
    MRS. SPENCER’S CASE.
    Nannie Spencer, administratrix, v. The United States.
    
      On the Proofs.
    
    
      One F. eats wood, on thexiublic domain after he has been forbidden so to do by the commanding officer at Fort Wallace, Kansas. A part of it he sells and delivers to the quartermaster at the fort, toho gives the usual vouchers; apart he sells and delivers to traveling parties of United States soldiers, xvho give receipts; the remainder is seised and taken, from him bg the commanding officer. FCe applies to the commander of the department for payment, toho orders the qua/rtermas-ter at the fort to settle for the wood cut beyond the military reservation of the fort. The quartermaster issues vouchers for the whole of the wood. The officers of the Treasury make a reduction from the price allowed, and refuse payment for a part. The amount alloxoed is received under protest. F. having died, his administratrix brings suit on the vouchers.
    
    I. It is settled by the decisions of the Supreme Court that a party acquires no title to wood which he cuts on the public domain.
    
      II. Where one outs wood on the public domain, which is seized and taken from him by military officers for the use of the Army, he can maintain no action for it upon implied contract, for he had no title to the wood taken. But where he cuts wood ou the public domain, which military officers kuowingly buy of Mm for the use of Army quartered there, he may recover; the payment in such case being for cutting and hauling, and not for the property in the wood.
    III. The fact that the commander of a military department orders a quartermaster to issue vouchers for wood seized and taken for the use of the Army, from one who out it ou the public domain, does give the party an action on the vouchers or otherwise. The defendants may still set up the fact that it was their wood, illegally cat by the claimant.
    IV. Where a party presents his account, consisting of several distinct items, to the Treasury for payment, and the Treasury allows more than he is legally entitled to, hut disallows items which in themselves are valid, the court cannot ignore the allowances erroneously made, and render judgment for the items erroneously disallowed.
    
