(191 U. S. 84) UNITED STATES, Plff. in Err., COMPANY. Thayer v. Life Asso. of America, 112 U. S. 717, 720, 28 L. ed. 864, 866, 5 Sup. Ct. Rep. 355. Robertson v. Cease, 97 U. S. 646, 24 DENVER & RIO GRANDE RAILROAD L. e. 1057, was a suit originally commenced in the United States circuit court. It failed to allege diverse citizenship, but no objec- Evidence—trover—prima facie case-burden tion was made in the court below on that of proof-error to territorial supreme ground, and while this court reversed the court-extent of revicw. judgment, it sent the case back with leave to amend the petition in respect to the alle-1. gation of citizenship. The case relied upon in the opinion was Morgan v. Gay, 19 Wall. 81, 22 L. ed. 100, in which the same ruling had been made. These cases recognize the power of the circuit court to permit amendment of pleadings to show diverse citizenship, and of removal proceedings where there is a technical defect and there are averments sufficient to show jurisdiction. 2. 3. A prima facle case on the part of the United States in an action of trover against a railroad company for the value of timber cut upon the public domain is made out by proof of the government ownership of the lands, the cutting and asportation of the timber, its value, and subsequent possession by the railroad company, although special acts of Congress exist, conferring authority on such company to take timber from the public domain for certain specified purposes. The burden of proving the purpose for which timber was taken from the public domain by a lumber company acting as the agent of a railroad company rests in the first instance on the railroad company, In an action of trover brought by the United States against that company for the value of the timber, where such company relies upon the authority conferred by the acts of Congress of June 8, 1872 (17 Stat. at L. 339, chap. 354), and March 3, 1877 (19 Stat. at L. 405, chap. 126), to take from the public lands the timber required for the construction and repair of its railway and telegraph line. The facts here disclosed clearly show a case in which an amendment was rightfully made. The citizenship of the defendant, both at the time the suit was commenced and when the petition for removal was filed, was clearly and positively stated. There was a general averment that it was a case of diverse citizenship, and, therefore, one in which, by the statute, the party was entitled to a removal. The trust deed, which was the subject-matter of the controversy, showed upon its face that the plaintiffs were of Salt Lake county, and was executed before a notary public in that county. The continuance of that situation is to be presumed. The first action taken by the plaintiffs after the removal was a motion to remand, based not on account of any defect in the averments of citizenship, but simply in respect to the amount in controversy. A month after filing this motion they sought to amend it by including an objection on account of a defect in the allegations of diverse citizen- Argued October 14, 1903. Decided Novemship, and immediately thereafter the defendant moved to amend the petition for removal so as to make it sufficient in that respect. All these things took place before any action had been had in the Federal court on the merits of the case. It may also be noticed that the state court apparently recognized the removal proceedings as sufficient, for it took no further steps in the case, and hence we need not inquire what would have been the effect of any action taken by it in disregard of the removal. Clearly, the plaintiffs were not prejudiced. The case was one which the appellee had a right to remove, and nothing had been done to prejudice the rights of the plaintiffs before the petition for removal was perfected. It seems to us, therefore, that this is a case in which the amendment was properly allowed. The action of a territorial supreme court on both the first and second writs of error In a case may be revised by the Supreme Court of the United States on writ of error, although the lower court considered itself bound by its decision on the first writ of error as the law of the case, where its judg ment upon such writ lacked the requisite finality to warrant a review in the higher court. IN [No. 20.] ber 9, 1903. 'N ERROR to the Supreme Court of the Territory of New Mexico to review a judgment which affirined a judgment of the District Court in favor of defendant in an States against a railroad company for the action of trover brought by the United value of timber taken from the public domain. Reversed and remanded for a new trial. See same case below, 9 N. M. 382, 54 Pac 241, and 66 Pac. 550. Statement by Mr. Justice Brown: This was an action of trover brought by the United States against the railroad company for the value of certain logs cut upon the plaintiff's lands. The declaration averred simply that the “defendant converted to its own use plaintiff's goods; that is to say, тапи The decree of the Circuit Court will be logs, lumber, and timbers, affirmed. factured out of trees theretofore standing 24 S. C.