timber or any part thereof.
    
      Mr. B. F. Grafton for the claimant.
    
      Mr. H.M. Hastings {with whom was the Assistant Attorney-General) for the defendants.
   Peck, J.,

delivered the opinion of the court:

This claimant, on the 11th of June, A. D. 1875, filed his petition in this court, setting forth that on and prior to the 1st day of July, 1870, and during the years 1868 and 1869, he was the owner of two certain tracts or parcels of land, lying and being in the county of Wise, in the State of Texas, containing in all 1,280 acres; that during the said years the defendants entered upon the said land and cut therefrom 1,023,480 feet of lumber, and used the same in the construction of Port Richardson, Texas, for which the claimant has not been compensated in any way; that the defendants are indebted to the claimant upon an implied contract for the value of said timber in the sum of $52,567.

Upon a careful examination of the evidence in the record, we find that the claimant has greatly overstated the quantity of timber cut from his land and applied as alleged, and that the injury he has sustained does uot at all equal the damage he claims.

The whole amount of sawed lumber used in the construction of Port Richardson does not equal that stated by this claimant as cut and sawed from his land, and it is shown that the greater part of the sawed lumber put into the fort was obtained from other land than his; and that lumber was also obtained elsewhere and in open market, not in the vicinity of the land described in claimant’s petition, which was used and applied to the construction of that fort.

These facts were presented on the argument of this case, which was submitted to the court in connection with that of Robert McCree et al., which was for the same cause of action, and for timber cut on land contiguous to that of this claimant, and, as is alleged, for the same purpose.

Therefore, if this claimant is to.recover upon the allegations of his petition, that recovery must be limited, since no such quantity of lumber was taken from his land as he alleges which was used and applied by the defendants “ in the construction of Fort Richardson.”

If lumber taken from the land of the claimant was used by the defendants at other places than at Fort Richardson, he does not seek to recover for it by this action, Rnd he must be restricted to the statement and allegations set out iu his petition.

A careful comparison of the evidence iu the record shows that the claimant should not recover, upon his case stated, more than the sum of $485; for which a judgment is ordered in his favor.

Rott, J., concurred in the above opinion, except that he thought the damages should be increased.

LoRXNG-, J., did not sit in the above case, and took no part in the decision.  