"u lift n r r ? ^ 7 3a " T; ;^5' :??gTsin«"rr?4t'ft^- I iionwAWiyMmi CORNELL university: LIBRARY] Cornell University Library HD 1611.U5A5 1903 Compilation of public timber laws and re 3 1924 007 824 471 Cornell University Library The original of tinis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924007824471 CO.AIPILATION PUBLIC TIMBER LAWS REGULATIONS AND DECISIONS THEREUNDER. Issued li^elDruary 14, 1903. WASHINGTON": G0VERN31ENT PRINTING OFFICE. 1903. U 5v Ue..o<, i-^^*-'^^^. v--^^ 111 IN!; W li! Depaktment of the Interioi;, General Land Office, WiishiiKjtoJi, D. C, Februari/ l.'u l-'OS. The followint;- compilation of existing laws relating- to tiiiiher on the publie lands, with the rules and regulations thereunder, and decisions, opinions, and rulings in relation thereto, is issued for the information of those concerned. W. A. KlCHARDS, Cijii'uni>fiii<:iiici'. Approved : E. A. Hitchcock, Secretary. SYNOPSIS OF LAWS RELATING TO TIMBER ON PUBLIC LANDS. Section 245S, U. S. R. S., authorizes the Secretary of the Navy, under the direction of the President, to cause such vacant and unappropriated lands of the United States as produce the live oak and red cedar timbers tn be exjilored, and nelee- tion to be made of such tracts or portions thereof, where the principal j^rowth is of either of such timbers, as in his judgment may be necessary to furnish for the Navy a sufficient supply of the same. Section 2459, U. S. R. S., authorizes the President to appoint purveyors of public' lands to explore and select the lands described in the preceding section, and pro- vides that the tracts thus selected, with the approbation of the President, shall lie reserxi'd, unless otherwise directed by law, from any future sale of public lands, and be appropriated to the sole purpose of supplying timber for the Navy of the United States. Section 2460, U. S. R. S., authorizes the President to employ so much of the land and naval forces of the United States as may be necessary effectually to prevent the felling, cutting down, or other destruction of the timber of the Uniteil States in Florida, and to take such other measures as may be advisable for the preserva- tion of the timber of the United States in Florida. Section 2461, U. S. R. S., provides a fine of not less than triple the value of the tim- ber and imprisonment not exceeding twelve months in instances in which timber is cut or removed from public lands reserved or purchased fur the use of the Navy or from any other public lands for use other than for the Navy of the United States. (See sec. 4751, U. S. R. S.) Seealso the following: Act of Jhirch 1, 1817, 3 Stat., 347 (sees. 2458 and 2459, U. S. R. S. ), and actof February 23, 1822, 3 Stat., 651 (sec. 2460, U. S. R. S.). Section 2462, U. S. R. S., provides for the forfeiture to the United States ijf any vessel having on board, with knowledge of the master, owner, or consignee, tindier taken from Naval Reserve or other public lands with intent to transport the same to any jiort or place within the United States or for export to any foreign coun- try, and further provides that the captain or master of such vessel shall pay to the United States a sum not exceeding $1,000. (See sec. 4751, U. S. R. S.) Section 2463, U. S. R. S., provides that collectors of customs in Alabama, :\Iis.sissippi, Louisiana, and Florida, before allowing clearance to any vessel having on Iwjard live-oak timber, must ascertain that the same was cut from private lands, or if from public lands, by consent of the Navy Department; and also provides that timely prosecution be instituted against parties guilty of depredations on live oak in those States. (See sees. 4205 and 4751, U. S. R. S.) Section 4205, U. S. R. S., reads as follows: " Collectors of the collection ilistriets within the States of Florida, Alabama, Mississippi, and Louisiana, before allowing a clearance to any vessel laden in whole or in part with live-oak timber, shall ascertain satisfactorily that such timber was cut from private lands, or if from public lands, by consent of the Department of the Navy." (See sec. 2463. ) Section 4751 U. S. R. S., provides that all penalties and forfeitures under sections 2461, 2462, and 2463 shall be recovered, etc., under the direction of the Secretary of the Navy, one-half to be paid to the informers or captors and the other half to the Secretary of the Navy, and also authorizes the Secretarx- to mitigate an\- fine, penalty, or forfeiture so incurred. 6 Synopsis <>f Lmm. Section 5264, U. S, R. S., provides for the use of timber by telegraph companies for the construction, maintenance, and operation of lines of telegrapli. Section 5388, U. s. R. S., provides a fine of not more than K500 and imprisonment not more than t«el\'e months in ever>' instance in which timber is unlawfully cut or injured on lands reserved or purchased for military f law, may be reserved or purchased for military or other purposes, or upon any Indian reser\ation, nr lands belonging to or occupied by any tribe of Indians under authority of the United States, shall pay a fine of not more than five hundred dollars urbe imprisoned not more than twelve months, or both, in the discretion of the court.' " Act of February 16, 1SS9 (25 Stat., 673), provides that the President may authorize the Indians residing on reservations or allotments, the fee t(j which remains in the United States, to fell, remove, and dispose of the dead or down timber thereon for the sole benefit of the Imlians. It is further provided that whenever there is cause to believe that the timber has been killed or otherwise injured for the purpose oi .securing its sale under this act such authority shall not be granted. Act of March 3, 1891 (26 Stet., 1093), entitled "An act to amend sei'ticm eight of an act approved March third, eighteen hundred and ninety-diie," etc., provides that "in the States of Colorado, Mfintana, Idaho, Ncjrth Dakota, and South Dakota, Wyoming, and the District of Alaska, and the gold and silver regions of Nevada and the Territory of Utah, in any criminal prosecution or civil action by the United States for a trespass on such public timber lands, or to reinver timber or lumber cut thereon, it shall be a defense if the defendant sliall show that the said timber was so cut or removed from the timber lands for use in such State or Ter- ritory by a resident thereof for agricultural, mining, manufacturing, or domestic purposes, under rules and regulations made and presi.Tibed by the Sei/retary of the Interior, and has not been transported out of the same; but nothing herein contained shall operate to enlarge the rights of any railway company to cut timber on the public domain, provided that the Serretary of the Interior may make suitable rules and regulations to carry out the provisions of this act, and he may designate the sections or tracts of land where timber may be cut, and it shall not be lawful to cut or remove any timber except as may be prescribed by such rules and regulations; but this act shall not operate to repeal the act of June third, eighteen hundred and seventy-eight, providing for the cutting of timber on mineral lands." (See below act of February 13, 1893 (27 Stat., 444), extending this act to New Mexico and Arizona, and act of March 3, 1901 (31 Stat., 1436), extending the act to California, Oregon, and WashiuKton.) Section 24 of the act of March 3, 1891 (26 Stat., 1095), provides for the establishment of forest reservations in any State or Territory having public lands bearing forests. (See below act of June 4, 1S97 (30 Stat., 34-36), providing for the administra- tion of forest reserves created imder this section.) Act of August 4, 1892 (27 Stat., 348), extends the provisions of the act of June 3, 1878 (20 Stat., 89), to all the public-land States. 8 SynojiK''' "f Lnvs. Act of Felinuuv i:l, 1893 (27 Stat., 444), extends the provisions of tne act o£ March ■?,, 1891 (2(1 Stat., 1093), to include the Territories of Xew Jlexiro and Arizona Act of January 19, 189.5 (28 Stat., 6.34) , provides for the utilization of burned timber on certain unperfected homestead entries in Wisconsin, iliimes. .ta and Michigan. Secti-.n 2 of the act of February 2n, ISOi; (2it Stat., 11) , to ..pen certain forest reserva- tions in the State of Tolnrad.. for the location of mining claims, authorizes the owners .,f such .daims to fell and remove timber therefrorji for actual mining purposes in c.,miection witl, the parti.'ular claim from which the timber is felled or removed, but prohibits the fellin- or r.-moviii- of timber from any other por- tions of said reservations ]>y private parties for any ].uri.ose whatever. Act of February 21), 1S<)7 (2!) Stat., WM), eiititlcl "An a.-t concerning certain home- stead lands in Florida," j.rovides "that all persons actually o.-iiipyini.' homesteads in K'ood faith in any of the followin>;-nanied counties in said State of Florida, to wit, Alachua, Lafayette, Levy, Suwaiuc, Bradford, "Baker, and Columlaa, at the time of the storm on or about September twenty-ninth, eighteen hundred and ninety-six, are hereby granted the ri^rht to sell or otherwise dispose of the fallen timber on their homestead entries felled by said stonn, and to devote the proceeds of such sale or barter to tile improvement of their homesteails or sup- port of themselves or their families." Act of .June 1, 1WI7 (.3(1 Stat., 34-36), pro\-irovided that when there is reason to believe that the timber has been killed or otherwise injuri'd for flu' purpose of securiuL; its sale under this act the authority shall not Ih- granted. Aet of May 14, hsiis cli) ,^tat , ID'.l), sertion 2, grants to any duly organized railroad company the rij;ht of way through the lands of the Tnited Stales in the district of Alaska ujion i'oni]iliance with icrtaiii conditions, and also "the right to take from the lauds of the Fnited States, adjacent to the line of said road, material, I'artli, stone, and timlier neces'.^ary foitlie construction of said railroad." Section r. authorizes the Secretar\' of the Interior to issue a permit, snhjeet to certain restric-tions and conditions, to any responsible ]ierso]i, company, or corporation, for a right of way over the ]iublic domain in .\laska, to construct wagon mails anil lramwa\s, and "tlii' jirivileu'i' of taking all in ces.-^ary material from the pnlilic domain in said district for the construction of said wagon roads and trani- wa\-." elc. Section 11 authorizes the Seeretary of the Interior to cause to he iippraised the timber, or any jiart thereof, upon tlu' i>ublic lanils of .Uaska, and from lime to time to sell . -JO much theri'of as he may ileem jiroper, at not less than the appraised value, in such i|uantities to each purchasi'r as he sliall pre- scribe, to be n.-ed in the district of .\laska, but not for ex[iort therefrom, such sales to be limiled to ai-tual neee.'^sities for ci)nsnm|ition in the district from vear to year. It is also provided that the Seeretary of the Irderior may jiermit, under rciju- lations to he jiri'scrilied by him, tlu^ use of timber found uj.on the public lands in Alaska, hy actual settlers, resiilents, individual miners, and jirosjiectors for minerals, for firewood, fencing, buildings, mining, prospei'ling, and for domestic puri>oses, as may actually be neeiled li\- .such persons for such purpo.ues. fSi/nops!s' (if Laws. 9 Act of July 1, 1898 (30 Stat., 593), grants the right to cut timber for mining and domestic purposes at such prices, and subjc'ct to yucli regulations, as may be pre- scribed by the Secretary of the Interior, from that portion of the ('olvillc Indian Reservation in the State of AVashington which was vacated and rcwtiired to the pubhc domain by the act of July 1, 1892 (127 Stat, 6L'), the net proceeds to be ;er cut fnjni any ]iul)lic lands not reserved or purchased for furnishing timber for the Na\y. Sections 2463 and 42(y>, U. S. E. S. Providing that collectors of custi im.s in Alabama, Florida, Louisiana, and ^lississippi must see to it that nolive-oak timber is trans- ported or exported out of said States. Section 4751, U. S. K. S. Providing relative to recovery and disposition of penalties and forfeitures umler sections 2461, 2462, and 2468. Si'ition 5.388, U. S. I;. S. Prohibiting the cutting or destroying of timber on reserved lands. (Amended liy act of June 4, ISHS; 2.'> Stat., 166.) Act of ilarch 3, :S75 (Is Stat., 4S1). Prohiliitingtlje cutting, di-stroyini^, orinjuring of any trees on reserved lands. .\ct of April :>0, 1S7.S, secti.ju 2 (20 Stat., 4i;). Providing tliat if any timber cut on the public lands shall be exported from the Territories of the United States it sliall be lialile to seizure liy United States authority wherever found. .\ct of June ?,, 1S7S, sei'tion 4 (20 Stat., 89). Prohibiting the cutting of timber in California, ( li'egou, Nevada, or Washington for exjiort, ilisposal, (jr transportation. This act is made ai)i>licable to all the public-land States by the act of August 4, 1H!-I2 (27 Stat., lUS). Act of June 4, IS.s.s (25 Stat., lr,6). Prohibiting the cutting of timber on lands reserved for military or other purposes, or on Indian reservations, etc. .\ct of ilarch 8, Is'.M (26 Stat., 109.')). Authorizing the President of the United Stati-s to make forest reservations. Act of August 4, 1,S92 (27 Stat., :;4sj. Extending the provisions of the act of June3, J.S7S (20 Stat., S9), t.) all the public-land States. .\cl of February 20, bS96 (29 Stat., 11). Ojiening certain forest reservations in the State of Colorado for the loi-ation of mining claims. .\cl of .Tune 4, 1,S97 (:;o Stat., ;;4-:;6|. IVovides for the survey, government, and ]irotectiou of fori'sl reserves created under aiitliority of the act of Jlarch 3,1891 (2li Stat., I(l9."ij. A. I of May 5, 1900 (:n Stat., 169), To prevent forest fires on the ].nblic domain. .\r'l'S VCTIIomzlN'O the use of ITBLIO TIMBER. Section r>2(;4, U. S. l;. S. Pi-o\-idiiig for th.- use of public timber by telegraph I'oiiipuiiies. .Act of :\Iarch 3, lS7."i (l.s Stat., 482). .Vuthorizing right-of-way railroails to procure limlier from public lands for construction jiurjio.ses. The si'\eral acts making land grants to railroail eoni]ianies. .\ct of June 3, 1878 (20 Stat., 88). Authorizing the cutting of timber from public mineral lands in Colorado, Nevada, New ]\Iexico, Arizona, Utah, Wyoming, Dakota, Idaho, and jMoutana for domestic purposes. Act of June 3, 1878 (20 Stat., 89). Authorizing the sale of public timber lands in ( 'alilornia, (.)reg.iu, Ne\ada, and Washington, and the cutting of timber by miners and agriculturists for use on their claims, and the taking of tind>er for the use of the United States. Synopsis of Zinns. 11 This act, by the act of August 4, 1892 (27 Stat., 348), is rxtcndi'd to all the pubhc-laiid States. (See below.) Act of February 16, 1889 (25 Stat., 673) . Authorizing IndiaiiH on rt-nervations to cut, remove, and dispose of dead and down timber. Act of March 3, 1891 (26Stat., 1093). Authorizing the cutting of timber in Colorado, Montana, Idaho, North Dakota, South Dakota, Wyoming, Alaska, Nevada, and Utah for agricultural, mining, manufacturing, or domestic purposes. The act of February 13, 1893 (27 Stat., 444), extends the operation of this act to New Mexico and .Irizona, and the act of March 3, 1901 (31 Stat., 1436), extends its operation to California, Oregon, and Washington. (See below.) Act of August 4, 1892 (27 Stat., 348). Extending the provisions of the act of June 3, 1.S7S (20 Stat., 89), to all the pubhc-land States. Act of February 13, l«i:; (27 Stat., 444). Extending the provisions of the act of J[arch3, 18ill (26 Stat., 1093), to include the Territories of New IMcxico and Arizona. Act of January 19, 189.5 (28 Stat., 634). Providing for the utilization of burned timber on certain unperfected homestead entries in Wisconsin, Minnesota, and Michigan. Act of February 20, 1896 (29 Stat., 11). Opening certain forest renervations in the State of Colorado for the location of mining claims. Act of February 26, 1897 (29 Stat., 599). Providing for the utilization of certain felled timber on unperfected homestead entries in certain counties in Florida. Act of June 7, 1897 (30 Stat., 90). Providing for the sale of dead timber on the ceded Chippewa Indian Reservation in Minnesota. Act of May 14, 1S9.S (.30 Stat., 409), sectiims 2 and 6. Authorizing right-of-way rail- roads and wagon roads and tramways in Alaska to take timber, etc., fur cc instruc- tion purposes; and section 11, providing for the sale and the free use (if timber in Alaska. Act of July 1, 1S98 (30 Stat., 593). Authorizes the sale of timber from the north half of the C'olvillc Indian Ri'servation, in the State of Washinjrton, under regu- lations to be prescribed by the Secretary of the Interior. Act of July 1, 1SH8 (30 Stat., 618). Authorizes the Secretary of the Interior to grant permits to citizens of Idaho and Wyoming to cut timber in W'ynuiing west of the continental divide on the Snake River and its tributaries, for agricultural, min- ing, or other domestic purposes, and to remove such timl )er to the State oi Idaho. Act of March 3, 1901 (31 Stat., 1436). Extends to residents of California, Oregon, and Washington the privilege of taking timber from public lands in said States under the act of JSIarch 3, 1891 (26 Stat., 1093). -f Ai-t of March 3, 1901 (31 Stat., 1439). Extends to citizensof Montana and Wyoming the privileiie of taking timber under the provisions of tlie act of March 3, 1891 (26 Stat., 1093), from the tract specified in Montana for use in either of said States. In addition to the above specific legislation in respect to timber on public lands the inceptive rights acquired by a homestead claimant are held to extend to the iisi' of so much timber as it may be necessar)- to fell or remove in (tearing the land for cultivation, or for buildings, fences, or other improvements on the land. See United States v. Levi W. Nelson (5 Sawyer, 68), cited on page 115; also Shiver v. United States (159 U. S., 491), cited on page 122. SUMMARY. The foregoing synopsis shows that section 2461, U. S. R. S. (act of March 2, 1831; 4 Stat., 472), constitutes the original policy resjiccting pubUc timber, and the extent to which certain of the subsequent acts operate as modifications of COMPILATION OF PUBLIC TIMBER LAWS AND REGU- LATIONS AND DECISIONS THEREUNDER. SECTION 2461, TJ. S. B. S. (Act of Jlarch 2, 1K31; 4 Stat., 472.) If any person shall cut, or cause or procure to be cut, or aid, assist, or be emploj'ed in cutting, or shall wantonly destroy, or cause or procure to be wantonly destroyed, or aid, assist, or l>c emploj'ed in wantonlj' destroying an^- live-oak or red-cedar trees, or other timber standing, growing, or being on any lands of the United States, which, in pur- suance of any law passed, or hereafter to be passed, have been reserved or purchased for the use of the United States, for supplying or furnish- ing therefrom timber for the Navy of the United States; or if any person shall remove, or cause or procure to be voniovcd, or aid, or assist, or be employed in removing from any sucli lands wliich have been reserved or purchased, any liAC-oak or icd-icdar trees, or other timber, unless duly authorized so to do, by order, iu writing, of a competent officer, and for the use of the Navy of the United States; or if any person shall cut, or cause or procure to be cut, or aid, or assist or be employed in cutting any live-oak or red-cedar trees, or other timber on, or shall remove, or cause or procure to be removi^d, or aid or assist, or be employed in remoAdng any live-oak or red-cedar trees or other timber from any other lands of the United States, acquired, or hereafter to be acquired, with intent to export, dispose of, use, or employ the same in any manner whatsoever, other than for the use of the Navy of the United States; c\ery such person shall pay a fine not less than triple the value of the trees oi' timber so cut, destroyed, or removed, and shall be imprisoned not exceeding twelve months. (See sec. il51.) TIMBER DEFINED. United States v. Stokes and Another. Circuit court, southern district of Florida (14 Fed. Rep., 824). Penalty— Cutting Timber on Public Lands— "Timber" Defined. The term " timber," as used in section 2461, Revised Statutes, does not apply alone to large trees fitted for house or ship building, hut includes trees of any size, of a character or sort that may he used in any kind of manufacture or the construction of any article. 14 Section. 21^61, Ee vised SfuinUs. Penalty — Pkosecution fob — Use of Trees no Justification. Using trees for firewood or burning into charcoal is no justification of the cutting. SaMU IIoNri'STE.Mi I'^NTRY No EFFECT OX TiTLE. A lidiiieytead entry works no change in the title <.f lands which can preventa j>ri)secution under the said section. United Statks r. Peteb J)ai:to.n. Cirenit court of the United Stat^-s ( tJ McLean, 4(:<). Under the ait of 18:!1, for the punishment of offenses in cutting and removing timber fnjm the Uniteil States lands, the rule of proof is fixed by tlie statute. The ( lovernnient must jirove the cutting on the lands specified; the defendant may reliut the same by shfiwing circumstances of ignorance as to the section Hnea or mistake. The jiroof must correspond with tlie charge — cutting oak is not cutting pine timber. The prodf (if the act places the burden of e.-vplanation on the defendant. From an unlawful act an unlawful intent will lie inferred. A reasonalile do\ibt is that which relates either to the charactei- er tlie force of the testimony, and not a mere conjecture. A\'iuiiNs, ./. : The ilofendant was ti'iod uii an indictment chargino him with remov- ino- and cutting tinilici- on (lo\'crnni('iit lands. Tho tcstinuuiy showed that his father owned ;i mill scat and ^ariuiis tiacts of land in the vicinaoc (if the lands dcscrilied in the indictment; that he resided at the mill, as the agent of his father who lived in Chicago, and was under iiistmcticins to avoid cutting on the (_T(i\'crinncnt lands; that a iiumln'f of trees were cut hy misttike across the lines, which "were sub- secjiicntly ascertained hy actual survey, the defendant accompanying tho surve^'or and showing the corner posts; and when he ascertained tluit he had cut o\'cr his lines he wrote to his father and caused the quarter section on whicdi the timber was cut to he entered at the Land Office, the certiticate of which was given in (Midence. It was contended on the part of tin' go\'ernment — Fii-st. 'l'hateirctiinstanc(\s showing ignoranei^ and mistake, if believed by the jni-y, constituted no defense. Second. That a KiiliKajiiciit entry of the hinds wtis no defense. c'liAiidF'; OF THE couirr. The prisoner at the bar, Peter Darton, whose true deliverance between him and the I'niled .States you are obligated by your solenm oaths to make, according to the evidence given you in court, is charged with timber cutting and timber removing on and from the lands of the United States. The peculiar offense is creatcnl l.iy and defined and described in the statides of the United States. Tho act of :\ritrch 2, 1831, by its second section, constitutes three general classes of offenses, with their respcctixe accessorial subdivi- sions. Section 'BJfil, Revlaed Statutes. 15 The court will enumerate them in their order, that you may be better enabled to understand the particular offense now under consideration. The first is i\yQcuttin,j and rcmorlmj naval timber, specifically named red cedar and lire oak, on lands especially selected and reserved by the Government, or aiding in such acts, or wantonly destroying on such lands such naval timber. By a previous enactment of Congress, the Ist of March, 1817, entitled "An act," making reservation of certain public lands "to supply timber for naval purposes," it was made the duty of the Secretary of the Navy, under the direction of the President of the United States, to cause such vacant and unappropriated public lands as produced the live-oak and red-cedar timbers to be explored and to select such tracts as, according to his judgment, were necessary to furnish the Navy of the United States a sufficient supply of naval timber. It was then declared an offense, punishable by fine and imprison- ment, for any person to cut an>/ tiviler on such reserved tracts without authority to do so ly order of a coinpt-tmt officer. At the same time it was declared criminal to cut or remove, or be employed in removing, the naval timber specified, with intent to dis- pose of the same for transportation, from the same description of the public lands. Such, with other measures of a penal character, and with the avowed design of preserving a supply of timber for the United States Na\y, were the salutary provisions of the statute of 1817. But the Government was the proprietor of other lands, on which grew other timber, valuable in a great degree for other purposes than shipbuilding. Much of these lands were surveyed l)y and under national authority, and hy various statutory enactments were opened to settlements, and offered at a fixed price, which could neither be augmented nor lessened by demand. The policy of these statutes was twofold: First, the speedy settle- ment of the public domain, and thereby converting the wilderness into a garden; and the acquisition of a revenue from the public sales. In furtherance of both objects it was desirable that the lands should be so far protected from spoliation as to encourage immigration and induce settlement and sale. Moreover, it was discovered that the protection afforded hi\' the act of 1817 was not sufficiently extensive as to naval timber growing else- where than on the reservations; and the public lands in the North and Southwest, being repeatedly stripped of valuable house timber by lawless trespassers, the National Legislature was moved to amend and enlarge the provisions of the act of 1817 by those of 1831, embracing other lands than the reserved lands, naval timber on othefi' lands, and other timber than naval timber on the unreserved public lands of the United States. Thus originated the other two classes as designated in the first section of the last act. namelj': Second. The offense of cutting naval timber on other lands, etc. 16 Section '2Ifil, Revised Statutes. Third. The offense of cutting or removing, etc., "thcr timber than na\-ul timber on other landa than naval land(s, with the intent to e;rjjort, disi,u,se of, use, or employ the same In amj vonuirr v^heitsoever, other tloin for the use of the j\^<'>'ij of the t'u'ited States. This last comprehends the charges set forth in this indictment, which contains four counts. -X. ^ -x- * * * * Before any application of tlu' law to the facts of this case the court will briefly detain your attention on two prominent propositions involved: First. \\'hat must be prc>\eil by the (rovcrnment in order to sustain the prosecution. Second. What must be proved ))y tlic defendant, in case the Gov- ernment has made a case to warrant a conviction, as matter of com- plete exculpation. What must be pro\-cd l)y tli<' (lovi'mment. The rule of proof is fixed by the statute. The offense is cuttine- or removing timber from GovernnKMit lands, with the evil intent described. The fact then must be fully established by conclusi\-e proof that timber of the kind described was cut by the defendant or 1i_y his pro- curement, and that the same ^ivas cut on the township and section and ranee .■specially set forth. Cutting otho.r timber than that charged will not sulEec. If pine tr<.'es orpine logs are charged, proof of oak or hicl^qnJte. timber from any * * * lan the same m any manner whatsoever other than for the use of th(^ Navy of the United States, every such person shall pay a fine of not h'ss than triple the value of the trees or timber so cut, destroyed, or removed, and shall be imprisoned not rxceeding- twelve months." After the usual juris- dictional and necessary a\erments, the indictment charg-ed " that the said Rafael Soto, within and upon the public unsurveyed lands of the United States, and upon the lands known and designated as the Camp McDowell Military Reservation, did unlawfully, willfully, and wrong- fully t-ut, cause to be cut, remove and cause to lie remo\-cd therefrom mesquite trees and incsquite timber, to wit, five hundred mesquite trees of the value of twci hundred and fifty dollars lawful money of the United States, with the intent then and there to use and dispose of the same ii\ a manner other than for (lie u^e (jf the United States Navv."' The defendant demurred to the indictment on the ground that the facts stated did not constitute a public ofi'ensc, relying upon the former adjudication of this court in Bustamente /■. United States (4:2 Pac, 111), wherein it was distinctly |held that '"mesquite is not 'timber' within the meaning of said section 241)1." The district court, following the authority of that decision, sustained the demur- rer and ordered that judgment be entered dismissing said cause and discharging the defendant. Counsel for the (Tovcrnment haAe brought this appeal upon the theoi-y that there is manifest error in the ruling and judgment of the lower court, and that the correction thereof is important to the proper and uniform administration of the criminal law. We are asl-;od to re\-iew the holding in Bustamente /■. L'nited Stati.'s, supra, as that case inx'oh'ed the same questions which are here again presented for our consideration. These are: 1. Is mesquite tind)er or not within the meaning of section 24til, R. S. U S. i '1. ( 'an the (pu'stion of whether mesquite is timber or not be properly determined u2X)n denmrrer to an indictment charging the unlawful cutting of mesijuite on the 2:)ul)lic domain ? The term "timber" in its earlier signification was applied chiefly to wood of the larger dimen- sions use(l in the l)uilding of houses and ships, but the general use of all kinds of forest trees for constructive puriioses has given to the tei-m a less restricted meaning. AVebster defines " timber" to be ""that sort of wood which is proper for buildings or for tools, utensils, furniture, carriages, fences, ships, and the like — usually said of felled trees, but sometimes of those standing." In this sense it would include all kinds of wood used either for building purposes or in the manufacture or construction of useful articles. The language of the section under which the indictment was drawn mentions particularly Section 24.61, Eeolfc confined to trees or wood of such kinds and sizes as would be especially adapted to house or ship building. (United States ;•. Stores, l-t Fed., S24.) It is to bo obser\'ed that in Bustaniente v. United States, supra, this court conceded to the term its broader signification, but upon what was assumed to be common knowledge proceeded to characterize the mesquite as "'a brittle, knotty, skraggy, fiberless, gnarled wood that can only be used for firewood. It is used in the manufacture of no useful article. It only inhabits the desert. * * * Neither a ship carpenter, molder, cabinetmaker, last maker, carriage builder, nor any other kind of woodworker would include mes(iuite in their several classifications of timber." From which the court in that case reached the conclusion that Congress did not intend to include it in the term "timber" when it passed this law. And for the reason that mesquite was not timlxT, within the meaning of the law, it was ruled that the demurrer to the indictment should have been sustained. If the wood in question is accurately distinguished by the description givt'n to it by the learned judge who wrote the prevailing opinion in the Bu.^tanieiitc ca.se, and the characteristics therein mentioned are commonl}- known and recog- nized, then doubtless his conclusion is correct. But in\'estigation into the various growths, character, and known uses of the mesciuitc tree will not, we believe, warrant the sharply defined limitation which the court from judicial knowledge has placed upon its utility. From the Century Dictionary we obtain the following definition: Mesqotte. An important leguminous tree, or often shruli, I^rosopis juliflora, grow- ing from Texas to southern California, and thence southward to Chile. It reaches a height of 30 or 40 feet, but is often scrubby, forming dense clumps of cha[)arral. Under the action of prairie fires it is reduced to a low shrub, developing then an enormous mass of roots — locally known as underground forest — of great value as fuel. The wood is heavy and very hard, almost indestructible in contact with the ground; it is used for the beams and underpinnings of adobe houses, for posts and fencing, for fuel, and for furniture. It is of a brown or red color, handsome -when polished, but difficult to work. For the region of Arizona the mesquite, to a considerable extent, ful- fills the functions of a forest tree. Although used chiefly for fuel, its value for constructive purposes has also been recognized, and the use of mesquite of larger growth in the construction of buildings and fences here is sufficiently common to make it a matter of general knowledge. We hold, therefore, that in prosecutions under the fore- going statute the question of whether or not mesquite is timber must 20 Section ^Ji.61, BeiMscd Statutes— Criminal Llahllity. necessarily be one of fact, dependent upon the character of the -wood charged and shown to have been cut or removed ia each particular case, and that in the case at bar it was not a question which could properly be determined upon a demurrer to the indictment. This view leads to the disapproval of the law as declared in Bustamente v. United States, supra, and it also follows that there is error in the ruling and judgment of the lower court. But as that judgment in this case operates as a bar to another prosecution for the same offense the statute prevents its reversal. LIABIIilTT. CRIMINAL LIABILITY. The penal act of March 2, 1881, 4 Stat. , 472 (section L'lCl. T. S. R. S.), provides "for the punishment of offenses committed in cutting, destroying, or removing live oak and other timber or trees reserved for naval pvirposes." This act of IMarch 2, 1S31, was fully considered in the case of The United States i\ Ephraim Briggs (9 Howard, 3-51). in which the Supreme Court decided that the said act authorized the prosecution and punishment of all trespassers on public lands hj cutting timber, whether such tim))cr was fit for naval purposes or not. Thk Fnited States r. Ephraim Beiggs. (9 Howard, o51.) On the LM of Mnicli, ls:;i, Congre.^s passed an aft (4 St;it., 472), entitled "An act to [irovidf fur tlie punishment o£ nffen.ses rnniniitted in cutting, destroying, or reiiinving live naic it other tinilier or trees reserved for naval purposes." The art itself declares that e\ery person who shall rei.iove, etc., any live oak or red cedar trees or other timher fronr any other lands of the United States shall be punished by fine and imprisonment. Th(! title of the act would indicati^ that timber removed for naval purposes was meant tn be protecteil by this mnde and none ntlier. But the enactiui; clause is i.'eneral, and therefure catting and using of oak and hickory or any other description (if timber tix es from the public lands is indictable and punishable by tine and imjirisonment. Sec also decision in case of Forsyth /'. LTnited States (9 Howard, a71). The United States /•. Redy. United States circuit court (5 JMcLean, 358). Under the act of Congress, it is not necessary to describe, in an indictment for tres- l)ass on the public lands, every kind of timber that was cut. It is sufficient t(.i name one or more species and in the wcirds of the statute allege I it.her timbers. An indictment will lie for cutting timber on any of the public lands, though it may not have been reserved for naval purposes. Crliiunul Liability — Neglige nee. 21 OPINION or THE COURT. This is an indictment for cutting walnut and other trees on the public lands of the United States. It was objected that no other timber except what is named in the indictment can be proved. But the court held that, under the allegation of other timber, proof other than walnut trees was admissible to the jury. An objection was also made, that an indictment would not lie for a trespass on the public lands unless such lands had l)een reserxed for naval purposes. But tlie court ruled an indictment could be sustained, under the decisions, for the cutting of timl)er on the public lands which had not been reserved for naval purposes. The court instructed the jury they must be satisfied that the person who cut the timber was employed ])y the defendant and that the tim- ber was cut by his direction. If this be proved, the defendant is answerable, under the law, the same as if the defendant had in person committed the trespass. The jury found the defendant not guilty. United States t. Thomi'kon. In the circuit court of the United States (6 McLean, 56). Not necessary, in an indictment for cutting timber, to state the clii.ss of lands from which the trees were cut. Such a description as shows tb.e accused the uffense with wliicli lie is chiirt;ed is sufficient. Where a statute creates an offense, and the indictment charges the same in the |jre- cise words of the statute, it is unnecessary ti.i prefix to the charging words the word "unlawful," or any other word showing a wrongful intention. United States ■/■. Stonk. District court, district of Idaho (49 Fed. Kf-p. , s4S). Public L.\nds — TiitBER Tresp.xss. Criminal jirdceedings may be maintained under section 2461, U. 8. E. S., for a violation of its provisions; and it is sufficient to allege in the indictment that the cutting and removing of the timber was for use other than that of the Navy of the United States. It is not necessary to allege that defendant was not justi- fied under any of the various land laws of the United States. Same. Charging the " cutting and removing " of timber does not constitute the alle- gation of two offenses to one count. TRESPASS THROVaH NEGLIGENCE. In an action to recover a statutory penalty for the cutting of trees, defendant is liable for careless as well as willful cutting, and can not escape liability by showing that he turned his servants into an unen- closed lot, with instructions to cut only his trees, without approxi- mately indicating to them the boundaries of his land. (United States Digest, Vol. XIV, 803; Keirn -«. Warfield, 60 Miss., 799.) 22 C 'rim liuil L'uthnitij— CI oil Liahilitij. SECTION zm, U. S. R. 8., NOT REPEALED BY THE ACTS OF JUNE S, 1878 [20 STAT, S9), AND AUGUST 4, 189S {H7 STAT., S48). ,Soe Commissioner of the General Land Office to the Secretary of the Interior, j\lay I'l, l'^!"5, cited on page 105. CRIMINAL LIABILITY FOR PUBLIC TIMBER TRESPASS CAN NOT BE compromised. Department of Justice, Office or the Solicitor of the Treasury, W,i.s/r(ivisi(ins, I apprehend that, in relation to all |irii|icrty, real or persnnal, which the Cnilcd States are authorized hy the Constitu- tion to hold, tliey liavt^ all the civil remedies, whether for the prevention or redresa (if injuries, whii-li individuals possess. (See 3 Wlieatou, 181.) So the United States, being authorized to aceeiit and to hold tlicse lands for the common good, must have all the lethal means of protecling the ]iioperty thus confided to them that individuals enjoy in like cases. « * * They aie, therefore, in my opinion, entitled to the injunction of waste by way of jireventiou, and to the action of trespass by way of pimishment, in like manner as individuals, similarly situated, are entitled to them. Attorney-General Tane\', afterwards Chief Justice of the United States, in an opinion of y2d of August, IsyS, cites this opinion of Mr. Wirt, and concurs in it. Civil Llahility—BeiiieJi/ "f Goocrnuicni. 23 United States v. Lee. (106 U. S., 222.) ******* Another consideration is that sineo the United States can not be made a defendant to a suit concerning its property, and no judgment in any suit against an individual who has possession or control of such property can bind or conclude the Government, as is decided liy this court in the case of Carr /'. United States, already referred to," the Government is always at liberty, notwithstanding any such judgment, to avail itself of all the remedies which the law allows to every person, natural or artificial, for the vindication and assertion of its rights. ****** ■* RIGHT TO PURSUE A XT) RECLAIM PROl'ERTY. Justice demands, therefore, and the law concedes that the owner of personal property may pursue and reclaim the chattel wherever he can find and identify it. (Schouler's Personal Property, vol. 2, p. 21.) CoTTOx 7'. United Status. (11 Hrwar.l, 229.) The United States have a right to bring an action ef tresiias.s iimn-e i-hmsam Jrnjit against a person for cutting and carrying away trees from the pubHc lands. This case was brought up, by writ of error, from the district court of the United States for the northern district of Florida. It was an action of trespass ijiKtri/ cJiniKiua frnjit brought by the United States for cutting trees upon public lands, commenced in the superior court of ^^'est Florida in 1S4-4, to which the defendant pleaded not guilty on the 26th of ^Nlarch, 18i.5. The cause remained pending in said court until the l.Sth of .lanuaiy, 1S4S, when, in pursuance of the act of the 22d February, 1847 (ch. 17, sec. H), it was transferred to the United States district court for the northern district of Florida, and was ordered to stand for trial at the ensuing March term. At that term the defendant appeared, and on leave filed a demurrer to the declaration, which, after argument, was overruled, and the cause set down for trial on the plea of not guilty. The cause having come on, the defendant requested the court to charge the jury — First. That the only remedy for the United States for cutting pine timber on the public lands was by indictment. Second. That the United States have no common-law remedy for private wrongs. Third. That the right of the United States to bring this action nmst 24 Ci'oll Liahili.ty — Remedy of Govcmiaeid. be derived either from an act of Congress or from the law of some State in which the contract was made by which it acquired the property on which this trespass is alleged to have been committed. Fourth. These lands were acquired by treaty from Spain, and that the United States has no common-law remedy for trespass committed thereon; and that Congress not having authorized the exercise of this remedy the plaintiff ought not to recover any damages. Which charge the court refused to give, whereupon the defendant excepted. The jury found the defendant guilty of the trespass, and assessed the damages of the United States at$3(;)ii.0n, for which amount, and $1^2.22 costs, judgment was entered up. Amotion in arrest of judgment was overruled. The Supreme Court having at the last tei'm decided that it had juris- diction in cases like this under the act of the 27tli of Februarj^ 184:7 without reference to the amount in controversy, the case now came before the court on the points raised by the bill of exceptions. (9 Plow. 57lt.) It was argued by Mr. Walker for the plaintiff in error and i\Ir. Crit- tenden (Attornej'-General) for the United States. j\Ir. Crittenden. For the proper understanding of the points in the case, it is necessary to call the attention of the court to the act of the 2d of March, 18.31 (4 Stat., 47^!), which was before it at the last terrain the case of the United States r. Briggs (9 Howard, 3.51), in which it was decided that the cutting or procuring to be cut, removing or procuring to be removed, or aiding, or assisting, or lieing employed in the cutting of all descriptions of timber trees on the public lands, is an indictable offense under the said act and punishable by tine and imprisonment. No defense arising out of the passing of this act was pleaded either by way of abatement or specially. The United States ha\(> the same right as any other proprietor to sue for trespasses on the public lands, and that right is not merged or lost by such trespasses having been made an offense punishable bv indict- ment under the act of ls?A. (Dugan r. United States, 3 Wheat., 181; United States /-. Clear, 3 Howard, 121; ^lanro v. Almeida, 10 Wheat., 11)4; Cross /•. Cuthrie, 2 Root, Con. R., 90; Smith r. Weaver, 1 Taylor, 58; Blassingaiue /-. Glavcs, 6 B. Monroe, 38; Foster /'. The Common- wealth, 8 Watts and Serg., 77.) Mr. Justice Grier delivered the opinion of the court: This is an action of trespass <2iijire clausumfr.-git brought by the United States against Loftin Cotton, in which he is charged with cut- ting and carrying away a large number of pine and juniper trees from the lands of plaintiff. On the trial below, the counsel for defendant requested the court to instruct the jury: First, "that the only remedy for the United States Civil Lidhility — Remedy of Oovei'niiient. 25 for cutting pine timber on the public lands was }).y indictment." Sec- ond, "that the United States have no common-lav remedy for private wrongs." The refusal by the court to give these instructions is now alleged as error. Every sovereign State is of necessity a body politic, or artificial person, and as such capable of making contracts and holding property, both real and personal. It is true that in consequence of the peculiar distribution of the powers of government between the State and the United States, offenses against the latter, as a sovereign, are those only which are defined by statute, while what are called common-law offenses are the subjects of punishment only by the States and Territories within whose jurisdiction they are committed. But the powers of the United States as a sovereign, dealing with offenders against their laws, must not be confounded with their rights as a body politic. It would present a strange anomaly indeed, if, having the power to make con- tracts and hold propert}' as other persons, natural or artificial, thej" were not entitled to the same remedies for their protection. The restraints of thfe Constitution upon their sovereign powers can not affect their civil rights. Although as a sovereign the United States majf not be sued, j^et as a corporation or bod}' politic they may bring suits to enforce their contracts and protect their property in the State courts, or in their own tribunals administering the same laws. As an owner of propertj' in almost every State of the Union, they have the same right to have it protected by the local laws that other persons have. As was said liy this court in Dugan v. United States ()-! Wheat., 181), "it would be strange to deny them a right which is secured to every citizen of the United States." In the United States 'i\ The Bank of the ]\Ietropolis (15 Peters, 392), it was decided that when th(> United States, by their authorized agents, become a party to negotiable paper, they have all the rights and incur all the responsibilities of other per- sons who are parties to such instruments. In the United States v. Gear (3 Howard, 120), the right of the United States to maintain an action of trespass for taking ore from their lead mines ^^'as not questioned. Many trespasses are also public offenses by common law, or are made so hy statute, but the punishment of the public offense is no bar to the remedy for the private injury. The fact, therefore, that the defendant in this case might have been punished by indictment as for a public offense is no defen.se against the present action. Whether, if he had actually been indicted and amerced for this trespass in a crimi- nal prosecution in the name of the United States, such conviction and fine could be pleaded in a bar to a civil action by the same plaintiff, is a question not before us in this case, and is therefore not decided. The judgment of the district court is therefore affirmed. 26 Civil Liuhility. ORDEE. This cause came on to be heard on the transcript of the record from the district court of the United States for the northern district of Florida, and was argued hy counsel. On consideration whereof it is now here ordered and adjudged hy this court that the judgment of the said district court in this cause be, and the same is hereby, affirmed, with damages at the rate of ('> per cent per annum. LIABILITY OF J'ERsay CUTriXG TIMBEIi FliOM PUBLIC LAND SOLD TO HIM BY J'T'IlLlr OFFICERS WITHOUT A VTHORITY. Mary A. Phinney et al. (2S L. II., 168.) A purchaser riniiieously allowcil to l>ny "offered" timber land takes nothing tlicrel))-; and if he cut.s timln-r from such land in liable in damages to the United States in a civil action, to tln' saiiie extent as though the trespass had been committed upon any other part nf the public domain. * * * * * * * Sccriiiirij Tlifcliciicl' fi> till- ( 'oiii III ixK/oiier nt tin' (Ti'iii/rid Liiml office, Marrli 3, 1899. Doi-omliof L'Jr, IS'.Kl. ]\IaiT Phinnoy, and Francis J. Burns as the duly appointed administratdr of the estate and guardian of the minor chil- dren iif James F. Phinney, dereasod, respectively, joined in the execu- tion of a power of attorney making IIar\'ey Spaulding & Sons their attorneys to <'()llect and re(.'eive from the Government the purchase money, fe(\s. and cmnmissions, amounting to §ol(i, paid b_y the said James F. Phinney April 1, lss4, under the timber and stone act, for the S^^'. -\ of the SE, \ of sec. 20 and the W. \ of the NE. i of sec. 2!t, T. :;y N., i;. :;'. E., 01ymi)ia, ^Vash. January 2'.t. 1S97, said attor- neys Hied in your ollice a proper application for tlie repaymentof said money, which was rejocted. Appeal here. James F. Phinney died June 22, lsi»l, and 3'our office canceled his entry for said land, ^larcli r, or any portion of such timber, from this land, and error — in holding that where it is plain an entry ia erroneously allowed and cim nut be con- firmed, and the entry is canceled fortliat reason, that the Government can, on a r.ne- sided, partial, and unsubstantiated report of a special agent, without notice to the applicant, that at some time there has or may have been a cuttinj; of the timber on the tract involved, avoid the repayment of the purchase money, as provided icr in the act of June 16, 1880. If the eutryman, or any one for him, cut or removed limber from this land, he was, while living, and his estate is liable in trespass therefor. The officers of the Land Department, acting as the agents of the Government under special poweis, exceeded their authority in making the sale of this land under the timber and stone act, and the purchaser took nothing hy his purchase. He was therefore lia))le in damages, and his estate is now liable in damages to the United States, to the same extent as thou.gli the trespass had lieen committed on any other of the public lands of the United States. He was not liable to a crimmal prosecution, becaus(} he was acting in good faith, bclie\'ing that the tim))er belonged to him, ])ut this us not a \a\\<\ defense to a civil action. ACQUITTAL IX CRIMINAL SUIT NO BAR TO SUIT TO RECOVER THE VALUE OF TIMBER. Stone v. United States. Circuit court of appeals, ninth circuit (64 Fegs, the Government may replevy such logs, even when they have reacheil the lioom, or, at its election, maysueiu trover for their value, and in either ("i.