Statement of the Case. been cut on the public unsurveyed lands of the United States, some of it on the tract of country from which plaintiffs had cut, and the remainder was cut on the north side of the railroad track above mentioned, and over a strip or area of country about two miles in length. Further evidence was given on the part of plaintiffs tending to show negligence on the part of the defendant either in the construction or in the management of its engines, and tending to show that the fire which destroyed the wood in question was communicated to it as alleged in the amended complaint. Evidence was given on the part of the defendant tending to show that it was not guilty of any negligence in the premises, and that it was not liable for the results of any fire which may have destroyed the wood in question. At the conclusion of all the evidence, the defendant moved the court to instruct the jury to return a verdict for it upon the grounds: "1. That the title or ownership of the wood is directly in issue, and the testimony does not show that the plaintiffs had either a general or special property in the said cord wood or any thereof. "2. The testimony shows that at the time said cord wood was destroyed the same was the property of the United States, and that in and about the cutting and removal thereof from the public unsurveyed lands of the United States the said plaintiffs were trespassers and wrongdoers. "3. The testimony does not show that the lands whereon the cord wood was cut were distinctly mineral in character, or were more valuable for the mineral therein contained than for agricultural purposes or for the timber growing thereon. "4. The testimony does not show that such cord wood was cut under the license granted by the act of Congress of June 3, 1878, or in compliance with the rules and regulations established thereunder by the Secretary of the Interior, but, on the contrary, the evidence clearly shows that the said cord wood, and the whole thereof, was cut in utter disregard of said act of Congress and the said rules and regulations of the Secretary of the Interior. Statement of the Case. "5. Because the testimony shows that said cord wood was the property of the United States, and that plaintiffs have neither right nor title thereto nor the possession thereof." Other grounds were stated not material to be now considered. The court denied the motion and refused to so instruct the jury, and the defendant duly excepted. The defendant then among other requests asked the court to charge the jury that "it being shown conclusively by the testimony in this case that plaintiffs cut said cord wood on lands belonging to the United States; that such cord wood was so cut without license or authority of the United States, and was not removed from such lands at the date it was consumed, the plaintiffs did not have either the actual or constructive possession of such wood at the date of its destruction, and are therefore not entitled to recover." This request was refused, and defendant duly excepted. The court was further asked to charge that: "If you should find from the testimony that plaintiffs purchased some of this wood from other parties who had cut it from trees growing in that vicinity, this will make no difference so far as their right to, or ownership of, such wood is concerned. The region of country where this cutting was done being public unsurveyed lands of the United States, the plaintiffs were bound at their peril to take notice of the fact that the timber growing thereon was the property of the United States, and could only lawfully be severed therefrom under the provisions of the act of Congress of June 3, 1878, and in compliance with the rules and regulations established thereunder. In order to prove their title to so much of the wood as was purchased, it is not enough to show that they bought it of a certain named person, but plaintiffs must go further and show that the person had acquired title to it by compliance with the act of Congress and rules and regulations prescribed by the Secretary of the Interior. If the person cutting such wood was himself a trespasser, he acquired no title to the wood cut, and could convey none to plaintiffs. The rightful owner of such wood could follow it and reclaim it, no matter where, or in whose possession it might be found, so long as he could identify it.” VOL. CLXII-24 Argument for Defendants in Error This request the court refused, and the defendant duly excepted to such refusal. Among many other assignments of error made by the defendant is the following: "The court also erred in refusing to give the instruction requested by the defendant in the following words, to wit: 'It being shown conclusively by the testimony in this case that plaintiffs cut said cord wood on lands belonging to the United States, that such cord wood was so cut without license or authority of the United States, and was not removed from such lands at the date when it was consumed, the plaintiffs did not have either the actual or constructive possession of such wood at the date of its destruction, and are, therefore, not entitled to recover." Mr. William J. Curtis for plaintiff in error. Mr. Thomas C. Bach, (with whom was Mr. William Wallace, Jr., on the brief,) for defendants in error. I. Plaintiffs can maintain this action. The action is one of trespass or trespass on the case. It was brought against a wrongdoer for its negligent destruction of the cord wood. Plaintiffs were in possession of the property when it was so destroyed, and the defendant did not seek to connect itself with the title. Under such a state of facts, the plaintiffs, by proof of their possession, also proved their title against the wrongdoing defendant. While in replevin and ejectment the rule is different, it is because right to possession is involved; and plaintiff in such cases must recover on the strength of his own title. Lambert v. Stroother, Willes, 218; Graham v. Peat, 1 East, 244; Kissam v. Roberts, 6 Bosworth, (N. Y. Super.,) 154; Hoyt v. Gelaton, 13 Johns. 