Mahlon Pitney

“ As is well known, the process requires the cutting of a deep gash or 'box' into the side of the tree, so shaped as to catch and retain a considerable quantity of the crude gum, and repeated chippings thereafter, by each of which an additional portion of the bark is cut through to the wood so as to expose a fresh bleeding surface. It not only saps the vital strength of the tree and lessens its power to resist the force of the wind, but exposes the wood to decay and to wood-boring grubs and beetles; while the waste gum, being highly inflammable, increases the danger of forest fires. ”

“ Obviously the privilege of residing on the land for five years would be ineffectual if he had not also the right to build himself a house, outbuildings, and fences, and to clear the land for cultivation. ”

“ If the doctrine of confusion of goods were to be applied, the entire product of the still would belong to the United States. The Idaho, 93 U.S. 575, 586, 23 L. ed. 978, 982. But, by the instructions of the trial judge, recovery was limited to the value of the products manufactured from crude gum taken from the Freeland homestead.
It is ingeniously argued that a different rule must govern as between the United States and the defendant company, because the company had a mortgage upon Rayford's product, both crude and manufactured ”

“ It is insisted that if a tenancy in common existed in the manufactured product, the possession of it by defendant company was not tortious, and that in order to show a conversion there must be either a demand for possession and refusal thereof, or a showing that some disposition was made of the chattels inconsistent with and destructive of the rights of plaintiff as cotenant. ”

“ Stat. (Comp. Stat. 1913, § 4980) , said, obiter, 'We think it is not a matter of common knowledge that such cutting and boxing of pine trees destroy the value of the trees as timber, or that it has a tendency even to retard the growth of the trees,' and that this view was made the basis of a decision by the circuit court of appeals from the eighth circuit that, prior to the act of 1906, the boxing of trees for turpentine on public lands was not actionable. ”

“ The after-acquired-property clause in the mortgage does not help matters for defendant. Property in the turpentine could not be acquired by Rayford without the consent of the United States, and this he did not have. ”