-ie may recover without deduction for their enhanci'd value, after severance from the freehold, arising fruin the labor of the \\ronLr the "sturapage" value. (Ncsbit r. St. Paul Luml)er ( 'nni|iany, 21 .Minn., 4!ll.) Whether a different rule of damages would apply if the trespass were neither willful, fraudulent, nor negligent, ijiiurt'-' CUTTING TLMBER Ul'ON I-TBLIC L.\XDS * " * — REMEDY OF GOVERN.MENT — I.N'DICr- .\IENT — REPLEVIN — TROVER — .ME\SCRE OF n.AMAGES. The Government hits brought numerous civil suits in the nature of trover to recover the value of pine s;i\v logs cut upon the public lands by the defendants or their vendors, and which, before the suits were commenced, had be(>n rafted and bi'ouyht down into the boom at iNIinne- apolis, Brainerd, and other places. It has also caused the persons who Civil Lialil'tty—Revii'di/ of Governiiuiit^Mcasiir,' <)fl)ani(ig<'.s. 29 cut the timber to be indicted. Certain questions of law arising;- in these cases were argued and decided, as shown in the opinion of the court. Dillon, C. J.: * * * * x- * * 3. The cutting- of timber upon the public lands is made a crime by the legislation of Congress, which may bo jjrosecuted l)y indictment (Rev. Stat., sec. 2i61), notwithstanding the provisions of section 4751. And the Government may proceed against trespassers upon its land, civilly or criminally, or l)oth at its election, and judgment in one form of remedy is no bar to the prosecution of the other remedy. The principle of the decision of ^Nlr. Justice IMiller in The United States v. McKee, ante, has no application to such a case. It sues in these cases civilly, as the proprietor of the trees or timber which have been unlawfully cut and removed from its lands, to recover the value thereof. And it prosecutes the ti-espassers criminally in its sovereign capacity for a violation of its criminal statute in that behalf . 4. "Where timber has been cut into logs upon the public lands liy a person who knows that the land belongs to the Government, (ir who has no reasonable ground to believe that it belongs to him or to some one under whom he claims, and such logs are l)y him hauled to the water course and rafted and taken to a distant boom, liy means of which labor of the wrongdoer their value is much enhanced licyond their value when first severed from the freehold, the Government may replevy such logs in the boom, or may maintain an action in the nature of tiover for their value, and in either case may recover without deduction for the enhanced value which may have been giv'cn to the logs after the sever- ance from the freehold by the labor of the wrongdoer. In such a case, the Government is not confined to what is called the ' ' stumpage '' value, but maj' recover the value of the logs in the boom. As in such case the title of the Government to logs thus cut con- tinues as against the wrongdoer and all persons (Town r. Dubois, 6 Wall., 548) until at least there has been some greater transformation of the original property than exists while it remains in the shape of logs, if the wrongdoer sells the logs to a person who has no actual notice that they were cut on the public lands, still the Government may maintain replevin against such vendee for the logs, if they are in existence, or if he has sawed them into lumljer (which is a conversion of the logs), the Government may recover from him the value of such logs, when so manufactured into lumber, and is not confined to the "stumpage" value. On the last proposition the authorities are conflicting, and we adopt and follow the decision of the supreme court of the State upon the point. (Nesbit v. St. Paul Lumber Company, 21 Minn., 4l»l.) 30 CivH LlaViHtij—MMsure of DanuKjvH. The rule above laid clown is the only onr which will etfectually pro- tect the timher lands of the Government which are remote from settle- ments and in the wilderness. As against the willful or negligent trespasser the rule of damage indicated is not unjust, and as against his vendee it is pcn-haps th(j logical and necessary result of the prop- erty in the logs still remaining in the GovernmcnI. At all events, it is the rule which has been appro^•(■(l by the supreme court of the ^^tate in the case before cited. It may also be observed that the conclusions reached have a strong support in the adjudicated cases. (Silsljury r. McCoon, 3 Comst., 379; Riddle ('. Driver, 12 Ala. (N. S.), .OIK); Betts /'. Lee, 6 Johns., 348; Ellis 11. Wire, :-'.3 Ind., 127; Schulenberg -v. Harriman, 2 Dillon, 3'.i8, 404.) But there are cases which assert principles more or less in conflict with the cases just cited. (iMuody v. Whitney, 38 Maine, 174; Single c. Srhucider, 30 Wis., .57(1; Wetherbee v. Green, 22 Mich., 311— an instructiA'e case.) There is also a class of cases, English and American, which hold that where coal or mineral ore is taken by one person from the land of another the ordinary measure of damages in trespass or trover is the value of the coal or mineral when it first became a chattel, or was coii\-in-ted, and not the value of coal or ore in place, or as it lay in the eartii. The principal cases on this subject are cited and commented on in Barton Coal Company v. Cox, 39 IMd., 1, 8. C; 17 Am. Rep., .52r>; S. F. McLean Coal Company r. Long, Sup. Ct. 111., Oct., 187tj; /// re United ]\Ierthyr Collieries Company, Law Rep., 1-5 Equity Cases, 46; S. C. 5 Eng. Rep. (Moak's ed.), 707. The eases last referred to have generally arisen between adjoining owners, and the mitigated rule of damage's which they laj- down may have been adopted in consequence of tlii- difficulty of ascertaining boundaries in subterranean mines, and it dues not applj^ where the tres- pass is fraudulent or willful ur negligent. At all events, the doctrine of these eases should not be extended to cases of willful or negligent trespasses upon thr puljlic timber lands of the (_i(i\'i'rnment. If a pri\-ate proprietor of tinil)er lands used due precautions to ascer- tain his boundaries, and, )iy mistake of the sui'veyor, or without neg- ligen(;e (ir fault on his pai't or that of his servants, unintentionally cut on tlie adjoining lands of the Go-\-erinnent, he, in good faith, supposing he Avas cutting on his own lands, and the Government neglected or delayed to bring tro\er until the logs thus cut were enhanced in value two or three hundredfold by the labor of bringing them to market, in such a cas(} it may be that the court would be warranted in directing the juiy to allow as danjages the value of the logs when first severed, and interest on that value. 1 am inclined to think the true doctrine of the measure of damages in trover is sufficiently flexible to allow this to be done when justice Chnl Luibillty — Measure of DamuijcK. 31 requires no greater recovery; but the rases now before the court do not require a judgment on the point, and I leave it open for further consideration, should it arise. Nelson, J., concurs. Judgment accordingly. 3. A. Dodge et al. District court, Lewiston, Idalio, Decern I ht term, 188(i. 'A- preemptor who cuts or authorizes others to cut timhci- from his claim simply as a matter of converting the same into monej', and not in good faith for the purpose of improving his claim and preparing it for cultivation, is a trespasser; if others purchase said timber they also are trespassers, and if they purchase knowing the facts they are willful trespassers. The fact that the United States afterwards patents said lands to other persons does not relieve those committing the tres- pass from their liability for their wrongful act in cutting the timber. (See Land Office Report for ISST, p. 479.) (See p. IMO.) United States v. Ja:mes A. Smith. District court, eastern Arkansas, April term, 18K2. in the case of the United States v. James A. Smith at the April term, 18S2, of the United States district court for the eastern district of Arkansas, where it was charged that said Smith unlawfully cut and removed certain timber from lands belonging to the United States in the State of Arkansas and converted the same into cord wood and rail- road ties, and where evidence was produced to show that he purchased said timber from parties who claimed to own the land upon which it stood. Judge Caldwell held as follows: Persons cutting and removing timber from lands are bound to know that they who assumed to sell them the timber had the right tn do so, and if they did not, the purchaser is liable to the lawful owner of the timber for its value, and if the trees are worked up into cord wood or railroad ties, such curd wood and ties are the prop- erty of the owner of the land as much as the trees were, and the owner of the land is entitled to recover the value of the timber in its new form; in other words, the value of the cord wood and railroad ties. In a case reported as involving purchase of public timber from a willful trespasser without reasonable inquiry on the part of the pur- chasers, suit ordered to recover the manufactured value of the logs, leaving it to the defendants to prove the innocence of their purchase, if such exists. (See letter from Attorney-General to the Secretary of the Interior, November 17, 1886, in the case of Spies and Martin, Michigan.) The fact that the parties from whom purchase of public timber was Sii CI oil Lid'di-tij — Measure of Daiiuujen. made were irresponsible parties does not relieve the purchaser from responsibility in the matter, it being a fundamental principle of com- mon law that when a person purchases from an irresponsible party he is bound to take proper precautions to satisfy himself that said party had the right to dispose of the article in question. (See Land Office Report for 1SS7, p. 470.) In the matter of the claim of "innocent" purchasers "without notice of wrong," the stringent and oft-enforced regulations of the Depart- ment respecting public timber constitute sufficient "notice" in respect to the necessity of taking due precautions not to infringe upon public timber. Carelessness or indiffei-encc on the part of speculators purchas- ing can not serve as a shield to ward off the consequence of their actions. (See Land Office Report for ISST, p. 474.) In purchasing timber, ignorance of the facts attending the procuring of the same or mistaken belief that all was right is no sufficient defense for violating the statute which makes cutting and removing timber from public lands an offense irrespective of knowledge. (See Land Office Report for 1SS7, p. 473.) EXEMPLARY DAMAGES. The measure of damages for felling and carrying away trees from a tract of land is their value as they stood upon the land; and if their removal impaired the value of the land damages may be had for such injui-y. (United States Digest, Vol. IX, p. ^'01 (ls7-2); Ensley ,-. Nash- ville," 58 Tenn., 144.) Punitive damages may be recovered in a civil action for a wrongful act, notwithstanding the act constitutes an offense punishable under the criminal statutes. (United States Digest, Vol. VII, p. '1?M (1875); Ward V. Ward, 41 Iowa. (iStl.) Th(> public good in the restraint of others from \rrongful doing, as well as the punishment of the offendcn-, is to be considered in estimat- ing exemplary damages. (lb.) Exemplary damages ar(^ not recoverable as matter of right. In award- ing them tlic juiy must be governed l\v the malice or wantonness of the defendant as shown ))y the conduct they find him liable for. (United States Digest, Vol. VII, p. 231 (1875); Boardman r. Goldsmith, 48 Vt., 403.) Where willfulness, fraud, malice, or oppression, evincing a disregard for the rights of others, characterize the wrongful act complained of, the jury are not limited in their verdict to th(.' mere value of the prop- erty and interest, but may rightfully consider the circumstances of aggravation and increase the damages, so as to enforce a respect for the rights of others and as a punishment to the willful trespasser. (United States Digest, Vol. VIII, p. 223 (1875); Storm v. Green, 51 Miss., 103.) a I'll LiaMUtij — j][easHre of Diiiiniijis. 33 Where there is evidence from which the jury muy tind defendant acted maliciously in committing a trespass, they may gi\e plaintiff punitive damages. (United States Digest, Vol. XIIl, p. S74; Smith V. Thompson, 66 Md., 6, S. C; 39 Am. Rep., -iOO.) The rule allowing exemplary or puiiiti\e damages applies where the wrongful acts of defendant are within the law for the punishment of crimes. (United States Digest, Vol. XIII, p. ^44; Boetcher v. Staples, M7 Minn., 308, S. C; 38 Am. Kep., 21)5.) Willis and Wife v. Miller, Treasurer, etc., and others. Circuit court, eastern district of Virginia, October, 1886 (29 Fed. Rep., 238). Damages. * * * Malice. JNIalice in law is nut necessarily personal hate or ill will of the trespasser toward the person injured, but it is that state of mind which is reckless of law and of the legal rights of the citizens; and the object of exemplary damages or "smart money" is not only to indemnify the sufferer for any loss sustained, but to prevent similar actions on the part of the trespasser in the future. Barry v. Edmunds. (116 U. S., 550.) It is settled in this court that in an action for a trespass accompanied with malice, the plaintiff may recover exemplary damages in excess of the amount of his injuries if the ad damnum is properly laid. United States i\ Taylor. •■ Circuit court, southern district of Alal)ama (35 Fed. Rep., 484.) Public Lands — Trespass — Right of Govekn'ment to Sue — Possession — Homestead. Possession by a homestead claimant, and a receiver's receipt issue\ defendant willfully, or if such acts were the result of a negligence so gross as to show willfulness or a reckless indifference to the rights of the Government. 21160—03 3 34 Mcamre of Damages. WOODENWAKE COMPANY V. UNITED StATES. (106 U. 8., 432.) Error to the circuit cuurt of the T'nited States for the eastern district of Wisconsin. Where the plaintiff, in an action for timber cut and carried away from his land, recovers damages, the rule for assessing them against the defendant is: 1. W^here he is a willful trespasser, the full value of the property at the time and place of demand, or of suit brought, with no deduction lOr his labrir and expense. 2. M'here he is an unintentional or mistaken trespasser, or an innocent vendee from such trespasser, the value at the time of con\-ersi(jn, le.?s the amount which he and his vendor have added to its value. 3. Where he is a purchaser without notice of wrong from a willful trespasser, the value at the time of such purchase. The facts are stated in the opinion of the court. Mr. Justice Miller delivered the opinion of the court. This is a writ of error, founded on a certiticate of division of opin- ion between the judges of the circuit court. The fact.s. as certiiied, out of which this difference of opinion arose appear in an action in the nature of trover, brought by the United States for the value of 242 cords of ash timber, or wood suitable for manufacturing purposes, cut and removed from that part of the public lands known as the reserx'ution of the Oneida tribe of Indians, in the State of U'isconsin. This timber was knowingly and wrongfully taken from the land by Indians, and carried by them some distance to the town of Depere, and there sold to the E. E. Bolles AVoodenware Com- pany, the defendant, which was not ehargea))le with any intentional wrong or misconduct or bad faith in the purchase. The timber on the ground, after it was felled, was worth 2.5 cents per cord, or $60.71 for th(^, whole, and at the town of Depere. where defendant bought and received it, .?3..5(t per cord, or .^s.V) for the whole (juantity. The question on w hich the judges divided was whether the liability of the defendant should be measured by the first or the last of these valuations. It was the opinion of the circuit judge that the latter was the proper rule of damages, and judgment was rendered against the defendant for that sum. AVe can not follow counsel for the plaintiff in error through the examination of all the cases, both in England and in this country, which his commendable research has enabled him to place upon the brief. In the English courts the decisions ha\(^ in the main grown out of coal taken from the luine, and in such cases the principle seems to be established in those courts that when suit is brought for the value of the coal so taken, and it has been the result of an honest mistake as to the true ownership of the mine, and the taking was not a willful trespass, the rule of damages is the value of the coal as it was in the 2/<'(isiiiv of DAi[AGES. The following circular relative to the rule of damages to be applied in cases of public timber trespass is based on the al)ovc decision in the case of Wooden-Ware Company ■/'. United States (106 U. S., 432): OIKf'ULAR. (1 L. ])., (195.) DErAKTArKXT OF THE INTERIOR, General Land Office, Wa!r. the xalne of the timber at the time when first taken by the trespasser, or if it has been converted into other material, its then ^•alu(^ less what the labor and expense of the tresi)asser and his vendee have added to its \'alue, is the proper rule of damages. 3. Where a person or corporation is a purchaser without notice of wrong from a willful trespasser, the value at the time of purchase should be the measure of damages. You will, therefore, in cases ^vhere settlement is contemplated, state the facts and circumstances attending the cutting and the purchase of the timber in such clear and dctinite maimer that the Supreme Court decision above referred to can be readily applied. In cases where settlement \vith an innocent purchaser of timber cut unintentidually, through inadvertence or mistake, is contemplated, you are instructed to report as neai'ly as possible the damage to the Gov- ernment as measured l)y the value of the timber before cutting. Very respectfully. N. C. ^IcFarland, C'oiiu)'uss/o7ier. Departbient of the Ixterior, Approved. H. AI. Teller, Src/'et(iry. Measure of Damages. 39 ISADOEE COHN. (20 L. D., 238.) In the settlement of an unintentional timber trespass the value of the timber at the time of its taking, or if it has been i-onverted into another form, its then value, less what the labor and expense of the trfsjiasser have added thereto, is the proper rule of damages. The fact that the tret^pas^ser in such case, in order to avoid prosecution, has offered a larger sum in settlement of the trespass than that required under the rule adopted by the Department is no reason why he sh(3uld be held to such proposition, where it does not appear that he was acquainted with said rule. The sum inci- dent to the sur\ey of the land, under directicjn of the agent, together with the sum found to be due for the timber taken, is the amount he should be required to pay. It is not an act of trespass for a homesteader to remove timber from his land in the preparation of the same for cultivation, nor should his vendee be held liable on a proposition of settlement therefor. United States v. Mock. Error to the circuit court of the United States for the northern district of California (149 U. 8., 273). When the defendant in an action of trespass brought by the United States against him for cutting and carrying away timber from public lands admits the doing of those acts, the plaintiffs are entitled to at least nominal damages in the absence of direct evidence as to the value of the standing trees. It is not to be presumed in such case as matter of course that the Government per- mitted the trespass, and any instruction by the court pointing that way is error. This action was commenced by the filing of a complaint on May 6, 1884, in the circuit court of the United States for the northern district of C'alifornia, in which complaint it was alleged that the plaintiff was the owner, in 1879, of a certain tract of land in the county of Fresno, State of California, describing it, upon which tract of land were grow- ing trees; that during that year the defendant unlawfully and wrong- fully cut down and carried off certain of these trees, to wit, 500 pine trees, and manufactured them into lumber, producing 1,500,000 feet of lumber, of the value of $15,000, for which sum judgment was asked. Defendant answered with a general denial. The case was tried before a jury in April, 1888. On the trial it appeared from the testimony of defendant, as well as that of other wit- nesses, that in 1879 defendant had built a sawmill adjoining the tract and operated it for a little less than three months; that it had a capacity of about 10,000 feet, board measure, a day; that he had five white men and two or three Indians employed at the mill; that the timber was cut in the vicinity of the mill. The defendant also admitted that he knew that the tract described in the complaint was Government land, and that he did not at any time enter it as a homestead or preemption, and that a portion, though only a small portion, of the timber which 40 Menmre of DauuujeH. he sawed was cut from that tract. There was the further testimony on the part of the Government of two timber agents, that after the commencement of this action they went upon the land and counted the nvimber of stumps, and found 814 stumps of pine trees of the diameter of from 2 to 3 feet. There was also given in evidence an estimate of the amount of lumber that would be made from a tree of the size indi- cated by such stumps. There was evidence tending to show the price and value of lumber in that vicinity in the year 1879, but not the value of standing trees. In its instructions the court referred to the esti- mate made by the timber agents of the amount of lumber that would have been manufactured from the timber cut upon the premises, and the admission made by the defendant that he had cut some timber, stated that there -svas no testimony that he had cut all the timber that had been cut thereon, and that the jury had no right to guess, and that unless proof had been offered which created a reasonable certainty in their minds as to the amount of timber cut by the defendant and its value, the verdict must be for the defendant, and then proceeded as follows : There are two elements entering into these cases. This is an action of trespass, a tort. It is wrong for one person to go on another person's land and cut and remove timber without the consent of the owner; f^o the going of any person on the public domain and cutting and removing from it timber without the consent of the Govern- ment is wrong, just as much as if I went on any of your ranches or vineyards, cut and removed the crops without your consent. But there in a vast difference in the character and quality of actions. A gentleman may permit the public to use a por- tion of his domain as a highway for ycary, and as long as it i.s being done with hia tacit consent nobo(l>' would Ije held a tivspasser for doing so; but when he notifies the public that it must cease then that tacit right cease.'?, and anybody who went on there might be justly held as a trespasser. The history of the country in regard to trespassing on the public domain and cutting timber for the use of the people in building their homes upon their farms and for general domestic purposes may be considered. As I observed, the Government is the proprietor of the soil. It has always owned the soil and the timber on it and the mines beneatli it; but it is a matter of common knowledge in this country that the country ci.aild not have been settled up otherwise than by the practice and custom \\hich has grown up in advance of legislation. It is a matter of history that the Government permitted the early pioneers as they went ahead to make their homes for themselves to go on the public domain and take such timber as was necessary for domestic use, and although there ne\er was any law or license to that effect, it was done with the knowledge of every department of the Government — legislative, judicial, and executi\e. The earliest law that was passed that I remember was in 1S31, forbidiling, umler pains and penalties, the entering on lands that had been reserved on which there were valualile forests of live oak and pine for shipbuilding. It is possible that there was other legislation following that, but I do not remember any until 187S, and during all that time every department of the (Government knew how the country was being settled, and that men went on and felled trees with this tacit permission, or, if thcie ^\as not a tacit permission, at least there was no reprehension of their acts. In this case, in order to judge wisely and fairly of this defendant, as to whether he was a wanton trespasser, you will have to take into consideration tlie concurrent circuni.-itances surrounding his acts. While Measttrc of Damages. 41 I wish you to understand that I am not aware of any license liaving ever been given in the last sixty years to any party to go on the public domain and cut timber, no court has ever held, and no court would be justified in holding, that these men were all criminals who went on and put up a little mill for the purpose of aiding their neighbors in procuring .lumber for domestic purposes. I say you will not judge correctly whether these men were willful and wanton trespassers in the sense in which a trespass is willful and wanton unless you take into account the contempo- raneous history of the country and these matters, which are familiar to you all. If this party was a willful trespasser, and cut from the public domain this timber wan- tonly and maliciously, the Government is entitled to recover from him the full value of the timber by him so cut and removed from the public domain, without allowing at all for the increased value that he put upon it; for it will not be permitted that a, man shall trespass on your property and commit waste and wanton destruction by removing it, that you shall be merely indemnified for the original value; in other words, you may recover your property and its \alue wherever you find it, whether the man has added to its value since he got it or not. This case is somewhat differ- ent from the ease yesterda}-. This ease presents this naked fact: That if you return a verdict for the Government, it must be for the value of the lumber manufactured. Now, no evidein'e had been r, the special agents investigate and report upon the daim, 1iy which means the amount due the Govern- ment is ofSeially ascertained and determined. A claim due the Go\'ernment arising from timber depredations is a claim for an unas- certained amount, which the Secretary of the Interior, through the Settleiiioit — ('iii/ip)'o>/i !k('. 47 officers and agents of this Department, finds and dcterniiiics. A set- tlement made with the trespasser l)y rocoiving pa3'ment of the amount so found to be due is in no sense a compromise, hut payment in full of the claim due to the Government; and I can see no reason for invoking the action of the judicial department to ascertain and determine that which the executive department in the scope of its authority has already determined, or to enforce payment t)y suit when the trespasser offers to discharge his liability' without suit. The special agents may report the character of the trespass, the amount and the value, or either of these facts, different from that shown by the sworn statement of the trespasser; as, for instance, the trespasser vaa.y claim that he is an innocent purchaser from an unin- tentional trespasser, and may offer to paj' the value of the timber at the time when taken. The special agent may report that the trespass was willful, of which the purchaser had notice, and maj"^ recommend settlement at the full value of the propertj' at the time and place of demand. Upon further investigation liy the special agent or upon examination by the Commissioner or the Secretary , it may be determined that the purchase was made without notice of wrong, but from a willful trespasser, and that the timber should be settled for at the value of the property at the time of purchase, to which the tn^spasser ma}' agree and settle. While the amount paid may be greater than the amount originally offered and less than the amount originally reported by the Government officials, it is not a compromise of the claim, liut a deter- mination from the facts of the case of the amount due the (iovernment. If after that amount has been ascertained the trespasser either declines to pay or is unable to pay it, but offers a less amount, there is no authority in this Department to compromise the claim, but the future control of the case should be left with the Department of Justice. This question was incidentally passed upon by the Solicitor-General, acting as Attorney-General, in his letter of August '23 last, addressed to this Department, relative to the seizure of timber taken from the public lands, froni which I infer that the Department of Justice con- curs in the view herein expressed; but as this ciuestion was not directly involved in the matter referred to I do not feel at liberty to claim it as authority for this opinion. Being satisfied that this Department not only has authority, ))ut that it is its duty to take jurisdiction of and to settle all such cases in the manner herein stated, I have for this reason so fully presented the matter for your consideration, with the request that if you should not agree in this opinion you will concur in submitting the matter to the Attorney-General for his opinion thereon. 48 Sitflcmcnt — (Jrhiiinul Liahil/f;/. SETTLEMENT — CRIMINAL LIABILITY. A proposition of settlement submitted with the understanding that, i£ accepted, criminal proceedings for the trespass will be waived, will he rejc-i.-ted. Secrdiiry Jliti-Jicod: to tin (JaiiiiiihKiiniri- of the (jeiiriuil Loud Office, Octoh-r :iJ, 1900. By 3'our office letter "P" of the 4th instant, signed by the Acting Comiiiissioner, there was sul.)mitted for ni}- consiilei'ution the report, with accompanying papers, of Special Agent H. H. Schwartz, of your office, relative to a timber trespass committed upon certain described lands in ^Minnesota by the C. A. Smith Lumber Company, a corpora- tion of that State. The timber, amounting in the aggregate to over 200,s at some length what, in his judgment, should be the policy of the Depai'tment in dealing with cases of this character, and your office letter calls my special attention to, and re(iuests my special consideration of, that letter. The substance of the special agent's letter is that where a. trespass is committed and where, in the judgment of the agent, after investigation, a criminal conAiction can not be olitained, and an offer is made to settle for the full value of the timber, that such propositions should be accepted and criminal prosecution waived. He, of course, does not Settlonent — Criminal Lidhiliiij. 49 recommend that tsuch a rule should bo promulfjated In' the D(^part- ment, but rather that the principle should find expression in the prac- tice thereof. He urges that it will be practically impossible for an agent to obtain from a trespasser a proposition to pay the full value of the timber if he can not be practically assured that no criminal prosecution will fol- low, because such a proposition would be a tacit admission on the part of the trespasser of criminal liability. He also says that it is a com- paratively easy matter to obtain a proposition from a trespasser to pay the stumpage value of the timber, because that furnishes him an easy manner of purchasing Government timber; but that when trespassers are made to know that they will be required to pay the full value of the timber whenever they cut from public lands and that there is no profit to be obtained therefrom, such tresspasses will cease; and you concur in that statement and aflirm that it accords with the experience of your oflice. I have carefully considered the letter of the special agent and your office letter transmitting it. I am especially impressed with the state- ment made by your ofiice that convictions in criminal action against wealthy individuals or corporations are rarely obtained, and that when they are obtained a mere nominal fine is usually the result, and that with every failure to convict the prestige of the Government is lowered, and trespassing upon the Government lands becomes more defiant and frequent. If, as stated, convictions are rarely secured, it is an indication either the cases are not properly investigated and prepared in the first instance by the officers of this Department, or that there is a woeful lack of vigor and efficiency in their prosecution. If it is the former, it should be corrected at once. If the latter, the attention of the Depart- ment of Justice should be called to it without delay. It is inconceivable to my mind that where there is a case of willful trespass, where the facts are undisputed or clearly established, where the property of the Government has been taken willfully and deliber- ately, whether by a rich man or a poor one, that the arm of the Gov- ernment is not strong enough to administer adequate punishment and vindicate the majesty of the law. I am aware of the difficulties with which special agents have to con- tend in the investigation and preparation of these cases, but if they are carefully and conscientiously investigated and prepared, and, where willful in character, vigorously prosecuted, both civilly and criminally, better results will, in my judgment, be obtained than by adopting the policy suggested by Mr. Schwartz and your office, and would not put the Department in the attitude of condoning a violation of the law. The effect of the policy suggested by the special agent and your office might be as good upon the individual, but it would not be so, in my 21150—03 4 50 Settlement — C'oiiijyrom he. judgment, upon the community; for the next individual disposed to trespass upon the public lands would feel that he could do so with impunity, as in case of detection the onlj- inconvenience he would be required to suffer would be to pay the Government the value of the timber. Besides, the judgment of the most capable special agent and others, familiar with local sentiment and conditions, as to the probability of obtaining a conviction in such cases, is often at fault. Such instances are known to the Department. Existing laws, if vigorously enforced, arc amply adequate to protect and preserve the public timber, and it is to secure such an enforcement of those laws that this Department should bend its energies. There will, of course, arise cases of willful trespass where it will be advisable to accept the proposition of settlement and waive criminal proceed- ings, the evidence being insufficient to convict. But this is not such a case, and as the proposition of settlement appears to have been sub- mitted with the understanding that, if accepted, criminal proceedings would be waived, it is hcvobv rejected, and you are directed to pre- pare the case for submission to the Attorney-General for the institu- tion of both civil and criminal proceedings against all the parties involved. Wells v. Nickles. (104 IT. S., 444.1 AVhile no act of Congress expressly authorizes the Secretary of tht- Interior or other officer of the Land Department to appoint timber agents, the appropriation of money by Congress to jiay them is a recognition of the validity of their appoint- ment. Where the instructions of the Commissioner of the General Land Office directed the agents ti i seize and sell timber cut on the public lands, and also authorized them to compromise with the trespasser on his paying a reasonable cnmpensation for the timber cut.and taken a\yay, Held, That a compronjise so made by which he pays all the ci ists and expenses of the seizure, and gives bond to pa>- for the tim- ber when its value shall be ascertained, pursuant to the agreement, is binding on the United States. This compromise, should, in violation of its teims, the property be seized and sold by such agents, is evidence of his title and right of possession in his action against their vendee for the recovery of the lanperty. SETTLEMENT FOR TRESPASS UNDER ACT OF JUNE 8, 1S7S (20 .ST.VT., SOK Sec. 5. That any person prosecuted in said States and Territory for violating section two thousand four hundred and sixty-one of the lie vised Statutes of the United States who is not prosecuted for cut- ting timber for export from the United States, may be relieved from further prosecution and liability therefor upon payment, into the court wherein said action is pending, of the sum of two dollars and fifty cents Settlement— Arts of June 3, 1878, and June Ih, 1880. 51 per acre for all lands on which he shall have cut or caused to be cut timber, or removed or caused to be removed the same: Fnividcd, That nothing contained in this section shall be construed as granting to the person hereby relieved the title to said lands for said payment; but he shall have the right to purchase the same upon the same terms and conditions as other persons, as provided hereinbefore in this act: And fui'tlur provUJid, That all moneys t'oUectod under this act shall be cov- ered into the Treasury of the United States. And section four thou- sand seven hundred and fifty-one of the Revised Statutes is hereby repealed, so far as it relates to the States and Territorj- herein named. The provisions of this act are extended to all the public-land States by the act of August 4, 189:3 (27 Stat., 3tt8). (See p. 101.) PAYJilEyT OF.iJ.oO PER ACRE, UNDER SECTIONS OF THE ACT OF JUNE S, 1S7S {JO STAT., 6V), ONLY RELIEVES FROM CRIMINAL LIABILITY. United States /■. Scott et al. Circuit court, northern reSL )itittires . sale of publiclands : And jinivided furt-her, That where wood and timber lands in the Territories of the United States are not sui'vcyed and ofi'ered for sale in proper subdivisions, conven- ient of access, no money herein appropriated shall be used to collect any charge for wood or timber cut on the public lands in the Territo- SdfJementSec. 5, Act of June 3, 1878 {W Stat, 89). 53 rics of the United States for the use of actual settlers in the Terri- tories and not for export from tlie Territories of the United States where the timber grew: And j^roivdcd furthrr. That if any timhcr cut on the public lands shall be exported from the Territories of the United States, it shall be liable to seizure by United States authority wherever found. TIMBEK LANDS IN THE STATES OF CALIFORNIA, OREGON, NEVADA, AND IN WASHINGTON TERRITORY. (Chapter 151; approved June 3, 1878; 20 Stat, 89.) ******* Seo. 5. That any person prosecuted in said States and Territory for violating section two thousand four hundred and sixty-one of the Revised Statutes of the United States who is not prosecuted for cut- ting timber for export from the United States, may be relieved from further prosecution and liability therefor upon payment, into the court wherein said action is pending, of the sum of two dollars and fifty cents per acre for all lands on which he shall have cut or caused to be cut timber, or removed or caused to be removed the same: Pro- vided, That nothing contained in this section shall be construed as granting to the person herebj' relieved the title to said lands for said payment; but he shall have the right to purchase the same upon the same terms and conditions as other persons, as provided hereinbefore in this act: And further jiravJded^ That all mone3's collected under this act shall be covered into the Treasury of the United States. And section four thousand seven hundred and tifty-one of the Revised Statutes is hereby repealed, so far as it relates to the States and Terri- tory herein named. The act of August 4, 1892 (27 Stat., 348), extends the provisions of this act to all the public-land States. MOIETY CLAUSE OP SECTION 47&1, U. S. R. S., MODIFIED AND PARTLY REPEALED. (17 Op., p. 592.) The provisions in section 2 of the act of April 30, 1878, chapter 76, requiring moneys collected for depredations upon the public lands to be covered into the Treasury, in effect modifies section 4751, Revised Statutes, only as to that part of the pen- alties, etc., recovered which was payable under the latter section to the Secretary of the Navy; it does not affect the part payable thereunder to informers. Section 5 of the act of June 3, 1878, chapter 151, applies to the Pacific States and Washington Territory, and repeals section 4751, Revised Statutes, only so far as concerns such States and Territory. Department of Justice, July 19, 1883. Sir: Yours of the 16th instant incloses a note addressed to yourself from the United States attorney for eastern Michigan, which informs you that certain fines under section 2461, Revised Statutes, are now in 54 Sec. 5, Act of Jane 3, 1878 {W Stat. , 89). the registry of the district court for his district, and that he supposes them to be dlstribiaaUe under your direction (to the informer, etc.) under section 4751. You also inclose certain letters upon the same subject from the files of your Department (dated September !_!, 1S7'.), September 3, 1880, and' October 14, 18S0), in the course of which the Solicitor of the Treasury intimates a doubt whether section 47.51 has not been in ettcct repealed by the act of April o(.), l^Ts (chap. 7*;, sec. 2), such doubt being, as he says, somewhat affected by the circumstance that this section was subsequently (act of June 3, ls7S, chap. 151, sec. 6) expressly repealed *^s- t<> eertai n Statex only. Upon the whole matter you ask how far your powers under section 47.51 have been modified l)y subsequent legislation, the practical ques- tion being that as to dintriliutinii . presented a))OV<', in eastei-n Michigan. As mj' attention has not been called to any subsequent legislation other than the acts of 1S7S cited in your letter, I will confine what I ha\e to say to their operation onlj'. Section 4751 makes a threefold provision as to its subject-matter, i. e. , ileprrddiioiiK upon timber standing upon the public lands: (1) Suits therefor shall be under the direction of the Secretary of the Niivy; (i!) (ine-half of any penalties, etc., recovered shall bo paid to informers and \\iv other half tu the Secietarv of the Navy, and (.3) the Secretary is authorized to mitigate penalties, etc., so incurred. Thereupon the act of April, ls78, provided "that all moneys here- tofore and that shall hereafter be collected for depredations upon the public lands shall lie covered into the Treasury' of the United States :w other mon(\ys received from the sale of public lands" (Supp. Rev. Stat., 31(i), and the act of June 3, l.s7s (Supp. Rev. Stat.. 32S) — the main pur- pose of which was to provide for the f:(ile of the pulJic timber lands in the Pacific' States and A\'ashington Territory — after repeating the provision just quoted for all sales so to l>e made, e-oes on immediately thereafter to expri'ssly repeal section 4751 so far as concerns such States and Torritoi'ies. Referring to the llircfuld ojuration f;/' section 4751 above mentioned, it is plain that it is not rrjinded by i\w act of April, 1878. For instance, this latter enactment does not touch the powers of the Sec- I'etai'y as regai'ds the superintendence of suits or the uutigation of penalties. The opinion of the Attorney-General of February 17, 1.^82, referred to by you, gijes upon this \iew, although it is one only inci- di'iiiid to the point which he there discusses. I am no-w asked in effect how far this act modifies the provision designated above as "(2)." In my judgment it applies only to that part of the penalty which is 'pto the Treasury, and not, as there- tofore, to the Secretary. The emphasis is upon the disposal, not the p^'oportion of certain moneyed interests of the United States. That this is the true interpretation appears also from a correspond- ing passage in the act of June, 1878, where, although section 4751 is expressly repecded. vet express provision {e,v ahundanti) is added as to the payment into the Treasury of the proceeds of the sales therein ordered; as if it had not been enough to repeal the provision which gave what had been, to a certain extent, the equivalents of such pro- ceeds to the Secretary, but were necessary also to direct expressly that the proceeds themselves shall follow the general direction of public moneys, The two acts of 1878, therefore, have their distinct operations, that of April applying to the whole country, and merely directing that whatever moneys vest in the United States under section 4751 shall thereafter be paid into the Treasury, that of June applying to certain localities only, and for them entirely annulling section 4751, adding also a proviso that any moneys which might arise from the methods therein devised as substitutes for those referred to in section 4751 should (in like manner) be paid into the Treasury. Very respectfully, S. F. Phillips, Acting Attorney- General. The Seckktart of the IsIavt. MOIETY CLAUSE OF SECTION 4751, U. S. R. S., REPEALED AS REGARDS ALL PDBLIC- LAND STATES. Department of Justice, Washington, D. C, May 9, 1895. Sir: Replying, as promised by my letter to you of the 15th ultimo, to your inquiries concerning the proper construction of section 2461, R. S. U. S., relating to timber trespass on public lands, and section 56 Seisiire. 4751, li. S., reliiti\o, to the moiety allowed to informers, as affected hy the act of June 3, 1878 (Md Stat., 8!»; 1 Supp. II. S., p. K'-'."), relating to piil.lic lands in California, Oregon, Nevada, and Washington Ter- ritory, providing for sottloment of prosecutions and repealing said secti(.>n 4:751, and as afl'octcd by the act of August 4, 1892 (27 Stat., 348), making general as to all public-land States the said act of 1878, I will say that I perceive no r(_'asun for doubting that prosecutions in "Wis- consin under said section l'4ijl arc covered by the provision of the act of 1878 (as amended l)y said act of 1892) in regard to settlement of prosecutions for the sum of |2.5() per acre. As relates to informers, I am of the opinion that said section 4751 is repealed as to all the "public- land States," which, of course, includes Wisconsin. If you, or any inftirmer, desire decisive settlement of these points, you may institute a test case in order to bring them before the court. Respectfully, Richard Olnet, A.ttorney- Gcntral. iVIr. H. E. Briggs, Cnitcd tStates Attafney, ILidisun^ Wis. SEIZTJBE. TIMBER rXLAWFTLLY OCT ON FVBLIC LAXD8. (18 Op., 49,4.) The Land Peiiarlment ha? authority to make seizure, through its ullii-ers or agents, of timber unlawfully rut ou the public lauds. Timber unlawfully cut on the ]iublii' land^j, which has been seized by duly authorized agents of the Land Department and is in their custody, may be ilisposed of by that Department; and whether this he done by public or private sale, with or without pre\'ious advertisement, is' a matter entirely discretionary therewith. Dki'artment of Justice, August :2-], 1886. Sir: By your letter to the Attornej'-General of the 14th ultimo attention is called tu a eonmumication received hy you from the Com- missioiuH'of the Cxeneial Land Office, a copy of >vhich was transmitted therewith, touching the disposition of a large quantity of timber alleged to have been unlawfully cut on the public lands in jNlontana Territory and which has recently been seized as the property of the United States under instructions from that office, and the question presented for consideration is, ^^'hether the Commissioner may "direct the sale of the properly so seized; and, if so, whether it may be dis- posed of at private sale, and in such way as may be both to the advan- tage of the Government and to the benefit of the community, without advertising the same '': " Having carefully examined this subject, I now beg to submit the following in reply: The question proposed secnis to involve a preliminary inquiry, Seizure. 57 namel}', a.s to the authority of the otEeers of the Land Department to make seizure of timber unlawfully cut on tht- publie lands. Upon this point 1 entertain no doubt. Congress has provided a remedy for the protection of the timber on the public lands by imposing certain penalties and forfeitures (see sec. 2i61 and 2462, Rev. Stat.; also sec. 3 of the act of June 3, 1^78, chap. 150, and sec. 4 of the act of June 3, 1S78, chap. 151), which can only be enforced by indictment or information; and by section 2 of the act of April 30, 1878, chapter 76, it is further provided "that if any tim- ber cut on the public lands shall he exported f nun the Territorietioi the United States it shall be liable to seizure by United States authority wherever found." But these statutory' remedies are not the only ones available to the Government. In Cotton n. United States (11 How., 229) it was held that the United States ha\'e a right to bring an action of trespass quare clausum /regit against a person for cutting and carrying away trees from the public lauds. Agreeably to the doctrine of that case the United States may resort to the same civil remedies for the protec- tion of their property which are open to any other proprietor. Thus they may seize the timber cut, arrest it b\' replevin, or recover dam- ages in trespass for the taking and conversion. (United States v. Cook, 19 Wall. , 594.) These are the ordinar\' remedies given by the common law for the recovery of personal property or its value. Seizure or recaption (which is one of them) is a remedj^ by the mere act of the party injured, and may be resorted to for the recovery of such property where its exertion will not endanger the public peace. (3 Black. Com., 4.) Authority to exert this remedy in behalf of the United Statt's must be deemed to belong to the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior, as a power included in the general duties respecting the public lands which are devolved upon him (sec. 453, Rev. Stat.). Such authority, indeed, has long been asserted and frequently exercised by the Land Department through its officers or agents, the latter acting under instructions issued by the Commissioner, with the sanction of the Secretary. Referring to this, the Supreme Court, in Wells v. Nickles (104 U. S., 447), observes: The Department of the Interior, under the idea of protecting from depredation timber on the lands of the Government, has gradually come to assert the right to seize what is cut and taken away from them wherever it can be traced. In aid of this the registers and receivers of the Land Office have, liy instructions from the Sec- retary of the Interior, been constituted agents of the United States for these pur- poses, with power to appoint special agents under themselves. If any authority to do this was necessary, it may be fairly inferred from appropriations made to pay the services of these special timber agents. In that case a compromise by timber agents with a trespasser respect- ing the disposition of timber cut by him on the public lands and seized 58 Seizure. by such agents, which was made in conformity to instructions of the Commissioner of the General Land Office, was held to be valid. This amounts to an affirmation of the authority of the Commissioner, through those agents, to act for the United States in matters connected with timber depredations on the public domain; and I think it safe to say that under such authority the remedy by recaption or seizure, as well as any other of the before-mentioned common-law remedies, may be resorted to for the recovery of timber unlawfully cut on the public lands, according to the circumstances of the case. While I entertain no doubt as to the existence of the remedy by seizure, yet its liability to abuse and to I lecome an instrument of oppression demand that it should be used with judicious discretion and only in clear or emergent cases, and except in such cases the regular procedure of the courts should be preferred. As to the authority of the Commissioner to dispose of such timber by public or private sale, where the same has been seized by duly authorized agents of the Land Department and remains in their ous- ted}', I apprehend that this power exists, subject to the general super- vision or direction of the Secretary of the Interior. There being no statutory provision covering a case of that kind, or regulating the dis- position of the property, it must be regarded as a subject left to the Land Department to be dealt with in such manner as in the judgment of that Department will Ijest protect the interests of the Government As the property is perishalile in its nature, and its custody may involve expense, it is not only within the power but it is the duty of the Department, for the avoidance of loss to the Govei'nment, to convert the same into money; and whether this be done by public or private sale is a matter entirely discretionary with it. While ordinarily the public interests (which are always to be kept in view) will be best subserved by a public sale after advertisement, yet I perceive no objection, legal oi- other, to a private sale either with or without pre- vious advertisement, where the mode of disposal is advantageous to the Government, but as a general rule public sale should be had. In direct I'csponse to the (|uestion i)resented by you, I therefore sub- mit that, in my opinion, the Commissioner may direct the sale of the property seized, and that "it may be disposed of at private sale, and in such way as nia^' be both to the ad\'antage of the Government and to the benetit of the community without advertising the same." I am, sir, very respectfully, G. A. Jenks, Acting Attorney- Geiural. The Secketary of the Interior. Seizure. 