      The Reporten1 statement of the case:
    Prior to the 6th of November, 1866, Warren Faver, the claimant’s intestate, had located himself in a dug-out — that is, a hole in the side of a hill — about -three and a half miles from Fort Wallace, Kansas, and commenced catting wood on the reservation and in its vicinity, on the public domaiu of the United States, and hauling the wood and piling it near his dug-out. Subsequent to that date and during the ensuing winter there was a scarcity of wood at Fort Wallace, the garrison whereof had to depend for their supply of wood ou their own exertions and on the supply in the vicinity of the post. Perceiving that Faver’s cutting wood near the post would limit the supply there, the commanding officer of the post caused him to be warned to desist, and also to be warned that such wood as he might cut would be seized for the use of the garrison when their necessities called for it. He álso caused Faver to be informed that he had no right to cut wood ou the Government domaiu or on the post reservation. This warning and notification was given to Faver when he first commenced cutting the wood, and before he had gotten together more than about six cords, and it was repeated three or four times, but he continued cutting the wood. The quantity cut by him within the reservation was about twenty-five cords.
    In addition to the wood so cut upon the reservation, the said Faver cut other wood upon the Government domain outside of the reservation, and hauled part of it to the vicinity of his dugout, and also hauled to the same point other wood to the amount of about sixty-five cords, which he had purchased from parties who had cut it on the Government domain at different places, ranging from eight to twenty miles from Fort Wallace. All of Faver’s operations in cutting and hauling wood took place between November 6, 1866, and June 3, 1867, when he was billed.
    In January, 1867, one William M. Burns entered into a written contract with the post-quartermaster at Fort Wallace for the delivery of one hundred and fifty cords of wood at the fort on or before the 20th of February ensuing. Under this contract Faver delivered to the post-quartermaster at Fort Wallace, for the said Burns, thirty-six cords of wood, for one-half of which no claim is made in this suit. For the other half the quartermaster refused to pay him, claiming that it had been cut on the reservation.
    Between January 1, 1867, and March 17, 1867, the said Faver delivered to various detachments, escorts, and others in the military service of the United States, on the route west of and distant from Fort Wallace, thirty-one and three-quarters cords of wood, which he was directed — but by whom does not appear — so to furnish. For this the post-quartermaster refused to pay him, alleging as his reason for so doing that the wood had been credited to said Faver as part of a contract he had had for supplying wood to the fort, and that he had been paid therefor; which contract was completed in December, 1866.
    In March, April, May, and June, 1867, by order of the post-commander at Fort Wallace, there was seized and taken from said Faver, for the use of the fort, wood to the amount of one hundred and eight and one-quarter cords, for which the post-quartermaster refused to pay him, alleging, as grounds for his refusal, that part of the wood had been cut on the reservation after Faver had been notified by the post-quartermaster that he must cease cutting, and part of it had been cut on the Government domain outside of the reservation.
    In consequence of, the refusal of the post-quartermaster to pay for any of the aforesaid three quantities of wood, the claim of Faver’s estate therefor was brought before the chief quartermaster of the department of the Missouri, and through him before Maj, Gen. W. S. Hancock, commanding said department, who, on tbe 3d of August, 1867, returned the papers with, the following indorsement:
    “Any wood delivered at Fort Wallace or seized by the military authorities there, cut at distances from the post not embraced within the present limits of the reserve, should have been taken up by the acting assistant quartermaster at the post, or should now be taken up, if it has not been done, and be covered by proper vouchers, and the wood thus taken up should be paid for at the contract rates, in the absence of any special agreement.
    “ I understand that the wood seized and in dispute was cut from eight to fifteen miles distant from the post. There is no proper authority for such a reservation, and I think justice requires, if the wood has been used by the Government, that it should be paid for.
    “The wood receipted for along the route by persons not quartermasters, but in the public employ, should be settled upon the same basis, if taken up by the quartermaster at Fort Wallace; and when it hast been taken up, the officer or agent, if still in service, should be held accountable therefor, as they used the Government of the United States to get it, to obtain the fuel in question.
    “ Not to see that payment is made would be to discredit officers of the Government or their agents who may pass along that route in future, and who may suffer in consequence of the reckless disregard of the labor of others in those who have passed there previously.”
    This indorsement was referred by the chief quartermaster of the department to the post-quartermaster at Fort Wallace, in the following words:
    “ The foregoing instructions of the general commanding the department will be strictly complied with. The wood taken or received from Warren Faver, cut not within the present limits of the reserve, will be accounted for, and vouchers will be issued in his name, and be delivered to the administrator of the estate (Faver being deceased) or to his or her legal representative. The rate of pay of the wood contract in force at the post at the time of each seizure or delivery will be allowed in payment, or if no contract was in existence at the time, the rate of the last preceding contract will be allowed.
    
      “Regarding the thirty-six cords of wood which it is claimed was delivered under the Burns contract, and never paid for, either by Burns or the Government, if, before the wood was used, Faver claimed it, and protested against its being credited to Burns, and claimed the right either to take it away or to have it considered as a purchase from him, then he should now receive pay for it. The post-quartermaster should have received no wood about the ownership of which there was any question.
    “The wood supplied to the detachments will be paid for as directed in the indorsement of General Hancock. The post-quartermaster at Wallace should account for the wood, and will issue the vouchers, procuring from the officers with the detachments requisitions and receipts for the fuel used by their commands.
    “ It is the intention of Major-General Hancock that the heirs of Faver be paid for the wood which was seized from him, or which was delivered by him, and Lieutenant Beecher will, without delay, comply with the foregoing instructions.”
    The post-quartermaster, on receiving these instructions, considering the indorsement of General Hancock to be an order to that effect, made and issued to the claimant two vouchers for all of the wood, declaring to the post-commander at Fort Wallace that he made them out on General Hancock’s order, without regard to their justice.
    In January, 1868, these vouchers were transmitted by the chief quartermaster aforesaid to the Quartermaster-General for his action thereon, who transmitted them to the Third Auditor, with a recommendation that a charge be made against the appropriation for the Quartermaster Department for one hundred and two cords of wood, at $35 per cord, $3,570, in full of all charge against the Government on account of wood taken from Warren Faver. The Third Auditor concurred in this recommendation, and recommended the allowance of that sum; and his decision was concurred in by the Second Comptroller, who advised the claimant’s representative to receive, under protest, the amount allowed, and file additional evidence. The latter objected to the settlement of the case in that way, but received payment of the amount allowed, stating at the time to the clerk in the Treasurer’s office from whom he received the Treasury-draft for the amount, as he had to the other officers, that he received it under protest.
    
