WiNslow, J.
Eeally the only issue litigated was as to the amount of damages to which plaintiffs were entitled. The defendant on the trial did not claim that he ever possessed a valid title to the lands in question, but he claimed that he cut the timber therefrom under a title acquired in good faith, which he believed to be good. If this was the case, the value of the stumpage is all that could be recov.ered by the plaintiffs. If it was not the case, the highest market value of the timber at any time while in the defendant’s possession might be recovered as damages. E. S. sec. 4269, as amended by ch. 239, Laws of 1882. It is manifest that the word “ title,” as used in ch. 239, just cited, does not mean a valid title in fee, for, if the defendant had that, then there could be no recovery against him; but it must mean a title apparently good, but wThich in fact, for some reason, is invalid. The register’s receipt, which the defendant held, showing his purchase of the lands in question, was a title which apparently vested in him the entire equitable and beneficial interest in the land. Farnham v. Sherry, 11 Wis. 568. This title was apparently a good title, but not in fact a good title, because the lands in question were afterwards selected by the proper authorities as swamp lands, and thus it was conclusively determined that the title thereto passed from the United States to the state upon the passage of the swamp-land grant act of September 28, 1850; it being settled that the provisions of that [141]*141act constituted a grant in prasenti. French v. Fyan, 93 U. S. 169; Wright v. Roseberry, 121 U. S. 495. This being the case, if the defendant acquired this defective title in good faith, and cut the timber while he still believed his title to be good, he is entitled to the protection given him by the statute. The case of Smith v. Morgan, 68 Wis. 363, cited by appellants, is clearly unlike the present case. There the title under which the defendant claimed to have cut timber in good faith was a school-land certificate, which under the law did not confer any right to the holder to cut timber, and so, plainly, could not be a title under which defendant could cut timber in good faith.
Upon this question of good faith and belief in his title, the defendant testified, directly and positively, that he made his entry of the lands, and that he cut the timber in entire good faith, believing that he had an absolute title, and that he had no notice of any defect in his title, or of any proposed cancellation of his entry, until August, 1887. There is absolutely no direct testimony in the case to the contrary. But the plaintiffs claimed that certain recitals in two letters written by the United States land commissioner to the register of the land office at Menasha constituted some proof that the register gave notice to the defendant in the year 1883 that his entry of the lands had been held for cancellation. These recitals so relied upon appear in letters which were introduced in evidence, and which were dated in June and July, 1885. They are to the effect that the register reported in March, 1883, due notice given to the party in interest that the entries of the lands in question had been held for cancellation because appearing to conflict with the claim of the state under the swampland grant act. The circuit judge instructed the jury that these recitals constituted no proof of notice to the defendant. This instruction was clearly right. Whatever might be said of a statement by the land commissioner himself in [142]*142an official communication concerning his own acts or facts within his personal knowledge, it is very clear that, when he states simply what another official has previously stated to him, such a recital cannot rise to the dignity of proof of that fact. ■ It is simply hearsay. .
But the plaintiffs insist that there is a presumption that the register at Menasha did his duty, and informed the defendant that the entries were held for cancellation, as he had been directed by the land commissioner to do; and they rely upon the familiar rule that all reasonable presumptions must be made in favor of the regularity and validity of the action of public officers and tribunals. This rule is well established, but it does not appear to be applicable under the present circumstances. It is a mere presumption of law, which operates only in case of absence of evidence. It disappears entirely in the presence of positive, uncontradicted evidence upon the subject; and, furthermore, it seems very doubtful whether any presumption could be indulged here that the register gave the notice in question. In U. S. v. Ross, 92 U. S. 281, it is said by the court, quoting from Best, Ev. § 300: “ The true principle intended to be asserted by the rule seems to be that there is a general disposition in courts of justice to uphold judicial and other acts, rather than to render them inoperative, and with this view, where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking, essential to the validity of .those acts, and by which they were probably accompanied in most instances, although in others the assumption may rest on grounds of public policy. Nowhere is the presumption held to he a substitutefor proof of a/n independent and material fact.” This notice was certainly, in the present case, an independent and material fact. It was not an incidental circumstance attending, or which should have attended, some act of the register already [143]*143proven. We think, therefore, that the circuit judge was right in refusing to instruct the jury that there was a presumption that the notice had been given.