-3. ឌ and growing upon certain lands of the plaintiff," therein described. The defendant pleaded not guilty, issue was joined, the case tried before a jury, which was instructed to return a verdict for the defendant. The case was submitted upon an agreed statement of facts, which showed that the New Mexico Lumber Company cut from the lands described in the declaration 2,100,000 feet of lumber, which was furnished to and received by the railroad company for its use. Upon these facts, and proof of the ownership of the lands, and of the value of the lumber cut, the plaintiff rested. main The defendant also offered an agreed statement of facts, in which it appeared that it was the successor of the Denver and Rio Grande Railway Company, and that by act of Congress of June 8, 1872 (17 Stat. at L. 339, chap. 354) and amendatory act of March 3, 1877 (19 Stat. at L. 405, chap. 126), "the right of way over the public doand the right to take from the public lands adjacent thereto, stone, timber, earth, water, and other material required for the construction and repair of its railway and telegraph line," was granted to the Rio Grande Railway Company, of which the defendant was entitled to the benefit. The amendatory act of 1877 merely extended the time for the completion of the railway from five to ten years, and is not material to this controversy. Defendant also offered testimony showing the appointment of the New Mexico Lumber Company as its agent for the cutting of such timber for the purposes mentioned, and that the lumber delivered to the railroad company was furnished upon specific orders given to the lumber company as its agents. There were other facts included in the statement which are immaterial upon this writ of Mr. Marsden C. Burch for plaintiff in error. Messrs. Joel F. Vaile, Edward O. Wolcott, Charles W. Waterman, Edward L. Bartlett and William W. Field for defendant in error. Mr. Justice Brown delivered the opinion of the court: As plaintiffs alleged simply a conversion of logs, and defendant pleaded the general issue of not guilty, plaintiff's made a prima facie case by proving their ownership of the lands, the cutting and asportation of the timber, its value, and its subsequent possession by the defendant. Here they were entitled to rest, and did rest. They were under no obligation to put in the special acts of Congress, nor could defendant compel their introduction by them. By the laws of New Mexico of 1889, certain forms of pleadings are prescribed, including forms of pleas in actions for wrongs, one of which is that the defendant "is not guilty of the wrong alleged," and another that he did what is complained of by the defendant's" (mistake for plaintiff's) "leave." Whether it was competent, under the plea of not guilty, to introduce the special acts of Congress in question we do not find it necessary to decide; but assuming that the defense could be made, it is clear that upon the introduction of the statute of 1872 it became necessary for the defendant to assume the burden of producing evidence tending to show that the public lands were adjacent to the right of way, and that the timbers cut were required for the construction or repair of its railway or telegraph line. This is not a question of pleading, but of the order of proof. There was a question of adjacency made in the court below which is not pressed here, and the case was argued substantially upon the question as to which party had the burden of showing the purpose for which the timber was cut. Except in a single particular, hereinafter controlled, with respect to the burden of noticed, we think this case is practically proof, by that of the Northern P. R. Co. v. Lewis, 162 U. S. 366, 40 L. ed. 1002, 16 Sup. Ct. Rep. 831, decided in 1896. That was an action against the railroad company for negligence in burning certain cordwood belonging to the plaintiffs. To prove owner ship, plaintiff's showed that they had entered upon a portion of the unsurveyed lands of the United States, chopped about 10,000 cords from the timber thereon standing, and that after it was cut it was piled up near the railroad. For authority to cut the wood plaintiffs relied upon an act of Congress of June 3, 1878 (20 Stat. at L. 88, *91 chap. 150, U. S. Comp. Stat. 1901, p. 1528), | fest. It would require the plaintiffs not the first section of which authorized bona only to establish a negative, that is, that fide residents of the state to fell and remove, for building, agricultural, mining, or other domestic purposes, timber growing on the public lands, "said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, . . . subject to such rules and regulations as the Secretary of the Interior may prescribe." Plaintiffs insisted that, in the absence of any evidence to the contrary, the presumption was that when they cut the timber they complied with and came under the conditions provided for in this act, and that the burden rested upon the defendant to show that the conditions mentioned in the act had not been complied with by them. The court held that if plaintiffs | party, the averment is taken as true unless had acquired the right, by reason of a compliance with the statute, the facts should have been shown by them; that the presumption was that the cutting was illegal, and that the burden of proof was upon the plaintiffs to show the facts which brought them within the statute of 1878. the timber was not cut for the purpose of construction and repair, but to establish it by testimony peculiarly within the knowledge of the defendant. As the cutting in this case was done by agents and servants of the defendant, it would impose upon the plaintiffs a difficult, if not an impossible, task, to require them to show that the tim ber was not cut for the construction or re-a pair of the railway, though evidence that it? was so cut could be readily produced by the defendant. It is a general rule of evidence, noticed by the elementary writers upon that subject (1 Greenl. Ev. § 79) that "where the subject-matter of a negative averment lies peculiarly within the knowledge of the other In United States v. Cook, 19 Wall. 591, 22 L. ed. 210, which was an action of replevin to recover possession of certain logs cut by Indians upon a reservation, and sold to Cook, it was held that the Indians, having only the right of occupancy, could not cut the timber for the purposes of sale, and that it was incumbent on the purchaser to show that the timber was rightfully severed from the lands. The only feature distinguishing the case under consideration from that of Lewis is that the timber was cut, not by the defendant corporation, but by the New Mexico Lumber Company, acting as its agent, and was subsequently furnished and delivered to the defendant. It is insisted that there is a