      The value of the .eighteen cords of wood furnished as aforesaid, and of the one hundred and eight and one-quarter cords of wood seized and taken as aforesaid, was $55 per cord ; and the value of the thirty-one and three-quarter cords furnished as aforesaid was $35 per cord. All of said wood was cut upon the domain of the United States. 1
    
      Mr. O. F. Feck and Mr. Harvey Spalding for the claimant.
    
      Mr. John S. Blair (with whom was the Assistant Attorney-General) for the defendants:
    It has never been decided that the estate which the United States have in their lands, whether acquired by cession, occupancy, or otherwise, is in any manner less than that which a private individual has in his property. The rights of escheat and of eminent domain, which belong to the G-overnment as sovereign, seem to be the only distinctions existing between the estate of the Government and the estate of one of its citizens.
    In Cotton v. The United States, (11 How., 231,) Grier, j ustice, says: 1
    “ It would present a strange anomaly indeed, if, having- the power to make contracts and hold property as other persons, natural or artificial, they (the United States) were not entitled to the same remedies for their protection. As a corporation or body-politic they may bring suits to enforce their contracts and 'protect their property. As an owner of property in almost every State in the Union they have the same right to have it protected by the local laws that other persons have.” This was an action of trespass, guare clausum fregit, for cutting trees upon the public lands; verdict and judgment for the United States. It follows, therefore, that any persons claiming rights upon the public lands must claim them under and by virtue of some act of Congress, and must show a compliance with its provisions.
    In United States v. Stephen Brown (4 McLean, 378) the court instructed the jury that the defense (pre-emption right under Act September 4, 1841) could only be sustained by his showing that he had taken some steps to secure his preemptive right set up; that short of this he could plead no justification or excuse for the trespass charged. This was an action of trespass for cutting timber upon the public lands, yerdict and judgment for the United States.
    The act of cutting timber upon the public lands is not only a trespass, but it is also made a penal offense by Act of Congress March 2,1831, (Br. Dig., 877; 4 Stat. L., 472,) punishable by fine and imprisonment. In United States v. Briggs (9 How., 321) this act is held to extend to any timber or trees standing, growing, or being upon any lands belonging to the United States. Unless the party cutting wood upon the Government domain can show some title in^himself or some license from an officer of the Government duly authorized to grant the same, he would be a mere trespasser, and as such could acquire no title to the wood as against the Government. It could recover damages against him by trespass or trover, and could have a writ of re-plevin for the wood itself, no matter in whose hands it might be found.
    Citizens do not have the right of common on the unoccupied lands of the Government. The only right they have on such lands is the right to occupy and settle them, under the provisions of the homestead and pre-emption laws. They have no right to cut timber on them or to dig for ore; and the title to the same being in the Federal Government, and subject to the exclusive control of Congress, all rights therein, corporeal or incorporeal, claimed by citizens, must be under some grant from Congress. “It is well settled,” says Marshall, C. J., “that the vacant soil is to be disposed of by that organ of the Government which has the constitutional power to dispose of the national domains.” “The power now possessed by the Government to grant landsj'resided, while we were colonies, in the Crown.” “The existence of this power must negative the existence of any right which may conflict with or control it. An absolute must be an exclusive title.” (8 Wheat., 543.) A right of common possessed by any or all of the citizens of the United States upon the public domain would clearly be inconsistent with the absolute and exclusive title which resides in the'Government, and with the power here spoken of.
    With respect to the public lands, the United States and the citizens do not stand to each other in the relation of tenants in common. Neither is the Government a partnership composed, of the several States or of the citizens thereof. It is a municipal corporation, having an entity and existence entirely distinct from that of its citizens. So separate, indeed, is this existence, and so completely free from any of the elements of partnership or tenancy in common is it, that it may sell to any of them, buy from them, sue them, and in this very case appears to defend a suit brought by one of them.
    “ Every sovereign State is of necessity a body-politic or artificial person, and as such capable of making contracts and holding property, both real and personal.” The power of the United States as a sovereign must not be confounded with their rights as a body-politic. (11 How., 229.) This separate existence is also recognized in 3 Wheat., 184. The relatiou of this Government, in its capacity of body-politic, toward the people, is that of trustee of the public domain and public property, with full power to administer its trust for the benefit of the whole people and for the general welfare. To accomplish these results, the legal title to all the property is in it, and it has full power to prevent, in any manner, either by legal or criminal proceedings, the attempt of any one citizen to appropriate to himself more of the benefits of this property than the remainder of the citizens can derive from it; just as a railroad company has an existence distinct from its stockholders, and is governed by their representatives. The stockholders are entitled to have the affairs of the company administered for their general welfare, and this is best accomplished by the restriction of their individual rights on or about the property of the corporation.
    If the wood belonged to the United States before cutting, it belonged to them after the severance. No matter through how many hands it had passed, while it was capable of identification, the title was not changed, and the delivery of it to the United States could raise no obligation on their part to pay, either for the wmod itself or for the cutting and hauling. No man can take advantage of his own wrong. The cutting, the trover, the conversion, and the hauling were all tortious. He did not, therefore, comply with the contract, for he made no valid sale; nor can he claim anything for meruit or valebant.
    
