The act of March 3, 1875 (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 buildings, 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 enlarged sense, the term "railroad" includes all structures which 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 legislature, or to withhold what is given.

General legislation, offering advantages in the public lands to individuals or corporations 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 given to an ordinary private grant.

It is not decided that the act of March 3, 1875, gave a right to take timber from the public domain for making rolling stock; nor what structure, if any, not enumerated in that act, would constitute necessary, essential, or constituent parts of a railroad.

SEATTLE, WASH., October 12, 1893.

SIR: I have the honor to acknowledge the receipt of your letter of October 5 * * * concerning my request of July 18, 1893, for reinvestigation of timber trespass case against Chatteroy Lumber Company.

*

On the trial it was proved that the timber was all cut from lands within 2 miles of the line of the road. The court instructed the jury that the word "adjacent" used in the act, under the evidence in that case, meant anywhere within 5 miles of the line of the road.

I am, very respectfully, your obedient servant,

*

WM. H. BRINKER,

United States Attorney.

COMMISSIONER OF THE GENERAL LAND OFFICE,

Washington, D. C.

RAILROAD RIGHT OF WAY-GRAVEL BED-CONSTRUCTION.

GREAT NORTHERN RY. Co.

[14 L. D., 566.]

Assistant Attorney-General Shields to the Secretary of the Interior, May 13, 1892.

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, 1887 (24 Stat., 402) is limited to construction, and does not include the repair or

improvement of a railroad. The period of original construction ceases when the road is open to the public for general use.

(This opinion was adopted by the Secretary of the Interior May 17, 1892.)

RAILROAD COMPANIES CAN NOT PROCURE TIMBER FROM PUBLIC MINERAL LANDS UNDER THE ACT OF JUNE 3, 1878 (20 STAT., 88).

The act of June 3, 1878 (20 Stat., 88), 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 United States except for mineral entry, expressly provides that "the provisions of this act shall not extend to railroad corporations."

Railroad companies can not, accordingly, 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 purposes allowed in the act of March 3, 1875 (18 Stat., 482), and the several land-grant acts authorizing railroad companies to take public timber for construction purposes.

UNITED STATES v. EUREKA & P. R. Co.

Circuit court, district of Nevada (40 Fed. Rep., 419).

PUBLIC LANDS-TIMBER-CUT FOR USE BY RAILROAD COMPANY.

The defendant, a railroad corporation, purchased for use upon its locomotives and cars wood 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 v. O. A. DODGE ET AL.

District court, first judicial district, Nez Perces County, Idaho Territory.

GENTLEMEN OF THE JURY: The defendants are charged with wilfully and unlawfully cutting and removing certain timber from the lands 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 preemption 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 remove the timber from his claim except for the purpose of preparing the same for cultivation, and no one has the right to purchase

timber removed from a preemption claim which the preemptor 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 off from the land for the purpose of sale merely and not the genuine purpose of improving the claim his trespass is wilful.

To explain more fully, if a preemptor having a claim covered 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 may 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 simply 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 you 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 mineral 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 defence that he cut the same under such circumstances 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 character devolves upon the defendants; so also is the burden on the defendants of proving that they cut the same for domestic or other lawful purpose. It is also claimed by defendants that the timber cut was for the use of the Northern Pacific Railroad, and used in the construction of said road. I instruct you that the Northern Pacific Railroad during the period of its construction had the right to so much of the timber upou the public lands adjacent to it as was needed to construct it.

If the defendants took a contract from said railroad to furnish a certain 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 company 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 they desired lumber of a certain description for their road and they procured such lumber for them, such an order from the company filled 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 commercial 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 important, as under the charter of the road they 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 for domestic purposes?

If you 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 you ought to find for the defendants.

If you find from the evidence that the defendants cut or purchased the timber from those who cut it, and that said cutting was wrongful, you ought to find for the plaintiff and determine the amount cut and the value 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 you 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.

TIMBER ON LANDS WITHIN LIMITS OF THE GRANT TO THE NORTHERN PACIFIC RAILROAD COMPANY.

UNITED STATES v. WILLIAM CHILDERS.

District court, district of Oregon (8 Sawyer, 171).

GRANT TO THE NORTHERN PACIFIC RAILWAY COMPANY.

By the act of July 2, 1864 (13 Stat., 365), the odd-numbered sections along the line of the Northern Pacific Railway Company 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 provision 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 is in the United States, who may therefore maintain legal proceedings against anyone that unlawfully cuts timber thereon.

NORTHERN PACIFIC R. Co., v. HUSSEY.

Circuit court of appeals, ninth circuit (61 Fed. Rep., 231).

RAILROAD LAND GRANTS-UNSURVEYED LANDS-TENANTS IN COMMON.

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-ENJOINING TRESPASSERS.

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. ORDWAY AND OTHERS.

Circuit court, district of Oregon (30 Fed. Rep., 30).

PUBLIC LANDS-CUTTING TIMBER-ACTION FOR DAMAGES-PARTIAL 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, believing 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 bestowed on the same in converting it into lumber and putting it into market.

SAME-GRANT TO THE NORTHERN PACIFIC RAILROAD 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., 365), 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 earned by the construction of the section of the road adjacent and opposite thereto. (The case of the U. S. v. Childers, 8 Sawy., 171, 12 Fed. Rep., 586, distinguished from Buttz v. Northern Pac. Ry. Co, 7 Sup. Ct. Rep., 100, and followed.)