59 Wells /'. Nickles. (104 U. S.,444.) While no act of Congress expressly authorizes the Secretin)' of the Interior or other officer of the Land Department to appoint timber agents, the appropriation of money by Congress to pay them is a recognition of the \alidity of their appointment. Where the instructions of the Commissioner of the General Land Office directed the agents to seize and sell timber cut on the public lands, and also authorizes them to compromise with the trespasser on his paying a reasonable compensation for the timber cut and taken away: Held, That a compromise so made by which he pays all the t'osts and expenses of the seizure, and gives bond to pay for the timber when its value shall be ascertained, pursuant to the agreement, is bind- ing on the United States. This compromise, should, in violation of its terms, the property be seized and sold by such agents, is evidence of his title and right of possession in his action against their vendee for the recovery of the property-. (Act of Apr. 30, 1S7S; 20 Stat., 46.) Sec. 2. * * * And jyrovlded furtliei'. That if anj^ timber cut on the public lands shall be exported from the Territories of the United States, it shall be liable to seizure by United States authority where \'er found. Thomas Stephenson v. William L. P. Little and others. Supreme court of Michigan (10 Mich. Rep., 433). The General Government has all the common-law rights of an individual in respect to depredations committed upon the public lands, and the Commissioner of the General Land Office— being the proper executive department to enforce those rights— in the absence of legislation by Congress on the subject— may lawfully direct the seizure and sale by the local laud officers, on behalf of the Govern- ment, of timber cut by trespassers on the public lands. The party guilty of a fraudulent admixture of saw logs owned by himself with those owned by another, so that it is impossible any longer to identify his own, loses all interest in them , and is remediless if such other person appropriate the whole mass to his own use. Per Manning, jr., Cbristianc)-, J., concurring. Campbell, J. , dissented, holding that where the evidence showed the logs to be of a uniform value per thousand feet the person who had intermingled them was entitled to reclaim from the common mass an equivalent to his own logs. Martin, Ch. J., gave no opinion on this question. Per Martin, Ch. J. ; The person whose property another has fraudulently admixed with his own has the right to take possession of the whole mass for the purpose of separating and securing, or of disposing of, the portion belonging to himself; and if it can not be separated, and he advertise and sell his interest in the whole, he does not thereby render himself liable to the other for the conversion of his property. He has at the very least, as respects the property so commingled, the rights of a tenant in common. 60 Seizure — Tlmlcr on Indian Lamh. NoEiiis KT Ai.. /'. United States. Circuit court, wcHk-rn district of I.ouisiana (44 Fed. Kep., 7:!5). Action for Timber C'l:t on Public Land— BrRDEX of Proof. AVhere in an action by the United States to rc.cover the value of logs cut on pubUc land the plaintiff '.s evidence yhows that the defendant purchased from the tre.spaKscr and converted to hi.>< own use a large number of logs, among which were some of those cut from tlje public land, the burden is on the defendant to show that all the logs so Ijought by him were not so cut. CoNFi-sioN OF Goods. Wlieri' the logs so cut \\ere mixed in the river with a large quantity of other logs, so that the identical logs could not be conveniently separated, the United States therc^ljy aiijuired a proportionate interest in the entire mass of logs, under Rev. Civil Code La., art. 528, which provides that "when a thing has been formed by a mixture of materials belonging to different pnijirietors, * * * if the materials can not lie separated without inconvenience, their owners acquire in common the pni rntu of the thing." HaNDFORD KT AL r. UxiTED StATE.S. Circuit court of appeals, eighth circuit (H2 Fed. Kep., 8S). United St.\tes — Action to Recover Logs. Where the United States claims the ownership of logs in the possession of another, on the giuund that the)- \\ ere e-ut from Government land, its remedy, like that of an individual, is liy an attion of replevin rir trespass. It can not seize the logs from one having them in )us possession, and, by filing a libel against them, cast upon him the burden of proving his ownership, and a district court is without jurisdiction of such a pmceeding. United States e. Puite Trading C'uMrANY et al. Circuit court of appeals, eighth circuit ( 1119 Fed. Rep., 2.'i9). Timber Wrongfully Cut — Subsequent S.\le for Aui-nonizED Use. Where timber has lieen wrongfully cut from public lands of the United States, and Avhile in the hands of a purchaser lias been claimed a.s the i^roperty of the United States by its agent, the title of the Government .'an not lie divested by a subsequent sale of the timber b}' such purchaser to a railroad company for use in the co!istructi(jn of its road, altlmugli the company would have had the right to cut it for such purpose had it been standing. rniBi'in uxlawfi'lly cvt ox imhax laxhs. (19 Op., p. 710.) Where a large quantity of standing timlier (about 4,000,000 feet) was unlawfully cut by trespassers on the Fond du Lao Indian Reservation, in Minnesota, and left lying thereon— the land from which the timber was cut being held in common by the Indian liamls for whom it was reserved by tl\e ordinary Indian title; Advised (1) that the United States have the a)>sohite ownership of the timber thus cut; (2) that the Indians have no interest therein whatever, and that it in no wny appertains to the Indian Bureau or its agents to assume charge thereof; (3) that such timber may be sold lV,r and on account of the United States, but that sale Sawmills on PuhUc Lands — Cut Timber. 61 should be made by the Commissioner of the (leneral Land rxiice, under the supervision of the Secretary of thr Interior. Opinion of Acting Attorney-Gen- eral Jenks of August 23, 1886 (18 Op., 434), concurred in. (See p. 56.) See United States v. Cook (19 Wall., 591), cited on page 62. See, also, "Timber on Indian allotments and Indian reservations" (19 Op., p. 232), cited on page 119. SAWMILLS ON PUBLIC LANDS [Acting Commissioner ol General Land Office to Secretary of tlie Interior, March 2, 1886, in case of public timber trespass by Robert H. Longwell, Colorado.] * * * I have to state that I am not aware of any statute expressly authorizing the seizure and sale of sawmills erected on the public domain by timber depredators or intruders thereon, but I am of the opinion that the title to such mills should be held to be in the United States under the principle of common law which gives to the owner of real estate all houses, fixtures, and other improvements placed thereon by strangers without the knowledge and consent of such owner. The depredator in this case had no color of right or title to the land nor Ucense to go upon the same, and the mill was erected thereon without authority. As soon as the material was attached to the land it became a part of the realty, and the title passed to the Government. (See Sedgwick and Tait on Trial of Titles to Land, pp. 361, 690, and Gerald Real Estate, p. Iu7.) I would suggest, as the United States attorney expresses doubt as to whether the mill can be seized prior to the termination of the suit for the trespass, that the parties be restrained by injunction from removing the mill and appurtenances from the land pending the determination of the suit for damages. See Erhardt v. Boaro and others, cited on page 6-4. CTJT TIMBER. NOT A PART OF THE REALTY. SCHULENBEEG ET AL. V. HaRKIMAN. (21 Wall., 44.) ******* Where the title to land remains in the 8tate, timber cut upon the land belongs to the State. Whilst the timber is standing it constitutes a part of the realty; being severed from the soil, its character is changed; it becomes personalty, but its title is not affected; it continues as previously the property of the owner of the land, and can be pursued wherever it ia carried. All the remedies are open to the owner which the law affords in other cases of the wrongful removal or con- version of personal property. Where logs cut from the lands of the State without license have b(;en intermingled with logs cut from other lands, so as not to be distinguishable, the State is enti- tled, under the law of Minnesota, to replevy an equal amount from the whole mass. The remedy afforded by the law of Minnesota in such case held to be just in its operation and less severe than that which the common law would authorize. 62 Cut Thnlcr^-RigU of Occupanaj. HUTCHINS ET AL. V. KlXG. (1 Wall., 53.) (:irowing timber constitutea a portion of the realty, and is embraced by a mortgage of the land. When it is severed from the freehold without the consent of the mortgagee, his right to hold it as a portion of his security is not impaired. When the amomit due according to the stipulation of the mortgage is paid, the lien of the mortgage upon the timber thus He\ered is discharged, and the property reverts to the mortgagor, or any vendee of the mortgagor. Any sale of the timber 1 >y the mortgagee, or assignee of the mortgagee, after such payment is a conversion for which an action will lie \>\ the mortgagor or his vendee. D. cut and piled posts on lands belonging to the State. While he was thus engaged R. purchased the land, and afterwards replevied the posts, some of which were cut before and some after the purchase. ILld, that R. had no title to those cut prior to his purchase. (United States Digest, Vol. II, p. 590 (1SG'._»); Rogers v. Bates, 1 Mich. (N. P.), 93.) The sale of standing timber is the sale of an interest in real estate, and a subsequent purchaser Ijy warranty deed of the land with notice of such sale can not maintain trespass against the prior purchaser of the timber for cutting and removing the timber. (United States Digest, Vol. VII, p. 839; Russell v. jNIeycrs, 32 Mich., 622.) USE OF err TIMBER BY VIRTUE OF A RIGHT OF OCCUPANCY. United States v. Cook. (19 Wall., 591.) Timber standing on lands occupied 1 1 y the Indians can not be cut by them for the [jiirposcs of sale alone; though when it is in their possession, having been cut for tin.' i>nr|»)se of iinproririg the land — that is to say, better adapting it to con- venient occupation — in other words, when the timlier has been cut incidentally to the improvement, and not cut for the purpose of getting and selling it — there is no rcstrictiiin on the sale of it. The Indians, having only a right of occupancy in the lands, the presumption is against their authority to cut and sell the timber. Every purchaser from them is charged with notice of this presumption. To maintain his title it is incum- ln'nt on him to slmw that the timber was rightfully severed from the land. The United States jiiay maintain an action for unlawfully cutting and carrying away tiii]l)er from the public lands. « * il • * * » The Chief .lusticc deli\orod th(> opinion of the court: We think the action was properly brought, and that it may be maintained. The right of the Indians in the land from which the logs were taken was that of occupancy alone. They had no power of alienation except to the United States. The Fee wsis in the United States, subject only to this right of occupancy. This is the title by which other Indians hold their lands. It was so decided )>y this court as early as ISl'o in Cut Tiviher — HUjht of Occupaiify. 63 Johnson v. Mcintosh." The authority of that rasp has ncNcr been doubted.'' The right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occu- pancy.'' The possession when abandoned by the Indians attaches itself to the fee without further grant.'* This right of use and occupancy by the Indians is unlimited. They may exercise it at their discretion. If the lands in a state of nature are not in a condition for profitable use, thoj' may be made so. If desired for the purposes of agriculture, they may be cleared of their timber to such an extent as may be reasonable under the circumstances. The tunber taken ofi' b_v the Indians in such clearing may be sold by them. But to justify any cutting of the timber, except for use upon the premises, as timber or its product, it must be done in good faith for the improvement of the land. The improvement must be the principal thing, and the cutting of the timber the incident only. Any cutting beyond this would be waste and unauthorized. The timber while standing is a part of the realty, and it can only be sold as the land could be. The land can not be sold by the Indians, and consequently the timber, until rightfully severed, can not be. It can be rightfully severed for the purpose of improving the land, or the better adapting it to convenient occupation, but for no other purpose. When rightfully se\ered it is no longer a part of the land, and there is no restriction upon its sale. Its severance under such circumstances is, in efiect, only a legitimate use of the land. In theory, at least, the land is better and more valuable with the timber off than with it on. It has been improved by the removal. If the timber should be severed for the purposes of sale alone — in other words, if the cutting of the timber was the principal thing and not the incident — then the cutting would be wrongful, and the timber when cut become the absolute property of the United States. These are familiar principles in this country and well settled, as appHcable to tenants for life and remainder-men. But a tenant for life has all the rights of occupancy in the lands as a remainder-man. The Indians have the same rights in the lands of their reservations. What a tenant for life may do upon the lands of a remainder-man the Indians may do upon their reservations, but no more. In this case it is not pretended that the timber from which the saw logs were made was cut for the purpose of improving the land. It was not taken from any portion of the land which was occupied, or, so far as appears, intended to be occupied for any purpose inconsistent with the continued presence of the timber. It was cut for sale and nothing else. Under such circumstances, when cut, it became the 8 Wheaton, 574. ''I Kent, 257; Worcester v. Georgia, 6 Peters, 580. Cherokee Nation v. Georgia, 5 Peters, 48. aVc., 17. 64 Ri(jht of Occupancy — Jnjuiictton. property' of tho United States absolutely, discharged of any rights of the Indians therein. The laitting was waste, and in accordance with well-settled principles the ownei- of the fee may seize the timber cut, arrest it by replevin, or proceed in tnncr for its conversion. The Indians having onlj' a right of occupancy in the lands, the pre- sumption is against their authority' to cut and sell the timber. Every purchaser from them is charged with notice of this presumption. To maintain his title under his purchase it is incuml.iciit on the purchaser to show that the timber was rightfully sc\'rred from the land. That the United States may maintain an action for cutting and carrying away timber from the pu?jlic lands was decided in Cotton /■. United States." The principles recognized in that case are decisive of the right to maintain this action. The answer of the court, therefore, to the (juestion propounded by the circuit court, is in the affirmative. See 19 Op., 71o, cited on page CO. See also ll.> Op., 232, citecl on jiage li'.t. INJUNCTION. EkjIAKDT /'. BOAUO AND OTHERS. Apin'iil from the circuit court of flic Uuitcl States for the district of Colorado (113 u. s. .5;;;). Mr. Justice Field delivered the opinion of the court: * * * It is now a common practice in cases whore irreniedial mischief is being done or threatened, going to the destruction of tin- substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunc- tion, though the title to the premises be in litigation. The authority of the court is exercised in such eases, through its prevcnitiM' writ, to preserve the property from destruction pending legal proceedings for the determination of the title. (Jerome /-. K(.)ss, T Johns., ch. 315, 332; Le Roy /'. Wright, 1 Stiwyor, 5-30, 53.i.) Nichols /'. Joxks axd anotiikk. Circuit court northern .listrict of Alabarua (19 Fed. Eep., sr,,5). iN.irxel'lox. InjunctioiLs are f.M-an(ed to prevent trespasses as well as to stay waste \Yhere the mischief would he irreparable, and to prevent a multiplicity of suits. ^\'II.s(l\ AM) OTiiKRs /'. Rockwell axd others. ( 'ircnit court district of Colorado (2!) Fed. Eep., 674). Injunction — Trehi'ass — Title. A party showing an e.iuitahle title to realty will be proteded ar^ainst tres- passers by injunction, though the location of the legal title has not been finally determined. "11 Howanl, Injanction— Institution of Oinit FniccediiKjs. 65 Theodore Le Roy r. Georgk AVright et al. Circuit court northern district, ui California (4 Sawyer, 630). * * * * * * .X. Courts op Equity will not Ixterfbee. Courts of equity will not ordinarily interfere to injoin the commiasion of a threatened trespass to real property unless the trespass be one going to the destruction of the substance of the estate, such as the extracting of ores, the cutting down of timber, the digging of coal, and the like. The jurisdiction of the court in such cases is asserted for the preservation of the property pending proceedings at law for the determination of the title. United States v. Gear. (3 Howard, 120.) * * * * * * » Digging lead ore from the lead mines upon the public lands of the United States is such a waste as entitles the United States to a writ of injunction to restrain it. IXJUNCTTOX TO STA Y WASTE. An injunction to stay waste is allowed as a matter of course. (United States Digest, Vol. I, p. 401 (1883); Markham v. Howell, 33 Ga., 50S.) Mines, quarries, and timber are protected by injunction, upon the ground that injuries and depredations upon them are or may cause irreparable damage, and also with a view to prevent a multiplicity of actions for damages that might accrue from a continuous violation of the rights of the owners. In such cases the plaintiff's right need not be fii-st established at law. (United States Digest, Vol. Ill, p. 3.59 (1871); West Point Iron Co. v. Reymert, 45 N. Y., 703.) The unlawful quarrying and removal of stone wherein consists the chief value of land may be restrained by injunction. (United States Digest, Vol. XVI, p. 347; Althen v. Kelly, 3^ Minn., 2s0.) Entry on land and digging up and removing fruit trees thereon is waste which may be enjoined. (United-States Digest, Vol. XVI, p. 347; Silva I'. Garcia, 66 Cal., 591.) An injunction ivill be granted to stay waste threatened or being com- mitted. (United States Digest, Vol. XVII, 337; Sheridan v. McMullin, 12Oreg.,150.) INSTITUTION OF CIVIL PROCEEDINGS. No civil proceedings in connection with timber trespasses on public lands should be instituted in the name of the United States without instructions from the proper authority. See the following letter and the subjoined regulations of the Solicitor of the Treasury referred to therein: Department op Justice, ]Y'iHhingt.on, D. C, Sqitcmbn- 16, 1895. Sm; I have the honor to acknowledge the receipt of your letter of the 12th instant, in which you request that reply may be made to certain inquiricH contained in a 21150—03 5 66 dhul Proccedhujs—neiiiilatlunH of HoUcHor of the Treasury. letter ropcrty ot the United States, or an infraction of its reve- nue or other laws, has licen committed, he will innnediately report such information to this office, with his opinion as to the propriety of instituting suit; or in ease the remedy of the United States would, in his opinion, be lost or endangered by delay, lie may innnediately comiuenee a suit, and report the same, with his reason for such proceeding. Act ofJiinc 3, 1878 {20 Stat., 88). 67 TIMBER ON MINERAL LANDS. Mineral lands are those which are more \aluable for the mineral therein (except coal) than for agricultural purposes or for the timber thereon. The right to take timber from mineral lands for building, agricul- tural, mining, or other domestic puvi)oscs is speciallj- provided for by the following act of Congress: [Act of June 3, 1S7S, Clinp. 150; 20 Stiit., MS.] AN ACT authorizing the citizens of Colorado, Ni'\ada, and the Territories to fell and remove timber on the public domain for mining and domestic purposes. Beiteiiitcti'dhy the Semite andllouseof Rt'prcKi'ntativeii of tlie United States eif Aiii. No timber is permitted to b(^ felled or rcmo\-ed for purposes of •sale or tratfic. or to manufacture the same int(.) lumlier or other timber product as an article of merchandise, or for any other use whatsoever, except as defined in section 4 of tliese rules and regulations. <;. No timb(>r cut or remo\-ed under the provisit)ns of this act may be transported out of the Static or Territory where prtjcured. 7. No timber is permitted to be used for smelting purposes, smelt- ing being a separate and distinct industry from that of mining. 8. No growing trees of any kind whatsoever less than eight inches in diameter are permitted to be cut. 9. Persons felling or removing timber under the provisions of this act must utilize all of each tree cut that can lie profitably used, and must dispose of the tops, brush, and other refuse in such manner as to prevent the spread of forest fires. Act of June 3, 1878 {W Stat., 88). 69 10. These rules and regulations shall take effect February 15, 1900, and all existing rules and regulations heretofore prescribed undei- said act by this Department are hereliy rescinded, W. A. Richards, Actnitj i'd/iu/ris-s/o/irr. Approved, January IS, 1900. E. A. Hitchcock, Srcrrtary. FORCE AXD EFFECT OF PVLES AND REGULATIONS BY THE SECRE- TARY OF THE INTERIOR UNDER THE ACT OF JUNE 3, 1878 {30 STAT, 88). {a) The rules and regulations as to the cutting of timber upon the public lands of the United States prescribed by the Secretary of the Interior under laws, United States, rort3'-fifth Congress, second ses- sion, chapter 150, will be considered such an act of the executive department of the United States as the courts will take judicial notice of under Revised Statutes, Montana, division 1, section 6^5; and it is not necessary to set out such rules in a complaint seeking to recover for an infringement thereof. (J) Said law is constitutional, and the rules and regulations of the Secretary of the Interior made thereunder are not unconstitutional as trenching upon the domain of the legislative department of the Government. (c) In the absence of any statutory license in the matter, tlie cutting of timber less than S inches in diameter constitutes a ti'cspuss. (See Land Office Report for ISST, p. 179, case of United States r. "\^'illiams and another; 6 ?tIont., 3Tit.) At the September term, issO, of United States district court, Boise City, Idaho, Judge Broderick presiding, four Chinamen (A\'ing Ling, Ah Sin, et al.) were convicted of timber trespass on the public mineral lands for failing to utilize all of each tree cut that could profitably be used, and to take precautions to guard against the spread of forest fires, as required by Department regulations, under the act of June 3, 1878. (Circular, August 5, 18S0, section S; see Land Office Report for 1887, p. ISO.) L^NiTED States v. Redee. Distnct; court, South Dakota (69 Fed. Rej.., 965). Public Lands— Cutting Timber prom Mineral Lands— Indictment. On the trial of an indictment for cutting timber from the mineral lands of the United States for purposes other than those connected with building, agricul- tural, mining, or other domestic usen contrary to the act of June 3, 1878, the intent is wholly immaterial, and it is only necessary to show that the prohibited acts were done. 70 Ar-f ofjinu 5, 1878 {20 Stat., 88). Same— Eehulations by Hecretarv of the Interior. One who cuts and renjo\'es timber from the mineral lands of the United States and sells the same, or the lumber manufaotured therefrom, without taking from the puichaner any statement in m ritin^' as to the purposes for which the same is intended to be used, as required by the regulations made by the Secretary of the Interior under the authority of the act of June 3, 1878, is guilty of a violation of that statute and subject to the penalties prescribed by it. Unitei> .States /•. Maihsi.in A. Tiptox. United States circuit cunt, Snutl) Dakcita, wpsteni division. INSTKrcTInXS (IF THE ('(it'KT, FKHKI'AllY ]s. lS9i;. Hon. A. D. Thomas, Pi'rsliliiig Jiah/r: It is charyrd in the indictment ttiat Madison .V. Tipton committed the otiens<' set forth, on the :-!d day of August, ISH-i, in Pennington Count J'. I wisli, in tlie first place, to advise j'ou that the date alleged in the indictment, the 3d day of August. ls;)4. is not material when you come to CI insider the proof. AVhen you come to the proof, it is not necessary to show that the (itiense. if any -svas committed, Ti'as in fact committed on that particulai- day alleged in the indictment. The indictment was found and filed in this court the I'.'ith nf Scpteuiljer, is'.t.j. and if you find that an otiense was in fact committed, and committed within three yeai's prior to that time, to Avit, the ynth da}' of Sei^tember, 1S95, that answers the purpose of the statute and tlic rule of law. In order that you may definitely understand the issues which you have to find — which ^du have to determine — I will read the indictment, or that portiini which is material. It is charged that " Madison A. Tipton, late of Pennington County, in said district, on the 3d day of iVugusl. iSit-I, at Pennington C'ounty, unlawftilly did cut, cause, and procure to ])i' cut a large amount of timlxu', to wit, a large number of pine trees then and tlicrc grow ing and being on the public lands of the Cnited States, the said trees then and there being and growing in one of the public-land districts of the United States of America, to wit, the Stati' of South Dakiita, with the intent then and there to export the sanii' from the State of South Dakota, and with the intent then and thei'e to disjiosc of the same contrary to the form, force, and effect of the statutes of the United States in such case provided, and con- trary to the rules and regulations in pursuance thereof made by the Secr(!tary of the Interior." You will notice that the gist of the offense charged is the intent; that is, the gist of the offense is that he cut, caused, and procured to be cut timber, as charged, with the intent, first, to export it out of the State of South Dakota, and. second, to dispose of it contrary to the statute and the j'ules prescri))ed by the Secretarv of the Interior. To this indictment the defendant has interposed the plea of not Act of June 3, 1878 {W Stat., 88). 71 guilty, and by that plea has put the prosecution to the proof of all the material allegations of the indictment with that divorce of certainty required in all criminal cases. The indictment seems to have liecn drawn under section 4, chapter 151, found in the Supplement of the Statutes of the United States, and reads as follows, or that portion which is material for us at present: "That after the passage of this act" (that was June, 1S7S) " it shall be unlawful to cut, or cause or procure to be cut, or wantonly destroy, any timber growing on any of the lands of the United States in said States and Territories"' (and 1 would saj- that tiiis laAv, ]>y another law, is made applicalile to the State of South Dakota. Understand me, this law which I now read is made applicable to this State by law of Con- gress), "or remove, or cause to be removed, any timber from said public lands with intent to export or dispose of the sunie. " And then provides for punishment and conviction. The charge in this indictment is cutting, causing and procuring to be cut, with the intent stated in the indictment. Now, it has been shown bj' the evidence on the part of the Govern- ment that these lands from which the timber was alleged to have been taken and cut, or I'ather cut, were mineral lands of the United States, and therefore it is proper for me to read you another Luv, which must be taken in connection with the statute which I ha\e just read. That is the law of June 8, 1878, found in 20 Statutes at Large, S8, chapter 150: "That all citizens of the United States and other yicrsons 1)ona fide residents of the States of Colorado," etc. (int'luding Dakota), "and all other mineral districts of the United States shall be, and are hereby, authorized and permitted to fell and remove for building, agricultural, mining, or other domestic purposes any timber or other trees growing or being upon the public lands, said lands being mineral and not sub- ject to entry under existing laws of the United States except for min- eral entry, in either of said States, Territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may pre- scribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes." It is provided in section 3 of the act which I have just read as follows : "Any person or persons who shall violate the provisions of this act or any rules and regulations in pursuance thereof made ))y the Secre- tary of the Interior shall be deemed guilty of a misdemeanor," and upon conviction shall be punished as prescribed in that statute. The law is that it is competent for the Congress of the United States to provide in this class of cases as well as others, and it has been the constant practice of Congress to provide that the head of the Depart- ment, in this case the Secretary of the Interior, shall make rules and 72 Act of June 3, 1878 {20 Stat. , 88). regulations for the proper carr3'ing out of the laT\', the proper execu- tion of it, provide various details, and when the rules and regulations of the head of the Department, in this ease the Secretary of the Inte- rior, are made pursuant to the law they have the force and effect of law, become a part of the law. While from section 4, which I first read, it would }»' a ^'iolation of the statute to cut or cause to be cut timber with the intention to export or dispose of the same, the law I just read — that is, the mineral law so called — permits certain persons to cut and remove timber from the mineral lands under cei'tain conditions. It is necessary to remember what those conditions are. In other \\'ords, under section 4, which I first read, it is an ofi'ense to cut and remove timber, as you have heard there, with the intent to export or dispose of it contrary to the statute, contrary to the law which you have heard there. Now, the Govern- ment has granted a license to certain parties on certain conditions to cut tim))er and procure it to be cut upon the mineral lands of the United States, as in the statute I have read to you. You will have to remember and consider whether this timber, if caus(."d or procured to be cut, was cut under the ri\gulations prescribed l)y this statute, and in accordance with certain rules of the Secretary of the Interior, to which I will call j^our attention. First, who are the persons that may cut^ Citizens of the United States, and other persons, bona tide residents of the State of South Dakota. They are authorized and permitted to fell and remove, for what? For building, for agricultural, for mining, or other domestic purposes. If upon the mineral lands of the United States, as therein designated, subject to such rules and regulations as the Seeivtar\- of the Interior may prescribe for the protection of the timber and undergrowth, and for other purposes. The Government owns these lands; it owned them at the time stated in the indictment, and it had a right to provide that no person should go upon those lands and cut or procure to be cut any timber for any purpose. It had a right to do that; but it saw fit to grant a license to certain persons under certain conditions by which timljer might be cut, or some portion of it, as you have heard. The Government giving that license had a right to prescribe the conditions under which per- sons could exercise that license. Therefore it has, as you have heard, prescribed certain conditions designated in the statute, and it is therein provided that cutting, removing, etc. , nurst be subject to the rules and regulations prescri))ed by the Secretary of the Interior. Now, the Secretary of the Int(_'rior has prescribed certain rules. Two of those rules 1 will read and call your attention to. The courts and juries take judicial notice of those rules. They need not be proven as a part of the evidence, ^\'e take notice of them as of the law when made pursuant to the authority of C"ongr(>ss. I advise you these rules are made by the Secretary of the Interior pursuant to an act of Congress. Art ofJuiw S, 1878 {^0 S/o/., 88). 73 The first is rule 3: "No person not a citizen or ):)ona fide resident of a State, Territory, or otlier mineral district pro\idod for in suid act is permitted to fell or remove timber from mineral huuls therein." (No person not a citizen or bona fide resident of the State.) ".Viid no ])er- son, firm, or corporation felling or removing timber under this act shall sell or dispose of the sam(\ or the lumber manufactured theie- from, to an_v other than citizens and bona fide residents of the State and Territorj' where such timber is cut, nor for any other purpose than for the legitimate use of said purchaser for the purposes mentioned in said act," namely, for building, mining, agriculture, or other domestic purposes. Rule 4: " Every owner or manager of a sawmill or other person fell- ing or removing timber under the provisions of this act shall keep a record of all timber so cut and removed, stating time when cut, names of parties cutting the same, or in charge of the work, and describing the land from whence cut by legal subdivisions if surveyed, and as near as practicable if not survej^ed, with a statement of the evidence upon which it is claimed that the land is mineral in chai'acter, and stating also the kind and quantity of lumber manufactured therefrom, together with the names of parties to whom any such timber or lunil)er is sold, dates of sale, and the purposes for which sold; and shall not sell or dispose of such timber, or lumber made from such timber, without taking from the purchaser a written agreement that the same shall not be used except for building, agricultural, mining, or other domestic purposes within the State or Territory; and every such purchaser shall further be required to file with said ownei- or manager a certificate, under oath, that he purchases such timber or luuilier exclusively for his own use, and for the purposes aforesaid.'" Now, you have noticed as I have read to you and called your atten- tion to the statute, that by section 3 "any person or pei'sons who shall violate the provisions of this act, or any rules and regulations in pur- suance thereof, made by the Secretary of the Interior, shall be deemed guilty of a misdemeanor," and punished as provided by law. As 1 said to you, the gist of the crime charged, the gist of the ofiense alleged, is the intent with which it was done, if at all, by the defendant. The question whether he intended to violate the law or not is not material. The question is. Did he cut, or cause or procure to be cut, timber with the intent to export or dispose of it contrary to law, as I have read it to you? That is the gist of the question. He had no right to cut for speculative purposes. If he cut at all it must be in accordance with the law and license of the Government. That is a question for you to determine. Did the defendant cut, or cause or procure to be cut, timber on the mineral lands? Naturally, did he cut it himself, or cause it to be cut, or procure it to be cut? This is one question of fact that on the very threshold, from the evi- dence of this action, you will have to determine. 74 J,'f ofJuiu' .5, 1818 (:30 Stat., 88). In this case, us geneiiilly, it is not practicable, or jwssible, often, to oct direct evidence of an ultimate fact. Perhaps nobody saw the act done. So the jury, in this class of cases, as you do in your various aHairs of life, diaw inferences and conidusions — such conclusions and inferences as you think ought to be drawn from all the facts and cir- I'liinstances established to your satisfaction. Take the e\-idence that you had Ijefore you; when you become satished, if jon do, that it is true and ndiable, draw such inferenci.'s as to whether or not this defendant cut or <-ansed or procured somebody else to cut this timber for tlie purpost's that he was manufacturing it, if you find he was manufacturing any timber; then the fair and reasonable inference. Draw such inferences as 3'ou think ought to be drawn. If you lind from the evidence that he cut, caused or procured to be cut, timber, then j-ou come to the main (piestion. With what intent did he t'Ut it^ Now, it is impossible to get into the human mind for the purj^ose of seeing the workings of the mind. If we could obtain access to it we would know but little about it. You must get at the intent in this case, as you do in every case of the kind — from the acts, from the circumstances that surround the matter — and then draw such conclusions as you think ought to lie drawn from the facts and cir- cumstances established to your satisfaction; draw such conclusions as to what the intent was. Because it is a lawsuit and l.iecause 5'ou have taken upon yourselves the oaths of jurors you do not surrender your common sense, your good judgment, your reasoning powers. You carry them into the jury box and everywhere 3'ou go; in your jury box, as in your various business relations of life, you are to use them and appropriate the evidence and draw such inferences and con- clusions as your good judgment dictates to be drawn from the facts and circumstanci-'s. The first question involved in this indictment is, Did the defendant cut, or cause or procure to be cut, timber upon the mineral lands of the United States, in the county of Pennington, this State, with intent to export it from and out of the State of South Dakota"? There are i-eally, you might say, two oHenses charged. The question has been raised on that siil)ject, and thei-e is a bill to be submitted to you. That is first for you to determine. Did he cut, or cause or procure to be cut, timlier, and, if so, did he do so with intent to export it from the State of South Dakota'^ There is no law which permits any person to do that. No person can go upon the public lands, mineral or otherwise, under conditions certainly that apply to this ease, so far as we are concerned in the in\-estigation of this matter, and cut and remove timber for the pur- pose of exporting from the State; certainly not on the mineral lands under the statute which I have read. If you find that he did so cut, cause or procure to be cut, timber with that intent, then you are at Act of June 3, 1S7S {20 Stat., 88). 75 liberty to find the defendant guilty. If you come to the conclusion or fail to find that the ({overnment hay estal)lished that proposition beyond reasonable doubt, then you should pass that ((uestion, because unless you so find you can not convict him of the allei^vd offense. Then you turn your attention to the other question which is involved in that indictment. Did he cut any timber, cause or procure it to be cut, on the lands, as therein described, with the intent to dispose of it contrary to the statute and rules as laid down and which I have given you? I am of the opinion in this case, and so charge you, that it is incum- bent upon the prosecution to satisfy you by evidence beyond a reason- able doubt that the defendant did cut, cause or procure to be cut, timber from the mineral lands, as charged in the indictment, with intent to dispose of the same contrary to the statute and the rules prescribed by the Secretary of the Interior; that the burden in this case rests upon the prosecution. Now, has the Government satisfied you, because it is incumbent upon it to do so, that the defendant cut, or caused or procured to be cut, timber from the lands described in the indictment for purposes other than for building, mining, agricultural, or other domestic pur- poses? As I understand, the Government has assumed that responsi- bility and maintains it in this case— claims that the responsibility rests upon it, as I understand from the officers. You will look this evidence all over and examine it with care. Something has been said about a Black Hills jury. From what I have seen of the men who come to the Black Hills— I ha\e had some expe- rience with them for many long years — I believe, and have so stated many a time, that a case will receive the same careful, honest, and intelHgent consideration from them that it would receive from any other part of the State. I dismiss that question. I assume that you feel the same responsibilit}^ to do your duty as the court must feel to do his. Now, you will look this case over, consider it from all the difl:erent standpoints, view this evidence, consider and weigh and scrutinize it with care, and reach just such a conclusion as your good judgment dictates. It is for you, under the rules given by the court, to ascer- tain what the truth is, and when you have ascertained it it is your duty to bring it to light by your verdict. The Government of the United States comes in hei-e like anybody else. It has no right that the humblest citizen has not, but it, as well as the defendant, is entitled to your good, honest, intelligent judgment. It is claimed by the prosecution from the evidence that this defend- ant was manufacturing, and for the purpose of selling lumber to a rail- road company ; that the defendant was engaged in that business. You take all the subsequent facts as you find them from the evidence; con- sider them all. For the purpose of getting at the intent you may con- 76 An' nfjm,f -J, 1.S7S (20 Stat., 88). sider what a man did before and after, to enable you to get at the intent with which he did the aet, if at all. The law provides that a railroad company lia« a right "to take from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad/' "Also ground adjacent to such right of way for station buildings, depots, machine shops, side tracks, turn-outs, and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road," upon the public lands of the United States. It would not be a violation of the law of the statute for a party to dispose of the timber cut upon the pu))lic domain to a railroad company for the purpose named. Now, in order to get at the intent you may consider this matter, whether or not he Avas >elling, or had sold or dis- posed of in any manner, or Avas about to sell any lumber to a railroad company for purposes of cdnstruction as a road. He would have no right to sell, and the i-ailroad company would have no right to buy, for the purpose of repairs, but for tlie purpose of construction they have the i-ight. And if a j>arty cut timlier from tlie public lands with the intent to dispose of it to the i ailroad company for purposes of con- struction only, that would not be a violation of the law; but with the intent to dispose of it for other purposes than that to be used h\ the raili-oad company for other purposes except for construction, it would be a violation. You take these, acts of the defendant after and before for the purpose of coming at the intent witli which he cut, or caused or procured to be cut, the timber, if you find he did so. and to that extent you have a right t(j consider the evidence. This defendant, in standing on trial in this ease, as every defendant in this court, is presumed to lie innocent until his guilt is established Ijy tlie prosecution beyond reasonable doubt. He is permitted to take the stand in his behalf if he chooses to. but is not obliged to, and the fact that he does not take the stand does not militate against him. The (To\erninent is to establish its ease by competent proof, and it must be done before any jur}' can convict him. Now a reasonable doubt. What is a reasonable doubt ^ We judges and juries ha-\'e sometimes had a wrong conception of a reasonable doubt. Judges ha\'e many times attempted to define a •" reasonable doubt," but it always seems to me that the constructitin, definition of reasonable doubt \vas more blind than the terms themselves. I can see nothing obscure in the term. It simply means a reasonable doubt and not an unreasonable doubt. It is a doubt based on evidence or want of evidence in the t-ise. It is not some imaginary doubt, and we can not in the nature of things l)y human testimony reduce matters to mathematical certainty, ^\'e have to deal with reasonable doubt; not imaginary dou))t. If after a careful, intelligent comparison and con- Act ofJunr :i, 1878 {SO Sint., 8S). 77 sideration of the entire evidence j^ou would say and f(>el right in say- ing that you would not hesitate to act upon it in the most s(>rious affairs of life, then you have no reasonable doubt. If you would so hesitate you have a reasonable doubt. The questions of fact arc for your consideration. You are the exclusive judges of the credibility of the witnesses and of the weight to be given their testimony, and you must consider and determine whether the witnesses have told or intended to tell the truth upon the stand and what their testimony weighs, how nuich it weighs in enal)]ing you to get at the truth, because that is the purpose of all the evidence, all the law that can be given, to get at the truth so far as the issues are concerned. If you find the defendant guilty you will say, "We find the defend- ant guilty as charged in the indictment." If you find him not guilty you will say "Not guilty" by your verdict. In order to relieve you of the trouble of writing out the whole form, both forms will be handed to you by the deputj^ and you are to use the form in accordance with your verdict. In regard to selling to the railroad company for purposes of con- struction, I charge you to mind the statute. The railroad company have a right to take, and I charge* you that this defendant would have a right to cut and sell to the railroad company, from the lands adjacent to the line of the railroad, material, earth, stone, and timber necessary for the construction of said railroad; not to be shipped off somewhere else, but adjacent to that line. NoRTiiEKX Pacific Railroad Company />. Lewis. (162 U. S., 366.) In the above case the United States Supreme Court held as follows: A person who, without authority, cuts wo(j(l from public lands of the United States, not mineral, or purchases such wood so cut, and leaves it, when cut or purchased, upon such public lands near a railroad, has no right or possession of, or title to, or ownership in it, and cannot maintain an action against the corporation owning such railroad for its destruction by fire caused 1 )y sparks from locomotives of the company. (See syllabus.) It also further held therein as follows: If the right to cut is claimed under the act of June 3, 1878 (20 Stat., 88), the burden of proof is on the party so claiming to show the mineral character of the land and his compliance with the rules and regulations of the Secretary of the Interior. "The right to cut is exceptional, and quite narrow, and for specified purposes only. The broad, general rule is against the right. If the plaintiffs had acquired the right by reason of a compliance with the provisions of the statute the facts should have been shown bj^ them. The presumption, in the absence of evidence, is that the cutting is illegal." (U. S. o. Cook, 19 Wall., 591.) 78 Act of June 3, 1878 [W Stat. , 88). United States ". Milo -T. Legg et al. District court, fourth judicial district, Jlontana. TXSTKUCTIOXS OF COTIRT. You are instructed that in a civil action, ,such as the one at bar, the plaintiffs are only required to prove the material alleo-ations of the complaint, and the issues raised hv the pleadino-s b^' a preponderance of evidence. In this territory tlic public lands of the United States are divided into three general classes, nam(dy, agricultural lands, coal lands, and mimeral lands. 1. Agricultural lands are those lands that arc ca])able of being brought under a state of cultivation for the production of grain, grass, or vegetable of any kind that may be grown in thi-; climate, and which are not known to contain any ^-aluable dcposith of coal or any of the Y)reciouH metals, such as gold, silver, load, cinnaliar, or other valuable minerals. L'. Coal lands are thosi^ lands which are chiefly valuable for the coal known to exist therein. 