   Drake, Oh. J.,

delivered the opinion of the court:

The claimant, as administratrix of Warren Faver, deceased, brought suit to recover for one hundred and fifty-eight cords of wood; and she alleges in her petition that eighteen cords of that quantity were furnished and delivered by her intestate to the quartermaster at Fort Wallace for the use of the Government ; that thirty-one and three-quarters cords were furnished and delivered-by him to various detachments and escorts and others in the military service on - the route west of Fort Wallace, on orders of the military coihmander at that fort; and that one hundred and eight and a quarter cords, the property of said Faver, were, by command of that officer, taken from said Faver’s place of residence, near that fort, for military use thereat.

The claim for all this wood came before the officers of the Treasury, by whom an allowance was made in favor of the claimant for one hundred and two cords, at $35 per cord, and she was paid therefor $3,570.

She now sues to recover $5,567.50, claiming that she is entitled to a higher rate for the one hundred and two cords than was allowed her at the Treasury, and also to payment for fifty-sis cords for which the officers of the Treasury refused her any allowance.

The views we take of the case dispense with the necessity of going into auy elaborate comment in this opinion upon the facts.

The fundamental fact underlying the whole claim is that the whole of the wood was cut by the claimant’s intestate, or by those from whom he bought it, upon the public domain of the United States, with the design of selling it to the military authorities at Fort Wallace or on the route west of that fort; and the question comes up whether the United States are bound in law to pay for such wood when it is seized and taken by their military officers for the úse of a garrison, or when it is furnished by the party who cut it to such officers for such use, without its being so seized and taken.

We will examine these points. And, first, as to the liability of the Government for wood seized and taken : If the claim•ant’s intestate acquired a property in the wood, either by his having cut it or by having purchased it from those who did cut it, there might, under some circumstances, be a just claim •on his part against the Government for the value of it; but if he acquired no property in it, there can be no foundation for .•any such claim. We consider it settled by the decisions of the Supreme Court that, as against the Ignited States, he had no property in the one hundred and eight and a quarter cords seized and taken from him.