141; Cook v. Howard, 13 Johns. 276; Aikin v. Buck, 1 Wend. 466; Demick v. Chapman, 11 Johns. 132; Squire v. Hollenbeck, 9 Pick. 551; Hammer v. Wilsey, 17 Wend. 91; Parker v. Hotchkiss, 25 Connecticut, 321; Todd v. Jackson, 2 Dutcher, N. J. 525; Whittington v. Boxall, 5 Q. B. 139; Wustland v. Potterfield, 9 W. Va. 438 ; Craig v. Gilbreth, 47 Maine, 416; Gilson v. Wood, 20 Illinois, 37; Gardiner v. Thibodeau, 14 La. Ann. 732; Boston v. Neat, Argument for Defendants in Error. 12 Missouri, 125; Crawford v. Bynum, 7 Yerg. 381; Fuller v. Bean, 30 N. H. 181; Kemp v. Seely, 47 Wisconsin, 687. In the latter case, Orton, Judge, says: "There was no question of title in the case, nor is title necessary to maintain trespass against a stranger to the title.” The rule is the same in trover. "But a lower degree of interest will sometimes suffice against a stranger, for a mere wrongdoer is not permitted to question the title of a person in the actual possession and custody of the goods whose possession he has wrongfully invaded." Greenleaf on Ev. § 639. See also to same effect, as to action of trover: Ward v. Carson R. Wood & Co., 13 Nevada, 44; Jeffries v. Great Western Railway Co., 34 Eng. L. and Eq. 122; Bartlett v. Hoyt, 29 N. H. 317; Burke v. Savage, 13 Allen, 408; Shaw v. Kaler, 106 Mass. 448; First Parish in Shrewsbury v. Smith, 14 Pick. 297, 302; Sutton v. Buck, 2 Taunt. 302; Duncan v. Spear, 11 Wend. 54, 57; Wincher v. Shrewsbury, 2 Scammon (Ill.) 283. Were right of recovery denied the possessor for injury to his possession, the law of "might" alone would be applicable to personal property after it had tortiously passed out of the hands of the true owner. If ores extracted by the miner from a claim defectively located, or not located at all, were seized by a stranger, the miner would be remediless save by an appeal to force. The railroad could receive our wood, collect freight in advance, haul it to market, and then refuse to deliver it upon the plea that it would be answerable to the United States. In Parish v. Smith, 14 Pick. 302, Chief Justice Shaw says: "It is very clear that a mere stranger cannot question the right of one in possession, or put him on the proof or disclosure of his title. And there seems to be no reason why a stranger should be placed in a better situation, by taking the matter into his own hands, ploughing land, taking crops or otherwise interfering with the right of the party in possession. . If a lawful owner, in whom the legal title remains, chooses to interfere and set up his legal claims, the law, in consistency with its own rules in regard to the transmission of title, may be compelled to admit his claim. But if such owner, upon consideration of propriety, equity and conscience, chooses Opinion of the Court. to acquiesce and permit the party in possession to retain that possession, notwithstanding any defect of title, by what rule of law, of equity or sound policy, can a mere stranger be allowed to interfere and by his own act violate the actual and peaceable possession of another, and thereby compel him to disclose a title, in the validity or invalidity of which such stranger has no interest?" See also Gulf, C. & S. F. Railway v. Johnson, 54 Fed. Rep. 474, a case which involves the same kind of trespass, the same question of ownership, the same question of illegality, as found in this case. MR. JUSTICE PECKHAM, after stating the facts, delivered the opinion of the court. The cases cited by the defendants in error show the doctrine to be quite clearly established that an action of trespass de bonis asportatis does not technically involve the question of title. It relates to the possession only of personal property, and it is brought to recover for the injury to that possession. In such action it is held that an allegation of the ownership of the property is not material and that it need not be made, or if made that it need not be proved. Proof of possession simply is sufficient upon the theory that possession is prima facie evidence of some kind of rightful ownership or title. Therefore, it is held that proof of title to property in a stranger with whom the defendant does not connect himself in any way is no defence to the action as the injury is to the possession. Trespass de bonis asportatis assumes a taking of the property by the defendant out of the possession of the plaintiff, and if the title be in a stranger with which the defendant does not connect himself, that fact is no answer to the cause of action. The possession of the plaintiff is enough under such circumstances against a wrongdoer. If the defendant cannot connect himself with the title in the third person, he is as to the plaintiff a wrongdoer, having no right to disturb the possession of the plaintiff. Aikin v. Buck, 1 Wend. 466; Hammer v. Wilsey, 17 Wend. 91; Kissam v. Roberts, 6 Bosworth, [Superior Court |