3. ]\[ineral lands are those lands which are chiefly valuable for the minerals (except coal) which they contain, and which are more valuable for the minerals therein contained than they are as agricultural lands or for the timl)er growing thereon. Mineral lands are not subject to entry under the general land laws of the United States, but "can only lie located and entered as mines and mining claims under the act of May I'j, l.s73. Upon such lands persons who are citizens and residents of till" United States and the Territury may cut and remove therefrom the trees and timber growing thereon for domestic, agricultural, or mining pui'poses. But this right to cut timber from mineral lands does not g\\'e any riglit to persons tn go upon the public < of June 3, 1878 {'JO >Sf,tf., 88 none of any otlier character, and permits the cutting i>£ timber on such lands £or building, agricultural, mining, and other domestic purposes, but not for the purpose of sale or cominercc, and that the second of saiil acts (20 Stat, 89), as anicndrd liy the act of lfi02, relates to all nonmineral lands of the United States, in all pu)iUc-land States, and prohibits the cutting of timber on such lands, except as therein otherwise provided. Srcretarij J^^nuK'is to tlie (_'oiiiiii ikk/oju r of the (ictirral Land Office, F.lnianj 23, 1897. I am ill receipt of your communication of May !l!5, 1896, asking to be advised as (o the proper construction of the arts of Congress of June 3, ISTs (i'U Stat., ss), June 3, 1878 (iO Stat. s'.t). and of August i, 1892 (21 Stat., His), all of which contain provisions relating to the cutting of tim)>er on the public lands. The act of June 3, l^Ts (::!0 Stat., 8S), which may be designated as act No. 1, is entitled: An ai't authorizing the citizens of Colorado, Nevada, and the Territories to fell and remove timber ontlie public domain for mining and domestic purposes — and the first .section reads as follows: That all citizens of the T'nited States, and otlier persons, I'Ona tide residents of the State of Colorado (irNe\ada, or either of the Territories of New Mexico, Arizonai Utah, Wyoming, Dakota, Idaho or Montana, and all other mineral districts of the United States, shall be, ami are hereby, authorized and iiermitted to fell and remove, for building, a.ijricultnra], mining, or otlier domestic purposes, any timber or other trees growing or ])eiii,!,' on the public lauds, said lands lieing naneral, and not subject to entry under existiuj^ laws of the United States, except for mineral entry, in either of said States, Territories, or districts of which such citizens or persons may beat the time liona fide residents, subject to such rules and renulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth grow" ing upon such lands, and for other purposes; I'ruridnl, the provisions of this act shall not extenil to railroad corporations. The second section provides that the register and receiver of local land offices in whose disti'ict any mineral land may be situated shall ascertain from time t(.) time vli(>th(.'r any timber is boing cut upon auy sudi land, e.\cei)t for the piu'iioscs authorized bv said act, and if so, to report the fact to the general land oflice, and section three provides penalties for the violation, of the pro\isions of the act. The other act of June 3, 1878, which may be designated as act No. 2. is entitled: An act for the sale of timber lands in the States of California, ( )re,Lron, Nevada, and in Washington Territory. The first section of this act authorizes the sale of public lands in "the Stales of California, Oregon, and Nevada and in Washington Territory" which are \'aluable chiefly for timber and stone thereon, but unlit for cultivation; the second and third sections specify the Acts of June 3, 1S7S [W Sfot. , 88 and 89). 83 mode of procedure in such t-vsos, and section four prohibits the cutting of timber on the public hinds. It reads as follows: That after the passage of tliis art it shall be unlawful to cut, or cause or procure to be cut, or wantonly destroy,- any timber growing on any lands of the United States, in said States and Territory, or vcmow, or cause ti i be remoxed, any tinil jer from said lands with intent to export or dispose of tlie same; and no owner, master, or con- signee of any vessel, or owner, director, or agent of any railroad, shall knowingly transport the same, or any lumber manufactured therefrom; and any person vio- lating the provisicins of this section shall be guilty of a misdemeanor, and, on con- viction, shall be fined for every such offense a sum not less than one hundred nor more than one thousand dollars: Pmridcd, That nothing herein contained shall prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim, or preparing his farm for tillage, or from taking the timber neces- sary to support his improvements, or the taking of timl)er for the use of the United States; and the penalties herein provided shall not take effect until ninety days after the passage of this act. The fifth section provides for relief from prosecutions under section 24:61 of the Revised Statutes, and the sixth section repeals all acts or parts of acts inconsistent with the provisions of this act. The third act spoken of in your letter is that of August -i, 181»2 (27 Stat., 348), and is entitled: An act to authorize the entry of lands chiefly valualile for building stone under the placer-mining laws. The first section of this act provides for the entry of lands chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims, and the second section, which relates to the subject now under consideration, reads as follows: That an act entitled "An act for the sale of timber lands in the States of California, Oregon, Nevada, and Washington Territory," approved June third, eighteen hun- dred and seventy-eight, be, and the same is hereby, amended l)y striking out the words "States of California, Oregon, and Nevada, and \Vashington Territory" where the same occur in the second and third lines of said act, and insert in lieu thereof the words "pubhc-land States," the purpose of this act being to make said act of June third, eighteen hundred and seventy-eight, applicable to all the public-land States. The proper construction of the two acts of June 3, 1S78, was con- sidered by the United States Circuit Court in the case of United States V. Smith (11 Fed. Rep., 487), particularly as to their operation within the State of Oregon. It ^\•as there held that act No. 2 was operative in that State to the exclusion of act No. 1. It was said in the course of that decision that the provision in act No. 2, making it unlawful to cut any timber on any public land in Oregon, except that cut by a miner or agriculturist in the ordinary working or clearing of his mining claim or farm is inconsistent with and repugnant to the license to cut contained in act No. 1, and that both provisions could not be in full force in the same place. This decision was cited in the decision in 84 Acts of June- 5, 1878 [W Stat., 88 and 89). United States v. Benjanun (21 Fed. Eep., 2S5), and it was held that the provisions of the act (No. 1) authorizing the cutting of timber on the public lands was not applicable to California. These decisions were rendered on April 21, 1882, and August 18, 1881, respectively. This Department on May 25, 1882, considered a number of cases of trpsjoass in cutting timber on mineral lands in the Territory of Dakota, and gave certain instructions in the case of Frank P. Hardin et al. (1 L. D., 5!>7). Secretary Teller then said: The act of Congress approved June .3, 1878, entitled "An act authorizing the citi- zens of Colorado, Nevada, and the Territories to fell and remove timber from the public domain for mining and domestic purposes," clearly authorizes the cutting of timber on the mineral lands of the United States for domestic use. * * * It has been alleged that the act of June .3, 1878, does not apply to persons cutting timber on the mineral lands for sale, and that to enable any person to have the ben- efit of that act he must cut the timber for his pcrwual use, and not for sale. Such a construction defeats the \'ery intent of the act, which was to allow the settler on the mineral lands to have the benefit of the timber thereon growing for use within the Territory or State where it grew. The j)urpose and scope of the act were discussed at some length, and the conclusion reached is that expressed in the foregoing quota- tion. These views were incorporated in a circular upon said act issued by your office June 30, 1882, and approved by this Department (1 L. D., till 7), it being said: All citizens and bowifide residents of the States and Territories mentioned therein are authorized to fell and reni("i\'e, or tn purchase from others who fell and remove, any timber growing or being upon the public mineral lands in said States or Terri- tories: Proridcd — 1. That the same is not for export from the State (jr Territory where cut. 2. That no timber less than eight (8) inches in diameter is cut or removed. 3. That it is not wantonly ^^•astell or destroyed. The attention of this Department was in that stime year specifically directed to the apparent conflict in the provisions of said acts of June 3, lS7s, by a letter from your office requesting instructions in regard to the administration thereof. In departmental letter of August 7, 18S2 (1 L. D., Ooo), it was held in substance that the words "all other mineral districts of the United States" appearing in act No. 1 brought within the provisions of said act not only the mineral lands in the States and Territories named l>ut also those in all mineral districts outside such States and Territories, it being specifically said that "all privileges granted to inhabitants of mineral districts of the States and Territories named in the act were granted to the inhabi- tants of such mineral districts of California." It was held that the two acts could apply in the same State upon the theory that act No. 1 related to mineral lands and to that class of lands only. That this was recognized as the proper construction is further evidenced by a circular of October 12, 1882 (1 L. D., 695), wherein it was said that Acts of J,,,,,' .;, 1S7S {:30 Sfy his, her, or their own personal agent or agents only. The two acts of IbiTS, having been passed upon the same day, should he treated as one act and so construed, if possible, as to give each pro- vision of each act effect. Act No. 1 permits the cutting of tim])er for certain purposes upon mineral lands of the United States in the "States of Colorado or Nevada or either of the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana and all other mineral districts of the United States," and act No. 2 prohibits the cutting of timber on any lands of the United States in "the public-land States," with the proviso, however, that nothing therein contained shall prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim or preparing his farm for tillage, or from taking the timber necessary to support his improvements. This statement presents the apparently conflicting provisions of the two laws, the existence of which necessitates construction. If the conclusion of the circuit courts, as announced in the decisions hereinbefore cited, that the two acts can not operate in the same place, is to be accepted as correct, then it will be necessary to determine which of the two is to prevail. This Department has held, however, that both acts apply in Nevada, and if this holding is to be adhered to it would necessarily follow that both acts are to be held operative in the other public-land States brought within the provisions of act No. 2 by the amendatory act. 86 Acts of.hnie 5, 1878 (SO Stat., 88 nml 89). This rule, so long followed in the administration of these laws, should not be changed unless it is clearly erroneous. It has ))een the policy to regard the mineral lands in a diflterent light from other j^ublic lands of the United States, and the result has been a separate and distinct S3'stem of laws in relation to them. It was evidentlj^ this considera- tion that led to the conclusion by the Department that the two acts might stand and both have efi'ect in the same State. This theory seems to be the only reasonable one to explain the enactment of two laws upon the same day which are apparently contradictory. This construction gives effect to both la"«'s, allowing to each operation in its peculiar sphere, and should be adhered to if there be nothing to show a contrary' intention upon the part of Congress. The statement in instructions of April 7. IS^^T (1 L. D.. 600), in regard to act No. 2 — By the express provision of section 2 the mineral lands in the broadest sense of that term are excluded from the provisions of i^aid chapter — is true because the primarj' uljject of that legislation was to provide for the sale of lands that were not mineral in character and were at the same time unfit for agricultural purposes. It maj' be .said the insertion of the provision in said act allowing the rutting of timber upon mining claims negatives the proposition that the general prohibi- tion against cutting was not intended to apply to mineral lands. There is some force in that statement, Ijut the inference has not sufficient weight to overcome the other express statements. In the instructions issued under act No. 1. June 30, ISSi, it was held that timlier might be cut from mineral lands for sale to citizens and h(tn<( fJc residents of the States and Territories named in said act. In the instructions of ^lay 7, IfSSti, the cutting of timber for sale or com- merce was forbidden, but in those of August 5, lSSre should have been inserted therein such a provision as "or for sale to lima _t'de residents for such purposes." The license gi\-en under this provision is in derogation of the rights of the public, and must therefore^ be strictly construed and limited to the cases clearly and unequivocally specified in the act. The words used do not include a license to cut timber for the purpose of sale, and such a license can not properly be included l)y implication. The proper construction of these laws would seem to be No. 1 relates to all mineral lands of the United States, but to none of any other character, and permits the cutting of timber on such lands for building, agricultural, mining, and other domestic purposes, but not for the purpose of sale or commerce, while act No. 2, as amended by Act of June 3, 1878 {W Stat., S8)—jUuie/vl X'/.s-Z/vV^-. 87 the act of ISSt^, relates to all nonmineral lands of the United States in all public-land States, and prohibits the cutting of timber upon such lands, except as therein otherwise pioxided. The eticct of this act No. 1 as construed by tlic Department having, as you state, "resulted in wholesale de\-astatioTi of timber on such lands for purposes of speculation and personal guiii," affords sufficient reason for reconsidering the matter for the purpose of correcting the evil if possible. Furthermore, a change of the ruling as to the con- struction of said act could not afi'ect any \-ested rights, as it would simply operate as a revocation or limitation of the unrestricted license to cut, recognized under the construction heretofore given said act. There seems therefore to be good rea^eus for changing the instructions under said act, and no valid reason against such action at this time. You will at once prepare instructions in accordance with the views herein set forth to take effect upon such future date as may seem proper, and submit the same for approval. TIMBER OUrriya—iflNERAL LANDS. IXSTRUCTIONS. (29 L. D., 349.) The act of .Tune 3, 1878 (20 Stat., 88), with respect to timber cutting on mineral lands, applies to the States of Colorado, Nevada, Montana, Idaho, Wyoming', North Dakota, South Dakota, and Utah, the Territories of Xew Mexicij and Arizona, and all other mineral districts of the United States. Secretary Sitchcocl to the Conuidtisloner of tJio (rciKval Land Ojfice, Dccemher U, 1899. The Department has again considered the circular of instructions of March IS, 1897, in relation to the cutting of timber on mineral lands, and also your recommendation as to changes to be made therein. The change suggested relates alone to the territory to be affected by the act of June 3, 187S (20 Stat., 88). The circular approved March 18, 1897, but never promulgated, pro- vides upon this point as follows: The act appUes to the States of Colorado, Nevada, Montana, Idaho, Wyoming, North Dakota, South Dakota, and Utah, and the Territories of New IMexico and Arizona, and all other mineral districts of the United States. You propose to substitute for this paragraph the following: The operation of the act does not extend beyond the States and Territories specifi- cally named therein, viz: The States of Colorado, Nevada, Montana, Idaho, Wyo- ming, North Dakota, South Dakota, and Utah, and the Territories of New Mexico and Arizona, since the phrase " other mineral districts of the United States," used in the act, having no definite signification, is incapable of local application, and, consequently, fails to have any effect for want of certainty. 88 Act of June J, 1S7S {,20 tihd., SSy-^l'nunuil Districts. In regard to this elumgt'. and referring to the construction given by the former circular, you say: While the wonlinj; of the act in, doulitless, susceptible of this construction, the resultof expanding the operation of the act beyoml the States and Territories specifi- cally named therein on the strength of so vague and altogether undefined phrase as " mineral ilistriits," will be to render it jirruiiciiUi/ iinjioxxihle lo rchninisler the law in those States and Territories in which it becomes operative under this term, since it will be inipossilile to distinguish as to which lands in such States and Territories are to ])e recognizeil as constituting "mineral districts." In the opinion of this office, this iihrase is incapable of definite local application. To adopt your recommendation would lie to. say that the words " and all other mineral districts of the United States " are surplusage and of no eflert. Such action would be obnoxious to th(.' -well-settled rules of construction, which require that efteet shall be given to every word of a statute, if possible. As said by j'ou, the words in iiuestion are susceptible of the construction giyen them in the former circular. Furthermore, the fact that difficulty may ]>o met with in practically administering a law is not usually safe ground for ignoring a provi- sion thereof. The second section of said act indicates that effect was intended to be gi\'en said phrase, and at the same tin;e points out with some degree of clearness that all mineral lands are to be considered ;is within the purview of said act. Said section contains the following; That it shall be the duty of the leci'^ter and receiver of any local land office in wliose district any mineral land may lie situated to ascertain from time to time whether any timber is being cut or used upon any sucli lands, except for the pur- poses authorized )iy this act, \vithin their i-espective districts. Accepting this provision as explaining and defining the term "other mineral districts." it juaterially lessens if it does not entirely obviate the difficulties referred to in your letter. I agree -with you that it is not necessary to include in this circular a reference to the act of ]Mareh ?,. IS'.H (liC, Stat., Iti'.i:;,), providing for permits to cut timber on public timber lands in t'crtain States. That act has a well-defined ]mrpose and scope of its own, and it was not intendeil by this cii'cular to afi'eet its operation therein. It does not seem necessary to go into a fuller discussion of the ques- tions involved, as they were all (|uite fully gone into by my prede- cessor when first su])mitted. (24 L. D., K.iT.) I concur in the iM.melusion then i'(>aehed, and am of opinion that the cii'cular approM'd March bs, l,s".)T, is correct. You will therefore make such modifications as to the date when it shall take effect as may be necessary to gi\'c due noti(;e thereof, and as so modified it will be approved preparatory to its promulgation. Acts ofJinw 3, 1878 {:20 Stat. , 88 and 89). 89 United States v. English et al. Circuit court, district o£ Oregon, April 4, 1901 (107 Fed. Rep., 8(i7). 1. Public Domain — Cvtting and Eeiuival op Timbeb — Acts AuTnoMziNc — Con- struction. The act of June 3, 1878, authiorizins citizens and residents of tlie States of Col- orado, Nevada, and the Territories, and "all tither mineral districts of the United States," to fell and remove timber on the public domain does not apply to the State of Oregon, there being no such mineral district. 2. Same — Act Prohibiting — Construction — Cctting for Use in Qtartz ]\Iill. The proviso to the act of June 3, 1878, §4, prohibiting the cutting and removal of timber on the public domain, provides that it shall not prevent any miner from clearing land in working his claim, or from taking timber to support his improvements. ILki, that the taking of the timber for use in a quartz mill adja- cent to the land from which it was cut was not within the proviso, and hence was prohibited by the act. 3. Sajie — Question op Willful Trespass — Imposition op Pen-^lty. As the unlawfulness of cutting for use in a quartz mill adjacent to the lands from which it is taken is fairly open to. question, under the act (the precise question never before having been decided), a cutting for such a purpose will not be held to be willful, and hence the penalty prescribed therefor will not be imposed, but the trespassers will be held liable only for the actual value of the wood in the trees. Belungee, iJktrid Judgi:: This is an action by thie United States to reeover the value of 1,6S4 cords of wood alleged to have heen unlawfully cut upon the public domain. The wood was used by the defendants in their quartz mill, at what is known as the "Golconda mill" in eastern Oregon. Two defenses are made: First, that the wood was cut from some placer mining claims owned by the defendants in the vicinity of their mill, preparatory to the working of such claims; and second, that the defendants have a right to take from the public domain wood neces- sary in the conduct of their milling business. As to the first of these defenses, I am satisfied that defendants are not the owners, in good faith, of the alleged placer claims, and that the title so asserted is a mere pretense to justify taking the timber from the land claimed as placer-mining ground. By the act of June 3, 1878, which is entitled "An act authorizing the citizens of Colorado, Nevada, and the Territories to fell and remove timber on the public domain for mining and domestic purposes," it is provided: That all citizens of the United States and other persons, bona fide residents of the State of Colorado, or Nevada, or either of the Territories of New Jlexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either 90 Acts of June 3, 1878 (£0 Stat. , 88 and 89). of said States, Territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes; Proridt'iJ, The provisions of this act shall not extend to railroad corporations. L'pon tlio argument it was claimed that the defendants were entitled under this act to <-ut the timber in question. But this act does not in terms appl3' to the State of Oregon; and it has been held that the phrase "other inineral districts of the United States" is not intended to include the State of Oregon, there being no such mineral district. (U. S. /■. Smith (C. (_'.). 11 Fed. Rep., 187; U. S. /-. Benjamin (C. C), SI Fed. Rep., i'85.) The question of defendants' liability depends upon the construction to be given to another act "f C'dngress. approved June 3, 1878, enti- tled •"An act for the sale of tim))ei' lands in the States of California Oregon, Nevada, and in Washington Territorj-." Section 4 of this act is as follows: That after the passage of this act it shall be unlawful to cut, or cause or procure to lie cut, nr \vant(jnly destroy, any timber growing on any lands of the United States, in said States and Territory, or rcumve, or cause to be removed, any timber from said public lands, with intent to cxpdi't nr dispose of the same; and no owner, master, or cunsignee nf any vessel, nr owner, director or agent of any railroad, shall knowingly transport the same, or any lumber manufactured therefrom; and any person violating the prnvisinns nf this section shall be guilty of a misdemeanor, and, on convictinn, shall lie fined for every such nCfense a sum not less than one hundred nor more than one thousand liobar.^: I'l-acidi'd, That nothing herein contained shall jjrevciit any miner or agriculturist from clearing his land in the ordinary working of his mining claim, or preparing his farm f(jr tillage, or from taking the timber neces- sary U> support his improvements, or the taking nf timljer for the use of the United States; and the jienalties herein provided shall not take effect until ninety days after the passage of this act. It is contended for the defendants that this is a case of the taking of timtier from the public domain necessary to support their improve- ments, and that it is within the proviso of this section just quoted. The Land n('p;irtment hy its instructions interprets the proviso in tliis act to tuithorize the taking of timber not only from the mines and farms of the tigriculturist and miner, but when the required quantity is not obtaina))le therefrom, from other pultlic lands nearby. It is clear, 1 think, that taking timber from public lands for the use the defendants made of this wood is not to sttpport improvements, within the meaning of the proviso of section 1 of the act of ls78. The use that is here made of this timber is for the conduct of a permanent business. The use is not an improvement. It is not in support of, and has nothing to do with, an improvement. In the case of U. S. v- Hacker (C. C), 73 Fed. Rep., '2'.i'2. it is held that an indictment under this section which does not allege that the defendant intended to export or dispose of the timber cut upon public land is fatally defective. The Acts of Jane 3, 1S7S {W >St(iL, 6'6' and 89). 91 court was of the opinion in that ca.se that the phrase " with intent to export or dispose of the same" has reference not only to the removal of the timber, but to the cutting of it; and it seems to follow from this ruling that the cutting, or pi'ocuring to be cut, of timber, or its removal, is not a crime, unless what is done is with the intent to export or dispose of the same. And it is argued in defendants' behalf from this that these defendants are authorized to cut timber, or procure it to be cut, from the adjacent public lands, for use in their quartz mill. It would seem from the construction that has been given to this stat- ute that the act of the defendants is within neither the proviso which authorizes the taking of timber, nor the prohibition of the section which makes the taking a crime. In other words, the timber in this case was not cut for export or sale, nor was it taken by the miner for the necessary support of liis improvements. Nevertheless, I am of the opinion that this section must be given such a construction as will pro- hibit the taking of timber from the adjacent public lands by a miner or agriculturist in any case not within the proviso in this section. The statute is intended to preserve the timber upon the public domain against the cutting or taking for any purpose other than that of clear- ing the land of the agriculturist, or in the ordinary working of the mining claim of the miner, or for the purpose of supporting the neces- sary improvements of each, and this is not such a case. The testimony in the case shows that the value of the wood in the tree was 50 cents per cord. When cut it was worth on the ground $1.50 per cord, and at the mill $3. I am of the opinion that the acts of the defendants were not willful. They cut and hauled this wood away in the belief that under the law the_>' had a right so to do. The pro- vision in section 4 of the act of 18Y8, by which the unlawfulness of timber cutting is made to depend upon an intention to export and dispose of the same, leaves it fairly open to question, notwithstanding the provisos which follow, whether timber may not be cut for use at a quartz mill located on lands adjacent to those from which the timber is cut. The precise question has never before been decided, so far as I am advised; and, in the absence of a decision adverse to such a claim, I am not disposed to hold the conduct of the defendants willful in cutting the timber in question. The total amount cut is 1,684: cords, for which the defendants should be charged at the rate of .30 cents per cord. Department of the Interior, General Land Office, Washington, D. C, Septcniher 15, 1900. Sir: I have received your letter of the 13th instant in reply to office letter of the 1st ultimo, relative to tlie right of persons oper- ating smelters in Coconino County, Ariz., to take timber from the 92 Acl of J H IK- .;, 1S7S (M ,si,tf.^ 8S)—Siiu'I(hi(i. public lands for the purpose of manufacturing charcoal to be used in smelting. It was held in said letter that smelting is not mining, and that tim- ber can not be taken from public mineral lands under the act of June 3, bSTS, for smelting purposes. In support of the ruling you were referred to the circular of January ly, 1900, containing rules and regulations go\erning the use of timber on public mineral lands, and to a decision rendered October 11, lss7, by then Secretary Lamar. In your said hotter you contend that the decision of 1887 should not be held to appl\' to the smelter for which 30U desii-e to secure timber, as the facts differ ver}- materially from the facts in the case under consideration by Secretary Lamar when said decision was ren- dered. You further ci/ntend, if it l)e held that smelting is not mining, and that you have no right to take timber from mineral lands for smelting, that you should be allowed, under the act of iVIarch 3, 1891, and the rules and regulations thei'eunder, contained in the circular of Februar\' lii, l',»()(), to take timber from nonmineral public lands for smelting under the clause which allows the free use of timber for manufacturing. In replay to your said letter, with reference to the hrst contention it is only necessary to state that the rules and rc^gulations governing the use of tinil)er on mineral lands, approved liy the honorable Secre- tary on January l8, !!»()( ), pro\'i(le in specific terms that — No timber is peiniitteil tu l)e used fnv siiidting purpeyef, unielting being a separate and iliytinrt industi y fi'(jiii that of uiiniiii;. These regulations are binding on this office, and I must therefore adhere to the position taken in said lett(.'r of August 1, lyoo. Section 3 of the i-ircular of February 10, l!:»()0, containing rules and regulations governing the use of timber on nonmineral public lands in certain States and Territoi-ies, under the act of March 3, 18'.)L (I'd Stat., 1()'.»3), as (Extended by the act of February 13, 1893 (27 Stat., -tiJ:), provides that— Settlers upon |)iililic lamls and other residents of the States and Territories above named may imiciire timber free of ( liarLje from unoccupied, unreserved, nonmineral polilir lands witliin said States and Teriitories, .strictly for their own use for fire- wood, feniiii;,', building, or other agricultuial, mining, manufacturing, or domestic purjioses, but not for sale or disposal, nor for use hy other persons, nor for export frouj the State or Territory wliere procured. The cutting or removal of timber or lumber to an amount exceeding in stumpanv value s.^iO in any one year will not be pernntted, excejit upon application to the Secretary of the Interior and after the granting of a special pcrnjit. Th(_' question then aiises, is not it resident of the Territory of Ari- zona, which is one of the Territories to which said tict applies, entitled to take timlier from nonmineral puljlit-, lands under the permission to take it for "manufacturing or domestic purposes T' Act ofJmic J, 1878 {W Stat., S8)—Smdt;vin he has acted in good faith and under the belief that he had a right to take it, ho is to be charged for the timber at its value as he found it standing on the land. You must judge from the testimony whether the defendant acted in such good faith or not, and find your A'erdict according to your con- clusion from his testimonv. United States •/'. Ricttmond Minino Company. Circuit ronrt, district of Nevada, Xovenilier I'o, 18s9 (40 Fed. Rep., 415). Public Lands — Right to Timeeh Cut fdh Mixing Purposes. Thf defendant, a cnvporation en^taued in mining, reducing ores, and refining bullion, purchased wood and cliarcoal for use at its reduction works. The cord wond, and the wood from wliich the cliarcoal was manufactured, were cut upon unsurveyed public lands, mineral in character, of little or no value except for the mineral therein, and within ori,'anized mining districts, or not far remote from known mines. i/i/J, that this was mineral land within the meaning of the act of Congress of June .">, 1S7S, permitting timber to be taken therefrom fer "building, agricultural, mining, orother domestic purposes;" and that defendant could law fully purchase such wood and coal for said use under the license given by said act. (Syllabus by the court.) United States /'. Edwards. district <-onrt, district of Colorado, June V2, ISSd ( Ms Fed. Rep., 812). Public L.vxns — J1inei;al Lands. Lanil returned on the (T0\ernment survey as mineral land, of broken and rugged surface, with e\'ery indication of mineral giound, but on which no mines have been located, though in tlie vicinity of valuable mines, and which is unfit for culti\-ation and entry as agricultural lands, ia within the meaning of act of Congress of June 3, 1S7X, allowing tiniljcr to be taken from the mineral lands on the public domain for building, agricultural, mining, or other domestic purposes. United States ,-. Price Ti;A])iN(i C'o:hpany et al. Circuit court ef appeals, eighth circuit (109 Fed. Rep., 239). * * * * jf- * CuTTiNci OP Timber from Mineral Lands — Regulations (rovEKNiNG. The regulations prescribed by the Secretary of the Interior, under and pursu- ant to ai't June 3, 1K7S (20 Stat., .SS), authorizing the cutting of timber from public mineral lands in certain States and Territorii-s for building, agricultural, Act of June 3, 1S7S {20 S;f„.t.^ ss). 97 mining, or other domestic purpci^^es, wliich renulatioiiH icijuire "every owner or manager of a sawmill, or other person fellint; or removinL; timber nnder the pro- visions of this act," to keep a record showing liy whom sucli timber was cot, from Avhat lands, evidence of mineral chanu'ter, ti> whom the limber was sold and for what purpose, etc., and to take from eacli purcliaser a written certificiite under oath, that the purchase is maile for his M THAT OF TJIE ACT i:N.i.\MiN. Circuit court, district of ( 'aliforuia I 21 Fed. I;i'[.., 2s.t). I'l I'.i.ic [j\Mis — CcrriNi. Tlmheron ^1inki:m, L\ni>s in California — .Ut of June 3, 1S7S, riis. l-'iO A.xii 1,51. Timlierupi>n iidueral lands in the State of California is protected and gov- erned by the jirovisions of the act of .Tune .'-1, 1S7S, i-hapter 1.51 (20 Stat., Sli|, luadc siiccilically ai>plicablc to that State, and not by the general provisions of chapter 150 of the act of June 3, 1S7S (20 Stat., Ssi, which can only oiierate upon "mineral districts,'' if any there be, not specifically provided fur by desig- nating the particular State or Territory in which it is situated by name. See decision in full, cited on ptio-e 11^. TIMBER AND STONE LAND ACT. [.Vcl of .Iiiiic 3. 1S7S, cliap, l.M, 'JO Slat, .v.i 1 AN M 'T for the sale of timber lands in the States of t 'aliforuia, Oregon, Nevaila.and in \Vashington Territory. Hi It ,'inlctril Inj the Sriiiifc iiiid llmixr iij' Rrj_>re'd States donating- lands for internal improvements, education, or other purposes: And proriili (I further^ Th-nt none of th(> rights conferred ))v tlie act approved July twenty-sixth, eighteen hundred and sixty-six, entitled "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes." shall be alirogated by this act; and all patents granted shall be subject to any vested and accrued water rights, or rights to ditches and reser\'oirs used in connection with such water rights, as maj- have been acquired under and by the pro- visions of said act; and such rights shall be expressly reserved in any patent issued under this act. Sec. 1'. That any person desiring to avail himself of the provisions of this act shall tile with the register of the proper district a written state- ment in duplicate, one of which is to be transmitted to the (iencral Land Office, designating l)y legal subdivisions the particular tract of land he desires to purchase, s(>tting forth that the same is unfit for cul- tivation, and valuable chiefly for its timltcr or .stone; that it is unin- habited; contains no mining or other impro\enients. except for ditch or canal purposes, -n'here any such do exist, save such as -\v(M-e made l)y or belong to the applicant, nor, as deponent verily belie\'<'s, any \alua- ble deposit of gold, silver, cinnabar, copper, or coal; that deponent has made no other application under this ac-t; that he does not applj' to pur- chase the same on speculation, but in good faith to approin-iate it to his own exclusive use and >)enefit; and that he has not, directh' or indirectly, made any agreement or contract, in anj- way or manner, with any person or persons whatsoever, by which the title which he might acquire from the Government of the United Stat(>s should inure, in whole or in part, to the benefit of any person except himself; which statement must be verified by the oath of the applicant before the register or the receiver of the land office within the district where the land is situated; and if any person taking such oath shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury, and shall forfeit the money which he may have paid for said lands, and all right and title to the same; and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void. Sec. 3. That upon the filing of said statement, as provided in the sec- ond section of this act, the register of the land office shall post a notice of such application, embracing a description of the land by legal subdivi- sions, in his office, for a period of sixty days, and shall furnish the appli- cant a copy of the same for publication at the expense of such applicant, in a newspaper published nearest the location of the premises, for a 100 Arf. ofJ-n/K' 5, 1878 (30 Stat., 89). like period of time; and after the expiration of said sixty days, if qq adverse claim shall havi.' been tiled, the person desiring to purchase shall furnish to the register of the laud office satisfactory evidence, first, that said notice of the application prepared liy the register as aforesaid was duly published in a newspaper as herein iT(iuired; socondh% that the land is of the character contemplated in this act, unoccupied and with- out improveuients other than tliose ex<-epted, cither mining or agri- cultural, and that it apparently contains no valuable deposits of gold, silver, cinnal)ar, copper, or coal; and upon payuient to the proper officer of the jDurchase money of said land, together with the fc(>s of the regis- ter and the reccnver, as j^rovided for in case of mining claims in the twelfth section of the act approved May tenth, eighteen hundred and sevcnty-tw(.i, the ai^plicant may ))e permitted to enter said tract, and, on the transmission to the General Land Office of the papers and testi- mony in the case, a patiMit shall issue thereon: Pvar'nhiJ, That any person having a valid claim to anv jiortion of the huid may object, in writing, to the issuance of a patent to lands so held l)y him, stating the nature of his clai)u thereto; and ovid(Mice shall ))c talvcn, and the merits of said objection shall be determined I))' the officers of the land office, subject to appeal, as in other land cases. Eftc(,'t shall be given to the foregoing provisions of this at't l\v regulati(jns to be picscribed hvthe Commissioner of the (xcneral Land Office. Sec. i. That after the passag<' of this act it sludl be xudawful to cut, or cause or procure to 1je cut. or wantonly desti'oy, anv timber growing on any lands of the United .States, in said States and Territory, or remo^'e, or cause to 1)6 removed, an}- timber from said public lands, with intent to export nr dispose of the same; and no owner, master, or con- signee of any vessel, or owner, dirtM-tor, or agent of any railroad, shaU knowingly transport the same, or any lumber manufactured therefrom; and any person violating the provisions of this section ^hall be guilty of a misdemeanor, and, on conviction, shall b(> fined for every such ofiens(^ a sum not less than one hundred nor more than one thousand dollars: /'/v/vVAy/, That nothing lierein contained shall prevent any miner or agriculturist from clearing his land in the ordinary working of his mining c hum. oi- preparing his farm for tillage. (U- from taking the timber necessary to support his improvements, or tli(> taking of timber for the use of the Tnited States; and the penalties heriMn provided shall not take effect until ninety days after the passage of this act. Skc. 6. That any person proseeutinl in said States and Territoi y for violating section two thousand four hundred and sixty-one of the Revised Statutes of the. United States who is not prosecuted for cut- ting timber for export from the United States may be relieved from further prosecution and liabihty therefor upon payment, into the court wherein said action is pending, of the sum of tAvo dollars and fifty cents per acre for all lands on which he shall have cut or caused to be cut timber, or removed or caused to be removed the same: Provided, That Act of June 3, 1878— Art of Aiujiixt 4, ISm. 101 nothing contained in this section shall he construed as granting to the person hereby relieved the title to said lands for said payment; but he shall have the right to purchase the same upon the same tt'rms and conditions as other persons, as provided hereinbefore in this act: And furtlier jh'oridcd, That all moneys collected under this act shall be covered into the Treasury of the United States. And section four thousand seven hundred and fifty -one of the Revised Statutes is hei-eby repealed, so far as it relates to the States and Territory^ herein named. Sec. (i. That all ai'ts and parts of acts inconsistent with the provi- sions of this act are hereby repealed. This act was made applicable to all the public land States by the act of August 4, 1892 (27 Stat. , 348.) [Art of August A, l.S'.l'J; -JT Stat., 3-ls.] « «■ -X- -;: . ; * Sec. 2. That an act entitled " An act for the sale of timber lands in the States of California, Oregon, Nevada, and Washington Territory," approved June third, eighteen hundred and seventy -eight, be, and the same is hereliy, amended by striking out the words "States of Cali- fornia, Oregon, Nevada, and Washington Territor}-" where the same occur in the second and third lines of said act, and insert in lieu thereof the words "public-land States," the purpose of this act lieing to make said act of June third, eighteen hundred and seventy-eight, applicable to all the public-land States. Sec. 3. That nothing in this act shall be construed to I'epeal seetion twenty-four of the act entitled "An act to repeal timber-culture laws, and for other purposes," approved March third, eighteen hundred and ninety-one. United States r. Williajis ani5 others. United States r. Williaiis and another. Circuit court, district of Oregon (18 Fed. Kep., 475). Cutting Timber ox the Public Lands. ' Section 4 of tiie act of June 3, 1878 (20 Stat., 89), proliibits the cutting of any timber on the public lands with intent to dispose of the same; but the proviso thereto permits a settler under the preemption and homestead acts to clear his claim as iasi as the same is put under cultivation, and the timber cut in the course of such clearing may be disposed of by the settler to the best advantage. Same. But if such settler cuts timber on his claim with the intent to dispose of the same, and not merely as a means of preparing the land for tillage, he is a willful trespasser, and is liable accordingly. Damages for Cutting Timber. The measure of damages in an action for cutting timber on the public lands, in case the trespass is inadvertent and not willful, is the value of the timber in the tree; bat where the trespass is willful, the value of the labor put upon it by the trespasser must be added to the value in the tree, with interest thereon in either case. 102 Arf ofjin,,; 3, 1878 (30 >St'/f., 89). Trespass by .Misjake. The . left-ndaiit claimed to have taken up a homestead on the northwest quar- ter of sertion 22 of township 19, and, while intending to cut saw \t%>> thereon, witli intent to disp(.ise of the same, did, by mistake, cut said logs on the north- east (juarter of said section. ILhl, that if tlie defendant had cut the logs on the northwest cjuarter, as he intended, it would have been ■-% willful trespass, and therefon' his mistake was immaterial, and he was liable to the T'uited States for tlie value of suiil lo«s as a willful trespasser. Defaktment of the Interior, (teneral Land Office, Wd.sliiiujtini. D. C, Jiuie ;-', 1890. Sir: B\' reference from tin- Depui'tjuent. 1 am in receipt of your letter of JNIaj- li, isito, addross(_'cl to the honorable .Seereturv of the Interior, and ro(iue,sting reply to the following qiics;tions: 1. Have we the right to take timber from < Jovernment land to satisfy the require- ments of our flumes and mines? 2. Have Me the right to cut logs for miners owning claims in the neighborhood and to receixe toll tlierefor? You are advised that under the proviso to section 4, act of June 3, 1S7S (20 ,Stat., s',i), the miner is authorized to cut the timber necessary to be cut in clearing his land in tlie ordinary working of his mining claim, and to support his improvements. The proviso limits the cut- ting on the public lands to that done b}' a miner or agriculturist on his claim and for two purposes, ^•iz, to enable him to work his claim for mining or farm purposes and to supply himself with the timber needed for his impro^'ements. It does not license any cutting on the public lands beyond the limits of a mining or homestead claim, for the purposes above mentioned or for an 3' other purpose. Therefore it appears that you have 110 right to take timber from vacant Government land to supply your flumes and mines. In reply to j'our second inquiry, you are advised that miners have the right to employ others to cut for them such timber as, and above stated, they arc authorized to cut cither for clearing or for improve- ments, and they may recei\"e in exchange for timber so cut knnber to be used for the impro\cnK'nts Tor which the said timber was cut. It therefore appears that you may negotiate Avith a miner or agri- cidturist to cut for him the timber necessary to be removed from his claim in the ordiiuiry adaptatimi of it to mining or for farm purposes, (U'the timber needed for inipro\eiucnts. The timber cut foi' clearing in the ordinary working of a mining claim or preparing a homestead claim for tillage may be sold for money. The timber cut for improvements may be exchanged for the lumber needed and to Ijc applied to such improvements. Verv respectfullv, E. F. Best, ^ictiiiq ( 'iimiiiixswner. Mr. W. E. (JouL, Api>le0 STAT, 89). Department of the Interior, ^Vo■^h!n dismissed. \"ery respectfully, C. ScHUKZ, Srcn-tdrij. Hon. Chaklks 1)k\e^s, AltiiriirlJ- < rrlirrdi . [Hi (III., l«ll.] Sertiont< 4 and 5 of the act of .Tune 'A, 1S7S, cliapter 151, cntitleil "An act for the sale of tinil)c-i' lands m the States of California, Oi'cgon, Isevada, and in Washington Tci-ritnvy," consti-ued incnniicctidn with section 24(jl, Revised Statutes, punish- ing tile cuttin;,' m- reinnval ef timher (.'rowiiii.' on tlie public lands. Dki'aktmknt of Jr stick, ('rtnln- 2 !, 1.S78. Sii;: I ha\e carefully considerecl parauraph 1 of the "' Rules and Regulations for the Protection of Timber," etc., tran-niitted with your letter of Septemlior 24. in coiiiiection with Revised Statutes, sec- tion 24(il, and the two acts of ,)une '■'>. iSTs. Section 4 of the longer oi these two acts merely singles out from the offenses described in section i!4()l that of cutting or removing timber "with intent io export ordi^pose of it," and affixes to it a new and diiferent penalty. Section 5 simply allows all ])er-ons prosecuted for the cutting or romoyal of timber, '"except those ^vho cut or removed with intent to export," to relieve themsehes from the penalties prescribed in section 24fil by the payment at the rate of i52..'in an acre of the land on which the trespasses were connuitted. The effect of this provision is to re- lease offenders from the penalties incurred for ott'eiise.s committed under the former law prior to the passage of the new act, on their compliance with the specified conditions; tlio.se who cut or removed "with intent to export" being expressly excluded from the benefit of the provision. I see nothing in the language of the pro\'ision that limits its opera- tion to pr(.)scculions a<'tually pending when the act was passed. The effect of the proviso in secti(.)n 4, tis also of the other act of the same date, is simply to exempt cerlain specified cases from the opera- tion of the pro\isions of section 24t;L. It is a necessary implication from these special ])ro\-isioiis that the former law continues in force in respect to all cases to -which they do not appl}'. I am therefore of opinion that paragraph 1 of the rules and regula- tions transmitted is in accordance with law. The United Stales attorney for the district of California has been instructed to be governed in his idficial action in regard to timber Acts of Jane 3, 1878 {20 Stdt. , 88 and 89). 