30 . r·nnEmr.,x<.¤·:1=·o1zrE1a.
Ellison do Gill, for plaintiff. ` i .
Foster dc Wilson, for defendant. .
" WHEELER, J. The defendant moves for an order on the plaintiff to
furnish security for costs, because he is not a resident of the state of
New York. He is set up in the proceedings as such resident. On all
the papers it does not appear but that he is so set up properly and cor-
rectly. The motion is therefore denied. This is not intended to 1mp1y
that the motion would be granted if he was shown to be a non-resident.
‘ UNITED STATES v. ORDWAY and others.
' (017rcuit Uowrt, D. Oregon. March 7, 1887.)
1. Punmc LANDS—CUTTING TIMIBER··—·ACTION ron D.ur.4oEs——PA1z·r1.u. DEFENSE.
A partial defense to. an action or in mitigation of the damages claimed
therein ought to be pleaded in the answer as a distinct defense; and an allega-
tion that the defendants cut and removed certain timber from alleged public
land, believing that it was the land of the Northern Pacidc Railroad Com-
-· pany, from which they had a license, is such a defense, where the damages
claimed in the complaint are based, not only on the value of the timber in the
standing tree, but also the value bestowed on the same in converting it into
lumber, and putting it into market. V
S. SAME-GRANT ro THE NORTHERN Pncrrro Rarnnoan Courant, A
‘ The grant of certain odd sections of the public lands to the Northern Pacific
Railway Company, by the act of July 2, 1864, (13 St.—365,)* does not give the
corporation any such present right to or interest in any one of such sections ,
as authorizes it to waste the same, by disposing of the timber thereon before
it is earned by the construction of the section of the road adjacent and oppo-
site thereto. The case of U S. v. Ohildera,8 Sawy. 171, 12 Fed. Rep. 586,
distinguished from Butte v. Northern Pao. Ry. Oo., Sup. Ct. Rep. 100, and
followed.
8. SaME—E.mNEn LANDS.
On the construction and acceptance of any section of the road of the North-
ern Pacific Railway Company, the coterminous odd sections vest absolutely in
the corporation, and thereafter the patent therefor may be considered as hav-
ing issued. R
r (Syllabus by the Oourt.) _
Action to recover damages for cutting timber on the public lands. `
Lewis L. _McArth·ur, for the United States. '
Rufus Mallory, for defendants.
DEADY, J. This action is brought by the United States to recover
damages for cutting and removing timber from the public lands, and
_ converting the same to the use of the defendants. Substantially, it is
alleged in the complaint that on March 1, 1883, and on divers other days
between then and the commencement of this action, the defendants un-
lawfully entered on the S. W. l of sectionll, in township 2 N., of range
A 5 E. of the Wallaniet meridian, the same being public land of the United
States, situate in the territory of Washington, and did unlawfully cut
and remove therefrom 6,000,000 feet of timber, and manufactured the