decided: October 23, 1893.
DENVER AND RIO GRANDE RAILROAD COMPANY AND OTHERS.
ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.
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MR. JUSTICE JACKSON delivered the opinion of the court.
This case is controlled by the decision of this court rendered in the case of the United States v. Denver and Rio Grande Railway Co. The pleadings and the agreed statement of facts*fn1 present substantially the same questions as are discussed
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and decided in the suit against the railway company. The defendant in this case is the successor in title of the Denver and Rio Grande Railway Company, and complied with all the requirements of the act of 1875. The timber, with which it was sought to be charged, was taken early in 1886 for use as cross-ties. About one-half of this timber was taken from the public lands adjacent to the line of the company's road in Montrose County, Colorado, and was used on that portion of its line constructed after June 8, 1882. The rest of the timber was taken from public lands adjacent to the line, constructed prior to June 8, 1882, lying east of Cebolla. The court below held that the defendant had a right to take timber from public lands east of Cebolla for the purpose of repairing its line constructed prior to June 8, 1882, but had no right to take timber from that portion of the line for the purpose of constructing new switches and side tracks along the line of road completed subsequent to June 8, 1882, and for this item, amounting to $1120, the defendant was held liable, and acquiesced in that judgment. The plaintiffs in error seek for a reversal of the judgment on the ground that it improperly
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relieved defendant from liability for the rest of the timber.
We are of opinion that there was no error in the judgment of the Circuit Court, and the same is accordingly