105 cases by the views expressed in this letter, a t-tjpy of which has been forwarded to him. Very respectfully, ChAS. DlOVENS. Hon. Carl S<"iiurz, Secretary of the Interior. Department of the Interior, General Land Office, Wmluiujinii^ D. a, M,uj 16, 1896. Sir: I have the honor to acknowledge the receipt, by reference from the Department, "for consideration, report in duplicate, and return of papers," of a letter from the Attorney-General dated May 7, 1896, transmitting copy of a letter from the United States attorney for the western district of Wisconsin, urging the importance of early action on reports submitted to this office presenting evidence in cases of alleged trespasses upon public timber, and adding as follows: Again, in all of these cases the General Land Office almost uniformly recommends criminal prosecution. Congress has so legislated that the remedy by criminal pros- ecution is almost worthless to the Government. The statute supposed to apply is section 2461, under which the penalties are appropriated. Congress, however, in 1878 (1 Supp., 1891, p. 167), passed an act relating to California, Oregon, and other .States, by section 4 of which act the cutting of timber in said States is made merely a misdemeanor and the penalty limited to a fine of not less than SlOO nor more than 81,000. This act, in 1892, was made general as to all public-land States (27 Stat, 348). The only punishment, therefore, now existing is a fine of not less than §100 nor more than SI, 000. A person in prison for nonpayment of this fine t'uuld s\'\ear out as a poor convict at the end of thirty days. Whether a criminal prosecution is desirable, therefore, is a question to be carefully considered in each particular case. In regard to the question thus raised as to whether section 2461 U. S. R. S. was repealed by the subsequent act of June 3, ISTS (::!0 Stat., 89), the operation of which was extended to all the public-land States by the act of August 4, 1893 (27 Stat., 348), I have the honor to report that this question was raised in letter from the Department to the Attorney-General, under date of September 34, 1878, transmitting copy of certain rules and regulations (presumably of August 15, 1878, copy herewith) in connection with section 2461 and the two acts of June 3, 1878 (20 Stat, 8S, and 30 Stat, 89). In said letter it was held as follows: I do not understand, however, that either of said acts was intended to repeal sec- tion 2461, nor in any manner to affect the prosecutions of persons for depredations already committed, except as therein specified. While it is true section 5 of the act prescribes a rule for settlement, this does not necessaril)-, nor in fact, take away the right of the Government to prosecute persons who have trespassed upon the public lands. Should you agree with me in these conclusions I have the honor to recom- mend that you will instruct the United States attorney for the State of California to prosecute all cases of trespass * * * which may be or may have been reported 106 vlrAv of.Tinir :i. 1S78 {'20 Sfiit. , 88 and 89). to hiiu in the winie manner tliat they wi-re heretofore pro?eruted; anil if the persons thus prosecuted are convicted and def^ire to make tJcttlemeiit in accordance with the terms of the fifth section of said act that settlement should be made accordingly and the further iirocedin>;s in the case dismissed. Tlie Attorney-General, in reply (see 16 Op., I'.'O), states as follows: Section 1 of the longer of these two acts merely singles out from the offenses descTJlied in section 24H1 that of cutting or removing timlier " with intent to export or dispose of it," and affixes to it a new and different penalty. Section 5 simply allows all jjcrsons prosecuted for the cutting or removal of timber except those who cut orrenio\ed "with intent to export," to relieve themselves from the penalties i>resiTilied in section 2461 liy the payment at the rate of 82.50 an acre of the land on which the trespasses were committed. The effect of this proviso is to release offenders from the penalties incurred for offenses committed under the former law prior to tke jiassage of the new act on their compliance with the specified conditions, those wlio cut or removed "with intent to export" being expressly excluded from the benefit of the provision. 1 see nothing in the language of the provision that limits its operation to prosecu- tions actually pending when the act was i>assed. The effect of the proviso in section 4, as also of the other act of the same date, is simply to exempt certain specified cases from the operation of the provisions of sec- tion 2461. It is a nei-essary implication fn >m these special provisions that the former law continues in force in respect to all cases to which they do not apply. lam, therefore, of opinion that paragraph 1 of the rules and regulations trans- mitted is in accordance with law. The Vnited States attorney for the distriit of California has been instructed to be governed, in his official action in regard to timing cases, iiv the views expressed in this letter, * * In addition to the points covered l)y the aliove correspondence between this Department and the Department of Justice, I desire to in\'ite attention to the following- facts : Section 2-l:(;i V. S. K. S. is derived from section 1 of the act of March i!, Is31 (i Stat., -±72), and section -±7.51 U. S. R. 8. is derived from section 3 of the same act. The act of June H, ls7s (2i» Stat., S!)), makes the .special provision that section 47.51 U. S. li. S. is repealed thereby so far as relates to the States and Tei-ritory tlierein named, but makes no such provision in respect to the remainder of tlie said act of ]March ;i, 1831, from which it appears fair to conclude (iiat only that portion of the act of iNIarcli 2, ls31, comprehended in section 17.51 U. S. R. S. was intended by ("ono-rcssto be repealed, and tliat section 2161 remained untouched. 1 also respectfully invite attention to the case of Shiver v. United States (15'.» L\ S., VM). The referred papers are herewith returned. Vei'y respectfully, S. W. Lamoreux, ( 'mil III ixfKijh I'. The Secuktaey of the Inteeiok. Approved by the Secretary of the Interior in letter of May 23, 1896, to the Attorney-General. ActsofJuns 3, 1878 {SO Stat, 88 a)id89)-Mineral Dlstr! the trespass mentioned in the complaint. The plaintiff demurs generally to this defence. The first act of Congress which in terms authorized or permitted the cutting of timber upon the public lands b\' a private person for any purpose was passed June 3, 1878 (I'o Stat., 8S), and is entitled " .Inad to authorize th(> citizens of Colonulo. Nevada, and the Tcn-itoriestofell and remove timber on the public domain for mining and domestic pur- poses."" This act contains three sections. The rirst one authorizes any bona fide resident of the States aforesaid oi- either of the Territories- naming them — '"and all other mineral districts of the United States," to fell and remove, for building, agricultural, mining, or other domestic purposes,"" any ti'ces growing upon the public lands, "said lands being mineral,"" and not then subject to entry, " except for mineral entry;"' subject to such regulations as the Secretary of the Interior may pre- scribe for the protection of the timber upon said lands, and other pur- poses, with a proviso that the act should not "extend to railroad corporations."" The second section makes it the duty of the officers of any local hind otfice "in whose district any mineral land may be situ- ated" to ascei'tain whether timber is cut or usi-d ujjon such mineral lands, "except for the pur]ioses authorized l)y the act,"" and to i;ive notice thereof to the I'onmiissioner of the General Land Office. The third section presci'ibes the punishment for a violation of the act, or the rules made in pursuance theriMif. The act is \-ery loosely and unskillfully drawn and abounds in uiuiecessary and indefinite phiases and clauses of the "and so forth" character. The privilege conceded by it is limited to citizens of the United States, "and other persons"" I'esident in certain States and Territories — naming them— "and all otlo f mineral districts of the United States."" It allows timber "or ntlo-r ti-<>es" to be cut for build- ing, agricultural, mining, "or ^;///r/' domestic"" purposes, subject to such regulations as the Secretary of the Interior may prescribe- for the pro- tection of the timber and undergrowth, ■'and for oflirv purposes."' On the same day another act was passed (lid Stat., s>,»), entitled "An act for the sale of timber lands in the States of California, Oregon, Nevada, and Washington Territory."" This act contains six sections. The first, second, and third ones provide for the sale of the "surveyed public lands"" within these States and this Territory not included in any reservations of the I'nited States, valualile chietly for timber or unfit for cultivation, which, have not lieen offered for sale, in quantities not exceeding ICo acres to one pei'.son or association, at the minimum price of $;i.5() per at're.-; with a proviso that the act .should not, among other things, authorize the sale of a "mining claim" or "lands con- taining gold, silver, cinnabar, copper, or coal."" AdsofJanc J, 187S {.30 Stat., 88 ', IKrs (JO St, It. . 88 diiil 80)—Jf:inniJ District. trirt," (11- ■'^Y;ltoI• district." The title of the act does not contain the phniHO, but limits its opcnition to the citizens of Colorado, Nevada, and the Tcn-itories; and it is not probable that there was imj thought in the mind of ('oiii;i'(^ss of extending it any further. The i)hi:Lsc " mining district" is well known, and means a section of countrv usually f them in this State. It is prolialile that these "land districts,"" in the mining States like Colorado and Nevada, were sometimes familiarly sjioken of as ''the mineral districts,"" from M'heiice the phrase found its way into the act of June 3, ls7s. But although there are ■"some mineral lands"" and "min- ing districts"" in Oi-egon, it is not known that there are any considera- ble or contiguous sections cif the country to which the term "mineral district "' could properly lie applied, and it is certain that there is none to which it is applied by law. It may be admitted that the use of the general words ''all other mineral districts of the United States."" imme- diately following th(> enumeration of th(> particular States and Terri- tories mentioned, is some evidence of an intiMition by Congress to extend the operation of the act beyond the limits of said States and 'IVrritories. lint the difficulty is that the language used has no definite signiticatioii or local application, and therefore must fail to have any effect for want of certainty, liesides. this act is one in favor of indi- viduals and in dm-ogation of the rights of the public— th(> whole people of the United States— to whom these lands and timber belong, and Acts of June 3, 1878 {30 Stat., 88 and 8!))-~2[!.)ural Dldrirl. Ill therefore is not to be enlarged liy construction so as to include things or persons not cxpres.sly enumenitod, mentioned, or descrilted therein with reasonable certainty. (Smith, Com., sec. 7:'>8 et seij.) For these reasons the act, in my judgment, is not applicable to Oregon, Imt is confined to the States and Territories therein expressly mentioned. By act No. 3 of the said acts of dati> of June 3, 1878, it is declared unlawful to cut amj timber on any of the public lands in Oregon with the exception of that cut by a " miner or agriculturist" in the ordinary working or clearing of his mining claim or farm or that taken there- from to support his improvements on such claim or farm. This provi- sion is inconsistent with and repugnant to the license to cut timber contained in act No. 1. Either the prohibition contained in act No. 2 must be limited and restrained by construction so as not to apply to mineral land — land subjected to "mineral entry "' — or act No. 1 must be held not applicable to Oregon. Both can not b« in full force in the same place. It maj^ be said that No. i!, 1ioing subsequent in point of place in the statute, is pi'esumed to have been jiassed subsequently to the other, and therefore repeals or modifies it so far as tliey are in con- flict. But both acts being passed on the same day and measurably upon the same subject, 1 think they may best be considered as part of one act, and each be allowed to stand and have efl'ect as far as it can without conflict with the other. It can not be said that in passing act No. 1 Congress expressly included Oregon in the license tlieri'in given to cut timber on the public lands, audit is only claimed that it contains some general words which may be interpreted so as to include it, while upon the very face of the act it is plain that in the passagi' of No. 2 it was the intention of Congress to regulate the subject of the sale and use of the timber upon any of the public lands in Oregon. This being so, the only reasonable conclusion is that act No. 2 excludes No. 1, even if there was any ground for holding th(> latter applicable to this State under any circumstances. The subject is fully regulated 1 >y the former act, and there is nothing left for the latter one to operate upon without displacing some provision of the other. The provisions for the sale of timber lands, for the prevention of cutting timber on the public lands, and for allowing the miner and farmer to cut and use the timber on their claim and to take it from the public lands for the improvement of such claims cover the whole ground, and if allowed to he in full force here must exclude the Colorado act from the State. The plea is insufficient. A defense to an action for unlawfully cut- ting timber on the public lands in this State must show that it was cut upon the mining or farming claim or land of th(< defendant in the ordi- nary course of working the same or preparing it for tillage, as the case may be, or was taken from the public lands for the necessary improve- ments thereon. It does not appear from the plea herein that the defendant cut the timber in question from land then occupied by him 112 Aefs ofJ,ni,j J, 1878 {^0 Sf,it., 88 and 89)—M'niirul DintrKt. for the pui'ijose of mining or agriculture, or that it was cut from the public lands for maintaining the neccwwary improvements thereon. From all that appears the defendant was unlawfully engaged in cut- ting timber from the public lands, and is at least liable to the plaintiff in damages equal to the \-aluc thereof. The demurrer is sustained. Ukt'i-ki) States /■. Ben.iamin. Circuit (-(inrt, district df California (21 Fed. Kep., 28.5). Public L.vxhs — Cctti.n-g Ti.mber ox .Mixekai. Lands ix Califoexja — Act ok Jcxe .1, 1S7S, CnAPTERS l.iO, 1,51. Timber uiiou niinenil lands in the State of ( 'alifornia is protected and gov- erned by the ])r(ivisions of the act of .Tune ?>, 1S7.S, chapter 1.51 (20 Stat., ,S9), made specifically ajiplicable to that State, and not by the general provisions of chapter 150 of the act. of June 3, 1.S7S (20 Stat., ssj, ^vhich can only operate upon "mineral districts,'' if any there be, not specii5cally provided for by designating the particular State or Territory in which it is situated livname. Sawyer, J.: The United States lirino- this action to recover the value of lumber alleo'cd t(>h;n'c been manufactured from timber trei's unlawfully cut on the public lands. The defendant, as a justification, specially answers thtitthe trees from which the lumber in (luestion was manufactured grew and were cut "in a mineral district of the United States." known a.s such throughout the State, and so recoonized by the cu.stoms of miners and the decisions of the courts, and designated "The Georgetown Diiiieral and mining district," IxMug "in the mineral belt of said State of California and county of Eldorado;" that defendant was and is a citizen of the United States and a bona fide resident of said "George- town mineral district:" that the land on which said trees grew was public land of the United States, mineral in character, and not subject to entry under existing laws of the United States except as mineral lands; that the lumber "was used in said mineral district and adjoin- ing mineral districts of said county of Eldorado for building, agricul- tural, mining, and other domestic purposes, but principallj- for mining puri)oses; that said timl)er was felled, removed, and used for the said purposes, * •■ * in accordance with th(> rules and regulations pre- scribed liy the Secretary of the Interior;" and that said timber "was felled and removed, and said act committed, under a license from the United Stales, under and by \irtue of an act approved June 3, 1878, entitled 'An act authorizing the citizens of Colorado, Nevada, and other Territories to fell and remove timber on the public domain for mining and domestic purposes.'" The act under which defendant attempts to justify provides— ^ That all citizens of the United States, and other persons bona fide residents of the State of Colorado or Nevada, or either of the Territories of New yiexico, Arizona, Acts ofJwie 3, 1878 {20 Stat. , 88 and 89)—jyriiy the defendant's counsel would not be without plausibility. But, unfortunately for him, it does not stand alone. On the same daj' another act was passed, specifically applicable to timber lands in the States of California, Oregon, Nevada, and Washington Territory, which contains provisions wholljdncon- sistent with the provisions relied on in the act relating specifically to Colorado and the Territories therein named. It does not appear which act was, in fact, first passed, but probably it was the first-mentioned act relating to Colorado, etc., as that is designated in the statutes as chapter 150, while the act relating to California, etc., is numbered chapter 151 of the statutes. (See 20 Stat., 88, 89.) If the latter act is to be treated as a subsequent statute, it repeals the inconsistent provisions of the prior act, as it expressly provides that "all acts and parts of acts inconsistent with the provisions of this act are hereby repealed " (sec. 6). But the most favorable view for the defendant is to regard the two statutes, as they were both passed on the same day, as consti- tuting but one statute, the former part of the act making specific pro- visions for Colorado and the other States and Territories named, and the subsequent provisions of the act making like provisions for Cali- fornia and the other States and Territories therein named. So viewing the statute, we must, if possible, construe all the provisions in such manner that every part can stand and have effect. 21150—03 8 114 Aets iifJunc :J, 1878 ('JiO Stat., 88 and 89)— Mineral District. In such cases, also, loose general provisions of doubtful import in the former part of the statute must jdeld to subsequent clear and spe- cific provisions which are so explicit as to admit of but one construc- tion. The clause "all other mineral districts of the United States," in the first-named act, as shown by Deady, J., in the case already cited, is very riateiit is actually issued thereon by the Government, and, in till' absence of patent, the title is not confirmed in him until a period of two years has elapsed, wdthout protest or contest, since the issu- ance of the r('eei\'e*''s final ivceipt. Very res]iectfully, Binger Hei!Mann, L'oiiimlssioner. Hon. Jas. K. Junks, Uniftd Stiitt's Sriiiite. Tiviber oir Homestead Entrlre for the first building or the repair of fences, but this is probably immaterial, for it is doubtful -whether the act was intended to include the building of fences as a part of the construction of the road, and especially fences constructed o\'er eight years after the completion and operation of the road. ^loreorer, the timber was not cut from lands adjacent to the line of the road, but on those far distant from it. The subsequent acts modifying or granting additional timber rights expressly exclude rail- roads from their benefits. (1 Supp. Rev. Stat. , 166, 939.) It must fol- low that the railway company had no such right to the timljer on the public lands for the purpose named in this case as will justify or sus- tain the contract of defendant with Brennan. Certainlj' the railwa}^ companj' has the right to purchase any timber of anyone having the right to sell. The defendant having no title to tlie posts in controversy, judgment for such posts or their value of %l'2.c> and costs of action against him is now ordered. CUTTIXa TIMBER OX SHAREK United States /■. Jajmes Adtkey. District court, southern district o£ Alabama, ^lay term, 1894. The charge to the jury reads as follows: "The court instructs you that the defendant had the right to cut, or to cause to be cut, timber on his homestead land suitable and sufli- cient to build necessary and convenient houses and fences for his home, and to have that timber sawed into suitable lumber to make such improvements on his homestead, and the court further instructs j'ou that the defendant could have done what is practically the same thing, and that is, could have exchanged timber for lumber to make such improvements; that is to say, could have exchanged timber for lumber of equal value, but only so much timber as was necessary to make the lumber for such improvements; so much as was necessary for such improvements, excluding the cost of cutting, sawing, and hauling such timber, etc., to and from the mill; and if he only did this, and did it in good faith, he should be acquitted. "Or, if he made such exchange for lumber with apart of the timber and did so in good faith to make necessary improvements, then, as to such part he should be held guiltless, and guilty only as to the excess of timber (pine trees) over and above what was necessary to make the lumber for his improvements. 122 Tniihi r on Jlnmoitcud Eiitnos. "Let me illiLstrate what i mean (o make the proposition elearer to you. If the defendant wanted ',(,000 or lo,oOO feet of lumber to make his improvements, he had the right to cut or cause to be cut as man}' trees as were necessary for that purpose, whether it be :^.o, 40, or50— whatever number of trees you find from the evidence was necessary for that purpose — but he could not lawfully cut more than that ; any cutting in excess of that num)jer of trees would be an unlawful cutting. " He had not a right to cut trees on his homestead for the purpose of sale or prolit, or to pay debts or loans of mcjncy, or to pay his expenses, or to buy sxipplies — in short, no right to cut them for sale for any pur- pose — and he had no right to cut them and pay any such debts or expenses with them, or to cut them for any such purposes." Shiv7<:r /'. United Statks. C'crtilicate I'loiii the circuit cdurt nf appculs for the fifth circuit (l;i9 U. S., 491). Land duly and proiievly enttrcd for ;i li(nut'>^teail under the homestead laws of the I'nited States is not, from tlie time of entry, ami jicnding proceedings before the Land Department, and until final ilisp. )sitinu liy that Department, so appropriated for special purpose, and so seu'ietrated from the public domain as tn be no longer lands of tliu I'nited States within the purview and meaning of section 2461 of the Revised Statutes of tlie United States; but, nn the contrary, it continues to be the property of the United States fur five years following the entry, and until a patent is issued. Wliere a citizen (jf the United States has made an entry upon the public lands of the United States under and in accorntry or sale, though this might defeat the imperfect right of the settler. In the Yosemite Valley case (15 Wall., Timber on Homestead Entries. 125 77) the construction given to the preemption law in Frisbie v. Whit- ney was approved, the court observing (p. 88): It is the only construction which preserves a wise control in the Government over the public lands, and prevents a general spoliation of them under the pretense of intended preemption and settlement. The settler, being under no obligation to con- tinue his settlement and acquire the title, would find the doctrine advanced by the defendant, if it could be maintained, that he was possessed liy his settlement of an interest beyond the control of the Government, a conxcnicnt jinitcction for any trespass and waste in the destruction of timber or removal of ores which he might think proper to commit during his occupation of the premises. The right whicli is given to a person or corporation by a reservation of public lands in his favor is intended to protect him against the actions of third parties, as to whom his right to the same may be abso- lute; but as to the Government his right is only conditional and inchoate. By the homestead act. Revised Statutes, section 2:i89, cer- tain classes of persons therein specified are entitled to enter a quarter section of land, subject to preemption at a certain price, upon making an affidavit of facts (sec. 2290) before the register or receiver, includ- ing in such affidavit a statement that " his entry is made for the pur- pose of actual settlement and cultivation, and not either directly or indirectly for the use and benefit of any other person." Bj- a later act, adopted in 1891 (26 Stat., 1095), this afiidavit is now required to state that the settler " will faithfully' and honestly endeavor to comply with all the requirements of law as to settlement, residence, and cultivation necessary to acquire title to the land applied for; that he or she is not acting as the agent of any person, corporation, or syndicate in making such entry, nor in collusion with any person, corporation, or s}'ndicate to give them the benefit of the land entered, or any part thereof, or the timber thereon. " By section 2291, no patent shall issue until the expiration of five years from the date of the entry, the settler being required to prove b\' two credible witnesses that he has resided upon or cultivated the land for such term of five years immediately succeed- ing the time of filing the affidavit, and that no part of such land has been alienated, except for certain public purposes. By section 2297, if, before the expiration of the fi\'e years, the settler changes his residence or abandons the land for more than six months at any time, the lands so entered shall revert to the Government; and by section 2301, the settler may, at any time before the expiration of the five years, obtain a patent for the lands, by paying the minimum price therefor and mak- ing proof of settlement and cultivation, as provided by law, granting preemption rights. From this resume of the homestead act it is evident, first, that the land entered continues to be the property of the United States for five years following the entry and until apatent is issued; second, that such property is subject to divestiture, upon proof of the continued residence of the settler upon the land for five years; third, that meantime such settler has the right to treat the land as his own, so far, and so far only, 1-') Timhcr nil JJoiiiestcd-d luitrom. as IS nocossary to carry out the purposes of the act. The object of this legislation is to prcser^H'- the right of the actual settler, but not to open the door to manifest abuses of sm-h right. Obviously the privilege of residing on the land for five j^ears would be ineffectual if he had not also the right to l)uild himself a house, outbuildings, and fences, and to clear th(> land for cultivation, and to that extentthe act limits and mod- ifies the act of l^ol, now embraced in Revised ^Statutes, section 2J:61. It is eciually clear that he is bound to act in good faith to the Govern- ment, and that he has no light to pervert the law to dishonest purposes, or to make use of the land for profit or speculation. The law contem- plates the possibility of his abandoning it, but he may not in the mean- time ruin its value to othei's who may wish to purchase or enter it. With respect to the standing timber, his privileges are analogous to those of a tenant for life or vears. In this connection, it is said by Washburn in his work upon Real Property (tirst edition, vol. 1, p. 108): In the Vniteil States, wliether cutting of any kind nf tree? in any particular case is waste, seems tn depend ujKjn the question -ivhether tlie act is such as a prudent farmer would dn with his own land, having rci.'ard to the land as an inheritance, and whether doing it would diminish the value of the land as an estate. Questions of this kind have frequently arisen in those States where the lands are new and covcnil with forests, and where they can not be cultivated until cleared of the timber. In such case, it seems to be lawful for the tenant to clear the land if it would be in conformity with good husliandry to do so, the question depending upon the custom of farmers, the situation of the country, and the value of the timber. * * * Wood cut liy a tenant in clearing tlie land belongs to him, and he may sell it, though he can not cut the wood for purposes of sale; it is waste if he does. By aiialooy we think the settler upon a homestead may cut .such timber as is necessary to clear the land for culti\'ation, or to build him a house, outbuildings, and fences, and, perhaps, as indicated in the charge of the court below, to exchange such timber for lumber to be devoted to the same pur])oses, Init not to sell the same for money, except so far as the tim})er may ha\ (> be(>n cut for the purpose of cultivation. While, as was claimed in this case, such money might be used to build, enlarge, or tinish a house, the toleration of such practice would open the door to luanifest a))uses, and be made an excuse for stripping the land of all its valuable timber. One man might be content with a house worth ¥1n in this court before, in United ;Statcs r. Cook (I'.t AA'all., tV.tl)— a suit in trover for the value Tuiihcr on Homestead EntrliK. 127 of timber cut from an Indian reservation — it was held that while the right of use and occupancy bj' the Indians was unlimited, their right to cut and sell timber, except for actual use upon the premises, was restricted to such as was cut for the purpose of clearing the land for agricultural purposes; that while they were at liberty to sell the timber so cutfor the purpose of cultivation, they could not cut it for the purpose of sale alone. In other words, if the cutting of the timber was the principal, and not the incident, then the cutting would be unlawful, and the timber when cut became the absolute property of the United States. Their position was said to be analogous to that of a tenant for life, the Government holding the title, with the rights of a remainderman. In the courts of original jurisdiction, it has been uniformly held that a similar rule applied to homestead entries. (United States /'. ?kIcEntee, 23 Internal Revenue Record, 368; United States v. Nelson, 5 Sawyer, 68; The Timber cases. 11 Fed. Rep., 81; United States r. Smith, 11 Fed. Rep., 493; United States r. Stores, 14 Fed. Rep., 824; United States v. Yoder, 18 Fed. Rep., 372; United States v. Williams, is Fed. Rep., 475; United States v. Lane, 19 Fed. Rep., 910; United States v. Freyberg, 32 Fed. Rep., 19.5; United States /•. Murphy, 32 Fed. Rep., 370.) This general concensus of opinion is entitled to great weight as authority. While we hold in this case that, as between the United State's and the settler, the land is to be deemed the property of the former, at least so far as is necessary to protect it from waste, we do not wish to be understood as expressing an opinion whether, as between the settler and the State, it may not be deemed the property of the settler, and, therefore, subject to taxation. (Carroll r. Safford, 3 How., 441; With- erspoon r. Duncan, 4 Wall., 210; Railroad Co. r. Prescott. 16 Wall., 603; Railroad Co. v. McShane, 22 Wall., 444; Wisconsin Ry. Co. /-. Price County, 133 U. S., 496.) As the land in question continued to be "the land of the United States," within the meaning of section 2461, the first question must be answered in the negative and the second in the affirmative. Teller v. United States. Circuit court of appeals, eighth circuit (113 Fed. Rep., 273). 1. Public Lands— Timber— Cuttin-c— Intent— Misdemeanor— Chakge, Under Eev. St., 1878, § 2461, 20 Stat., 89, and 27 Stat., 348, making it a misde- meanor for any person to cut timber on any lands of the United States situate in any of the public-land States with intent to export or dispose of the same, where the cutting is admitted, the only intent necessary to show is the intent to export or dispose of the timber. 2. Same — Evidence — Purchase of Other Lands. On the trial of one accused of unlawfully cutting timber on land of the United States, evidence that about the time of the cutting defendant purchased and paid for the full quantity of similar land, which he could purchase under tha act of .Tune 3, 1878, is inadmissible to show that he would not intentionally commit a trespass. 128 Teller v. United States {113 Fed. Eep., ^73). 3. Same — Violation of Law — Custom. On the trial of one accused of unlawfully cutting timber on land of the United States, evidence of a custom in that locality, known to the General Land Office of entering on land and cutting the timber therefrom before patent was obtained is inadmissible, since a custom to violate the law can not justify itself. 4. Same — Honest Intent. Where a defendant unlawfully cut timber on public land the fact that he acted in accordance with a general custom in that locality is not evidBnce of an honest intent on his part. 5. S.VME. Where defendant unlawfully cut timber on public land, the fact that before cutting he endeavored to ascertain whether the land ^vas surveyed, and also notified a special agent of the Government that he was cutting the timber, and was not warned off for three weeks, is not evidence of an honest intent. 6. S.iME — Charge. On the trial of defendant for unlawfully cutting timber on public land, court charged that, in order to convict, the jury must find that there existed in his mind a willful and wrongful purpose to obtain the timber in violation of law and that if he entered on public land, knowing it was such, without having complied with the provisions of law giving him a right to do so, and cut timber therefrom, they would be authorized to find the requisite criminal intent. Held, that such charge fairly stated the law and was as favorable to the defend- ant as he was entitled to. 7. Same — Evidence — Intent. Where defendant admits that he had cut timber on 300 acres of unsurveyed Government land, to which he had no claim or color of title, and there is evi- dence that he was informed by the register of the land ofl3ce that he could not acquire title because tlie lands \\ eie not open to entry, and that he promised his workmen that he would staml l)etween them and the Government, and that he had fully exhausted all his privileges of purchasing such lands, the intent con- stituting the offent^e of unlawfully cutting timber on Government land, defined by Eev. Stat., § 2461, and act June 3, 1878, is sufficiently shown. 8. Same — Application to PnECHASE — Right to Cut Timber Before Patent- License to Cut. An occupant of a mineral claim, who has apphed for a patent before the pur- chase price is paid and before he receives a certificate, has no right to cut the timber on such claim with intent to export or remove the same, and a license from him to so cut the timber is no protection to the licensee as against the Government. 9. Same — Mineral Claim— Separation eko.m Public Domain. The exclusive right to occupy and work a mineral claim, given to the locator by the mining laws during his occupancy, does not segregate such claim Irom the public domain so as to exclude such land from the operation of Rev. Stat, 2461, 20 Stat., 89, and 27 Stat., 348, making it a misdemeanor for any person to cut timber on the public lands. Adams, district judge, delivered the opinion of the court. On November ^.5, LS1)9, a criminal information wa.s filed in the dis- trict court of the United States for the district of Wyoming against John C. Teller, the plaintifi' m error, charging him with having, between January and September of the year 1898, willfully and unlaw- fully cut and procured to be cut 150,000 feet of timber growing on Teller r. Uiiltccl Stat.x {113 Fnl. Eep., ^i7.I). 129 the public lands of the United States in said district wilh intent to export and dispose of the same. In due course a trial Avas had, the defendant found guilty, an., l273). the siuuc character of liinds lying in the near vicinity to those upon Cottonwood Ci-eek now in question, for which defendant paid to the United States the price required bj^ the stone and timber act, namely, |i2.5(» per acre, cr a total of $2,400. Defendant's counsel contend that such purchase hy him of similar lands and payment therefor at about the same time us is laid in the information is a circumstance which ought to have gone to the jury as evidence that he would not inten- tionally commit a trespass for the .sake of obtaining timber of the same character a short distance away. We entirely fail to appreciate the force of this contention. The act of June 3, lS7s, supra, provides in express terms that the timber lands therein contemplated may be sold to citizens "in quantities not exceeding IfiO acres to any one person or association of poi'sons." Defendant had already purchased his full limit of 160 acres, if, indeed, he had not indirectly secured the four other quarter sections above referred to, and conceding that he had paid for that land, it can not be that such fact would have any ten- dency to show that he had an honest purpose in trying to appropriate other lands. He had exhausted his right alreadj^, and he knew it, and such evi- dence, in our opinion, would tend to impugn the motive of defendant in trjnng to secure other forbidden lands rather than palliate his con- duct in so doing. It is next urged tluit the court erred in excluding evidence of a cus- tom prevailing in the vicinity, where the offense was committed, of entering upon land and immediately proceeding to cut timber there- from before patent was obtained, and while proceedings to secure the same were pending, and that the custom was known to the General Laud Office. This evidence of custom was offered in connection with an avowal Viy the defendant of his intention at the time he commenced cutting timber on the tract in question to purchase the same afterwards from the Government. We entirely agree with the trial court that this evidence was incom- petent. A general custom to violate the law can not on any principles of morality or law justify itself. Neither can it justify an individual instance of \iolation of the law. Neither can knowledge of such violation by an agent of the United States excuse or justify it. If it were otherwise, then the register of the land office at Cheyenne, or any other agent of the Government, and certainly the Commissioner of the General Land Office at Washington, could annul any act of Congress at pleasure. But, it may be said, these observations do not meet the argument that such custom, known to defendant and acted upon bv him, is evidence of an honest intent and purpose on his part in doing that which was customary. Lvery person is supposed and must be held to know the law. Any Teller V. Unihcl Sfufr., {113 Fed. Rep., 373). 131 laxity in enforcing this axiomatic and fundamental rule would load to endless disorder and crime. Teller, therefore, knew, or must be held to have known, that any such custom as is claimed in his behalf was an unlawful custom, amounting in and of itself to a violation of law, and it must also be held, in the light of the facts disclosed liy this record, that any such custom, if lawful and competent in other cases, could not be of any avail to him, because, as just seen, he had already exhausted his full privilege of purchasing timber land under the act of 1878, and could not directly in the manner prescribed by Congress, or in any other manner, lawfully acquire any more. If he could not do it directly or lawfully, it is impossible for us to conceive how he can shelter himself under a general custom and thereby justify him- self in the attempt to accomplish the same purpose indirectly and unlawful!)'. In the case of United States v. Mock (14il U, S., 27:-!) the Supreme Court considered a case of trespass for cutting and carrjang away timber from public lands. The trial court had charged the jury as follows: It is a matter of history that the (iovernment permitted tlie early pioneers, as they went ahead to make their homes for themselves, to go on the public domain and take such timber as was necessary for domestic use, and although there never was any law or license to that effect, it was done with knowledge of every department of the Government, legislative, judicial, and executive. * * * AVhile I wish you to understand that I am not aware of any license having e\-er been gi\en in the last sixty years to any party to go on the public domain and cut timber, no court has ever held, and no court would be justified in holding, that these men were all criminals who went on and put up a little mill for the purpose of aiding their neighbors in procuring lumber for domestic purposes. The court, speaking by Mr. Justice Brewer, commenting on the foregoing observations of the trial court, says: The specific portions [of the charge] to which the attention of the court was called at the time and exceptions taken are that which refers to the history of the attitude of the Government toward pioneers and others who took timber from Government lands for domestic use, and that which declared that no verdict could be returned in favor of the Government except for the value of the lumber manufactured. In these there was obvious error. * * * Ifor were the observations of the court in refer- ence to the attitude of the Government justifiable. Whatever propriety there might be in such a reference in a case in which it appeared that the defendant had simply cut timber /or his own use or the improvement on his own laud, or derehpmenl of Ids own mine (and in respect to that matter, as it is not before us, we express no (jpinion), there certainly was none in suggesting that the attitude of the Government upheld or countenanced a party going into the business of cutting and carrying off timl ler from Government land, manufacturing it into lumber, and selling it for profit. The principles enunciated in that case are, in our opinion, irrecon- cilable with the claims of defendant's counsel in this c^ase. The defendant contends that the facts shown by the record that he endeavored, prior to cutting any timber on the land in question, to 132 Tt'U.r r. Uiiitol Stat,s (11! F,,l. R,ju, 27 J). ascertiiiu ^vhethcr the land had ))eeu surveyed; that while at work cutting the timber he notified one jVbbott, a special agent of the (Jov- crnnient, that he was so doing; that he rccei\ed no notice to quit for three weeks thereafter, constitute evideii<-e of an honest purpose on his part, and should have been submitted t(j the jury on that issue. The principles !iereinl)efore discussed are, wc think, entirely appli- calile to this last contention. The land was unquestionably unsur- vcycd ]iubiic land, and if defendant had prosccut<'d liis alleged honest purpose far enough he would have ascertained that fact. But whether he knew or could have kii iau that it was unsur\-eycd public land was immaterial. All that he was re(iuired to know was that it was public land, sur\eyed or unsurve^-cd, and if he knew tluit. which unques- tionably he did, tlie fact that he (.'ndeu\'ored to find out whether it was surveyed (ir not was ((uite immaterial, and certaiidy tlie tolera- tion of a trespass for three wiM-ks, or for anytime for that matter, ))y a spiM.'ial agent of the Government, whose duty it Mas not to tolerate it at all, can be, of no avail to a trespasser Ijv way stimony on that thcoi'v (and even on that theory we have been unable to find any substantial error in the rulings of thi' court), but in so doing we ha\'(^ given the defendant the lieneht of a position which, in our opinion, is unwarranted b}' the law. For the purpose of protecting the public domain from the invasion of trespassers. Congress denounced as a crime the cutting of timber on public land "with the intent to export and dispose of the same." This is the intent that is nnule criminal )iy the law and the only intent necessary to establish the crime in a given case. This intent is fully admitted in the present case. It is undisputed that the defendant cut the timber in question for the purpose of ful- filling a contract with the receivers of the Tnion Pacific Railroad Company for the delivery of 2."jn,(H)0 ties at Fort Steele. It has been held by tin' Supreme Court in Stone v. United States (1(I7 V . S., 1'." The elements of the ofi'ense charged against the defendant are three in numlier: (1) Cutting timlier; (2) from land known to be public land; and (;;) with intent to export or dispose of the same. These three elements concurring, the crime, in our opinion, is com- plete and the jury would be fully justified in finding, and indeed it would be theii- duty to find, all the criminal intent required by the act. Ttller V. United Sf,ifc.s [113 Fed. Bejj., 273). 133 The trial court charged the jury that in order to convict they must tind that there existed in the mind of the defendant u " willful and wrongful purpose to obtain the timber in \ iolation of the law." Taken by itself this portion of the charge would have l)ecn mislead- ing, but taken in connct'tion with other portions of the charge, to the efi'ect that if the defendant entered upon public land knowing it was such, without ha\ing complied with the provisions of the law giving him a right to do so, and cut timber therefrom, the jui-y would be authorized therefrom to tind the requisite criminal intent, it fairly stated the l;iw to the jury, and certainly as favorable to the defendant as he was entitled. The admission of the defendant at the ti-ial that he had cut timber on 300 acres of unsurveyed Government land to Avhich he had no claim or color of title; the evidence of E. "Si. Johnston, register of the land office at Cheyenne, that he had informed the defendant prior to his cutting the timber that he could not acquire title to the lands because thej' were not open to entry; the testimonj- tending to show that defendant promised his workmen, when they called his attention to the fact that the lands were public lands, to stand between them and the Government; and the further important fact that defendant had fullj' exhausted all his priA'iloges of purchasing land under the stone and timber act, all t'onduce to show, and, in our opinion, satis- factorily show, that defendant well knew the land was publii' land and had all the criminal intent required by section ^4(>1, Revised .Statutes, and the act of June '.->. isTs, to constitute the offense there denounced. In our opinion, none of the facts relied upon by him as evidence of an innocent intent or purpose wei'e ndevant or material to tlie case. The next assignments of error relate to the cutting of timber by the defendant on the Montezuma placer claim, and arise on the fol- lowing state of facts: One MuUison had lieen in possession of the Montezuma placer claim, working the same for the precious metals therein for about thirty years prior to 1898, but he had never applied for a patent or taken steps to acquire title from the United States prior to that day. In October of that year Mullison and the defendant entered into a contract by which it was agreed that defendant, in consideration of being permitted to cut all the tie timbi-r growing thereon, should pay all the expenses, including the Government price of ip:i.r)()per acre for securing a patent l>y MuUison to his claim. Pursuant to this agree- ment Mullison, early in January, 1898, applied for a patent, and between that day and June 33, 1898, defendant proceeded to cut and did cut over about 3., 37J). of defendant's counsel based on several assignments of error relating to the exclusion of e^'idcMicc and the (-ourt's chur^-e, to which particu- lar reference need not now bo made, is that his cutting timber from this land after the applicati(_)n for a patent was made, and before the money was paid and a receiver's certificate secured, does not constitute an offense under the statutes of the L^nited States. His proposition is that the ultimate payment of the money, and securing the receiver's receipt, conferred upon MuUison a title t to any such proposition. Three separate rights or titles are recognized by th(> Supreme Cou.i Teller v. TInUed States {113 Fed. Rep., '27,;). 135 in ana to public lands. In Benson Minino- Co. /'. Alta Mining Co., supra, the court ciuotcs approvingljr from an opinion of the Secretary of the Interior, as follows: By the laws of the Unitt'il Statey, three distinct classes uf titles are created, namely (1) title ill fee simple; (2) title by possession; (3) the complete equitable title. Title by possession is the first one in order of tunc acquired. Pos- session of a mining claim, in accordance with the provisions of the statute, by well-settled authority, confers the right, subject to certain limitations and conditions, upon a locator to work the claim for pre- cious metals for all time, if he desires to do so, but confers no right to take timber, or otherwise make use of the surface of the claim, except so far as it may be reasonably necessary in the legitimate operation of mining. The next right in order of time is the equitable one, already defined. The last one in the sequence is the perfect legal title, in fee simple absolute, created by the issue of the patent by the United States. The claimant may be entirely satisfied with his possessor}' title and be neither able nor willing to perform the further acts or pay the further consideration requisite to securing the equitable or legal title. For reasons of public policj' and for the purpose of encouraging the mining industry, the United States gratuitouslj' grants the privilege to any citizen, or person having declared his intention to become a citizen, of locating a claim for mineral lands and working the same for precious metals, but it has not seen fit to give away the land con- taining the minerals, but, on the contrary, has adopted the policy of selling the same to the locator, if he desires to purchase, on terms fixed by the acts of Congress. MuUison's location, record, and working of his claim secured to him the possessory title only. While his location so far segregated and withdrew the land from the public domain that no rival claimant could successfully initiate any right to it until his location was avoided and his entry was canceled (James 1). Germania Iron Co. , 107 Fed., 597, 603, and cases there cited; Hartman v. Warren, 76 Fed., 157, 160; Kansas Pacific Railway Co. v. Dunmeyer, 113 U. S., 629), it gave him nothing but "the right of present and exclusive possession " for the purpose of mining. It did not divest the legal title of the United States or impair its right to protect the land and its product, by either civil or criminal proceed- ings, from trespass or waste. While for the purpose of subsequent entry and location by private parties the lands which Mulhson claimed were segregated from the public domain and appropriated to a private purpose, they were so segregated for that purpose only, and the legal and equitable title to them still remained in the Government, and they were still "lands of the United States" within the meaning of section 136 Telhn' V. United State, {113 Frscssion of that part of the public lands wliich is valuable for minerals separable from the fee, and to i)rnvide for the existence of an absolute right to the p^jssession, while the para- mount title to the land remains in the T'nited States. The two titles recognized ))y the United States confer totally differ- ent riohts. The first one confers a right, and it may properly enough be said to lie vested in tli(^ locator, to the possession of the land for the purpose of carrying on his mining operations as long as he performs the required conditions. This, however, he may at any time abandon by ceasing to perform the c(inditii>ns upon which it depends. The second is a complete and absolute title, which may or may not be ae({uired by the locator, and if ac((uired is for other and valuable considerations mtiving from him to the United States. This title is dependent upon no conditions. Init confers all the rights incident to an indefeasible estate in fee simple. Considerations like the foregoing conclusively show that there is no warrant for the contention that the locator's right of possession segre- gates the land from the public domain and appropriates it to a private purpose in any such way as to withdraw it from the effect of the provi- sions of the criminal statutes under which the defendant was convicted. After the loeat<.)r shall ha\-e applied for a patent, in the event in the exercise of his option he sees fit to do so, and after he shall have fully perfected his entry upon the land ])y the payment of the purchase price, and not till then, has the land ceased to be a part of the public domain, and not till then has he ac(iuired any vested right to the abso- lute title. (Witherspoon /•. Duncan, .suji/v.) When such an entry is made tlie land is not only withdrawn from the public domain, but the entrvman has acquired an (>quitable title, and thereafter and not till then the United States holds the legal title in trust for him. This brings us to a consideration of the efl^ect to be given to the application for a patent made by Mullison on January 5, ISHS, and to the perfection of his entry liy paymentof the purchase priceon June 22, 18!.)S. Between these dates the trespass charged against the defendant was committed. Uounscd strenuously urge that ]Mu]lison's actual payment for the land on June 22, fsKS, und si'curing the receiver's certifit'ate of such pay- Teller )'. VnHal StatcH {113 Fed. E,p., 273). 