delivered the opinion of the court.
The appellant commenced this action to recover the sum of $18,225, the value of certain lumber manufactured by Smith & Hatch from certain sawlogs cut by Shettlero & Gimel, on lot 2 of section 24, township 20 north, range 1 west, in Pierce county, "Washington Territory.
It is alleged that said lot 2 was, at the time of said cutting, public land of the United States, and that Smith & Hatch, who were operating a sawmill at Tacoma, bought said saw-logs, knowing the same to have been cut on public lands.
The value of the standing trees (of the sawlogs on the ground where cut), of said logs at the mill of Smith & Hatch, and of the manufactured lumber, is alleged in detail.
Defendants joined issue, denying knowledge or information as to cutting and removal of the logs in question, and denying the receipt by Smith & Hatch with knowledge or at all, and denying value alleged.
Plaintiff introduced evidence showing that in April, 1885, Shettlero & Gimel cut upon said lot 2, and removed therefrom and sold to Smith & Hatch, at Tacoma, from 70,000 to 121,500 feet of sawlogs.
That Smith & Hatch admitted having bought about 90,000 feet of sawlogs, cut on said lot 2, and having manufactured the same into lumber at their mill.
Evidence was also introduced to show the value of the logs and lumber as alleged.
The evidence also shows that in March, 1885, before the' cutting of said timber, Shettlero filed his application to purchase said lot 2 as timber land, under the act of congress of June 3, 1878.
That on May 23, 1885, after said cutting, he made proof according to law, paid for said land, received his receipt therefor from the land office at Olympia, and in 1887 received patent from the United States for said land, said patent being dated April 28, 1887.
*425Plaintiff rested, and defendant moved for judgment of nonsuit, which was granted. Motion for new trial was made and denied, and judgment entered dismissing the cause.
Exceptions were duly taken and noted to the various rulings of the court, and appeal taken by the United States.
It seems quite manifest to us that the case was tried by both parties with sole reference to the question as to-whether the plaintiff was entitled to recover the value of the lumber manufactured from the logs, although the value of the standing trees and of the logs into which they were cut and sold is alleged and proved, as well as the value of the lumber.
Indeed, appellant, in his brief, claims the suit to be for the manufactured lumber, and it is not here intimated, and quite clearly was not in the trial court, that any other than a judgment for the value of the manufactured lumber was the relief to which plaintiff is entitled.
It is not disputed but that in March, 1885, one Shettlerofiled his application at the proper local land office for the purchase of the timber land from which the logs were in fact cut during the next month and sold to Smith & Hatch, and that Shettlero did not make proof or pay for the land until May 23, 1885.
This action was commenced in February, 1885, and the patent for the land issued to Shettlero in April, 1887.
There can be no right in an applicant to purchase timber land under the act of congress to enter thereon, and cut and remove timber from the land for the purpose of sale as logs, or the manufacture thereof into lumber for commercial purposes, prior to his proof and payment therefor.
No entry of any kind, and no cutting of timber for any purpose, is necessary to perfecting title, or permissible for any purpose whatever.
The act of June 15, 1880 (supplement to Revised Statutes, chapter 227), at least negatively disallows such a claim of any right to cut the timber prior to proof and payment of the purchase price.
*426The public land, so far as the sale of timber lands is concerned, might be entirely denuded of all valuable timber thereon, without payment therefor, if at once, upon filingthe application for entry, the applicant might proceed to cut, remove, and sell the trees growing thereon before paying for the land.
The fact that agents of the government knew that such unlawful acts were being committed, and did not interfere to prevent them, would not make such trespass-lawful, or estop the government from claiming its own.
The subsequent issue of a patent to the applicant could not change the title to the logs severed from the soil by his own act, while the government had the title, and payment had not been made.
In this ease, it stands confessed that these logs were cut, removed, and sold for the purpose of being manufactured into lumber, before payment for the land, and under such circumstances the logs were the absolute property of the government.
In this case, the appellees were innocent purchasers of the logs cut from the land; they manufactured the logs into lumber without notice, and this action is brought to recover the value of the lumber.
It is conceded in the argument that if such claim cannot be maintained, the nonsuit in the trial court must be affirmed.
It appears also that the trial below took place with reference to that question, and the nonsuit was granted with that sole question in view.
The Supreme Court of the United States determined that where the purchaser is without notice of the wrong on the part of his vendor, who is a willful trespasser, the measure of damages is the value of the property at the time of the purchase. (Wooden Ware Co. v. U. S., 106 U. S. 432.)
There is no evidence here from which the value at that time can be ascertained, and if there were, under the' circumstances of the trial below as stated, and the point not being raised here, that judgment might have been for such *427sum as the property was worth at the time and place of the purchase, or even for nominal damages. The judgment appealed from is correct as a judgment of nonsuit merely, as it is admitted to be. The plaintiff might perhaps have claimed a judgment for nominal damages against some of the defendants, but none of the parties here make any such claim or raise the point.
I am satisfied to pass by the question as to whether a willful trespasser upon the public lands who cuts and removes timber therefrom and manufactures it into lumber, he is or is not liable for the value of the timber, if it can be identified as the same manufactured from the timber so cut.
That question is not necessarily involved here, in my judgment.
Let judgment be entered for a nonsuit without prejudice, with costs of both courts against the appellant.