In United States v. Briggs, (9 How., 351,) that court held that the cutting of timber from lands belonging to the United States is an indictable offense under the Act March 2, 1S31, (4 Stat. L., 472,) punishable by fine and imprisonment.

In Cotton v. United States, (11 How., 229,) which was a common-law action of trespass guare clausum fregit, brought by the United States, in which the defendant was charged with cutting and carrying away timber from the lands of the Government, it was held that the action would lie, and that the Government, in such case, was not confined to the proceeding by indictment against ¡trespassers on its lands, and that the punishment of the public offense was no bar to the remedy for the private injury.

But in the very recent case of United States v. Cook, (19 Wall., 591,) which was an action of replevin for certain saw-logs cut from the public lands without authority, views were expressed which are decisive of this claim, at least so far as the wood is concerned which was seized and taken. It was there held that timber cut from the public land, without authority of law, and for the purpose of sale, became, when cut, the ptoperty of the United States absolutely; that the cutting of it was waste; and that the owner of the fee might seize the timber, arrest it by replevin, or proceed in trover for its conversion.

Under these decisions we cannot do otherwise than hold that the claimant’s intestate acquired no property in the one hundred and eight and a quarter cords of wood which were seized and taken from him by the military authorities at Fort Wallace, and that the same, when seized and taken, was the property of the United States, for the seizure of which no right of action accrued to him or to his administratrix.

It could, we suppose, hardly be doubted that when a portion of the Army of the United States is quartered upon the public domain, where wood could not be obtained except therefrom, the proper officers might lawfully employ individuals to cut wood from the public landjfor the use of the military forces so situated. In such case the persons so employed would be paid, not for the wood, but for’cutting and hauling it. But. that is not this case. Here the claim is for the value of wood, which did not belong to the claimant’s intestate, but did belong to the defendants. Such a claim has no foundation injustice or in law.

As to the rest of the claim set forth in the petition, the court is not unanimous in regard to the'right of the claimant, in the first instance, to recover for wood furnished by Faver as alleged; but the majority of the court-are of opinion that if such right did at one time exist, it no longer exists.

The views previously expressed as to the one hundred and eight and one-quarter cords leave no claim, except for the other two items of eighteen and thirty-one and three-quarter cords. The court finds the value of the former to be $55, and that of the latter $35 per cord; the two items aggregating, at those rates, $2,101.25, which was all the claim that, in our judgment, the claimant or her intestate could, under any circumstances, have had. The accounting officers of theTreasury, however, allowed and paid her $3,570 for one hundred and two cords, which is $1,468.75 more than in any. view she could have been entitled to on account of those two items. She has, therefore, been paid that much more than she could, in the view we take of the case, have rightfully claimed.

The petition of the claimant is dismissed.

Loring-, J.,

dissenting:

I think no question is involved here as to the title of the United States to wood growing or cut on their domain; because I think the claim is only for cutting and hauling wood, and that the parties to the transaction must have so understood it. General Hancock, in his order directing payment, expressly refers to it as a claim for il labor.” After stating that the wood cut outside of the proper reservation had come to the use of the Government and ought to be paid for, he says as follows: “ Not to see that the payment is made would be to discredit the officers of the Government or their agents who may pass along this route in future, and who may suffer in consequence of the reckless disregard of the labor of others who have passed there previously.”

Then I think that the post-commander, Captain Keogh, was the commander but of the post and its proper reservation, which was a part of the post, and that his authority was limited to that, and did not extend outside of it where wood was cut, while the control of the military district and of the public domain included in it outside the reservation, and of the policy required for these, belonged to General Hancock and to him only, so that his orders are the only lawful orders shown as to wood cut outside of the reservation. And I think that his management of the district committed to his command is not to be forestalled or set aside by the action of a subaltern officer, beyond the line of his duty, and that so far as General Hancock affirmed and adopted the doings of the petitioner, he legalized them, and meant to do so, as fully as if he had originally ordered them j and this is tbe controlling fact of the case.

For these reasons I do not concur in the conclusions of law for this case found by the court, nor in the judgment rendered.  