137 ment, conferred title on him hy relation certainly ;is of Januarj' 6, ISIIS, when he applied for the patent. The argument need not here )>e repeated, nor the authorities again referred to, showinj^- that the pay- ment for the land and securing- the receiver's receipt therefor, opci'ated to create a perfect equitable title in MuUison. "The equitable title accrues immediately upon purchase, for the entry entitles the pur- chaser to a patent, and the right to a patent once vested is equivalent to a patent issued."' (Benson IMining Vo. c. Alta Mining Co., supra.) But does this title relate to or become etiecti\'c as of any day prior to the actual payment of the purchase price in any such sense as to entitle the applicant for a patent, or anyone acting under or by his authority, to enter upon the land in the meantime and appropriate the timber to his or their own use ? The application for a patent in and of itself imposes no obligation upon the applicant to pursue his purpose to secure a patent. It is only the first step to that end. He is afterwards required l)y the mining laws to perform certain other prerequisite duties, and particularlj- to make payment for the land and secure the receiver's receipt therefor. At any time prior to the actual payment it is within the power of the applicant to abandon his purpose. Can it l^e possible that Con- gress intended to open the door to such depredation and fraud as would be feasible on defendant's theory l According to it, Mullison might have made a formal application for a patent, proceeded to sell and dispose of the timber growing on the land, impairing its value accordingl}', and then, without penalty, have abandoned his entry, leaving the land wasted and stripped of its timl)er, which might have been its chief value, for the Go\'ernment to hold without the proba- bility of sale. Unless Congress by clear and unambiguous expression of its will has left this door open, we will not open it. "\A'e not only fail to find an}- such expression of legislative intent, but authority and reason alike conduce to the contrary. In U. S. v. Nelson (5 Sawyer, 68) a case much like the present was considered. A locator of a placer claim had taken all the steps entitling him to a patent for the land except the final jjayment of the price fixed by law. After- wards he cut timber therefrom, not incidental to a bona fide mining operation, but for the purpose of selling it as fire wood. The court held that this constituted an offense within the meaning of section 2461, supra, and among other things said: The defendant in this case occupies the premises under this \a\\ and claims the right to cut and remove the timber therefrom as incidental to and in aid of his right to mine thereon, but he is not the owner of the land until he pays for it and obtains the United States patent. It is a part of the public domain. In the meantime the defendant is occupying it under a mere license from the Government which may be revoked at any time by the repeal of the act giving it. * « >' If the land or the greater portion of it is of little or n.i value as mining uniund, but valuable for its timber, the defendant might occupy it for u few y( ars until he had stripped the tract 138 TMcr r. United States {113 Fed. Rep.. 373). Ill' its timber and workril out the few arres that really contained valuable deposits, and then aljandon it to the (Tovernment. * * * The temptation to locate 160 arre.-J of timlier land as mining ground, and by putting a few dollars' \\i)rth of labor upon it annually, andthereliy be enabled to dispose nf the timber upon it at from $50 to $100 an ane, is very great, and if the defendant's construction of the law is to obtain, there is nothing to prevent its being done. * * * The removal of timber from a mining claim to be justifiable should proceed pari passu with the operation of mining. Whoever wants to go further or fainter than this, and for any I'eayi.iii appropriate the timber to his own use in advance of his mining operations, can only do so safely b\' paying the purchase price of the land and becoming the owner thereof. The views .so expressed hy tlie district judg-e in that case commend themselves to our reason, and, it appears, so commended themseh'es to the reason of the Supreme Court of the United States that that court cites it in support of its decision in the case of Shiver v. United States {suprti). The law relating to the acquisition of homesteads is so akin to that relating to the aciiuisition of mineral claims that the principles gov- erning the rights of claimants while engaged in perfecting their titles are conceded by counsel in their argument to be similar. The homestead settler acquires no title until five years after his entry. During these years he must, among other things, reside upon the land entered and cultivate the same. The jDerformance of such acts, like the final payment by a claimant of mineral land, entitles him to a pat- ent. In homestead cases the rule is well settled that the settler may cut during those five years onlj- such timber as is reasonably incidental to cultivation, and can not, under color of exercising this right, denude the land of its timber for the purpose of selling the same and securing its purchase price. (Stone r. United States, 167 U. S.. 178: Shiver v. United States, 1.5'.:) U. S., 191; United States v. Cook, Vd Wall., 591; Conway -■«'. United States, 37 C. C. A., 2W; 9.5 Fed., 615; Grubbs v. United States, 11 C. C. A., 513; 105 Fed., 311.) In the case of Shiver c. United States, supra, the question turned upon what is meant by ''land of the United States" within the mean- ing of section 2461, Revised Statutes, providing for the punishment of persons guilty of cutting timber upon such lands. After making a resum^ of the provisions of the homestead act Mr. Justice Brown, speaking for the court, says: It is evident, firnt, that the land entered continues to be the property of the United States for five years following the entry; * * * second, that such property is subject to divestiture, upon proof of the continued residence of the settler upon the land for five years; third, that meantime such settler has the right to treat the land as his own so tar, and so far onlj', as is necessary to carry out the purpose of the act. The object of this legislation is to preserve the right of the actual settler, but not to open the door to manifest abuses of such right. C»bviougly the privilege of residing on tlie land for five years would be ineffectual if he had not also the right to build himself a house, outbuildings, and fences, and to clear the land for cultiva- TMer r. UnUcd States {113 Fed. E,p., 273). 139 tion, and to that extent the act hiuity and modilien the ui't of I.SHI, iu>\\ embracfd in Eevised Statutes, section 2461. It is equally ck'ar that he is hound In act in good faith to the Government, and that he has no right to pervert the law to dishonest purposes or to make use of the land tor profit or speculation. The law ccmtemplates the possibility of his abandoning it, but he may not in the meantime ruin its value to others who may wish to purchase or enter it. * * * .The settler upon a home- stead may cut such timber as is net'essary to clear the land for cultivation or to build him a house, outbuildings, and fences, and perhaps, as indicated in the charge of the court below, to exchange such timber f< ation for a time abandon the lands is not alone proof that they intended to defraud the Government, although in the meantime they have cut and sold the timber from the lands during the occupation, but the jury should judge of the intent of the parties so acting by all the circumstances surrounding each case, and if these circumstances satisfy the jury that claimants of the land were act- ing in good faith at the time they sold the timber, and the purchaser had no rea- sonable ground to believe otherwise, then such sale would be lawful. OPINION OF THE COURT. The case i.s stated in the opinion. ]\Ir. Jn.stice Harlan delivcifd the opinion of the court. Tliis action was brought in tlie District Court of the United States for the District of Washington, Eastern I)i\-ision, to recover the rea- sonable value of certain timber and railroad ties manufactured from trees alleged to have been unlawfully cut by the defendant Stone from certain lands in Idaho, of which, it was averred, the United States was the owner. The answer put the United States upon proofs of all material alle- gations of the complaint. Bnt the defendant made two spet'ial defenses: 1. That at a term of the United States district court for the district of Idaho, held in April, ISUl, the trespasses and wrongs complained of were presented hy the United States to the grand jury for investi- gation, and such proceedings were then and there taken that the grand jury returned into court true bills of indictment, in which each and all of the wrongs and tresspasses complained of herein win-e included; that the defendant was charged thereb\' with the commission of an Stour r. liuhd Statex {167 U. S., 178). 141 offense against the statutes, forbidding the cutting or rcmox'al of timber from the lands of the United States; that on all the chaif^cs involving the acts of the defendant as set forth in the complaint filed herein he was tried and acquitted and discharged therefrom by the judgment of that court, and that judgment was duly entered against the Government, "the issues therein being the same as arc now pre- sented in this action, and were each and all determined and adjudged in this defendant's behalf." The defendant, therefore, alleged that the issues tendered by the plaintiff herein have been heard, tried, and adjudged for defendant and against the plaintiff by a court of competent jurisdiction, and that such judgment and determination precluded the maintenance of this suit. 2. That between the dates mentioned in the complaint, to wit, between the months of August, 188S, and November, 1890, he had contracts with various customers for supplies of railroad ties and timber for the manufacture of lumber at points along the line of the Northern Pacific Railroad Company in the State of Washington, and adjacent to the region mentioned in the complaint; that he procured his supplies of timber for the purposes aforesaid from lands embraced in the grant made by acts of Congress passed to aid in the construction of the Northern Pacific Railroad, and by contracts with that company, and that at no time did he cut timber on any lands except such as belonged to that company; that during said time he purchased from other parties, who delivered ties and timber suited for lumber on the railroad, both ties and timber not cut ^^J himself, for which he paid the market price, and which were either cut from the railroad lands or were lawfully cut by the parties who sold and delivered them to him; that no part or portion thereof were cut or taken from lands of the United States, or were unlawfully cut or taken from any lands; that the railroad ties so purchased from other parties, and which were not cut by himself from the lands of the railroad compan\', were for the use of and were used in the construction of the Spokane and Palouse Railway Company and the L'entral Washington Railway Company's railroads, respectively, both corporations being organized and constructing their roads under and in compliance with grants made by the act of Congress of March 3, 18Y5, authorizing the use of timber, etc., for construction, to be taken from the public lands of the United States, and that the taking for such purposes was not unlawful, but was by authority of law. The defense based on the criminal prosecution in the United States district in Idaho was adjudged on d-emurrer to be insufficient in law. The United States also brought an action against John H. Stone, Edward Noonan, and W. G. Kegler, as partners doing business under the name of the Spokane Fuel Company, to recover the value of 3,545 cords of wood alleged to have been made from trees unlawfully cut 142 St., 178). ■ by the luws of the United Stiitos to take the timber included in this action, and such taking bj^ them through their agent was not unlawful, the proof showing "that the ties which are sued for in this action were used by the said railroad companies in the construction of their said roads." This evidence was excluded and its exclusion is assigned for error. It appears from the record, as stated in the opinion of the circuit court of appeals, that no timber tit for ties was found along the line of either of these roads; that both of them penetrated a barren region almost entirely destitute of timber, and that the timber was cut from lands along the line of the Northern Pacific Railroad about 50 miles distant from the eastern end of the other roads, which was the nearest point where available timber could be found. The trial court in its charge, thus interpreted the above act of 1875: The act of Congress under which this claim is made dues not undertake to provide the materials necessary for tlie building of railroads. It does not provide that if there is not any timber convenient, or within a convenient distance to the building and construction of a new railroad, that the railroad company has a right to require the United States to provide them with material, or go upon distant lands and procure the material that they require. That is not the scopie . to all of the lands in the State of Idaho, and where individuals have acquired ownership they have done so by grant or conveyance from the Gov- ernment; that in a case where there was no evidence of transfer from the United States of title it is to he taken that the title is still in the United States; that as to all lands in which the title is in the Go\'ern- ment, the timber and trees standing and growing on them are part of the land, the title of the United States to the trees being the same as its title to the soil; that when trees on such lands are cut down with- out authority of law the right of property in the timber after it is severed from the realty still remains in the Government, and if anyone without license from the Government or without authority of law takes the timber from the land he commits a trespass against the Government; that no person can acquire title to the timber so cut by buying it from an individual, unless it appears that that individual in cutting and removing it from the lands had license or lawful authority to do so; that u.nder the laws in force during the time referred to in the pleadings and evidence, any person desiring anj' part of the lands known as public lands must pTove that it was for his own exclusive use and benefit and for the purpose of residing upon and cultivating it, thus carrying into effect the policy of the Government in giving public lands to the people who need them and would cultivate and use them, so as to cause the greatest benefit to the country; that any settler going upon a ti'act of land with that intention goes by invita- tion of the Government, and with the authorit}' to improve the land and make it fit for use; that he is authorized to cut down the timber which he finds standing there (if it encumbers the ground) so far as was necessarj' to do so in order to make the land fit for cultivation; that any timber that he does so cut down in good faith and for the purpose of improving the land, he being a bona fide settler intending to acquire title in accordance with the laws, is not the property of the United States, but becomes his property after being so cut down, and that he may burn it up or he may sell it for money, and if he sells it under the conditions named the man who buys it from him gets a good title and is not required to pay the United States for it after- wards; that the converse of that proposition was true, and where a man cuts timber off the public lands, unless he is a bona fide settler intending to acquire title to the lands by obedience to the laws of the United States, he does so unlawfully, and does not make himself the owner of the timber by cutting it; and that even a settler who takes up a claim on public lands, intending to perfect bis right to it, has no right until he has perfected his claim to cut the timber, except so far as it is necessary and reasonable to prepare so much of the lands for cultivation as he intends to cultivate. 21150—03 10 146 Stiiiir ,■. Clfrd Sfii_t,.-<{lGr ['. S., J7S). Tlio ('(luit proi/ocdcd in its cliaro-e: A man (.f limited moiiuH who j^ik'S upon a claim and in able during the lir.st year to cultivate iiidy a few ai-ren is only authorized to cut the timber off the few aeres that he intends to cultivate ami is able to cultivate. If he < uts ilown the timber off 40 acres it should be in pursuance to a definite plan that the plow shall follow the ax, and that the entire 40 acres shall be put to use for the pnr].ose of cultivation, or in such manner as a farmer maki's use of land that is tillable land. The balance of tlu> tindicr on tlie lliO acres, if it is a timberi'd claim, a claim covereil by timber, sliould remain as a preserve, a timber ])rescrve, for the future benefit of the land, and should be remo\'eil only so fast as the settler finds it necessary to remo\'e it in order to put in cultivation the lamls he means to cultivate and intends to cultivate in f; 1 faith. But a man whose primary purpose is to cut the tii]d>er on a [liece of land is no more authoi-ized to l'o ami eu( that timber by reason of his having filed in the land ollire a ili'i'laration of his intention, to take the land under the preemption law than if he goes and cuts it without filing any declaration. Fnli'ss the ileclavation is an honest ileclaralion, and is suiiported by compliance with the reijnirements of the law, by making a home upon the land, actually living upon it and actually iiroceeding in the regular way by ri'glilar process of improving the land ami putting it in cultivation, and until he has perfected his riglit by full com]iliauce with the law, he has no right to cut down and sell the timberou other portionsof the land which he is not intend- ing to immediately put into cnltivation. As between the < iovernment and the set- tler the tille to the land until the conditions of the law are fulfilled I'eniains in the Tnilid Slates, but in the mcanliiiie if the settler is eugau'cd in iiiipro\ iug the land as re^iuired by law and disposes of any surplus timber without intent to defraud the ( iovernuieiit, and the lanchaser buys the tindier under the belief that there is no intent or [airpose to defraud the I lovermiieut, the sale is law ful and the purchaser is prolei'tcd. The fact that claimants to lands under the homestead and preemption laws after occupaliou for a timi' abamlou the lands is not alone proof that they inteniled to defraud the ( loxerimieut, although in the meantime they have cut and sold the tind)er from the lamls during the ociaipation, but the jury should judge of the intent of the [larties so acting by all the circunistain-es surrounding each case, and if these circumstances satisfy the jury that claimants of the land were acting in good faith at the time they .sold the timber, and the purchaser had no reasonable ground to believe otherwise, then such salcwuuld be lawful. It is not, in our juiio-nicnt, necessarv to add anytlnno- to this clear and satisfactory statement of the law as applicable to the matters referred to hy the trial court. They are in accord with the \ie\vs of this ((uiit as exprcs.sed in Shiver /•. United States (l.'iii V. S. . JriU, -tOT, 4IIS). Sei- also Tnited Slales r. ( 'ook (I'd Wall., .^l" I ). The ol)je(dioiis made at the trial (and rei)e;ded liere) to what was said to the jurv on this part of the case were not well taken. They could not lie sustained without encoura^ino- depredations upon th(> puldic lands under the o-iu.se (d' estalili.shino- settlements upon them in accordance with the lilx'ial ]iolicy of the ( lo^'crnment. * X- -x- * * * lla\iiio iiolicedall the matters in the record thai wi> dc^un important, and percei\ ino- no i-rror X HOMESTEADS. Department of the Interior, General Land Office, Washingtooi, D. (?., Man 16, 1896. Sir: Your letter of April 30, 1896, is received, in which you ask, first, if a homestead entryman can, prior to making final proof, con- tract for the cutting and hauling away, for a consideration, of the cedar timber on his claim, the same to be cut for the purpose of cl(>ar- ing the land for cultivation, and manufactured into shingle bolts. And, second, if the entryman, "to swindle the contractor," should, "after it is all cut and ready to be hauled," refuse to let the con- tractor remove it "under the pretext" that final proof had not been 148 TinJjcr on I Jomesteads— -Bights of Settlers— J)idlan Homesteads. made, "could the contractor have the right to take the bolts in pay- ment for his labor," etc. ? You are informed that a bona fide entryman may cut or contract for the cutting of such timber as he wishes to hav(> cleared in the ordinary preparation of his claim for farm purposes. The timber so cut he can sell or dispose of as he may see fit. (See inclosed copy of circular dated December 15, lss5, relative to timber cutting on lands embraced in homestead entries.) Until patent for the claim issues to the entryman, the timber cut thereon is not his property exclusively. The Government has rever- sionarj' rights in the lands, and, in the opinion of this office, the tim- ber cut thereon may not be ap]3ropriated or le^'ied upon in satisfaction for any claim which another may hold against the entryman. The contractor can not, therefore, appropriate the timber or bolts to which you refer in satisfaction for his claim for labor performed thereon. He has his remedy in the local courts, and can there redress his grievance growing out of violation of contract. Very respectfully, S. W. Lamoreux, Coiiiiiiissiontr. Mr. Joseph M. Carlson, Silver Lale^ Void'itz County^ WosJi. PUBLIC-TIMBER PRIVILEGES OF SETTLEns OX UXSl'RVEYED LANDS. A bona fide settler upon unsurveyed public land who intends to acquire title to the land under the homestead laws so soon as he is allowed to do so after survey, and who, in good faith, is complying with the rules and regulations relative to residence, cultivation, and improvements, is permitted the same privileges with regard to the cutting of timber upon his claim as are allowed to the bona fide home- steader, and is subject to the same restrictions. TIMBER ON INDIAN HOMESTEADS. The rules and regulations governing the use of timber on lands cov- ered by Indian homesteads are the same as those set forth in ciixular of December 15, ls,s5, iiuotcfl on page 147. with the exception that the restrictions respecting the use of timber remain in force for a period of twentj'-five years sul)se([uent to the issuing of ti'ust patent, inasmuch as the title to the land (and, hence, to the standing timber as a part of the realty) accfuired under such patent remains inalienable until the expiration of that period, or longer, when the United States is dis- charged of its trust. Tiinher an fiKlian Allohnoita and Iiin, Janui/ri/ ',36, 1Sctfully, Hokk Smith, S,y/-rfil/'i/, COJIMISSIONEII OF THE GeNEKAL LaXD OffICE. BURXED TIMBER OX HOMESTEAD EXTRIES JX ^Vlsi VXSIX, MEXXE- SOTA, AXJ) MICHJOAX. [Act of January 19, 1895; 28 Stat., CSJ.] AN ACT for the relief of homestead settlers in AVisconsin, ^Minnesota, and ^Michigan. Whereas during the summer and autumn of cijibtcen hundred and ninety-four extensive forest tires prevailed in northern ^^'iscollsin, Minnesota, and Michigan, resulting in the death of many liouicstcuders and their families, the destruction of their pi'optMty and efl'ccts, and of much of the green timber growing upon them, which honicsti^ads are valuable chiefly for the timber standing and growing on them; and Whereas under existing law homesteaders are not allowed to cut or sell green or burned tini])er, except for the purpose of clearing and improving, and all burned timber not cut within a short period will liecome worthless and a loss to the settler and the Government; There- fore, Be it enacted hy tlte Senate and House of Beja'ex, ntati rrx of tlie T'niied' States of America in> L ongress assendjted. That all such persons actually occupying homesteads in said States of Wisconsin, Minnesota, and Michigan, at the time of such fires, upon claims under the laws of the United States, on lands of the United States, whose property and buildings were destro3'ed by such fires, and the heirs of till such per- sons who perished by such fires, and all persons who by reascju of such fires and loss of property were obliged to leave their homesteads, are hereby granted two years' additional time in which to make final proof. And temporary absence for any period within two years from the date of this act shall be deemed constructive possession and residence, but shall not be deducted from the time required to make final proof. Sec. 2. That all persons whose property was destroyed l)y such fires, and the heirs of all persons who were actual occupants of the home- steads at the time of the fire, and who lost their lives in and Ijy that fire, may, by proving such actual occupancy- at the date of such fires, 152 Burned Thnier on Ilomestends in Wisconxin, MinneKnta, Etc. make proof showing compliance with the law up to the date of the fire, and shall make payment at the minimum price under existing statutes, in the same manner as if such claimants were alive, and upon receipt of such proof of loss of property by such fires, or death of the claim- ant, heirs surviving, and upon payment as aforesaid, a patent shall he issued to such claimant, or his or her heirs. Sec. 3. That the claimant upon anj^ homestead, who by reason of not having lived thereon the necessary length of time to enable him to com- mute under section twent^'-three hundred and one of the Revised Stat- utes as amended bv the act of March third, eighteen hundred and ninety-one, his heirs, executor, administrator, or guardian of his minor heirs, may, when the quantity of timber destroyed upon his or her homestead shall not exceed seventj'-fi\e thousand feet of merchantable green timber, file an estimate in the land ofEce where such homestead was entered with such reasonable proofs as the Commissioner of Public Lands may prescribe, as to the quantity of timber destroved upon any sectional subdivision, and thereupon the register and receiver may, under the direction of the Commissioner of Public Lands, issue a license or permit to cut the burned timber on any homestead or sectional frac- tion thereof, upon payment of the sum of one dollar and twenty- five cents per acre for such sectional subdivision, and the Government shall issue a patent for the same to the claimant or his or her heirs. OIRCVLAR. (20 L. Vs., 9S. ) Depakt.-ment of the Ixteeioe, General La^nu Opeice, Watiliiiuiton^ D. 6'., Fehruary 2, 1895. Hegisters and Receivers^ United Sfxtcn district land officeK^ in WiKConsiri., Minjie.sofit, and' 2li(diiyaji. Gentlemen: Your attention is called to the act of Congress approved January 19, lS'.»r>, entitled "An act for the relief of homestead settlers in Wisconsin, Minnesota, and Michigan," a copy of which is hereto attached. The first section provides for an extension of time of two years within which to make final proof, and excuses temporary absence for any period within two years from the date of the act in all cases where any homestead settler, in your respective districts, was compelled to leave the land settled upon by him because of the prevailing forest fires of the summer and autumn of 1894, and by reason of the destruction of buildings or other property by such fires. The same relief is extended to the heirs of any settler who perished by such fires. Any settler desiring to receive the benefit of these provisions will be required to file in the district land office having jurisdiction over the land embraced Bnrnal Tiiiibt-r on Homesteads i/i ]Visoo7isi/i, Jlin/ic.wla, Etc. 153 in his or her claim an affidavit corroborated by two parties setting forth the number of the entry, if one has been made, and the descri])tion of the land; the date of settlement upon the land; the amount and char- acter of the improvements placed thereon; the charactor and extent of the damage to the settler's property caused by the fire; the date when the same occurred; '*\hether or not the party was thereby obliged to leave the claim, and such other facts as may be relied upon as bring- ing the party within the scope of the act. Where a homestead settler perished by such fires, the heirs (i. c, the successors to the right under the homestead law, if they desire to receive the benefit of the provi- sions of said section), or one of them, will be required to furnish evi- dence consisting of the affidavit of the respective claimants, or, if a minor, of his or her guardian, corroborated by two witnesses, setting forth the number of the entry, if one has been made, and the descrip- tion of the land; the date of the settlement under which they claim; the character and value of the improvements, and the circumstances attending the death of the settler. The affidavits of the claimant and his corroborating witnesses may be made before an}' officer authorized to administer oaths using a seal. Upon receipt of the required affidavits you will forward the same to this office, with your joint recommendation in regard to the case. Should the evidence be found satisfactory you will be so advised, whereupon you will make such notes upon your records for your future guidance as will indicate that the parties arc entitled to the benefits of the provisions of the fii'st section of the act, and in these cases you will not issue the usual notice of the expiration of time within which to make proof until te)h years from the date of the entrj-, and no contest for abandonment or noncompliance with the law will be allowed against any of the entries until after the expiration of two years from the date of the act. Entrymen temporaril}' absent for an}' time within two years from the date of the act will not be required to show any additional period of residence when they xmk& fi luil proof, because of such absence, as the act explicitly directs that such absence shall be deemed constructive residence. Parties coming vmder the act whose claims rest upon settlement alone are not relieved from the necessity of making their original homestead entries as heretofore required by the law and regulations in order to protect their settlement rights. The second section provides that homestead settlers whose property was destroyed by such forest fires, or in case the settler perished by the fire, then his or her heirs, or, in other words, the successors to his or her homestead right, as defined in section ;4y'.tl, Revised Statutes, may, upon satisfactory proof of compliance with the law upon the part of the settler, to the date of the fire, and, upon payment of the mini- mum price under existing statutes, receive a patent for the land 154 Binned Tuiiliu' (III JLiiiicKlrods in WiscoiiKhi, 2Iiiiiir.s and the extent of the damage done to the claimant's property thereby, or. where the settler has perished by the fire, proof as to the time and manner of his death. The payment required to be made for the land is the "minimum price under existing statutes," which in ordinary commutation of homestead entries under section jioOl, Revised Statutes, is ^1.2.5 per acre, except where the lands are within the limits of railroad land grants and thereby enhanced in price to ^if.-'jO per acre, and in other cases such amount as is required b_v any special laws which ma^y govern the disposal of the specific tracts of land. You will make no change in yovir method of reporting these entries, but will be governed in each case by the instructions heretofore issued, should there be any entries embracing land of a special character. In all cases where parties intend to a\ail themselves of the benefit of the said second section under claims resting upon settlement alone at the time of the fire, they will l)e required, when they apply to make the original entry, if such application is not made within three months of the date of the settlement, to file affidavits explaining why such entiy had iKjt bren made sooner, and when i)arties whose entries have ))een made since the date of the tire submit proof, as herein required for the purpose of perfecting title to tlieir claims, under the provisions of the said section, you will forw ard the proof submitted to this office for consideration and withhold the cash certificate until advised that such proof is satisfactory to this office. Section .") provides for cases in which the forest fires only partially burned the timber on the homestead, and the settler may desire to pur- chase only a portion theri'of, retainmg the remainder to be perfected under the gcmeral provisions of the homestead laws. In such 4, gi\'ing a description of his entry, the date and number thereof, and a description of each of the smallest legal subdivisions of his claim upon which the green timber ha.s been injured or destroyed by said fires, together with an estimate of the amount of such timber so injured or destroyed upon each of said smallest legal subdivisions. Also that he has complied with the requirements (.)f the homestead law up to date. This statement must be corroborated by two witnesses Sfonii-frf/ril Timhrr hi Fhn-hhi. ]r)5 who have uetual knowledoc of the conditions existing- aw the cliuni. The entryman must designate which of the lei^-al suhdixisions of his claim on which the timber was burned lie desires to pureliase under this act, and with his application to purchase and sworn statement above required he must tender the necessary amount of money to complete the purchase at the minimum price per acre. Upon the presentation of the above-required application and sworn statement, together with the purchase money, if the same ))e found satisf actor}' to the register and receiver, they shall thereupon issue the ordinary cash entry certificate and receipt, giving them current mun- bers in the regular cash series. On the margin of the certificate, receipt, and duplicate receipt there shall be indorsed in red ink: "Burned timber entry, act of January lii, lS9o." On the back of the duplicate receipt there shall be indorsed the fol- lowing license or permit to cut the burned timber: The within-named entryman having complied \i-ith the regulations prescribed under the att of January 19, 1895, entitled " An act for the relief of homestead set- tlers in 'Wisconsin, Jlinnesota, and iliehigan," is hereby permitted to cut and di.s- pose of the burned timber on that portion of his homestead entry deseribeil in this duplicate receipt. Date . , Ili'ijixltr. , Hrrrinr. ^ ery respectfully, S. W. Lamokk.ux, ( 'mil III in)>i(>iii-r. Approved: PIOKE S]\IITH, iSirrrhlriJ. TIMBER FELLED BY STOH.V OX CEBTAIX IKiM llsTEAT) EXTUIES IX FLORIDA. l^Act of Pebraary 2(5, IshT; -29 Slat., 599.] AN ACT Concerning certain homestead lands in Florida. Be it enacted ly the fSeinite and Home of ReprenentdtlreK of tlie United States of AnieriiU in. Comjress asuetiMed, That all persons actually occupying homesteads in good faith in any of the following-named counties in said State of Florida, to wit, Alachua, Lafayette, Levy, Suwannee, Bradford, Baker, and Columbia, at the time of the storm on or about September twenty-ninth, eighteen hundred and ninety-six, are hereby granted the right to sell or otherwise dispose of the fallen timber on their homestead entries felled by said storm, and to devote the proceeds of such sale or barter to the improvement of their home- steads or support of themselves or their families. 156 Tiiiihi !■ oil Schoiil Lands. TIMBER ON SCHOOL LANDS. [11 C'opp's Land-Owner, 134. J School Sectioxs — Public Lanos — Trespass. Si-liool sertions in tlif Territories are pulilic lands, though reserved, and are under the ('(jntrul of the United States. Suits for damages against treHjiassers thereon may he brought in the local courts by United States officials. •Sri-rctari/ Scliui's to Hon. John Eaton, Com nuKxionir of Kdni-dthm, August i.V, 1879. I havo received your letter of the 5th instant, indexing a letter from Hon. A\'. H. Beadle, superintendent of public instruction for Dakota Territory', dated Maplet(;n, Dak., the 15th ultimo, in relation to dep- redation.s being- committed upon sections 1(1 and 36 in said Territory, b3' cutting and removing timV)er therefrom, and als(j Ijy cultivating the .same for crops as private property. Mr. Beadle desires to Ix' informed whether sections 16 and 36 in each township of surveyed lands in said Territory are public lands, or whether they are "so under Territorial jurisdiction as to enable us to bring at-tions in favor of our public-school fund.'' Section 14 of an act entitled "'An act to provide a tempo rarj- government for the Territory of Dakota and to create the office of surveyor-general therein" reads as follows: And be it further enacted that when the land in said Territory shall be surveyed, under the direction of the Government of the United State,'^, preparatory to bringing the same into market, sections' numliered sixteen and thirty-six in each township in said Territory shall ))e, and the same are liereliy, re.serveil for the purpose of bemg apjilied to schools in the States hereafter to be erected out of the same. (12 Stat., l-'Htt. ) The lands are public lands, although reserved for a particular pur- pose, and all trespass committed upon them renders the parties guilty of such trcsjiass lialile to prosecution under the laws of the United States. The penalties, howc\-cr, collected for trespass M-t)uld not inure to any school fund of the Territory. The United States has not granted the title to such lands, but has icser\cd them in order that at some future time, when a State shall be erected out of such Territory, the same may be granted to such State. In relation to the riglit of the United States to prosecute for tres- passes, I think there can be no question. Section L'Kll, Revised Statutes, provides specifically the punishment for cutting and removing timber from the public lands; and while I am not aware of any statute which provides for a rule of damages for using and culti\ating lauds of the Uniti'd States which can not, under law, be sold, still I am of the opinion that the United States has the right to recoN'er jncsnc profts for tli(> use of said land. Tuiihvr (in. School Lands — Boxing Tn't'S f(n- Turpentine. 157 In the case of Cotton v. United States (11 How., 239), the Supreme Court says: Although as a sovereign the United States may nut be sued, yet as a curporation or body politic they may bring suits to enforce their contracts and protect their property in the State court or in their own tribunals administering the same laws. As an owner of propeity in almost every State of the Union, they have the same right to have it protected by the local laws that other ]>ersons have. In the case of the United States /•. Gear (3 How., 12(1) it was held that the United States had the right to maintain an action of trespass for taking ore from lead mines. On the same principle I think the Government would be entitled to recover for any other beneficial use to which the public lands might be put. You may, therefore, advise Mr. Beadle that if he will furnish this Department with information as to the cutting and removing of timber from sections 16 and 36, or any other public lands in the Territory of Dakota, giving a description of the tract trespassed upon, and time when trespass was committed, the same will receive prompt attention. You may also advise him that if he will furnish to this Department like information of persons who are cultivating and using such sections, that proper action will be taken thereon. BOXING TREES ON PUBLIC LANDS FOB, TTTRPENTINE PTJB.POSES. All boxing and chipping of trees for turpentine purposes on public lands, whether vacant or covered by unperfected homestead entries, is unlawful. The use of trees for such purposes on lands covered liy unperfected homestead entries can not be considered as constituting such "cultiva- tion" as is contemplated in the second section of the act of May 20, 1862, which has clearly in view the tilling or fertilizing of the soil. The decisions rendered in the cases of James F. Bailey, •!• C. Cal- houn, and E. S. Taylor, tried at the April (1888) term of the circuit court, eastern district of Louisiana, established the right of the Gov- ernment, in cases of turpentine trespass on public lands, to bring crim- inal proceedings for the stealing and retaining of personal property of the United States, to wit, crude gum, etc., under section 5456 of the United States Revised Statutes, and 18 Stat., 479. The further right to sue for the recovery of damages i.i cases of this nature is established by the decision rendered in the following case: United States v. Tatlok. Circuit court, southern district of Alabama (35 Fed. Eep., 484). Public Lands— Tkespass— Right op Goverxment to Sue— Possession— Home- stead. Possession by a homestead claimant, and a receiver's receipt issued since bring- ing the action, do not divest the Government of possession or title, so that it can not maintain an action of trespass for cutting timber on the land. 158 Bii.r/ii/f Trci's for Tiiri>',VII>EXrE. In such a case, evidence that the employees of defendant, under hia direction (ir superintendence, or that of his partner for their joint benefit, entered on the lands described in the complaint and cut turpentine boxes in the trees thereon or cbijipcd suili trees for turpentine purposes, or removed therefrom crude tur- pentine, is sufficient to warrant a verdict against defendant. But if defendant iricrcly bought turpientine from homestead claimants, having nothing to do with hiring hands, or chipping trees, or dipping or hauling turpentine, further than til pay for this work at the request of said claimants, and deducting the amount so paid from tlie agreed price of the turpentine, defendant is not liable. S WW. Xo.MIN.M, D.V.MAOES. In such a case, merely entering on the land and cutting boxes or chipping trees and removing therefrom crude turpentine entitles plaintiff to nominal damages, thiiugh no actual damages were done. S \.MI-; — ColtPENS.VTORY D.VM-MiES. In an action for cutting growing trees, if their value can be ascertained without reference to the x'alue of the soil on which they stand, the measure of damages is the injury done them, and not the difference in the value of the land before and after sucli injury. S \ M E — E.XEMPLAKY Pa.M.\( iES. In such 11 case the < lovermnent is entitled to exemplary damages, it the going on the land and cutting and chipping the trees or dipping and removing the turpentine \\ as done by defendant willfully, or if such acts were the result of a ne<_digence so gross as to show willfulness or a reckless indifference to the rights of the (.TO\-ernment.^- TouL^iix, -/. (c'haro'iiio- jury): This suit is called an action cif tn^spass, and is hrought hv tlie United States aoainst the dcfondant to recover daniag-cs for trespasses alleged to lia\c been coniniitti'd liy him in tho years 1S83 and Issi on lands spcciH<';illy described in the complaint and belonging to the Govern- nii'iit of the I"'^nit(Hl Stat(\s. The Tnited States charges tlie defendant with (he ti'cspass set forth in the complaint. He sa^-s he is not guilty of it. Ihidcr the plea of not guilty the Government must be prepared to pro\(' the commission 1iy the defendant, his servants, employees, or agents, of the trcsj)ass of which it complains. It must be proved that the acts of trespass complained of were done by the defendant or by "- j\s to when exemplary damages may be allowed, see Clarke v. Improvement Co., (Dilf, 47S, and note; Eailroad Co. /'. Rciberts (Ky.), S S. W. Rep., 459, and note; Rail- road Co. r. Anxilil (Ala.), 4 South Rep., ?,.=>9; Webb r. Gilman (Me.), 13 Atl. Rep., 688, and note; Railway Co. v. liarcia (Tex.), 7 S. \V. Rep., 802; Plaines r. Shultz (N. .!.), 14 Atl. Rep., 48S; White c. Stribling (Tex.), 9 8. W. Rep., 81, and note. BoA'nuj Tivivfar Turj>entinc — Daiuixje,^. IT)'.) his command, or that tliev were done for his benefit and with iiis knowl- edge and consent, and he subsequently adopted and ratilieil them. It is not required that the arts of trespass should be proved bcj^ond a reasonable doul)t, as in a criminal case. This is a civil suit, and all that is required is that you should l)e reasonal)ly convinced from the evidence in the case that the defendant is guiltj-. The plaintiff's case should be satisfactorilj' proved. It is not necessary that the i)roof should be conclusive, but must l)c such as to rcasonal)ly convince you. If your judgments are thus convinced, after applying the ordinary tests for the ascertainment of truth, it would lie your duty to find a verdict against the defendant. If your judgments are not thus con- vinced, it would be y(_)ur duty to return a verdict of not guilty. Now, to enable a party to maintain an action of trespass he must have either actual or constructive possession of the land trespassed on at the time of the trespass, t'onstructive possession is such as the law annexes to the title, and will authorize this action. It is undisputed that the United States had the title to the land described in the com- plaint at the time of the alleged trespass. But it is contended on the part of defendant that the United States were not in such possession of the homestead lands mentioned in the complaint as to entitle them to bring this suit; that the occupancy of said lands liy the homesteaiver of the land office, issued since this suit was brought, and which are submitted in evidence, divested the United States of the tith' to such homestead lands, and vested it in the homestead claimants, and that, for that reason, the United States are debarred from recovering, so far as the homestead lands are concerned. I charge you that the right of the homesteader is one of occupancy only, but with certain rights and privileges, subject to the right and duty of the Government to protect and preserve the timber on the land. He is not in adverse posst'ssion of the land until he is vested with the title to it by the Government. In the meantime he has the pri^'i- lege of clearing it for cultivation, and of cutting the timber down for that purpose, and such timber may be sold if not needed for improve- ments; but if sale and traffic is the only reason for cutting the timber on the land, or for removing any material therefrom, the law would be broken, and the person would be a trespasser. Hence I charge you that the United States had, when this suit was brought, and now have, such possession as entitles them to maintain this action; that the receipts of the receiver of the land office are not, of themselves, sufficient evidence that the Government's title has been divested, and that it has vested in the homestead claimants. Until they have made the final proof and acquired the title— that is, so fulfilled their obligations under the law as to entitle them to patents— it is not allowable to them to cut 160 Bi).ri)}iir]v>i. July 1, ISS-j. I am in receipt of your hotter of the l.')th of June last, inclosing report nf Si)ccial Agent (irifBn, dated June 4, 188.'^, relative to the matter of the measure (if damages in case of trespass liy ■"boxing" trees itpon the pulilic land for turpentine. For years past the Department has at intervals l)een called upon to examine into cases of turpentine trespass presented for its action, and has. as a general rule, recommended suit for the recovery of the value Boxing Trees for Turpentine — Damages — AecrefloiiK. 168 of the material taken. Experience, howe\'cr, clearly shows that such action has entirely failed to accomplish the suppression of such unlaw- ful operations. Parties against whom judgments have been obtained have continued to violate the law even upon an enlarged scale, defy- ing the agents of the Gt)vernment to their faces, and other parties in the immediate vicinity have entered upon the work of destruction, in no way deterred by the punishment previously visited upon their neighbors. The report of Agent Griffin, full and explicit as it is, simply corrobo- rates the information already received from other sources, that a pine forest, when used as a "turpentine orchard," is doomed to entire de- struction. A • ' box " or gash is cut into the side of a tree, perhaps 10 inches wide and 6 inches deep, and of such a shape as to catch and retain a considerable quantitj^ of the crude turpentine gum. The next year another ' ' box " is cut at another point in the circumference of the tree, and soon. Besides this, the tree is subjected to a " chipping" process, the bark being cut through down into the woody portion for 12 or IS inches above the upper edge of the "box," in order to keep a fresh bleeding surface continuall}^ exposed. In four or five years the life of the tree is exhausted. Even should the process of "boxing" be discontinued decay will ensue from the action of the weather and worms upon the portion of the wood alreadj' exposed. There can be no healing process and no future growth to a pine tree once tapped by the turpentine gatherer 's ax. Drippings of gum accumulate in the "boxes " and about the root of the dying tree. From the carelessness of some traveler or from lightning striking some tree in the forest fires originate and the entire timber is consumed. After its destruc- tion the land will be covered in a few years with a growth of worthless scrub oaks, rendering it entirely valueless. In view of these considerations I concur in j'our opinion that the measure of damages heretofore estimated in such cases, based upon the value of the material procured, is insufficient to indemnify the Government for the actual loss resulting from the boxing of trees for turpentine ; and you are hereby authorized and directed to assess upon depredators of this class hereafter a measure of damages which shall include the injury, present and prospective, inflicted upon the trees which have been subjected to the operation. TIMBER "UPON ACCRETIONS THAT ARE PUBLIC LANDS. Accretions formed by washing or recession become part of the lands they adjoin. Removing timber from accretions that are public lands, except for improvement of the same or other domestic use, is trespass upon such lands, and liable to punishment as such. (See 1 L. D., 696.) 