presumption that the agent, having authority to cut, acted within the scope of his authority, and that this would of itself throw upon the plaintiffs the burden of showing that it had not. Although a presumption of this kind may attach to the acts of public officers, we know of no case holding that a party sued for a conversion by his agent may shield himself under a presumption that the agent acted within the scope of his authority. If the burden of proof would rest upon the defendant to show the cutting of timber for a proper purpose, evidently it could not shift that burden upon the plaintiffs by employing an agent to do the work. Upon principle as well as upon authority, a party who has been shown to be prima facie guilty of a trespass, and relies upon a license, must exhibit his license, and prove that his acts were justified by it. The practical injustice of a different rule is mani disproved by that party." When a negative is averred in pleading, or plaintiff's case de pends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative; but when the opposite party must, from the nature of the case, himself be in possession of full and plenary proof to disprove the negative averment, and the other party is not in possession of such proof, then it is manifestly just and reasonable that the party which is in possession of the proof should be required to adduce it; or, upon his failure to do so, we must presume it does not exist, which of itself establishes a negative. Great Western R. Co. v. Bacon, 30 Ill. 347, 83 Am. Dec. 199; King v. Turner, 5 Maule & S. 206. Familiar instances of this are where persons are prosecuted for doing a business, such, for instance, as selling liquor without a license. It might be extremely difficult for the prosecution in this class of cases to show that the defendant had not the license required, whereas the latter may prove it without the slightest difficulty. In such cases the law casts upon the defendant not only the burden of producing his license, but of showing that it was broad enough to authorize the acts complained of. Com. v. Rafferty, 133 Mass. 574; Com. v. Towle, 138 Mass. 490. As the license (the statute in this case) authorized the timber to be cut only for a specific purpose, and the means of proof as to the purpose for which the timber was cut were peculiarly within the knowledge and control of the defendant, we think the burden of producing evidence to that effect devolved upon it. This burden, however, which was simply to meet the prima facie case of the government, must not be confounded with the preponderance of evidence, the establishment of which usually rests, upon the plaintiff. 86. Heinemann v. Heard, 62 N. Y. 448; Willett v. Rich, 142 Mass. 360, 56 Am. Rep. 684, 7 N. E. 776; Wilder v. Cowles, 100 Mass. 487; Central Bridge Corp. v. Butler, 2 Gray, 130. If this were a criminal case it would undoubtedly rest on the government upon the whole evidence to satisfy the jury beyond a reasonable doubt that the timber was not cut for the construction or repair of the railway. for a breach of contract. Reversed and remanded for a new trial. See same case below, 18 App. D. C. 497. Statement by Mr. Ch. Justice Fuller: This was an action brought in the supreine court of the District of Columbia, August 8, 1894, to recover damages for alleged breach of contract. Plaintiff, on April 4, 1889, being the owner of a tract of land in While the supreme court of New Mexico the District of Columbia, containing about upon this second writ of error may have 22 acres (with her husband, since deceased), considered itself bound by its decision upon entered into an agreement with the Eckingthe question here involved upon the first ton & Soldiers' Home Railway Company, writ as the law of the case, we are not ourwhich recited: "Whereas the said parties of selves restrained by the same limitation. As the first part, being desirous of securing an its judgment upon the first writ was merely extension of the Eckington & Soldiers' Home for a reversal of the court below, and for a Railway from the corner of Third and T new trial, such judgment, not being fiual, streets northeast extended, to the cast line could not be made the subject of a writ of of Lincoln avenue in the District of Columerror from this court. Upon the present bia, through and along the following streets, writ, however, we are at liberty to revise the to wit: West on T street to Second street action of the court below in both instances. east extended, thence north on the line of There was error in requiring plaintiffs to said Second street extended to V street exassume the burden of showing that the tim-tended cast in a right line, and thence west ber was not cut for purposes of construction on the line of said V street so extended to or repair, and the judgment of the Supreme Court is therefore reversed, and the case remanded to that court with instructions to order a new trial. (191 U. S. 103) บ. FLORENCE MCDEVITT. the east line of Lincoln avenue; and whereas the said party of the second part has agreed to extend said railway to said Lincoln avenue by the route aforesaid, upon certain conditions hereinafter mentioned;" therefore the McDevitts agreed in consideration of the premises "and of the covenants hereafter mentioned, to be kept and performed" by the railway company, to sell, grant, and convey to it, its successors and assigns, "a right of way, 60 feet in width, for the use of the said party of the second part, its successors and assigns forever, through and along the Damages-breach of contract-prevented | following land belonging to the said Flor ence McDevitt," described as "beginning at the southeast corner of the lands of said Florence McDevitt, adjoining the property of George Truesdell known as Eckington, and in the line of Second street east extended northwardly in a right line, and extending thence with uniform width 30 feet on each side of the center of said Second street