Further, on this question of good faith, the plaintiffs offered tó show, by a witness who went upon the land in January, 1891, that a part of the land appeared at that time to be swampy. This testimony was rejected by the court. In Railroad Co. v. Smith, 9 Wall. 95, oral proof that lands were swampy in 1850, at the time of the passage of the swamp-land grant act,, was held admissible in support of a title derived from the state, because the secretary of the interior had neglected to select the lands which inured to the state as swamp lands under the act of 1850. But no such question as that arises here, nor was the proof offered of any such nature. The proof here offered was as to the condition of the land in January, 1891, forty years after the grant to the state, and nearly ten years after the defendant’s entry. If proof of the actual condition of the land is admissible at all on the mere question of good faith (which we do not decide), the testimony here given was clearly inadmissible, because it related to a time long after the rights of the parties were fixed. We do not know what topographical changes 'may have taken place in the land, nor do we know what exceptional temporary conditions may have existed in January, 1891. Connors v. Meservey, 76 Iowa, 691. We conclude that there was no error in refusing to receive this testimony.
It is claimed by appellants that the answer admits that the stumpage value of the timber cut was $2 per 1,000, and thus that the judgment is for too small a sum, in any event. The answer states that “ the value of the timber cut did not exceed two dollars per thousand feet.” Construing this as an admission that the value was at least $2 per 1,000, still we think there is no error of which the appel[144]
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WiNslow, J.
Eeally the only issue litigated was as to the amount of damages to which plaintiffs were entitled. The defendant on the trial did not claim that he ever possessed a valid title to the lands in question, but he claimed that he cut the timber therefrom under a title acquired in good faith, which he believed to be good. If this was the case, the value of the stumpage is all that could be recov.ered by the plaintiffs. If it was not the case, the highest market value of the timber at any time while in the defendant’s possession might be recovered as damages. E. S. sec. 4269, as amended by ch. 239, Laws of 1882. It is manifest that the word “ title,” as used in ch. 239, just cited, does not mean a valid title in fee, for, if the defendant had that, then there could be no recovery against him; but it must mean a title apparently good, but wThich in fact, for some reason, is invalid. The register’s receipt, which the defendant held, showing his purchase of the lands in question, was a title which apparently vested in him the entire equitable and beneficial interest in the land. Farnham v. Sherry, 11 Wis. 568. This title was apparently a good title, but not in fact a good title, because the lands in question were afterwards selected by the proper authorities as swamp lands, and thus it was conclusively determined that the title thereto passed from the United States to the state upon the passage of the swamp-land grant act of September 28, 1850; it being settled that the provisions of that [141]*141act constituted a grant in prasenti. French v. Fyan, 93 U. S. 169; Wright v. Roseberry, 121 U. S. 495. This being the case, if the defendant acquired this defective title in good faith, and cut the timber while he still believed his title to be good, he is entitled to the protection given him by the statute. The case of Smith v. Morgan, 68 Wis. 363, cited by appellants, is clearly unlike the present case. There the title under which the defendant claimed to have cut timber in good faith was a school-land certificate, which under the law did not confer any right to the holder to cut timber, and so, plainly, could not be a title under which defendant could cut timber in good faith.
Upon this question of good faith and belief in his title, the defendant testified, directly and positively, that he made his entry of the lands, and that he cut the timber in entire good faith, believing that he had an absolute title, and that he had no notice of any defect in his title, or of any proposed cancellation of his entry, until August, 1887. There is absolutely no direct testimony in the case to the contrary. But the plaintiffs claimed that certain recitals in two letters written by the United States land commissioner to the register of the land office at Menasha constituted some proof that the register gave notice to the defendant in the year 1883 that his entry of the lands had been held for cancellation. These recitals so relied upon appear in letters which were introduced in evidence, and which were dated in June and July, 1885. They are to the effect that the register reported in March, 1883, due notice given to the party in interest that the entries of the lands in question had been held for cancellation because appearing to conflict with the claim of the state under the swampland grant act. The circuit judge instructed the jury that these recitals constituted no proof of notice to the defendant. This instruction was clearly right. Whatever might be said of a statement by the land commissioner himself in [142]*142an official communication concerning his own acts or facts within his personal knowledge, it is very clear that, when he states simply what another official has previously stated to him, such a recital cannot rise to the dignity of proof of that fact. ■ It is simply hearsay. .