164 Tiraber for Bailnind Purposes. TIMBER FOB RAILROAD PTJRPOSES. [Act of March 3, lK7r> ; 18 Stat., 482.] AN ACT granting to railroads the right of way through the pubhc lands of the United States. Br if rinirtrd, etc., * * * That tho rig-lit of way through the public lands of the UDited Statps is hereby granted to any railroad conapany duly uroanizod under the law.s of any State or Territory, except th(^ District of Columbia, or by the Congress of the United States, which shall ha^'e filed with the Se(/retary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad; * * * -;<- ■:■■ * * * * * Sec. -t. That a.n_Y railroad company desiring to secure the benefits of this act shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twehe months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon a.ppro\'al thereof by the Secretary of the Interior the same shall be notinl upon the plats in said office; and thereafter all such lands over which such right of way shall pass shall 1h> disposed of subject to such right of way: l'r. ease of the grant to the Denver and Rio Grande Tiiiil>ti' for Bitih'oad PnrpOKi'x. 165 Eailwaj' Compaii_y by tho act of June S, isTii (IT Stat., 339), which allows the taking of public timber for purposes of repair on the por- tion of the line constructed thereunder. Under these acts timber can only be taken from public lands for rail- road purposes by the railroad companies direct, throuy-h their con- tractors or duly appointed agents. No timber may be taken from public lands for the purpose of sell- ing the same to a railroad company. No railroad company is author- ized by the above acts to procure or cause to be procured timber from public lands for sale or disposal either to other companies or to the general public. LANDS Mil. WENT, ETC. Stone v. United States. Circuit court of appeals, ninth circuit (64 Fed. Itcj.., 667). Eailroad Companies — Construction of Road — Right to Timber ox Adjacent Public Lands. Act of March 3, 187.5 (18 Stat., 4Si'), which grants to railroad companies the right of way through public lands and the right to take from the public lauds "adjacent to the line of said road" timber necessary for its construction, does not authorize the taking of timber for the construction of a road from public lands 50 miles distant from the road. See also United States /•. Henrj* Hazlett, cited on page 119; Stone /•. United States, cited on page llO, and United States r. St. Anthony K. E. Co., cited on page 171. United States /•. Ltnde et al. Circuit court, district of ilontana (47 Fed. Ri'p., 297). Public Lands — Northern Pacific Railroad — Right to Ci t Timber for Con- struction. Act Congress, section 2 (13 Stat., 365), granting to the Northern Pacific Railroad Company "the right, power, and authority * * * to take from the public lands adjacent to the line of said road, material of earth, stone, tim- ber, etc., for construction thereof," was not intended to apply only to pub- lic lands contiguous to or adjoining the line of the road, but may extend to other lands. Same — Use of Timber on Any Part of Line. Timber taken from lands adjacent to the line of the railroad may be used for construction upon any part of it. Denver & R. G. R. R. Co. v. United States (two cases). Circuit court, district of Colorado (34 Fed. Rep., 838). Public Lands — License to Railroads to Cct Timber. Act Congress June 8, 1872 (17 Stat., 339), granted to the D. c^c R. G. R. R. Co. the right to take stone, timber, etc., from public lands for the constructi(3n and repair of its railway, provided it was completed within ave years from its pas- 166 TimJjer for Railroad Pu-rj>oses. sage; and in case of default the act was to be null and'void as to the unfinished portion of the road. This act was amended to change the five years to ten. By act Congress March 3, 1875, a general grant to railroads was made similar to the special grant of the act of 1S71>, except that it limited the right to material to that necessary for the construction alone. Held that the D. & R. (j. R. R. Co. was entitled to the privileges of both acts. 8.\jrE — Place of Use. "Where a railroad has the right to talce timber from the public lands adjacent to its riglit of way to use for purposes of onstruition, it can take timber so obtained to any jioint of the line, however distant from the place of cutting. S.vjrE. For the rights granted under the general act of 187-5, tlie portions of the D. & R. (!t. R. R. built lief ore and after June 8, t,s.s2, are to be treated as one road, and timber can l.)e taken from the entire line for the construction of any portion of the line provided for in the original organization. iS.\MK PCRI'OSES OF Use. Under these acts section and depot liouses, snowsheds, and fences are a part of the railroad. Sajie — Repairs. Under these acts no timber can be taken from the public lands for the repair of any portion of the T>. & R. , 1875, Congress passed an act making a general grant '' to anj' railroad company duly organized under the laws of any State or Territorj'," etc., which grant, for all questions that arise in this case, is similar to the special grant to the Denver and Rio Grande, except that in the general grant the right to take material, earth, stone, and timber is limited to what may be nec- essary for the construction, and not, as in the special grant, for con- struction and repairs. The agreed statement of facts in the first case i.s as follows: That it is agreed — First, that the timber sued for in said action was cut by William A. Eckerlj" & Co., as agents for the Denver and Rio Grande Railway Company, and delivered to said railway company. Second, that the attached statement correcth' shows the kinds and amounts of timber so cut and delivered, and also shows the time of cutting, the purposes for which it was cut and used, and the prices paid for cutting and delivering the same. Third, that said timber was cut in ^Montrose County, Colo., and near the town of Montrose, and upon public, unoccu- pied, and unentered lands of the United States. Fourth, that the lands from which the timber was cut were along and near and adjacent to the line of railway of said company. Fifth, that the portion of the line of railway through said county of Montrose, and in the vicinity of said town of Montrose, was not constructed or completed until after June 8, 1882, and that on June 8, 1882, said line of railway was only constructed and completed as far westward of Cebolla, in Gunnison County, Colo. Sixth, that said company had not completed its line of railway to Santa Fe on June 8, 18S2, nor has it ever so completed it. Seventh, that of the timber cut as aforesaid a part was used on por- tions of the line of railway out to Grand Junction, constructed and completed after June 8, 1882, and for the purpose of construction of railway, erection of section and depot houses, snowsheds, fences, etc., and a part was shipped by the Denver and Rio Grande Railway for similar purposes to the Denver and Rio Grande Western Railway, to be used in the Territory of Utah, as shown in attached statement; and §1,000 worth was used for repairs on portions of road completed prior to June 8, 1882. Eighth, that as to all of its line of railway constructed after June 8, 1882, the said company strictly complied with all the requirements of the act of Congress approved March 3, 1875, entitled "An act granting to railroads the right of way through the public lands of the United States." Ninth, that upon the foregoing agreed state- ment of facts the following questions are to be submitted to the court 168 Tivilx'v fur BdilroHfl Purposes. for decision: («) Wliether under the act of June 8, 1872, and an act of March 3, IMT, amendatory thereof, the Denver and Rio Grande Kail- way Company had a right to cut timber for any purposes on public huid of the United States adjacent to portions of its line of railway constructed and completed after June S, 1882. (J) What are "adja- cent" lands within the meaning of the act of Congress approved June 8, 1872, entitled " An act granting the right of way through the public lands to the Denvei- and Rio Grande Railway Company," and the act of Congress of ]March 3, ls75, entitled '■ An act granting to railroads the right of way through the public lands of the United States?" ((■) Whether under said acts said company could cut timber on public lands of the Tnited States adjacent to the portions of the line of rail- way completed subsi^iuentl}' to June 8. 1882, to be used for purposes of repair and for station and section houses, and for fences and snowsheds on those portions of said railway line constructed and completed prior to June 8, 1882. [d) Whether under such statutes said railway com- pany could cut timber from public lands adjacent to portions of the line of railway completed after June s, 1882, to be used for anj' purposes on portions of the line of railway constructed and completed after June 8, 1882, and if so, for what purposes? (/) Whether the terms of the statute gi\'ing said railway company the right to take timber "for the construction and repair of its railway lines"' would in any wise com- prise and comprehend the erection, building, and repair of section and depot houses, snowsheds, fences, and rolling stock. (/') Had the said railway- company the right, under the act of ]March 3, 1S75, to take from adjacent public lands material — earth, stone, and timber — neces- sary for the construction of its railroad? {g) To what extent and for what amount the Den\ cr and Rio Grande Railway Company is respon- sible for timber cut as aforesaid and shipped to Utah for use on the Den- •\-cr and Rio Grande Western Railway, (li) To what extent and for what amount said railway- company is liable, if at all, upon the above agreed statement of facts and upon the law as it shall be decided bj^the court. Tenth, that this case is a test case to obtain a definite and positive adjudication liy a court of competent jurisdiction of the various points set out ab()-\'e ;uid of the rights of said railway company with regard to cutting timber from public lands under the act of June 8, 1872, under the amencktory act of March 3, 1877, and under the act of ^h\rch 3, 1875. Eleventh, that judgment shall l>e entered by the court upon the foregoing statement of facts, and upon the law as it shall decide it, and at a valuation for said timber as set out in the annexed state- ment. Twelfth, that the admissions made in this statement of facts shall bind the parties hereto only for this suit, and shall not bind them as to any other matter or case. There is some dispute between counsel as to the qui^stions that are involved in and presented by these facts. 1 shall not attempt to con- Tiinhcr for Bail road Purposes. 169 sider ain- that 1 do not think are fairly and clearly presented hy the facts. The fourth paragraph stipulates that the lands from which the timber was cut were adjacent to the line of railway; hence I shall not stop to consider how near land must he to he adjaci'ut- whether half a mile or ten miles. I certainly do not agree with the idea which seems to be expressed elsewhere, that the proximity of the lands is immate- rial, or that Congress intended to grant anything like a general right to take timber from public land where it was most convenient. The grant was limited to adjacent lands, and I do not appreciate the logic which concludes that, if there be no timber on adjacent lands, the grant reaches out and justifies the taking of timber from distant lands — land fifty or a hundred miles away; nor do 1 understand that the rule con- trolling the construction of ordinary- public grants, to the efi'ect that they are construed strictly against the grantee, does not apply to these grants. The first question is whether the railroad company- can avail itself of both the special act of 1872 and the general grant of 1875. It was held by the district judge that it could, and I agree with him in that con- clusion. It is unnecessary to do more than refer to the opinion filed bj^ my brother Hallett for sufficient reasons for his conclusion. The prin- cipal question, however, is this: My brother Hallett was of the opinion that the place of use of the timber on the line of the railway was to be considered as well as the place of cutting in determining the rightful- ness of the appropriation by the company. He thought that the right to cut timber extended to only so much timber as should be used in the construction of the road opposite, or nearly so, to the place of cutting; that if timber should be cut within a half mile of the road, and then carried on the cai's of the companj' a hundred miles, and there used in the construction of the road, it could not be said to be taken, within the purview of the act, from adjacent lands. So he concluded that the right to take timber was limited by the place of use, and that, as each section of the road of reasonable length was completed, the right to take timber on lands adjoining such section was gone. In other words, the grant of timber was exhausted pari passu with the construction of the road. In this view, with all deference to the learned judge, I think he was mistaken. While grants of this nature are to be strictly construed, they are to be fairly construed, and so as to carry into eflfect the intent of the grantor. In determining what is granted we of course look first to the language used. Now, in these grants the place of cutting, as well as the use to which the timber cut may be put, are both expressed. The place is the public lands adjacent to the line of the road. The use is the construction of the railroad, not a part of the railroad, but of the railroad as a whole, and of course including therein every part of it. It does not purport to grant the right to take timber from adjacent pub- 1 ' f Ti-niber for Bail/road Purposes. lie lands for use in the construction of the railroad opposite the place of cutting, and these last words will have to be implied in order to place the limit on the grant given to it by the district judge. It would have been so easy to use such words of limitation that their omission makes strongly against an intent of such limitation. Let me make an illustration. Suppose the owner of a section of land made a grant to a railroad company of a strip 50 feet in width through his land for a right of waj', and bj' the same instrument granted to the company the right to take stone and earth from land near this right of way for the purpose of constructing its road. This would be precisely parallel to the case at bar, the difference being only one of size. Now, would it be contended that under sucli a grant the company was limited for each rod of distance to the stone and earth which might happen to be opposite such rod '. Would not a fair and reasonable construction, one expressing the intent of the grantor, be that the company could take stone and earth from any place which was near to the right of way for use in the construction of any part of the road through the section l If that would be true in the lesser illustration, would it not also be true in the larger case before us? Can it be that Congress intended to aid in the construction of only a part of the railroad? It must have known that there were large extents of territorj^ in this Western countrjr tree- less and without suitable stone for culverts and bridges. Did it mean to aid in the construction of such part of the road as ran through a timber country, or where there was suitable stone, and leave the com- pany unaided in the construction of other parts? It seems to me both the language of the statute and the intent of the grantor are against the views entertained by my l)rc)ther Hallett. But, bevond this, the decision of the Supreme Court in the case of U. S. /'. Railroad Co. ('JS U. S., 33-i) seems to me decisively against those views. In that case the facts were these: V>x the nineteenth sec- tion of the act of July L\ isiii, there was granted to the railroad com- pany for the purpose of aiding in the construction of its road every alternate section of public land (except mineral land), designated by odd numbers, to the amount of lU alternate sections per mile on each side of the road on theline thereof not reserved, etc. By the twentieth section, whenever 2mj)any was entitled to claim the benefit of the act of Jlarch 3, 1S7.5 (18 Stat , 481', ch. 151), upon complying with its conditions. The act of Jlarch 3, ls7.'i (18 Stat., 482, ch. 151), granting a right of way to railroads through the public lands, and authorizing them to take therefrom timber or other materials necessary for the construction of their roadways, station build- ings, depots, machine shops, side tracks, turn-outs, water stations, etc., permits a railway company to use the timber or material so taken on portions of its line remote from the place from which it is taken. In its ordinary acceptation and enlargcil sense, the term "railroad" includes all structures wliich are necessary and essential to its operation. While it is well settled that public grants are to be construed strictly as against the grantees, they are not to be so construed as to defeat the intent of the legisla- ture or to withhold what is given. Thnher for Railroad PurjMses. 173 General legislation, offering advantages in the public lands to individuals or corpo- rations as an inducement to the accomplishment of enterprises of a quasi public character through undeveloped public domain should receive a more liberal construction than is gi\-en to an ordinary private grant. It is not decided that the act of March 3, 1S75, gave a right to take timber from the public domain for making rolling stock; nor what structure, if any, not enu- merated in that act, would constitute necessary, essential, •. Denver, etc., Ry. (150 U. S., 1, 14) it was said: When an act, operating as a general law, and manifesting clearly the intention of Congress to secure public advantages, or to subserve the public interests and welfare by means of benefits more or less valuable, offers to individuals or to corporations as an inducement to undertake and accomplish great and expensixe enterprises ur works of a quad public character in or through an immense and undeveloped public domain, such legislation stands upon a somewhat different footing from merely a private grant, and should receive at the hands of the court a more liberal constructiim in favor of the purposes for which it was enacted. (Bradley r. New York and New Haven Railroad, 21 Conn., 294; Pierce on Railroads, 491.) The articles of incorporation and due proofs of organization are required by the act to be filed with the Seci-etary of the Interior, and where the same are found sufl5cient to identify the company as a beneficiary of the grant and are accepted by the Secretary of the Interior, the right acquired by the acceptance will relate back to the time of the presentation of the articles of incorporation and proofs of organization, so as to protect the company in any subsequent taking of material, earth, stone, and timber necessary for the construction of the road. The second question, namely, ''Were the timber and ties specified in Special Agent Thorp's report cut ))y or for said company for actual construction purposes?" seems to be sufiiciently answered in that portion of your ,said office letter which states that — The second question is answered in full b)- Special Agent Thorp's reports and the affidavits submitted therewith, which seem to conclusively estaV)lish the fact that the timber and ties specified were procured from public lands solely for the con- struction of the Kootenai Valley Railroad. 21160—03 12 1 V 8 Tlmhrr for Railroad Purposes. In respect to the third question, namely, "Were such timber and tics procured from public lands adjacent to the line of the road?" your said office letter statt.\s that — The question as to what are "pubhc lands adjacent to the line nf said road," which is involved in the third (luery, has been construed in many conflicting ways by the courts and by decisions of this oflBce and the Department, and no definite conclusion can be arrived at which will apply, in general, to every case. In my opinion, it should apply, in gc-ncral, to the nearest and most available public lands, within a reasonable distance from tlie line of the road, from which the necessary timlier can lie procured, and it should especially apply to such lands as are within such proximity to the road as to be directly benefited by the building of the road, 1 ly 1 leing opened up to settlement and development, to a degree equivalent to the value of the timber or other material procured therefrom. Where the lands, how- ever, are, while only from 4 to 5 miles from the line of a road, in a direct line, but are separated from the road by mountains which it would be impossible to get the timber across, and the only way the timber cut from said lands can reach the line of road is by a lung and circnitrius route "f Siinie 10 or I'l miles, I am of the opinion that such lands can not be considered as "adjacent tn the line of the road" within the meaning of the ait of INIarch :!, 1875. With this ^•iew of the matter it seems to me that in the case of Hopkins and Reed reported by Agent Thorp JNIay 1], IS'.IS, involving 500,000 feet of timber cut from what will be, when survey is accepted, sees. 20, 22, and 28, Tp. 62 N., R. 2 E.; in the case of Parker Brothers, reported by Agent Thorp Jlay 12, 1899, involving 7,000 ties cut from what will be, when survey is accepted, sec. 2, Tp. 62 N., R. 2 E., and in the case of .Jerry Callahan, reported by Agent Thorp May 12, 1899, involving 235,000 feet of timber cut from what will be, when surveyed, sec. 18, Tp. 60 N., R. 1 E., the lands cut from being over 5 miles distant from the line of the road in a direct line, or it being impossi] ile to deliver the tinil ler cut therefrom to the railroad without trans- porting it by a long and circuitous route of from 7 to 12 miles, said lands can not be considered within the proximity of the line of the road or within such reasonable distance therefrom as to Ije considered lands "adjacent" to the line of the road, and I am of opinion that demand should be juade upon the railroad company and its ci'ntractors for the stnuj page value of said material, as innocent trespassers, before said timber and tics are delivered to them. With regard tn the 24,025 railroad ties sjiecified in the remaining two reports of Special Agent Thorp, botli .latcd ,'\lay ]:!, isiili, as cut from S. J NE. \ sec. 8, Tp. 62 X., R. IE.; sec. (i, Tp. (i:! N., R. 1 E., and on what will lie, when surveyed, sees. 7, 20, 2!l, and :'.2, Tp. 64 X., R. 1 E., in which said auent reports that the lands are within 1 mile of the line of the mad, an feet of timber referred to in the agent's report of ^lay 11 were cut from lands almost directly cast from the southern terminus of the proposed road and from 5 to T miles distant tlu'refroni. In circular of ^March 3, ISSo (1 L. D., (i'.iD), issued under the act of March 3, bs75 (supra), it is stated, in paragraph numbered 2, that — The right granted to any railroad company under this act to take timber or other material from the public lauds "adjacent to the line of said road" for construction Tiniber for Railroad Purposes. 179 purposes is construed to mean that in procuring timber or other material for the purposes indicated in the act the same must be obtained from the public luiids in the neighborhood of the line of road being constructed and within the terminal points of such roads, if possible. If, however, it should be found that the material required in the construction of such road can not be procured from the public lands in the neighborhood of and within the terminal limits of such roail, then it in permitted that such company may obtain the material required outside the terminal limits of the road under construction; such material, however, to be taken from such points as are most accessible and nearest to the terminal limits thereof. Under this construction of the act it would be possible to go bej'ond the termini of the road in securing timber for construction if it could not be found laterally adjacent to and within the termini of the pro- posed road. It does not appear, however, that any inquirj' has been instituted by your office with a view of ascertaining whether necessity existed for the cutting of timber ])eyond the terminus at Bonncrs Ferry. As to the timber and ties cut from lands laterallv adjacent to the line of road, it is stated in your said office letter that a portion, espe- cially the T,nOO ties cut from what will be, when surveyed, sec. 2, Tp. 62 N., R. 2 E., and the timber cut to the east of the road at its terminus atBonners Ferry, were cut from lands '"separated from the road bj^ mountains which it would be impossible to get th(^ timber across, and the only way the timber cut from said lands can reach the line of road is by a long and circuitous route of some 10 or 12 miles.'' Your office is of opinion that these lands are not "adjacent to the line of the road"' within the meaning of the act of ^larch 3, 1875. It is not stated that there is any nearer available timber that might be used by the company; and when the nature of the country to be traversed by the proposed road is considered, together with the evident purpose to use the streams as a means to carry the timber to the road, thus saving hauling, it is the opinion of this Department that these lands are adjacent to the line of road, notwithstanding they may be "separated from the road by mountains." The reports, together with accompanying papers, are herewith returned for your further consideration and action in the light of the construction herein given to the act. RAILROAD RIGHT OF WAY-OIiA VEL BED-COysTRVCTIOX. Great Northern Rwt. Co. (14 L. D., 566.) Assistant Attorney- General SJtieldx to the Secretary of the Interior, Mail 13, 189%. The use of material under the general right-of-way act of March 3, 1875 (18 Stat., 482), and the special act of February 15, 1S87 (21 Stat., 402), is limited to construction, and does not include the repair or 180 Tuiihi^r for Railroad Purposes. improvement of a railroad. The period of original constnution ceases when the road is open to the public for general use. (This opinion was adopted b}' the Secretary of the Interior May 17, ls;)2.) i;atli;oaj) compaxtks cax xot i'iiocvue tlvber from public mjxkllil lands uxder the act of june 3, 1878 [20 stat., 88). The act of June 3, IsTs (2(1 Stat., SS), authorizing the cutting of timber for building, agricultural, mining, and other domestic purposes, from public lands which are known to be mineral and not subject to entry under existing laws of the L'nited States except for mineral entry, expressly provides that ''the provisions of this act shall not extend to railroad corporations." Kailriiad companies can not, according]}', take timber from public mineral lands for any of the purposes enumerated in said act. This prohibition does not, however, operate to interfere, in any wise, with their taking timber from such lands for the j^urposes allowed in the act of ^larch 3, 1^7.5 (IS Stat., 48-!). and the several land-grant acts authorizing railroad companies to take public timber for construction purposes. United Statks v. Eureka axd P. R. Co. Circuit court, diptrict o£ Nevada (40 Fed. Rep., 419). Public Lands — Tijibee — Cut fob Use by Railroad Company. The defendant, a railroad corporation, purchased for use upon its locomotives and car.s woiid severed from the public mineral lands. Held, that such purchase and use were unlawful, and that the United States could recover from defendant the value of the wood so severed and purchased by it. The United States r. O. A. Dodce et al. District court, first judicial district, Xcz Perces C'ounty, Idaho Territory. Gentlemen of the Ji:ky; The defendants are charged with will- fully and unlawfully cutting and removing ('crtain timber from the la)ids of the United States. I instruct you that the timber growing upon the lands of the United States is a part of the land and the property of the United States, and no person has the right to cut such timber and appropriate the same to his own use without some express provision of law authorizing him to do so. Some evidence has been introduced tending to show that certain pre- emption claims had been located upon the land from which the timber is alleged to have been cut. I instruct you as a matter of law that a preemptor has no right to cut and remo\e the timber from his claim except for the purpose of Timhrr far Hail road Piir^xisen. 181 preparing the same for cultivation, and no one has the right to purchase timber removed from a preemption claim which the prc(>mptor cut for purposes other than the preparation of the claim for cultivation and for the residence of the preemptor. If a person do so he is a trespasser, and if he do so, knowing that it has been cut oil from the land for the purpose of sale merely and not the genuine purpose of improving the claim, his trespass is willful. To explain more f uUj^, if a preemptor having a claim coa crcd with timber desire to build a house or a fence, he may cut timber from any part of such claim suitable for such purposes. So if he desire to plow and seed 20 acres, he may cut and remove all the timber on said 20 acres and may sell the wood or logs cut therefrom; so he ma}^ do from the whole claim if he wishes to cultivate the whole; but he is not at liberty to cut and remove timber from any part of said land simplj- as a matter of converting the same into money before he has paid for it and not in good faith for the purpose of improving his claim and preparing it for cultivation. If he do so, the preemptor so cutting the timber is a trespasser; and if others buy it of him, knowing the facts, they also are trespassers and liable for the value of the timber. I further instruct j'ou that in case of such a trespass the fact that the United States afterwards patented said land to other persons does not relieve those committing the trespass from their liability for their wrongful acts in cutting the timber. It is the policy of the Government to preserve the timber growing upon such of the public lands as are fit for cultivation for the use of those who shall settle upon and purchase it. There are, however, some portions of the public domain which are more valuable for the mineral that is in the soil than for agricultural purposes. Such lands are called mineral lands, and the Government does not sell them except in small quantities for mining purposes. From this mineral land any person may cut and remove the timber for domestic purposes. The defendants claim that the timber in question was cut from min- eral lands for domestic and other lawful purposes. I instruct you that in actions of this kind, when a person is proven to have cut timber from the public domain, the law holds him liable for the value of such timber unless he shows in defense that he cut the same under such circum- stances as authorized him to do so under the laws of the United States. In this case the defendants claim that the land is mineral land. By mineral lands is meant such land as is more valuable for mining than for agricultural purposes, and the burden of proving its mineral char- acter devolves upon the defendants; so also is the burden on the defend- ants of proving that they cut the same for domestic or other lawful pur- pose. It is also claimed by defendants that the timber cut was for the use of the Northern Pacific Eailroad and used in the construction of said 182 Timher for Railroad Purposes. road. I instruct you that the Northern Pacific Railroad during the period of its construction had tlae right to so much of the timber upon the public lands adjacent to it as was needed to construct it. If the defendants took a contract from said railroad to furnish a cer- tain bill of lumber, and in pursuance to said contract they cut the timber in question, they would be justifiable in doing so. If, however, they had a sawmill and lumber yard, and sold lumber to the railroad companj' as they did to the general public, without said lumber having been specially procured for their use, such purchase would not excuse defendants from their liability for lumber cut on the public domain. If the railroad company notified defendants, either verbally or in writing, that thej^ desired lumber of a certain description for their road and they procured such lumber for them, such an order from the company filli'd by defendants would justify them cutting the same from the public domain, but it would not excuse their going beyond the orders and stocking a lumber yard for t'ommercial purposes generally from timber cut from the public domain. In considering whether this timber was cut for the railroad company the question of whether the land is mineral or nonmineral is not impor- tant, as under the charter of the road tliej' might cut from either. The first question, then, is: Did defendants cut or cause others to cut or purchase the timber of others who unlawfully cut it? Second. Was the land from which the timber was cut mineral lands? Third. If the defendants cut the timber, or purchased it from others having cut it. was it cut for the Northern Pacific Railroad or foi oses domestic purp If 30U find that the defendants cut or purchased the timber, and they themselves testify that they did purchase a certain amount, and that they did so for the railroad company, under the instructions that I have given you vou ought to find for the defendants. If you find from the evidence that the defendants cut or purchased tile timber from thos<> who cut it, and that said cutting was wi'ongful, you ought to find for the plaintiff and determine the amount cut and the valu(> of it. In determining the value, if you find that defendants acted in good faith, without intending to defraud the Government, but supposing they had a right to buy it, you should find the value of it to be the same as it was immediately before it came into their possession. If j"ou find that the defendants bought the logs of another who wrongfully cut them, knowing that they were wrongfully cut, you should find the damage to be the value of the logs after they were converted into lumber. Tiinher wHldn Granted LimlU of N. F. R. R. Co. 183 TIMBER ON LANDS WITHIN LIMITS OF Till; GJIANT TO THE NORTH- ERN PACIFIC RAILROAD COMPANV. United States /•. William Chiluees. District court, district of Oregon (S Sawyei-, 171). Grant to the Noetheen Pacific Railway Company. By the act of July 2, 1864 ( 13 Stat. , 365) , ttie odd-numbered sections along the line of the Northern Pacific Railway Com]iany for 40 miles on either side of the line in the Territories, and 20 miles in the States, are set apart and devoted to the construction of the road of said corporation; but said act is not a present grant of said lands to said corporation, but only in effect an agreement or pro- vision that the same shall be conveyed to it absolutely, when and as fast as any 25 miles of said road is constructed and accepted by the United States; and in the meantime the legal title to the unearned and unpatented sections i.s in the United States, who may therefore maintain legal proceedings against anyone that unlawfully cuts timber thereon. Noetheen Pacific R. Co. r. Hussey. Circuit court of appeals, ninth circuit (ii\ Fed. Rep., 231). Eailkoad Land Geaxts — Unsi-rveyed Lands — Tenants ix Co.mmox. A land-grant railroad company is not a tenant in common with the United States in respect to lands which lie within its grant limits, opposite the completed line, but which have not yet been surveyed, so as to render the odd sections belonging to the company distinguishable from the even sections reserved to the Government. Same — Enjoixixg Teespassees. The company has, however, such an interest in the lands as will entitle it to maintain alone (the Government having refused to join with it) a suit to enjoin trespassers who are cutting timber from the lands in such manner that the denuded portions will fall within the odd as well as the even sections when the survey is made. United States v. Oedway and others. Circuit court, district of Oregon (30 Fed. Rep., 30). PliBLic Lands — Cutting Timbee — Action foe Damages — Paetial Defense. A partial defense to an action or in mitigation of the damages claimed therein ought to be pleaded in the answer as a distinct defense; and an allegation that the defendants cut and removed certain timber from alleged public land, believ- ing that it was the land of the Northern Pacific Railroad Company, from which they had a license, is such a defense, where the damages claimed in the complaint are based, not only on the value of the timber in the standing tree, but also the value bestoM-ed on the same in converting it into lumber and putting it into market. Same — Geant to the Noetheen Pacific Raileoad Company. The grant of certain odd sections of the public lands to the Northern Pacific Railway Company, by the act of July 2, 1864 (13 Stat., 3(>5), does not give the corporation any such present right to, or interest in, any one of such sections as authorizes it to waste the same by disposing of the timber thereon before it is 1S4 TJmlrrv^Hhh, amnird LUnlUofX. P. R. R. Co. turned liy the <'onstructifiii nl the section fif the road udjiu-eiit. and opposite thereto. (Tlie ease of the U. S. i'. ("hilders, K Sawy., 171, 12 Fed. Rep., 586, dis- tinguished from Buttz ,■. N'orfliern I'ac \\\- Co., 7 Sup. Ct. Rep., 100, and followed.) PUBLIe L.\NDS K.VRNED L.VNDS, On tlie t'onstruction and acceptance of any section of the road of the Northern Pacific Itailwuy Company, the coterminous odd sections vest absolutely in the corporation, and thereafter the patent therefor may be considered aa having issued. United State.'; /•. Ordway and others. Circuit court, di.ntrict of Oregon (30 Fed. Rep., 'Hi). Deady, J. : This (■use was argued and submitted with the foregoing one. It is alleged in the complaint that on ]\Iav 1, ls.s3, and divers day.s since, the defendants cut and removed from the public lands of the United States, to wit, the west \ of section 13 of township 3 north, of range 9 east, of the Willamette meridian, situate in Washington Territory, 600 trees, and cut the same into cord wood, to wit, 3,000 cords, of the value of $T,5n(). and wrongfully converted the same to their own use, to the damage of the plaintifi', ij^T.iiDO. The defenses are similar to those made in the foregoing case, to wit: Denials; a license from the North- ern Pacific Railway Comijany; and the cutting was done in good faith. In the second defense it is alleged that the jDremises are within the limits of the grant to the Northern Pacific on the line of its general route between Portland and Walkila Junction, and that acting under a license from said corporation they cut and removed from said half section not more than 1,S()() cords of wood, of no greater value when standing in the tree than 10 cents a cord. The demurrer to the di'fenses of good faith is overruled, and sus- tained to that of license from the Northern Pacific. liiaHT OF THE UXTTED .STATES TO RECOVER FOR TRESPASS COM- MITTED OX VKSfRVEYED LAXDS WITHIX THE LIMITS OF THE XORTHERX PACIFIC RAILROAD GRANT. Department of Justice, ITTy.y// ;«(//<-;/. /A <:'., January 30, 1897. Sir: I have the honor to acknowledge the receipt of j'our letter of the (3th instant, inclosing a copy of a communication dated April 29, 1S9(J, addressed to the Commissioner of the General Land Office by Messrs. Britton ct Gray, of this city, attorneys for the Northern Pacific Paihvay Company, relating to "extensive timber trespassing upon unsurvcycd lands in the States of ^Montana, Idaho, and Washing- ton, lying within the limits of the Northern Pacific Railroad grant." Messrs. Britton & Gray state that the "timber thieves have been par- ticularly active upon tliis class of lands, feiding assured that the United Tnnler within Granted Lhnlf>< of X. P. R. R. Co. 185 States Government and the railroad company would n('\'ci- join in an at'tion against them," and sungrexx asxeinhled, That any telegraph company now organized, or which may hereafter be organized under the laws of any State in this Union, shall have the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by act of Congress, and ov'cr, under, or across the navigable streams or waters of the United States: Proridol, That such lines of telegraph shall be so constructed and maintained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads. And any of said companies shall have the right to take and use from such public lands the necessary stone, timber, and other materials for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of said lines of telegraph, and may preempt and use such portions of the unoccupied public lands subject to jjreemption through which its said lines of telegraph may be located as may be necessarj- for its stations, not exceeding forty acres for each station; but such stations shall not be within fifteen miles of each other. ******* Sec. -i. Andle if further enacted. That before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file their written acceptance with the Postmaster- General of the restrictions and obligations required by this act. The act of July 24, 1S66, authorizing the construction and mainte- nance of telegraph lines through and over the public domain, and along military or post roads of the United States, contains no grant or authority for the construction and maintenance of telephone lines. (Opinion of Assistant Attorney-General for the Interior Department, July 1, 1899, M9L. D., 1.) 188 Tdejihoiie Companies — M-ilita'i'y Posts. Coon miss ioni'r Hermonn to tJw Secivtarij of the Interior, January '37, 1900. I have the honor to acknowledge receipt, by reference from the Department ''for consideration, appropriate action, and report," etc., of a communication dated January 3, 1900, from ^Ir. John i\Iussel- man, manager of the Black Hills Telegraph and Telephone Company, requesting that the company be allowed to cut and clear the brush and growth of young timber from the right of wa^' of its telephone lines within the Black Hills Forest Reservation. The petitioner states that these telephone lines have been in constant operation for the past ten to fourteen years, and that the brush and undergrowth interfere with their use for communication. I have respectfully to state that under departmental decision of July 1, 1899 (i9 L. D., 1-7), based upon the decision of the Supreme Court in the ease of the The City of Richmond v. The Southern Bell Telephone and Telegraph Company (IT-l U. S.). telephone companies have no statutory right to construct their lines over the public lands, except in so far as they may build under a right-of-way grant to a railway company where the statute authorizes the construction and maintenance of a telephone line upon said right of Avay. PROC'VRINd WOOD FROM PVBLR LAXDS FOR CSE OF MILITARY POSTS. Depaetmext of the Interior, Washington, August 9, 1886. Sir: I have the honor to acknowledge the receipt of your letter of the 5th instant transmitting a copy of a letter, dated the 1st ultimo, from Joel R. Slack, who made a contract with the Government for delivering at "Whipple Barracks, Ariz., l,un() cords of wood, underthe supposition he wou.ld be alloMed to cut the wood from the public lands; a copy of notice to Slack from T. ]\I. Bowers, special agent of the Gen- eral Land Office, to desist from cutting wood on the public domain and requesting, in accordan(.'(_' with the recommendation of the Quarter- master-General, that "authority be given to cut wood on vacant lands of the public domain for the' use of the Army." and stating, in passing, the remark of the chief quartermaster of the Department of Arizona, ''that unless the wood required to supply the ai'my on the frontier can be cut by contractors on vacant public lands belonging to the United States it will be an expensive item in that department to the Army." There is no objection to allowing wood to be taken from the public domain for the use of the Army under proper regulations when cir- cumstances I'ender it necessary. The decision l)y the Coast of Claims in the case of Nannie Spencer, administratrix of Warren Faver, grants Fwest Beservntions — Mining Claims in Pll'ex PmI- Forest Reserve. 189 this, and says that "the proper officers might lawfully employ indi- viduals to cut wood from the public land for the use of the military force so situated;" but the decision adds, "in such case the persons so employed would be paid not for the wood, lut for cnttimj und lunding it." As requested in your communication, permission is granted to cut wood on the public domain convenient to Whipple Barracks for the use of said post in accordance with the decision of the Court of Claims herein referred to; but the persons furnishing the wood should be paid for its cutting and delivery alone, and not for the value of the timber, as that belongs to the Ignited States. Very respectfully, L. Q. C. Lamar, The Secketaky of ^^'"AR. Secretary. FOREST RESERVATIONS. (Act of Mar. 3, 1891; 26 Stat., 1095.) • **»»»* Sec. 24. That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land, bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and the President shall, by public procla- mation, declare the establishment of such reservations and the limits thereof. The laws, regulations, and decisions relating to timber upon lands within public forest reserves are contained in a compilation issued by the General Land Office on November 6, 1900. EXTENT OF TIMBER PRIVILEGES VXDER ACT OF FEBRUARY 20, 1896. (29 Stat., 11.) Commissioner of the General Land Office to the Secretary of the Interior, October 16, 1896, in the timber tresjjass case of Kendall, Toivnsend, and Walter. ******* Inasmuch as the act of February 20, 1896 (29 Stat., 11), opening the Pikes Peak Forest Reserve for the location of mining claims, confines the felling and removing of timber from mining claims to "actual mining purposes in connection with the particular claim from which the timber is felled or removed,'' it appears that Townsend and Walter, in cutting timber on their claiuis for sale for the purpose of raising money for the development of the claims, exceeded the privileges allowed in said act. A reasonable construction of the wording of this act appears to con- 190 Act of March 5, 1891 (36 SM., 1093). fine the use of timber on such claims within a limit directly similar to that defined l\v the I'nited States iSupremi' Court in dealing with the question whether timber might !)(> taken from an unperfected homestead claim and sold for the purpose of expending the money derived from the sale in improvements on the clami; upon which point it was held that while, perhaps, timber might be taken from such claims to be exchanged for timber or lumber to be applied direct to improvements thereon, yet it could not be sold to raise money with which to make improvements on the land. (Case of Shiver v. United States, 159 U. S., 491.) It accordingly appears that the timber taken from said mining claims for use as stated was procured in tresi^ass. * * * * -X- » * Approved by the S<"cretury of the Interior >iovember 5, 1896. THE SFX'JiETARY OF THE IXTEl:ini; AUTHORIZED TO PHESCRIBE RULES AXD UEdULATIOXS GOVERNING THE USE OF PUBLIC TIMBER. [Act of Mar. 3, 1891; Lir, stnt., 1093.] AN ACT t(i amend section eight of an act apiiroved ilarcli third, eighteen hundred and ninety-one, entitled "An act tn repeal timber-culture laws, and for other purposes. ' ' Jji it e)i(icti^(Ihy tlhe Senate and Ilonne of Ri preKentatl ees (jf tlie Fnited Stafrs of America in 0>/i(/re^:s ass; i/i/>/, il. That section eight of an act entitled "An act to repeal timber-culture la^Ys, and for other pur- poses,"' approved ^lai'cli third, eiy-hteen hundred and ninety-one, be, and the same is herel>y, amended so as to read as follows: "Skc. S. That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to \acate and annul patents hereafter issued shall onl}' be brought within six years after the date of the issu- ance of such patents. And in the States of Colorado. ?ilontana. Idaho, North Dakota, and South Dakota, ^^'yon1ing, and the District of Alaska, and the gold and silver regions of Nc\'ada and thi^ Tei'ritory of Utah, in any criminal prosecution or civil action liy the United States for a trespass on such pulilic timber lands, (U- to recover timber or lumber cut thereon, it shall b(> a defenst^ if the defendant shall show that the said timber was so cut or reiuo\-e(l from the timber lands for use in such State or Territory ])y a resident thereof for agricultural, mining, man- ufacturing, or domestic purposes, under rules and regulations made and prescribed by the Secretary of the Interior, and has not been trans- ported out of the same; but nothing herein contained shall operate to enlarge the rights of any railway company to cut timb(>r on the public domain, provided that the S(>cretary of the Interior may make suitable rules and regulations to carry out the provisions of this act; and he Act of March 3, 1891 {£6 Stat., 1093)— Eegul at Ions. 191 may designate the sections or tracts of land where timber may be cut; and it shall not be lawful to cut or remove any timber except as may be prescribed by such rules and regulations; but this act shall not operate to repeal the act of June third, eighteen hundred and soveiity- eight, providing for the cutting of timber on mineral lands." The above act of March 3, 1891 (2<1 Stat., lOHS), was made appli- cable to the Territories of New iMexico and Arizona by the act of February 13, 1893 (27 Stat., -iAA), and to the States of California, Oregon, and Washington by the act of ]\larch 3, 1901 (31 Stat., 1436). VIRCJ'LAR. (29 L. D., 572.) rules and regulations governing the use of timber on non- mineral toblic lands in certain states and territories under the act of march 3, 1891 (2(i stat., 1093), as extended by the act of february 13, 1893 (27 stat., 4-14). Department of the Interior, General Land Office, Washington, D. C, Febntary 10, 1900. By virtue of the power vested in the Secretaiy of the Interior by the act of Jlarch 3, 1891 (26 Stat., 1093), the following rules and regulations are hereby prescribed: 1. The act, so far as it relates to timber on public lands, as extended by the act of February 13, 1S93 (27 Stat., 444), applies only to the States of Colorado, Montana, Idaho, North Dakota, South Dakota, Wyoming, Nevada, and Utah and the Territories of Arizona and New Mexico. The act originally extended to the district of Alaska, but in that respect it has been superseded by section 11 of the act of ]\lay 14, 1898 (30 Stat., 409), under which other and separate regulations are prescribed for the district of Alaska. 2. The intention of the act of March 3, 18'.»1, is to enable settlers upon- public lands and other residents within the States and Territories above named to secure from public timber lands timber or lumber for agricultural, mining, manufacturing, or domestic purposes, for use in the State or Territory where obtained, under rules and regulations to be made and prescribed l)y the Secretary of the Interior. 