extended, to a line 15 feet south of the north line of said V street extended, and thence westerly with the same width on each side of the center of said V street extended, to the cast line of Lincoln avenue;" also to pay to the railway company $500 five years from the date of the agreement, with interest, to be evidenced by a promissory note. But that the grant was subject to certain "conditions" to wit, that work on the extension should be cominenced on or before May 1, 1889, and completed on or before October 1, 1889; that the grades should be as described: that the material removed in grading should be delivered on the lands of the McDevitts as directed by them; that the ex 105 cavation should not exceed 20 feet in width | dence was introduced of sales by Mrs. Mcat bottom and 60 feet at top; and that Devitt of four parcels of the land prior to the "after said extension is completed and open removal of the tracks, and tending to show for traffic, a car shall be run thereon to the value of the land with and without the Lincoln avenue at least once in thirty min- railroad in operation through it. Also that utes between 7.30 ▲. M. and 6 P. M., and at the business depression of 1893 caused deleast once an hour to 9 P. M., and one car at clines in value, and rendered real estate in 11 P. M." the vicinity of this property unsaleable until after 1894. •The extension was completed in the manner and within the time prescribed, and opened to traffic, and the $500 note was given. On December 27, 1889, a deed was executed and delivered to the company by Mr. and Mrs. McDevitt, in form an indenture, but signed and sealed by the McDevitts alonc. This conveyed the right of way to the company, "its successors and assigns forever," with covenants of warranty and further assurance, and it also recited a covenant on the company's part that the cars should be run as described in the contract. The extension was operated from 1889 to May or June, 1893, when the night cars were taken off. Thereupon. and on June 26, 1893, Mrs. McDevitt filed her bill for specific performance, to which the company set up in its answer, among other things, that the extension had always been a source of great loss, especially in operating at night, and that "the present management of the road, having been advised that their right to operate said extension over the line of proposed streets without authority from Congress was very doubtful, deemed it wise to suspend such operation until the question could be definitely settled." July 9, 1894, the bill was dismissed but "without prejudice to the right of complainant to resort to such remedy at law as she may be advised." About that time and prior to July 25, 1894, the railway company ceased to operate the extension altogether, and it was testified that the attorney of the company, on its behalf, "refused to do anything in the way of carrying out the contract." On the last named day Mrs. McDevitt notified the company in writing, to forthwith remove its tracks from the premises, and that she should bring an action for breach of contract. The tracks were accordingly removed. In the meantime the $500 note had matured and was not paid. The evidence tended to show that Mrs. McDevitt had caused a map of a proposed subdivision of the land to be made, but that this had not been recorded, and that nothing had been done in the way of preparing the tract for subdivision and sale by grading; that no streets had been opened through it except as effected by the action of the railroad company: that the excavations for the railway tracks were what would be Second and V streets, to which extent plaintiff would be relieved from grading. Evi Among other instructions the court gave the following: "The jury are instructed that the measure of damages in this case is the excess (if the jury find from the evidence that there was such excess) in the market value of the land at the time that the defendant ceased entirely to run its cars upon that part of its line which extended to and through the plaintiff's land, with the cars running in accordance with the terms of the contract of the parties in evidence, and the expectation of their continuing to so run in the future, over the market value of the same land at the same time without any cars running on said part of said line, and without any expectation that they would ever run thereon." To the giving of which defendant objected and duly preserved an exception. The jury found a verdict in favor of plaintiff for $15,000, and, motions in arrest and for a new trial having been made and overruled, judgment was entered thereon, which was affirmed by the court of appeals of the District (18 App. D. C. 497), and this writ of error thereupon sued out. The railway company was a corporation created by an act of Congress approved June 19, 1888 (25 Stat. at L. 190, chap. 419), "with authority to construct and lay down a single or double-track railway, with the necessary switches, turnouts, and other mechanical devices and sewer connections necessary to operate the same by horse, cable, or electric power, in the District of *Columbia, through and along the following avenues, streets, and highways" (describing them), and also a branch as described. The railway was to be laid in the center of the avenues and streets as near as might be, and, in the event of a change of grade of any of the streets, avenues, or roads occupied, it was made the duty of the company, at its own expense, to change its railroad so as to conform to such new grade. The company was to run cars as often as the public convenience might require, in accordance with a time-table or schedule which was to be approved by the commissioners of the District; and was to construct such ticket offices, passenger rooms, etc., at such points on its line as the Commissioners might approve. The government and direction of the affairs of the company were vested in a board of nine directors, who were |