PER CURIAM.

1. We hold that the legal title to the lands granted by the act of June 3. 1856, is, by virtue of that act, in the state of Wisconsin, in trust for the building of the railroad.

2. That the lands had not reverted to the United States, there having been no judicial proceeding, no act of congress, and no other act of the general government, to take advantage of the failure to build the railroad or to declare the forfeiture.

3. That the title to the lands could be disposed of by the state only in the manner provided in the last section of the aforesaid act of congress of June 3, 1856, and that the state could not, before the building of the road, divest itself of the legal title to the lands, and that the act of the state legislature of the 10th day of March. 1869, should not be construed as intended to have that effect.

4. That as the legal title to the lands where the logs were cut was in the state of Wisconsin, it had authority to protect them from trespassers, and it would be the owner of logs cut thereon by third persons without authority.

After the testimony was concluded, the presiding justice charged the jury as follows:

This is an action of replevin. It is admitted by counsel that the plaintiffs obtained possession of the logs under a writ of replevin. It has been stipulated by the parties that plaintiffs were in the quiet and peaceable possession of the logs before defendant seized them, and that defendant’s seizure thereof, as to the manner of making it, was valid and legal.

The stipulation as to the plaintiffs’ “quiet and peaceable possession of the logs” is not an admission by the defendant that the plaintiffs’ possession was rightful, or that the plaintiffs were the owners. " These questions were left open by the stipulation, and are to be decided by the jury under the instructions of the court.

The presumption arising on the stipulation entered into between the parties is, that the logs were the plaintiffs’ property; it makes out a prima facie case for the plaintiffs. That is its only effect. It throws the burden of proof on the defendant, to show title or right of possession in himself. The defendant, as the duly commissioned agent of the state of Wisconsin, claims that the logs in dispute were cut on the railroad lands granted by congress to the state of Wisconsin, by act of congress of June 3, 1856 (11 Stat. 20).

The legal title to these lands, and the logs cut thereon without authority, is in the state of Wisconsin. Evidence has been offered by the defendant with a view to show that the plaintiffs cut logs on said lands, and that they were mingled with a large quantity of other logs having the same marks, belonging to the plaintiffs, and were in this condition while in the boom at Stillwater and when seized by the defendant.

The plaintiffs insist that the defendant cannot recover except so far as he traces and identifies each log for which he asks a verdict, to have been cut upon the said railroad lands However it might be at common law, we instruct you that under the legislation of this state — where the logs were seized by the defendant and replevied by the plaintiffs (Rev. St. Minn. p. 250) — and the decisions of the courts in the lumber regions applicable to such controversies. that it is not necessary that the defendant should trace and identify each log; that is, if you are satisfied from the evidence *751that the plaintiffs cut logs on the said railroad -lands, without authority from the state, and that these logs, thus cut, 'were driven by the plaintiffs down the river into the boom at Still-wafer, in this state, and mingled with other logs belonging to them, bearing the same marks, so that the two classes of logs could not be distinguished, then the defendant had at least a right, especially after demand of the plaintiffs, to get from that boom a quantity of said logs equal to those which he shows were cut by the plaintiffs on said railroad lands.

If you find for the defendant, the measure . of his, damages (under the statute of the state relating to replevin) will be the value of the logs thus traced by the defendant from the .railroad lands to the boom at Stillwater, and of which defendant was in possession (as stipulated) when the suit in replevin was com-1 menced;