8. Settlers upon public lands and other residents of the States and Territories above named may procure timber free of charge from unoc- cupied, unreserved, nonmineral public lands within said States and Territories, strictly for their own use for firewood, fencing, building, or other agricultural, mining, manufacturing, or domestic purposes, but not for sale or disposal, nor for use by other persons, nor for export from the State or Territory where procured. The cutting or removal 192 Regulations under Act March 3, 1891 {26 Stat., 1093). of timber or lumber to an amount exceeding in .stumpage value §50 in any one year will not be permitted, except upon application to tlie Secretary of the Interior and after tlie granting of a special permit. Except as above provided, it is not necessary for actual residents to secure permission to take timber from public lands in said States and Territories for the purposes aforesaid. The exercise of such privilege is, however, subject at all times to supervision by the Department with a view to such restriction as maj- be deemed necessary. 4. In cases where qualified persons are not in position to procure timber from the public lands themselves, it is allowable for them to secure the cutting, removing, sawing, or other manufacture of the tim- ))er through the medium of others upon an agreement with the parties thus acting as their agents that they shall be paid a sufficient amount only to cover their time, labor, and other legitimate expenses mcurred in connection therewith, exclusive of any charge for the timber itself, but no person, whether acting for himself, as an agent for another, or otherwise, will be permitted to cut or remove in any one j'ear timber or lumber to an amount exceeding in stumpage value $.3(1, except upon application to the Secretary of the Interior, and upon the granting of a special permit. 5. The uses specified in section 3 of these rules and regulations con- stitute the only purposes for which timber may be taken from public lands in said States and Territories under this act. •;. The cutting and remo\'ing of tinil)er, free of charge, under said act of March 3, ls:tl, is confined to unreserved, unoccupied, nonmin- eral public lands in the States and Territories named therein, inas- much as the act specifically provides that the same shall not ojDerate to repeal the act of June 3, l^TS (2i) Stat., SS), which makes provision, in said States and Territories, for the free cutting of timl)er on public lands that are known to be of a strictty mineral character for the uses named in said act. T. It is further pi'(i\ided in said act of March 3, is'.tl, that ""nothing herein contained shall operate to enlarge the rights of any railway com- pany to cut timber on the XJi^^lic domain." Consequently no timber may be cut or taken under this act from public lands either by or for the use of any railroad companj-. S. Section 2461, United States Revised Statutes, is still in force in the States and Territories herein named, and its provisions may be enforced against any person or persons who cut or remove, or cause or procure to be cut or removed, or aid or assist or are employed in cutting or removing, any timber from public lands tlierein, except as allowed by law. It. The Secretary of the Interior res(U"ves tlie right to revoke the privileges granted, in anv cases wherein he has information that per- sons are abusing the same, or when it is necessary for the public good. Act of FSnuinj 13, 1S93 {r/ StuL, Wi). 193 10. All rules and regulations heretofore prescribed under said act of March 3, 1891, relating to the use of timber on public lands in the above-named States and Territories, are hereby revoked. W. A. Richards, Actini!o)U'r. Approved, February 10, 1900. E. A. Hitchcock, Secretary. [Act of Feb. 13, 1893; 'll Stnt., 444.] AN ACT to extend the provisions of section eight of tlic act entitled "An act to repeal timber-culture laws, and for other purposes," approved March third, eighteen hundred and ninety-one, concerning prosecutions for cutting timber on public lands to Wyoming, New INIexico, and Arizona. Be it enacted hy tlie Senate and Houne of EepreHentatlvcs of the United States of America in, Congress assendjled, That section eight of the act entitled "An act to repeal timber-culture laws, and for other purposes," approved March third, eighteen hundred and ninety-one, as amended by an act approved March third, eighteen hundred and ninety- one, chapter five hundred and fifty-nine, page ten hundred and ninety- three, volume twcntj'-six. United States Statutes at Large, l)e, and t)ic same is hereby, amended as follows: After the word "Wyoming," in said amended act, insert the words "New Mexico and Arizona.'' CIBCULAB. (SOL. D., 542.) Departmj:nt of the Interior, General Land Offk^e, WasMeif/ton, D. C, March 23, 1901. To special aijents (fthe General Land Office. Gentlemen: The act of Congress approved ]March 3, 1901 (31 Stats., 1136), provides "That section eight of the act entitled 'An act to repeal timber-culture laws, and for other purposes,' approved March third, eighteen hundred and ninety -one, as amended liy an act approved March third, eighteen hundred and ninety-oiie, chapter five hundred and fifty-nine, page ten hundred and ninety-three, volume twenty-six. United States Statutes at Large, be, and the same is hereby, amended as follows: After the word ' Nevada,' in said amended act, insert the words 'California, Oregon, and Wa.shington.' " This act extends to residents of the States of California, Oregon, and Washington the privilege of taking timber from public lands in said States under the provisions of said act of March 3, 1891. In taking such timber the rules and regulations contained in the cir- cular of February 10, 1900 (29 L. D., 572), prescribing "rules and 21160—03 13 194 Act ofJnli) i, 1898 {.JO Stat., 618). regulations governing the use of timber on nonmineral public lands in certain States and Territories, under the act of March 3, 1891 (26 Stat., 1093), as extended hy the act of February 13, 1893 (27 Stat., 4-44)," must 1)0 observed and the timber must be taken for the purposes specified in said circular. Very respectfully, Binger Hermann, Comm issioner. Approved, March 2a, 1901. E. A. Hitchcock, /Secretary. CmCULAR. (27 L. D., 276.) export of public timber from western ^vtoming into idaho. Department of the Interior, General Land Office, Washington, D. 6'., July '23, 1898. 1. The act of Congress approved July 1, 1898, entitled "An act mak- ing appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and ninety-nine, and for other purposes," provides as follows: That section eight of an act entitled "An act to repeal the timher-culture laws, and for other purposes," approved JIarc-h third, eighteen hundred and ninety-one, be, and the same is hereby, amended as follows: "That it shall be lawful for the Secretary of the Interior to grant permits, under the provisions of the eighth section of the act of JIarch third, eighteen hundred and ninety-one, to citizens of Idaho and Wyoming; ti:> cut timber in the State of Wyoming west of the continental divide, on the Snake River and its tributaries to the boundary line of Idaho for agricultural, mining, or other domestic purposes, and tij remove the timber so cut to the State of Idaho." 2. Under the authority vested in the Secretary of the Interior lv\' the above-cited act of Jtily 1, l8'.)H, the following amendment to the rules and regulations issued March 17, isiis^ under tlie said act of March 3, 1891 (20 Stat., 10'.):>), is hercl)y prescribed and promulgated: The r(^striction contained in said rules and regulations of Mari'h 17, iS'.ts, confining the use of timber cut thereunder to the State in which the same is cut, is so far modified as to allow citizens of Idaho and Wyoming to cut timber in the State of Wyoming west of the conti- nental divide, on tlie Snake River and its tributaries to the boundary line of Idaho for agricultural, mining, or other domestic purposes, and to remove the timber so cut to the State of Idaho. Binger Hermann, Commissioner. Approved, July 23, 1S9S. Thos. Ryan, Actinij Strn iary. Act of March .;, 1901 {31 Sfy a resident thereof for aj;ricultural, mininj;, manufacturing, or domestic purposes, under rules and rcL'ulations made and presci-ilied by the Secretary of the Interior, and has not been transported out of the same; but nothing herein contained shall operate to enlarge the rights of any railway company to cut timber on the public domain: Pro- rideiJ, That the Secretary of the Interior may make suitable rules and regulations to carry out the provisions of this act, and he may designate the sections or tracts of land where timber may be cut, and it shall not be lawful to cut or remove any tim- ber except as may be prescri])eil by such rules and regulations; but this act shall not operate to repeal the act of June third, eighteen hundred and seventy-eight, providing for the cutting of timber on mineral lands. Saie of Tim her— Act of March :J, 1891. 197 There is nothing in this act which suggests that it was the purpose of Congress to thereby authorize or provide for the sale of timber on the public lands. As gathered from a cai-ef ul examination of the terms of the act, its purpose seems to have been to modify the law relating to the cutting and removal of timber from lands of the United States l)y denying to the Government the right then existing to dcMnund a con- viction in a criminal prosecution, or a recovery in a civil action, when in any of the States, Territories, or regions named timber is cut or removed from the public timber lands for use in such States or Terri- tory l)y a resident thereof for agricultural, mining, manufacturing, or domestic purposes, under rules and regulations made and prcscriljed by the Secretary of the Interior, and is not transported out of that State or Territory. Section 24(il of the Revised Statutes contained a general prohibition against cutting or removing timber from the lands of the United States and imposed penalties for its violation. It was to avoid the effect of this statute, in instances deemed by Congress to be meritorious, that the act under consideration was enacted. It must be construed \\ith section 2461 as if their several provisions appeared in one act, one part of which in general terms prohibited the cutting or removing of timber from the lands of the United States and the other part of which authorized the cutting and removing of such timber in specified Ideal- ities by designated persons for enumerated purposes, under rules and regulations to be made and prescribed by the Secretary of the Intriioi'. The act says nothing about selling timber or collecting anj- compen- sation or price for that which is cut or removed under the statute and the regulations pi-escribed thereunder, and it seems to me that authority on the part of the Secretary of the Interior to sell such tim- ber or to make the right or privilege of cutting or removing the same dependent upon payment therefor can not be implied from the general authoritj" given to him to prescribe rules and regulations to carry out the provisions of the act. I am of opinion that the legislation under consideration does not authorize the sale of timber, and inasmuch as the regulations of jMiirch 17, 1898, supnt, provide for sales thereof, I advise that said regula- tions be reformed and brought within the authority given the Secre- tary of the Interior by the statute under which they were i)reseribed. Approved, November 27, 1899. E. A. Hitchcock, fSecreiary. 198 Formt FircR. CTECVLA n— FOREST FIRES. DEPAirr:\iENT of the Interior, General Land Office, Was/u'n/jfo)), D. <"., June 18, 1900. For the information of all concenied, attention is called to the follow- ing ;ict of Congress, approved Mwy 5, I'.toO, entitled "An act to amend an act entitled 'An act to prevent forest tires on the public domain,' ap]irovcdFe))ruary twenty-fourth, eighteen hundred and ninety-seven." Registers and recci\ers. United States land offices, special agents, and forest otfieers, (leneral Land Office, should promptly r(_'port to the proper United States attornc^y all information thev may I'eceive relative to the violation of the provisions of this law. BixGER Hermann, C 1)111 III iss/oiur. Approved, June is, iDiH). E. A. HlTC'IlCdCK, Si-iTi'tlin/. [31 stats., 1S9.] AX ACT til amend an act entitled ''An art to prevent forest tires on the public domain," approved February twenty-fourth, eighteen hundred and ninety-seven. Jjc it ciKirtrdhij tlie Si'iiatt' mill Uoii.fe nf Reprcwntativesuftlie Unitrd Sfiiiiv of Aiiirricii ill t'oi)r//'i_xK ii.'(> imprisoned fov a term of not more than one ve:ii', or both. "Sec. ;;. That in all cases arising under this act the fines collected Fm^est Fires. 199 shall be paid into the public school fund of the county in which the lands where the offense was committed are situated." Approved, May 5, 1900. CniMIXA L PROCrCEDINdK In addition to the penalties prcscrilied in the above act, section -i of the act of June 3, 187S (20 Stat., 89), provides that "it shall lie unlaw- ful to " * * * " wantonly destroy any timber growing on any lands of the United States" in "the States of California, Oregon, and Nevada and in AVashington Territory;" and "any person violating th(> piovi- sions of this section shall be guilty of a misdemeanor, and, on convic- tion, shall be fined for e\eiy such offense a sum not less than one hun- dred nor more than one thousand dollars." (See act cited in full on page 9S.) This act is made applica))le to all the public-land States by theactof August -1. 1892 (37 Stat., 348; see page 101). ' 'IVIL REMEDIES. In addition to the wanton destruction of public timber b}* fire, or otherwise, being a criminal offense, the United States have all the common-law civil remedies, whether for the prevention or redress of injuries, which individuals possess. (See 3 Wheaton, 181, and 11 Howard, 229, under "Civil liability," page 23.) The following notice was prepared for posting generally throughout the forests on the public lands and in forest reserves: FOREST FIRES/ UWRNLXCf.' Department of the Interior, General Land Office, Was/u),gtiw,I>. a, J,i)u'37, 1902. Large areas of forest, public and private, are destroyed each year by fire. This destruction is an injury to everyone, and is a great damage, especially in all mountain countries, where a regular flow of the streams is of vital importance. The forest is the most effective means of preventing floods and producing a more regular flow of water for irrigation and other useful purposes. To prevent the mischievous forest fires Congress passed the law approved May 5, 1900, which — Forbids setting fire to the woods, and Forbids leaving fires, camp fires, and others, without first extinguish- ing the same. 200 Fur.^t F!rcs~L\r2>vrt of Tiinlrr. This law provides a maximum punishment, in — A fine of 15,000 or imprisonment for two years, or both, if a fire is set maliciously, and A fine of §1,000 or imprisonment for one year, or both, if fire results from carelessness. It also provides that the money from such fines be paid to the school fund of the count}^ in which the offense is committed. Dirertltina. — Since so many fires start from neglected camp fires, the public is requested as follows: 1. Do not build a larger fire than you need. 2. Do not build your fires in dense masses of pine leaves, duff, and other combustible material where the fire is sure to spread. 3. Do not build your fire against large logs, especially large rotten logs, where it requires much more work and time to put the fire out than j'ou are willing to expend, and where j'ouare raicly quite certain that the fire is iviiUj' and completely extinguished. 4. In wind}' weather and in dangerous places dig a fire hole and clear off a place to secure your fire. You will save wood and trouble. .5. Every camp fire should be completely put out before leaving camp. • 6. Do not build fires to clear off land and for other similar purposes without informing the nearest ranger or the supervisor, so that he may assist you. These warning notices are posted for your benefit and the good of every man in and near this forest, and it is hoped, therefore, that everyone will see that they remain intact and useful as long as possible. BiNGEE Hermann, L'diiimissioner of the iienend Land Office. Approved: E. A. Hitchcock, Sccri'tanj if tin Tiifirinr. TIMBER cIRCrLAR. (24 L. D., 587.) Department of the Interior, General Land Office, Wa»/iin(/to,i^ D. C, June '29, 1S97. To xprrial a gent a of tlie Gene rut Land Office. Gentlemen: Your special attention is called to the fact that in vai'i- ous acts of Congress relating to timber on the public domain, wherein authority is given to cut or remove such timber for any use or purpose whatever, it is expressly provided that such timber and the products thereof shall be consumed in the State or Territory in which the same is cut, and shall not be exported or transported out of such State or Export of Tlmle,: 201 Territory. Yet numerous complaints have been received in tliis office that the provisions of law in this respect are being openly, willfully, and flagrantly violated by railroad companies, mining corporations, and others, and that the special agents of this office make little, if any, attempt to prevent same, or to secure evidence upon which this office can recommend the institution of proper legal proceedings against the parties guilty thereof. You are therefore hereby expressly and imperatively directed to hereafter use your utmost endeavors to detect and prevent any such violations of law in the State or Territory in your charge, and to this end you will visit the several shipping points in the State or Territory in which j^ou are located and make personal inspection of all ship- ments of timber and logs or any of the products thereof, ascertain the quantity in each shipment, the name of the shipper, and to whom con- signed, and all facts in regard to same that can be ascertained, keep- ing proper and full notes of all information acquired, with names and addresses of witnesses, etc. You will then proceed to trace the tim- ber, or its product, back, as far as possible, to its original cundition and the source from which it was procured, and, upon completion of the work, will report all of the facts to this office, on Form 4— i7s, for its action. AVhere you have reliable evidence that any tim))er cut from public lands, or an}" product of such timber, is being, or aljout to be, exported or transported out of the State or Territory where cut, you will notify all parties in interest, including the railroad or transportation company, in writing, that such shipment is in \-iolation of law, and foi'bid them from proceeding further therein, and will report your action to this office, submitting therewith evidence of service of notice on the several parties. In all such cases where you have knowledge that parties who have permits, or any special authority from this Department, to I'ut or remove timber on the public domain, are exporting or transportiiie- any timber or any product thereof out of the State or Territory, you will at once report them to this office, in order that their permits or authoritj' can be revoked and canceled. It is the determination of this Department to put a stop to the exportation or transportation of the public timber or the products thereof from the State or Territory in which the same is produced, and special agents must direct their very best efforts to accomplish this purpose. Any special agent who is found derelict in his duty in this respect will be subject to summary dismissal from the service. Very respectf ullv, BiNGEK Hermann, Goinmitimuner. Approved June 29, 1897. Thos. Ryan, ActuKj SerretmiKt., H8.) The owner of a bona fide mining claim in the Colville Indian Reservation has the same right, by virtue of the act of July 1, 1898, extending the mining laws to said reservation, to use and remove the timber upon his claim as the owner of a muling claim elsewhere. Assistant Attanuiz-Creneral Yud Demntcr to the S(jcrc'tari/ of the Interior, Jane 26, 1900. I am in receipt by j^our reference, with request for opinion, of a let- ter from the Conmiissioner of Indian Affairs of May 24, l'.»()(), relative to the cutting of timber on mining claims on the south half of the Col- ville Indian Reservation, Washington. The proposition of the Indian Office is to enter into a contract with the owners of certain mining claims permitting them to place a sawmill plant on such mining claims for the sole purpose of cutting lumber and timlier to be used on such claims for the development of the property. A contract to this effect was submitted for j^our approval, which was refused. The Indian Office has resubmitted the matter for further considera- tion, and has presented an argument sustaining the right of mineral claimants on this reservation to cut timber upon their claim, ..ad in support of the propriety of making the proposed contract says : The Office is aware that there is no law and so far as known no precedent for the making of such agreements ■« ith miners. But it is thought that miners and mining companies on that portion of the reservation who are developing pniperties in good faith will be wilhng to enter into such arrangements, because risking nothing by violations of the law they will have nothing to lose, whereas timber trespassers and speculators — those locating claims rmder the guise of miners, only to procure the timber — will thereby be deterred from operating on the reservation at all. By the act of July 1, 1892 (27 Stat., ti2), a portion of the Colville Reservation was "vacated and restored to the public domain." The remaining portion became and remained the Colville Indian Reserva- tion. The act of July 1, 1898 (30 Stat. , 571, 693), contains the following provision: That the mineral lands only in the Colville Indian Reservation in the f^tate of Washington shall be subject to entry under the laws of the United States in relation to the entry of mmeral lands: Provided, That lands allotted to the Indians or used by the Government for any purpose or by any school shall not be subject to entry under this provision. Thus the mineral lands within the boundaries of the present reser- vation were made subject to location and entry under the mining laws. The owner of a lonafide mining claim on these lands therefore has the same right to use or remove the timber found upon his claim which is possessed by the owner of a mining claim situated elsewhere, and this 200 CiiliuUe Tii- person or persona who cut or remove, or cause or procure to be cut or removed, or aid or assist or are employed in cutting or removing, any timber from public lands therein, except as allowed by law. IXDEX. Accretions: „„„„ 1 nge. Use of timber on accretions that are public lands 163 Act of June 8, 1878 (20 Stat., 8S); See Mineral lands. Act of June 3, 1878 (20 Stat, 89): Made applicable to all the public-land States by act of August 4, 1892 (27 Stat. ,348) 6, 7, 10, 11, 51, 53, 56, 82, 97, 101 Operation of, distinguished from that of the act of June 3, 1878 (20 Stat., 88) 82-87,97,98,103-114 Sale of certain timber lands provided for by sections 1, 2, and 3 6, 10, 98 Section 4 prohibits the cutting of timber on public lands in the public- land States for export, disposal, or transportation, and the wanton destruction thereof; and authorizes the cutting of same by miners and agriculturists for use on their claims, and the taking of public timljer for the use of the United States 6, 10,100,101,102,109,114 Section 4 does not permit the taking of timber for use in a quartz mill adjacent to the land from which it is cut 89 Section 4 does not permit the cutting of timber with intent to di.-ijo.^e of the same; but a settler who cuts timber from his claim while clearing it for cultivation may dispose of it to the best advantage 101, 102 Section 4 permits miners or settlers to employ others to cut for them such timber as they are authorized to out for themselves, and to receive in exchange for timber so cut lumber to be used for the improvements for which the timber was cut 102 Section 5 authorizes (settlement of prosecutions under section 24(il, U. S. R. S 6,50,51,5;!, 100, 103-106 Payment of $2.50 per acre, under section 5, relieves from criminal prose- cution only , 103 Section 2461, U. S. R. S., not repealed by 22,103-106 Section 4751, U. S. R. S., repealed by, as regards all the public-land States. 53--'i6, 106 Act of March 3, 1891 (26 Stat., 1093): Authorizes the cutting and removal of timber from public lands in cer- tain States and Territories, for use in the State or Territory where cut, by residents thereof, for agricultural, mining, manufacturing, or domes- tic purposes, under rules and regulations prescribed by the Secretary of the Interior 7,11,190-197 Made applicable to New Mexico and Arizona by act of February 13, 1893 (27 Stat., 444) 7,8,11,191,193 Made applicable to California, Oregon, and Washington by act of March 3, 1901 (31 Stat, 1436) 7,9,11,191,193 Circular of February 10, 1900, issued under 191 Amended so as to permit citizens of Idaho and Wyoming to cut timber from certain lands in Wyoming for use in Idaho --- 9,11,194 21150—03 14 ^^^ 210 T,„lex. Act of March 3, 1891 (2f>Stat., 109:) )— 0)nt.inm-eei'mber 15, 1885, relative to the use of timber on 147 Inde.<'. 213 Homestead and Preemption Entries— Continued. Page. Generally — Continued. A homestead entry works no change iu the title of lands whicli ran prevent prosecution for trespass thereon 14, 1 22 Possession by homestead claimant and receiver's receipt issued sub- sequent to bringing action for trespass can not defeat action ;i:^, 1 57 Privileges of a homestead claimant, with respect to the standing tim- ber, analagous to those of a tenant for life or for years 126 Abandonment of their lands by homestead or preemption claimants after they have cut and sold the timber thereon is not alone proof of intent to defraud the Government, if the other circumstances show good faith 140 Boxing and chipping trees for turpentine purposes is not such culti- vation as is contemplated Ijy the homestead law 1.57 Act of June 3, 1878 (20 Stat., 89)— Section 4 (extended liy act of August 4, 1892, 27 Stat., 348) authorizes the use of public timber Ijy agriculturists on their claims iu the pubHc land States 6,10,100,101,107, 114 Indian homesteads — Use of timber on _ 148 Burned timber — On certain homestead entries in Wisconsin, Minnesota, and Mich- igan 8,11,151 Circular relative to 152 Sale- Timber on homestead entries ma)' not lie cut for purpose-' of sale 122, 147, 159 Storm-felled timber on homesteads in Florida — Sale and use of, authorized s, n , 1 55 Idaho: The Secretary of the Interior authorized to jiermit citizens of Idaho ami Wyoming to cut timber in AVyoming, for i-emoval ti> Idaho, for certain purposes 9, 11, 1H4 Identification of Public Timber: See C'lmfimoi'i of Goodx. Indians: Lands reserved for or occupied by — Timber on 7, s, 10, W), ij2, 1 4.S-1.50 Dead or down timl.>er on ~, >>, 11 Act of March 3, 1875 (18 Stat., 482)— Does not apply to lands within Indian reservations, excejrt in leases in which it is specially so provided 164 Indictment: See Liability {criminal jjroaedinys). Informers: See Sectim 4751, U. S. B. S. Injunction: See Liability (civil proceedings). Injury, Present and Prospective: Inflicted upon public timber by boxing trees for turpentine purposes 163 Innocent Purchaser: See Liability (civil proceedings) . Intermingling of Timber: See Confusion of Goods. 214 IiaJex. Joint Trespassers: Page. See Jjiiibililii {ciril jirocccilings) . Judgment: See LiuhUitji (ciril prdirnlinr/s). Jurisdiction: The United dilates court for the district of Washington has jurisdiction of an ac tiou br( night liy the United States against a defendant, found there, t(.) rccovfr for timber unlawfully cut from lands of the United States in Idaho 140 Liability for Public Timber Trespass: Civil j)roceedings — United States entitled to civil remedies 1", 22, 23, 29, 57, 59, 62, 64, 157, 199 Right til pursue and reclaim ]iro]ierty 23,56,59 Acquittal in criminal suit no l)ar tn suittu recover the value of timber. 27,140 Structures wnmgfully placed on public land 28,61 A person cutting timber from land sold to him liy public officers with- out authority, is liable in damages to the United States to the same extent as though tlie tresjiass had iieen committed upon any ether part i2.50 pS (20 Stat., 88)— Continued. Applies to certain States and Territories, and all other mineral districts of the United States 87 Does not apply to the State of Oregon, there being no such mineral district 89,98,107 Can only operate upon "mineral districts," if any there be, not spe- cifically provided for by designating the particular State or Territory in which it is situated by name 98, 112 Does not apply to California _ . 112 Act of June 15, 1880 (21 Stat., 2P,7)— Does m it apply to mineral lands _ , . 52 Act of March 3, 1S91 (2r. Stat, 1093)— Does not apply to mineral lands _ 195 Timber on mineral claims — It is the duty of a locator to care for the timber on liis ilaim 80 Can only be used Iiy parties rn'cupyinj; claims in develtiping the same 81, 128, 189 Section 2 of the act of February 20, 1S96 (29 Stat., 11), iipening cer- tain forest reservations in Colorado for the location of mining claims, authorizes the use of timber on the claims for the development of the same, but prohibits the taking of timber from other portions of the reservations S, 10, 11, 190 Timber taken under assumed authority of the act of February 20, 1896 (29 Stat., 11), may not be sold to raise money to make improve- ments on the land 190 The owner of a bona fide minini; claim in the Colville Indian Reser- vation has the same right to use and remove the timber upon his claim as the owner of a mining claim elsewhere 205 The exclusive right of a Ljcator tei occupy and work a mineral claim during bis occupancy does not exclude the land from the operation of R. S., section 2261, 20 Stat., 89, and 27 Stat., 34,'^, making it a misdemeanor for any person to cut timber on the public lands 12S An applicant for patent for a mineral claim has no right to cut tim- lier theiefrom before he receives a certificate, and a license from him to so cut the timber is no protection to the licensee as against the < Tovernment 128 Moiety: See Scillemciit. Sc(.'t!<5n 4751 , r S. R. S. , provides for payment of, to informers 5, 10, 52 Clause modi lied and partly repealed 51, 53, 55, 101, 106 Moneys Collected for Trespass: See Firrs, Foreat; Moidij; Sclllnnetit. Disposition of ,52,53,55,101,198 Montana: Citizens of Montana and AVyoming may take timber from a specified tract in Montana, for use in either of said States 9, 11, 195 Naval Reserve Lands: Timber on. See sections 2460, 2461, 24(;2, 2463, 4205, 4751, 5388, U. S. R. S., and acts of Marcli3, 1875 (18 Stat., 4S1), and June 4, 18SS (25 Stat., 166). Navy: Lands producing live-oak and red-cedar timber to be selected to furnish timber for 5, 10 Negligence: See TjUihUiUj {criHtinal proc'eediin/^). Index. 217 Nominal Damages: j. See LiabiliUj {cknl proceedings). Oregon: Privileges of act of March 3, 1891 (20 Stat., 1093), extende.l to residents of 9,11,191,193 Preemption Claims: See Homestead and Preemption Enfrie,-<. Prospective Value: See Injury, Present and Prospectire. Punitive Damages: See Liability {civil proceedings). Purchaser: Liability of, for timber taken unlawfully 31, 32, 34, 116, 117, 181 In good faith, of surplus timber cut by a settler who is engaged in improv- ing his land, is protected 140,146 Railroads: Generally — The term "railroad" includes all structures necessary to its operation. 172 In case (jf destruction, caused by sparks from a locomotive, oi timber unlawfully taken from public lands, the trespasser can not maintain an action against a railroad company 77 Land-grant roads — Authorized to take timber for construction purposes 6, 10, 164 Denver and Eio Grande Railroad Company may take timber fur repairs. 6, 164 Forfeiture of grants 6, 164 Timber on unearned and unpatented sections 183 Tenants in common 183 Suits to enjoin trespassers ls3 The United States may recover for trespass committed on unsurveyed lands within the limits of the Northern Pacific Kailniad grant 1S4-1S6 The United States can not recover for timber cut from lauds granted to a State for railroad purposes, which subsequently reverted to the Government for failure of conditions l^d Right of way roSds — Authorized to take timber for construction purposes. 6, 10, 143, 164, ITl.', 174 May take timber for the original construction of a branch line whicli it was authorized by its charter to build, although such branch is not constructed until after the main line 173 Have no right to cut timber prior to the filing of the papers require^i, 8(> Of surplus timber rut by a settler who is engaged in inijiroxlng liis land, without intent to defraud the Government, is lawful 140, 146 Of timber on unreserved public land, not authorized by art of March 3, 1891 (26Stat., 1093) - 196 Timber may not Ije taken from public lands to sell to railroad companies, nor for sale by railroad companies - 165, 1S2 Of timber lands in the pubhc land States, provided for (J, 10, 98 Of dead and down timber on Indian reservations in Minnesota, provided for 8,11 Of storm-killed timber in Florida, provided for 'i, 11, 155 Of timber in Alaska, provided for 8, H, 207 Of timber on part of the Colville Indian Reservation, in Washington, provided for 9,11,202 Sawmills: See Seizure; Slructures. Unlawfully erected on the public domain, subject to seizure 61 School Fund, Public: Fines collected under "Forest fire" act of May 5, 1900 (31 Stat., 169), to be paid into ^^^ 220 Indtx. School Xiands: Page. Trespays on sections reserved for sclioola in Territories 156 Section 2461, XT. S. B. S. ; Action under - 5, 10,11, 13-22, 27, 28, 29, 50-57, 100, 103-106, 10!i, 115, l:i2-124, 126-129, 133, 136,138,156,192, 197,208 Modified by enactment of various subsequent acts 11, 115, 126 Prosecution under, not prevented by a homestead entry 14, ] 22 Section 5 of the act of June 3, 1H7S, 20 Stat., 89 (extended by act of August -4, l.'<92, 27 Stat., 348), authorizes settlement of prosecutions under, in the public land States 6, 50, 51, 53, 100, 103-106 X.it repealed by act of June 3, 1878 (20 Stat., .s9) nor by act of August 4, 1K92 ( 27 Stat. , 34S ) 22, 103-106 Xot lepealcl by act ( if March 3, 1891 ( 2(i Stat. , 1093 ) 192 Is in force in the district of Alaska 208 Section 3469, XT. S. R. S. : Settlement of claims in favor of tlie United States, authorized liy 44 Section 4751, TJ. S. R. S. : provides for tlie disposition of certain forfeitures and jn-nalties 5, 10,29,51,52,56 Modified and partly repealed liy act of June 3, 1878, 20 Stat., Kit (extended by act of .\ugust4, 1892, 27 Stat., 348) 51,53-56,101,106 Seizure : See Liribllit/j [ci ill j)ri)ret'i}i iKj^i) , Authority of Department nf the Interior to seize timber unlawfullj' cut on piubhc land.s 41), 47, .50, 56-60 (.)f vessels having onboard timber unlawfully cut on piublic lands 5, 10 Of timber exported from tlie Territories of the United States 6,10,53,57,59 And sale of sawmills erected on tlie public domain by depredators 61 Settlement: See Liahility (i-lril jiriici'ediiig.t). Authority for effectiiiL', through tlie Department of the Interior, in cases of public timber trespass 44-51 Authorized by section 3469, T'. S. E. S 44 Distinction between settlement and compromise 44 No authority for the Department of the Interior accejiting less, in adjust- ing a casi.' of public timber trespass, than is required by the established rule c f damages _ 44 No authority for accepting an offer to pay more than is required by the establisheil rule of damages 39 Criminal lialiility can not lie compromised 22 A jiroposition of, submitted with the understanding that, if accepted, criminal proceedings for the trespass will be waived, will be rejected-- 48 Act of June 3, ls7S (20 Stat., 89) — Section 5 (extended by act of August 4, 1892, 27 Stat., 348) provides that jiarties prosecuted under section 2461, U. S. E. S., in the public land States, niay be relieved from criminal liability by payment of S2.50 per acre for the land trespasseil on 50, 51, 53, 56, 100, 103-106 Payment of S2.50 per acre only relieves fr(.im criminal liabilit)- 51, 103 Act of June 15, 1880 (21 Stat., 237)— Authorizes settlement by purchase > if land trespassed on 51 Settler: On unsurveyed land, who is complying, in good faith, with the require- ments of the homestead law, has the same privileges with regard to the timber on the land as a bona fide homestead entryman, and is subject to the same restrictions 148 Index. 221 Shares: P^^^ Cutting timber on 121 Smelting: Timber may not be cut for smelting purposes under act of June 3, 1878 (20 Stat., 88) (;k,92 Timber may be cut for smelting purposes under act of March 8, 1891 (26 Stat, 1093) 93 Snow Sheds: See Railroads. Special Agents: Authority for appointing, for protection of public timber 50, 57, 59 Standing Timber: Is a part of the realty 61, 63 Statutes (TJ. S. Revised): See Revised Statutes; Sec. 2461, V. S. R. S. ; S'c. 3469, U. S. 11. S. ; Srr. /,7.51, U. S. J!. S. Storm-killed Timber: Use of, on certain homestead entries in Florida, authorized 8,11, 155 Structures: Wrongfully placed on public land 28, 61 Survey: Expense of making, should be included in the amount for which the tres- passer is held liable 39, 50 Synopsis: Of public timber laws 5-11 Telegraph Companies: Use of timber by 6,10,187 Telephone Companies: Act of July 24, 1866 (14 Stat., 221) , contains no grant or authority fcjr the construction or maintenance of teleiihone lines 187, 188 Timber and Stone Lands: See Act of June 3, 1878 {20 Stat., 89). Sale of lands in the public-land States, chiefly \aluable ff>r timl )er or build- ing stone, provided for 6, 10, 98 Timber, Public: Defined 13,18 Ownership in respect to cut timber "ift-fil No person has a right to cut or remove, without .-^dme exprfus provision of law authorizing him to do so 180 Transporting Public Timber: See Export. Trespass on Public Timber: Eight of Government to sue for - 33 What constitutes - 42,160 Troops: See Section 2460, U. S. E. S., authorizing the President to employ land and naval forces to protect the timber of the United States in Florida. Trover: See Liability {civil proceedings) . Turpentine Trespass: Use of public timber for turpentine purposes 33, 157-163 Boxing and chipping timber not "cultivation," as contemplated by the homestead law -'5' TInsurveyed Lands: Use of public timber by settlers on 148 222 Tnde:,'.. Washington: Page. Privileges of tlie act of March :;, 1H91 (26 Stat., 1093), extended to resi- dents of. - - - 9, 11, 191 , 193 Waste: \\'anton waste of public timber prohibitcil. See acts of June 3, 1S7S (20 Stat., .s,s), Jvnie 3, lS7.f (20 Stat., 89), and .Alay 5, 1900 (31 Stat., 169). Parties convicted of timber trespass on the public mineral lands for failing to utilize all of each tree cut that could profitably bo used 69 Wyoming : The Secretary of the Interior authorized to grant permits to citizens of Idaho and Wyoming to cut timber in Wyoming for removal t(_i Idaho. 9, 11, 194 CitizeuH of Montana and, may take timber from specified tract in Mon- tana, for use in either of said States 9, 11, 195 TABLE OF OASES OITET). Page. Althen r. Kelly, :« Mimi., L\S0 (U. S. Digest, Vol. XVI, p. :;47) 65 American Bell Telephone Co. r. Albright (32 Fed. Rep., -!,S7) __ 43 Aurora Hill, etc., Mine Co. v. Eighty-five Mine Co. (34 Fed. Rep., 521) 37 Baker r. "Wheeler, 8 AVend. (N. Y.), 505 35 Baldwin !•. Porter (12 Conn., 484) , 35 Bardon 1'. Railroad Co. (145 U. R., 535) 134 Barry r. Edmunds (116 IT. S., 550) 33 Barton Coal Co. v. Cox (39 Md., 1, S. C. ; 17 Am. Rep., 525) 30 Benson Mining Company v. Alta Mining Company (145 U. S., 42M) . 41, 134, 135, 137 Berry f. Fletcher et al. (1 Dill., 67) 42 Belkf. Meagher (104 U. S., 279) _.. _ 136 Betts V. Lee (5 Johns., 348) 30 Blassingame ''. Glaves (6 B. Munroe, 38) 24 Bly, E. H. r. The United States (4 Dill., 464) 28 Boardman r. Goldsmith, 48 Vt., 403 (U. S. Digest, Vol. VII, p. 231) 32 Boetcher v. Staples, 27 Minn. , 308, S. C. ( 38 Am. Rep. , 295 ) 33 Began I'. Mortgage Co., 11 C. C. A., 128 (63 Fed. Rep., 192) 134 Bradley I). New York and New Haven R. R. (21 Conn., 294) 177 Bustamente ?.'. United States (42 Pac. Rep., Ill) 18 Buttz V. xN'orthern Pac. Rwy. Co. ( 7 Sup. Ct. Rep. , 100 ) 184 Carroll r. Safford (3 How., 441) 127 Cherokee Nation r. Georgia (5 Peters, 4S ) C3 Clarke v. Improvement Co. (35 Fed. Rep., 47.s) 158 Coffey?'. United States (116 U. S., 442) 27 Cohn, Isadore (20 L. D., 238) .39,115 Conway J'. United States, 37 C. C. A., 200 (95 Fed. Rep., 615) 138 Comeliusr. Kessel (128 U. S., 456) 134 Cotton V. United States (11 Howard, 229) 23, 57, 64, 157, 199 Cross r. Guthrie (2 Root, Con. R., 90) 24 Cunningham et al. r. Metropolitan Lumber Co. (110 Fed. Rep., 332) 117 Dakota Central R. R. Co. r. Downey (8 L. D., 115) 176,177 Deffebackr. Hawke (115 U. S., 392) '... 134 Denver and R. G. R. R. Co. . . United States, two cases (34 Fed. Rep., .S3s) .. 121, 144, 165 Dugan p. United States (3 Wheat., 181) ...24,25,199 Ellenwoodi'. Marietta Chair Co. (158 U. S., 105) 142 EUisD. Wire (33 Ind., 127) 30 Ensley v. Nashville, 58 Tenn., 144 (U. S. Digest, Vol. IX, p. 201) 32 Erhardtt). Boaro and others (113 U. S., 537) 61,64 Forsyth D. United States (9 Howard, 571) -- 20 Fosters. The Commonwealth (8 Watts and Serg., 77) 24 Frisbiev. Whitney (9 Wall., 187) - 124 223 224 Tahle of C'cmes Cited. Page. Great Northern Rwy. Oo. (14 L, D., 566) 179 Grubba v. United States, 44 C. 0. A., 513 (105 Fed. Rep., 314) 138 Haines )>. Schultz; N. J. (14 Atl. Rep., 488) - 158 Handford et al. v. United States (92 Fed. Rep., 88) 60 Hardin, Frank P., et al. (1 L. D., 597) 84 Hartley, B. F., et al. v. United States (4 Dill., 464) 28 Hartmani). Warren (76 Fed. Rep., 157) - 135 Hastings, etc., Rwy. Co. v. Whitney (132 U. S., 357) - 124,134 Heard?'. James (49 Miss., 236) 35 Hilton I'. Woods (Law Rep., 4 Eq., 432) - 35 Hutchins et al. v. King (1 Wall., 53) - -- 62 James )'. Germania Iron Co. (107 Fed. Rep., 597) 135 Jegon?'. Vivian (Law Rep., 6 Ch. App., 742) .-. 35 Jerome r. Ross (7 Johns. Ch., 315) 64 Johnson i'. Mcintosh (8 Wheat., 574).... -- - 63 Kansas Pacific Rwy. v. Atchison Rwy. (112 U. S., 414) _... 124 Kansas Pacific Rwy. v. Dunmeyer ( 113 U. S , (i29 ) 124, 135 Keirn?'. Warfield, 60 Miss., 799 (U. S. Digest, Vol. XIV, 803) 21 Kendall, Townsend and Walter 189 Kootenai Valley E. R. Co. (28 L. D., 439) 174 Le Roy (Theodore) v. George Wright et al. (4 Sawyer, 530) 64, 65 Livingston v. Rawyards Coal Co. (5 App. Cas., 25) 35 Lovejoy v. Murray (3 Wall., 1) - 43 Manro v. Almeida (10 Wheat, 494) 24 Markham o. Howell, 33 Ga., 508 (U. S. Digest, Vol. I, p. 401) 65 Martin v. Porter (5 M. and W., 351) 35 McCutchen, J. W., et al. (29 L. D., 322) 196 McLean (S. P. ) Coal Company v. Long (Sup. Ct, 111., < )ct. , 1876) 30 Moody !'. Whitney (38 Maine, 174) 30 Morgan r. Powell, (3 Ad. andE., N. S.,278)... 35 Murphy v. Dunham (38 Fed. Rep., 511) 37 Nesbit )'. St. Paul Lumber Co. (21 Minn., 4!il ) 28,29,37 Newhall/'. Sanger (92 U. S., 761) 124 Nichols V. Jones and Another ( 19 Vi-d. Rep. , 855 ) 64 Norrisetal. r. Unitcil States (44 Fed. Rei.., 735). 60 Northern Pacific R. Co. v. Hussey (61 Fed. Rep., 231) 183 Northern Pacific Railroad Company v. Lewis ( 162 U.S., o(i() ) 77 Northern Pacific Railroad Company v. Traill County ( 115 U. 8. , 609 ) 185 Page, A. B 81 Phinney, Mary A., et al. (28 L. D., 163) 26 Railroad Co. <'. Arnold; Ala. (4 South. Rep. , 359) 158 Railroad Oo. v. McShane (22 Wall., 444) 127,185 Railroad Co. v. Prescott (16 Wall., 603) 127,185 Railroad Co. v. Roberts; Ky. (8 S. W. Rep., 459) 158 Railway Co. v. Garcia; Tex. (7 S.W. Rep., 802) 158 Richmond v. The Southern Bell Telephone and Telegraph Co. (174 U. S., 761) 188 Riddle?). Driver (12 Ala., N. S., 590) 30 Rogers )'. Bates; 1 Mich. (N. P.), 93 (U. S. Digest, Vol. II, p. 590) 62 Russell)'. Brown; 63 Me., 203 (U. S. Digest, Vol. VI, p. 758) : 28 Russell V. Meyers; 32 Mich., 522 (U. S. Digest, Vol. VII., p. 839) 62 TaUe of Cafic8 Cited. 225 Page. Schulenberg v. Hamman (2 Dill., 398) 30 Schulenberg et al. v. Harrimaii (21 Wall., 44) ...61,143 Sheridan v. MeJIullin; 12 Oreg., 150 (U. S. Digest, Vol. XVII, p. 3.S7) ' 65 Shiver v. United States (159 U. S.,491) 11, 106, 118, 122, 13(!, 138, 146 Silsbury t>. McCoon (3 Comst., 379) 30 Silvat;. Garcia; 65 Cal., 591 (U. S. Digest, Vol. XVI, p. 347) 65 Single ['. Schneider (24 Wis., 299) ?,r> Single V. Schneider (30 Wis. , 570) 30 Sioux City Land Co. c. Griffey (143 U. S., 32) 124 Smith c. Thompson; 55 Md., 5 S. C; 39 .Vmer. Eep., 409 (U. ."^. Ditrest, Vol. XIII, p. 874) 33 Smith 1'. Weaver (1 Taylor, 5S) 24 Spencer, Nannie, administratrix of Warren FaviM- 188 Spies and Martin 31 Stark V. Starrs (6 Wall., 402) 134 Stephenson (Thomas) i: William L. P. Little and others (10 Mich. Kt-p., 433). 59 Stone?). United States (64 Fed. Rep., 667) 27,116,165 Stone I'. United States (167 U. S., 178) 132, 13.s, 140, 165 Storm V. Green; 51 Miss., 103 (U. S. Digest, Vol. VIII, p. 223) 32 Teller r. United States (113 Fed. Eep.. 273) 127 The Timber Cases (11 Fed. Eep., 81) 115,127 Town !'. Dubois ( 6 Wall. , 548) 29 United Merthyr Collieries Company (Law Eep., 15 Equity Ca^'■.■s, 46) 30 United States v. James Autrey 121 United States v. James F. Bailey 157 United States u. Bank of the Metropolis (15 Peters, .392) 25 United States c. Baxter et al. (46 Fed. Eep., 350) 42 United States r. Benjamin (21 Fed. Rep., 2S5) S4,90,iis, 112 United States '■. Ephraim Briggs (9 Howard, 351 ) 20, 24 United States «. O. S. Burdett and .\ . Rosenfield 187 United States v. J. C. Calhoun 157 United States i'. William Childers; 8 Sawyer, 171 (12 Fed. Rep., ■:>S\i) 183, Ls4 United States v. Cook (19 Wall., 591) 57,61,62,77,115,126, l.!S, 146, l.'.O United States v. Peter Darton (6 ]McLean, 46) 14 United States .. Day, et al. (4 Dill., 464J 28 United States i: Denver and Rio Grande Ey. Co, (150 U. S., 1) 172,177 United States tj. 0. A. Dodge, et al 31, sO, 115, 180 United States c. Eccles et al. (Ill Fed. Eep., 490) 43,173 United States i: Edwards (38 Fed. Eep., 812) 96 United States c. English et al. (107 Fed. Rep., 867) 89 United States c. Eureka and P. R. Co. (40 Fed. Rep., 419) kO, 180 United States r. Freyberg (32 Fed. Rep., 195) 127 United States D. Gear (3 Howard, 120) 24,25,6.5,157 United States i'. Hacker (73 Fed. Rep., 292) 90 United States tJ. W. S. Harrison 22 United States r. Henry Hazlctt 119,165 United States t'. Heilner (25 Fed. Rep., 82) 37 United States v. Humphries ( 149 U. S., 277 ) 42 United States D. John C. Kirby ct al , 117 United States r. Lane (19 Fed. Rep., 910) 116,127 United States r. Lee (106 U. S., 222) 23 United States c. Milo J. Legg et al. (Mont.) 78 21150—03 15 226 TiiMe of Cases C'itaJ. Page. United States ?'. Loughrey (172 U. S., 206) 186 United States v. Lynde et al. (47 Fed. Eep., 297) 80, 165 United State.s v. McEntee ( 23 Internal Kevenue Record, :->iiS ) 127 United States 7'. Mock (149 V. S., 21?,)... 39,131 United States v. Murphy ( 32 Fed. Rep. , 376 1 116, 127 United States /'. Levi W. Nelson (S Sawyer, 68 ) 11 . ,sl , 1] ,i, 127, 137 United States i'. Niemeyer et al. (94 Fed. Rep., 147) 117 United States )'. Onhyay (30 Fed. Rep., 30) , 37,183 United State-J r. Ordway (30 Fed. Rep., .36) 184 United States -r. Perkins et al. (44 Fed. Rep., C70) 116 Unite.1 States r. Price Trading Company et al. (109 Fed. Rep., 239) r,(i.96,]73 United States v. Railroad Company (9S U. S., 3.34) 170 United States r. lieder ( 1)9 Fed. Rep. ,965) 69 Uniteil States r. Reily ('i IMid.ean, 3.5S) 20 United States r. Richmond .Alinin,!.' Company (40 Fed. Kep., 4L") 96 United States r. St. Anthony E. Co. (114 Fed. Rep., 722) 165,174 United States r. Srott(39Fed. Rep., 900) - 37,51,103 Unite.l States -■. Smith (11 Feb. Rep., 487) 83, 90, 9s, 107, 113, 127 United States v. Jamea A. Smith 31 United States r. Rafael Soto; Ariz. (64 Pac Rep., 419) 17 United States r. Stone (49-Fed. Rep., 848) _ 21 United States r. Stores and another (14 Fed. Rep., s24 ) 13,19,127 United States r. Taylor (35 Fed. Rep., 484) 33,157 United States r. F. S. Taylor 157 United States r. Thompson (6 McLean, 56) _ 21 United States i'. Madison A. Tipton 70 United States v. Isaac Van AVinkle 93 United States i\ "Williams and another (6 JInnt., 37! i) 69 United State-^ r. AVilliams and otliers; United State* r. "Williams and anotlier ( 1 8 Fed. Re]-.., 47.=.) 37, 101, 127 United States r. W"ingate (44 Fed. Rep., 129) 37 United States?'. Yoder (18 Fed. Rep., 372) 115,127 W'ard ('. Ward, 41 Iowa, ("isii ( U. S. Digest, Vol. A'll, p. 230) 32 AVa^llington and Idaho R. R. r. CoMir d' Alene Rwy. ( 16i i U. .^. . 77 ) 177 Weill, r. Oilman, Me. (13 Atl. Rep., (iss) 15S WelN ('. Xickles (104 U. S., 444) 46, .""lO, 57, 59 West Point Iron Co. r. Reyniert, 45 X. Y., 703 (U. S. Digest, Vol. Ill, 3,."S9) .. 65 W'etherliee v. (irecn (22 ^Mi.'h., 311) 30 Weymouth c. Chicago and Northwestern Rwy. (.'o. (17 \Vi~., 550) 35 AVhite /'. Strililing, Tex. ('.) S. W. Rep., 81) 15S Whitney i: Taylor fl58 U. S., H5 ) 124 Wilr(..v I'. .Tackson (13 Pet., 49S) 124 AVdlis and Wife ?■. 3Iiller, treasurer (29 Fed. Rep., 23S) 33 Wilson and others i\ Rockwell and others (29 Fed. Rep., ti74) 64 "Winchester /.. Craig (.3:; Mich., 205) 35 Witherspoon ?.. Duncan (4 "Wall., 210) _ 124,127,134,136 Wisconsin Rwy. Co. ■;.. Prii'c County (133 U. S., 496) 127 Wood r. Moi-ewo(.d ( 3 Ad. & E. , X. S. , 440 ) 35 W' lenware Company r. United States (106 V. S., 432) 34,38,41,46 Wc irce.stcr r. ( Georgia ("6 Peters, 580 1 (33 Yoseniite Valley Ca"e, The (15 Wall., 77).. 124 ACTS OF CONGRESS CITED AND CONSTRUED. Paere. March 1, 1S17 (3 Stat., 347) 5,15 February 2;>, ISl'i! (3 Stat., 651) 5 March 2, 1831 (4 Stat., 472) 11,13,14,20,24,106,109,115,121! Junes, 185B (11 Stat., 21) l.sy March 2, 1861 (12 Stat., 239), sec. 14 156 July 2, 1864 (13 Stat., 365) 165.170,183,185 July 24, 1866 (14 Stat., 221) 187 July 15, 1870 (16 Stat. ,305) 185 May 10, 1872 (17 Stat., 95), sec. 12 110 Junes, 1872 (17 Stat, 339) 166-172 March 3, 1875 (18 Stat. , 479) 157 March 3, 1875 (18 Stat., 481).- 6,10 March 3, 1875 (18 Stat., 482) 6,10,120,140,143,164-180 March 3, 1877 (19 Stat., 405)....-. 167 April- 30, 1878 (20 Stat., 46), sec. 2 6.10,52,53,54,57,59 June 3, 1878 (20 Stat., 88) 6,10,57,67-98,105,107-114,180,192,195 Junes, 1878 (20 Stat., Sii) (i, 7, 10, 22, 26, 50, 53, 54, 57, 82, 90, 07, 0,s^n4, 127, 12^, 12i), 1.S3, liHl June 15, 1880 (21 Stat., 237) 7,51 June 16, 18,8(. (21 Stat., 287) 26 February 8, 1837 (24 Stat., 3s8) 149 February 15, 1887 (24 Stat., 402) 179 June 4, 1888 (25 Stat., 166) 6,7,10 February 16, 1889 (25 Stat., 673) 7,11 September 29, 1890 ( 26 Stat. , 496) 6, 164 March 3, 1891 (26 Stat., 1093) 7,11,92,93,190-197 March 3, 1891 (26 Stat., 1095), sec. 24 .-.. 7,10,118,189,196 July 1, 1892 (27 Stat., 62) 202,205 Auifust 4, 1892 (27 Stat., 348) 6, 7, 10, 11, 22, 51, 53, 5(i, 82, 97, 101, 105, 127, 128, 129, 136, 199 February 13, 1893 (27 Stat., 444) 7,8,11,92,191,193 January 19, 1895 (28 Stat., 634) 8,11,151 February 20, 1896 (29 Stat., 11), sec. 2 8,10,11,189 February 26, 1897 (29 Stat., 599) 8,11,155 June 4, 1897 (30 Stat. , 34-36 ) 7, 8, 10 June?, 1897 (30 Stat, 90) 8,11 May 14, 1898 (30 Stat., 409), .^ecs. 2, 6, and 11 8,11,206 Julyl, 1898 (30 Stat., 593) 9,11,202,205 Julvl, 1898 (30 Stat., 61Si 9,11,194 May 5, 1900 (31 Stat, 169) 9,10,198,199 March 3, 1901 (31 Stat., 1436) 9,11,191,193 March 3, 1901 (31 Stat., 1439) 7,9,11,195 ^Mn:S:^^:fm^m^m^m 'r'r