But the plaintiffs insist that there is a presumption that the register at Menasha did his duty, and informed the defendant that the entries were held for cancellation, as he had been directed by the land commissioner to do; and they rely upon the familiar rule that all reasonable presumptions must be made in favor of the regularity and validity of the action of public officers and tribunals. This rule is well established, but it does not appear to be applicable under the present circumstances. It is a mere presumption of law, which operates only in case of absence of evidence. It disappears entirely in the presence of positive, uncontradicted evidence upon the subject; and, furthermore, it seems very doubtful whether any presumption could be indulged here that the register gave the notice in question. In U. S. v. Ross, 92 U. S. 281, it is said by the court, quoting from Best, Ev. § 300: “ The true principle intended to be asserted by the rule seems to be that there is a general disposition in courts of justice to uphold judicial and other acts, rather than to render them inoperative, and with this view, where there is general evidence of acts having been legally and regularly done, to dispense with proof of circumstances, strictly speaking, essential to the validity of .those acts, and by which they were probably accompanied in most instances, although in others the assumption may rest on grounds of public policy. Nowhere is the presumption held to he a substitutefor proof of a/n independent and material fact.” This notice was certainly, in the present case, an independent and material fact. It was not an incidental circumstance attending, or which should have attended, some act of the register already [143]*143proven. We think, therefore, that the circuit judge was right in refusing to instruct the jury that there was a presumption that the notice had been given.
Further, on this question of good faith, the plaintiffs offered tó show, by a witness who went upon the land in January, 1891, that a part of the land appeared at that time to be swampy. This testimony was rejected by the court. In Railroad Co. v. Smith, 9 Wall. 95, oral proof that lands were swampy in 1850, at the time of the passage of the swamp-land grant act,, was held admissible in support of a title derived from the state, because the secretary of the interior had neglected to select the lands which inured to the state as swamp lands under the act of 1850. But no such question as that arises here, nor was the proof offered of any such nature. The proof here offered was as to the condition of the land in January, 1891, forty years after the grant to the state, and nearly ten years after the defendant’s entry. If proof of the actual condition of the land is admissible at all on the mere question of good faith (which we do not decide), the testimony here given was clearly inadmissible, because it related to a time long after the rights of the parties were fixed. We do not know what topographical changes 'may have taken place in the land, nor do we know what exceptional temporary conditions may have existed in January, 1891. Connors v. Meservey, 76 Iowa, 691. We conclude that there was no error in refusing to receive this testimony.
It is claimed by appellants that the answer admits that the stumpage value of the timber cut was $2 per 1,000, and thus that the judgment is for too small a sum, in any event. The answer states that “ the value of the timber cut did not exceed two dollars per thousand feet.” Construing this as an admission that the value was at least $2 per 1,000, still we think there is no error of which the appel[144]*144lants can. now take advantage. The defendant introduced much testimony, without objection on the part of appellants, tending to show that the stumpage value was not to exceed $1 per 1,000. The question was fully litigated, as though it were an open one, and no objection was made. The point cannot be made for the first time in this court.
A motion for a new trial was made by the plaintiffs, based on affidavits which were claimed to show newly discovered evidence and. that the plaintiffs were the victims of surprise upon the trial. The affidavits relied upon were those of Mr. Fay, register of the land office at Menasha from 1875 to 1887, and of the plaintiff Befa/y. From these affidavits it appeared, substantially, that the plaintiff Befay had conversations with Wheeler before the trial, and was led to believe that Wheeler knew in 1885 that the lands in question were swamp lands, and that the plaintiff was therefore surprised at the trial when Wheeler testified that ho had received no notice of the fact; that the register, Fay, was confined to his bed at the time of the trial, and could not be present, although the plaintiffs tried to secure his presence; that, if present, he would have testified that he did in- fact notify Wheeler of the cancellation of his entry; and that Befay did not know that he would so testify until after the trial. These affidavits were clearly insufficient. The plaintiffs knew that the claim of defendant was that the timber was cut in good faith, and that they must be prepared to meet that claim on the trial, under the pleadings. They also knew before the trial, from the letters which they themselves introduced in evidence, that Fay had reported that he had given notice to the parties in interest; and under- these circumstances the plaintiffs certainly ought to have prepared themselves for trial by inquiring of Fay what he had done, and by taking his deposition, if necessary. The affidavits show neglect to pre[145]*145pare for trial, rather than a proper case of surprise or newly discovered evidence.
We find no error in the record, and the judgment, must • be affirmed.
By the Court. — Judgment affirmed.