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UNITED STATES v. WHEELER

May 1, 1958

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CURTIS D. WHEELER, D.L. MARTIN, PAUL G. GOODWIN, H.E. EPPERSON, G.A. LAGASSE, AND AMITY PULP COMPANY, AN ARKANSAS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: John E. Miller, District Judge.

The matter presently before the Court for determination is the motion of the United States for summary judgment in its favor against the defendants, Curtis D. Wheeler and D.L. Martin. As is necessary in such cases, the Court must determine whether there is a genuine issue as to any material fact and whether plaintiff is entitled to a summary judgment as a matter of law. Fed.Rules Civ.Proc. Rule 56, 28 U.S.C.A. In brief, plaintiff in its complaint alleges that it is now and has been for many years "the owner and in possession of the following described public lands and all timber thereon located, to-wit:

    "The East Half of the Northeast Quarter, the
  Northwest Quarter of the Northeast Quarter and the
  Northeast Quarter of the Northwest Quarter, Section
  1, Township 7 South, Range 25 West, situated in Pike
  County, Arkansas."

Plaintiff alleges in its complaint that during the period from September 1, 1955, to March 2, 1957, the defendants, Wheeler and Martin, willfully entered and trespassed upon plaintiff's land and willfully cut and removed from said public lands 163,741 bd. ft. of pine sawtimber, having a stumpage value of $4,912.23, and 8,606 bd. ft. of hardwood sawtimber, having a stumpage value of $60.24. Plaintiff asserts that by reason of Sec. 50-105, Ark.Stats., it is entitled to recover treble damages from the said defendants. Plaintiff further alleges that the defendant Wheeler sold additional amounts of timber to various other parties.

On July 29, 1957, the defendant Wheeler filed his answer, denying that the United States owns the timber in question and denying that he willfully cut and removed timber from public lands.

On August 16, 1957, the defendant Wheeler filed an amended answer, setting forth in detail the elements of his defense. In substance, Wheeler alleges that the United States has no title to the timber in question; that said timber was owned by Detroit Timber and Lumber Co., and that Wheeler purchased said timber from the Detroit Timber and Lumber Co.

On September 5, 1957, the defendant Martin filed his answer admitting the matters of record pleaded by plaintiff, but denying that the United States is the owner of the timber and denying that he trespassed upon public lands or cut and removed timber from public lands. Martin further alleges that "the timber alleged to have been cut and converted by the defendant, D.L. Martin, was the timber D.L. Martin purchased from the owner, Curtis Wheeler, under contract of sale of timber, made and entered into on October 12, 1955, which contract has been furnished to plaintiff for examination and copying; and the plaintiff now has a copy of same."

On November, 22, 1957, plaintiff filed certain requests for admission of facts, directing such requests to the defendants, Wheeler and Martin, as well as to other defendants not involved in the present motion. Neither Wheeler nor Martin responded to the requests for admissions. It is firmly established that the failure of a party to answer requests for admission of facts amounts in law to an admission of the truth of the requested facts. Handley v. City of Hope, D.C.W.D.Ark., 137 F. Supp. 442; Heuer v. Basin Park Hotel and Resort, D.C.W.D.Ark., 114 F. Supp. 604; Sieb's Hatcheries, Inc., v. Lindley, D.C.W.D.Ark., 13 F.R.D. 113. As a matter of fact, it makes little difference in the instant case since most of the facts sought by the requests for admissions are matters of public record about which there could be no dispute.

The requests for admissions and exhibits thereto disclose the following undisputed facts:

On February 24, 1900, a patent was issued by the United States to John H. Scott, covering the NE 1/4 of Sec. 1, T7 S, R 25 W of the 5th Principal Meridian in the State of Arkansas.

On the same date, a patent was issued by the United States to Robertson C. Gregory, covering the E 1/2 of the NW 1/4; NE 1/4 of the SW 1/4; and the NW 1/4 of the SE 1/4; all being located in Sec. 1, T 7 S, R 25 W.

On April 13, 1900, John H. Scott conveyed to the Martin Alexander Lumber Company all of the timber and trees then standing and growing or being upon the NE 1/4 of Sec. 1, T 7 S, R 25 W. The lumber company was given full and free liberty of entry for the purpose of cutting and removing the timber and for constructing necessary facilities. The lumber company was obligated to pay Scott 50 cents per M feet of "lumber scale measure", and the sum of $407.70 was paid at the time of the execution of the agreement. Among other things, the agreement provided that:

    "It is mutually agreed between the parties hereto
  that this contract shall continue in full force until
  all trees situated upon the said land shall have been
  converted into lumber or timber and removed therefrom
  with a right on the part of the said purchaser to
  maintain and operate any railroad or tram way built
  upon or across said premises by it for the period of
  ninety nine (99) years from date hereof and that all
  other structures placed upon said premises by said
  purchaser shall remain its sole property and may be
  removed by it upon the termination of this lease or
  within one year thereafter."

On the same day, Robertson C. Gregory conveyed to the said Martin Alexander Lumber Company all the timber and trees then standing and growing or being upon the E 1/2 of the NW 1/4 NE 1/4 of the SW 1/4; and the NW 1/4 of the SE 1/4, Sec. 1, T 7 S, R 25 W. This agreement contained the same provisions as the Scott agreement with respect to price, removal of timber, etc.

On May 2, 1901, the Martin Alexander Lumber Co. conveyed to the Detroit Timber and Lumber Co. all the yellow pine timber on certain tracts of land, including the NE 1/4 of Sec. 1, and the E 1/2 of the NW 1/4 of Sec. 1, T 7 S, R 25 W. The agreement provides that Detroit Timber and Lumber Co. and its assigns should have the number of years shown in ...


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