subject to mineral entry only. The defendant must prove by a preponderance of evidence that such lands are more valuable for the mineral than for any other purpose and that they are not suitable for agricultural purposes or cultivation or valuable solely for the timber thereon.

5. In this case the burden of proving the character of the land from which this timber was cut or taken by the defendants rests upon the defendants, and unless the defendants have proven by a preponderance of the evidence on that point that the land from which this timber was cut and taken is mineral land and subject to entry only as mineral lands, then they can not justify their entry on said land and the cutting and carrying away of said timber.

6. If you believe from the evidence that the defendants took into their possession and sawed up into lumber and sold any logs which had been previously cut by other persons and had been seized by the United States, and which were still held by the United States, and that the defendants then took them and converted them to their own use, then it is no defense to this action whether said logs were lying on mineral lands or not when they were taken by the defendants and converted to their own use.

7. The court instructs you that if the defendants knowingly went upon the public lands of the United States and cut and carried away and converted to their own use any of the trees and timber growing thereon and sawed the same into lumber and sold it and kept the money therefor, then you should find for the United States the full value of the lumber so cut and sold by the defendants, unless you further find from the evidence that the timber was cut and taken from mineral lands.

8. If you find from the evidence that the defendants were mistaken and unintentional trespassers on the public lands of the United States, and that by mistake they unlawfully cut timber from said lands, not knowing said lands were public lands, then you may find for the United States the full value of the growing trees and the old logs taken by the defendants, unless you also find that the growing trees so found by you to have been cut by the defendants were cut from mineral lands as defined in other instructions, then, in that event, you will find for the United States the value of the old logs only.

9. If you find that the defendants knowingly went upon the public lands and cut and carried away this timber, and that said lands were not by them (defendants) known to be mineral, as defined in these instructions, then you will find for the United States the full market value of the lumber after it had been sawed up by the defendants and the value of the logs in the mill yard that had not been sawed into lumber.

10. The court instructs you that any and all statements made by any of the counsel in this case in reference to what they expected to prove by said record of the United States against Broadwater, Hubbel & Co,

is not evidence in this cause and should not be considered by you in making up your verdict.

(Given at defendants' request:)

If the jury believe, from a preponderance of the evidence in this cause, that the paper offered in evidence by the plaintiff has been altered or changed since it was signed by the defendants, then such paper would not be the paper originally signed by the defendants and the jury have a right to exclude such paper from their consideration. (Given at defendants' request:)

The burden of showing that the trespass was committed (if any is proven) on the lands of the United States, and not otherwise, by the preponderance of the evidence.

If the jury find from the evidence that the old logs were originally cut and severed from the soil by others than themselves, then, as to such logs or timber cut, these defendants are not responsible for the original cutting and severing from the soil if the defendants had no connection therewith at the time of cutting. (Given, but with the modication as follows:) But the defendants are liable if you find from the evidence that they unlawfully took such logs after they (the logs) had unlawfully been cut by others.

UNITED STATES v. LYNDE ET AL.

A citizen of the United States and resident of Montana Territory may lawfully cut and remove timber from the public mineral lands for building, agricultural, mining, or other domestic purposes under the statutes of the United States, which provide that all citizens of the United States and other persons, bona fide residents of certain States and Territories, including Montana, are authorized to fell and remove timber growing on public mineral lands, not subject to entry, for building, agricultural, mining or other domestic purposes, subject to regulations prescribed by the Secretary of the Interior.

See also U. S. v. O. A. Dodge, cited on page 125.

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

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 was unlawful, and that the United States could recover from defendant the value of the wood so severed and purchased by it.

TIMBER ON MINING CLAIMS.

Locators of mining claims, so long as they comply with the law governing their possessions, are invested by Congress with the exclusive 11023- -5

right of possession and enjoyment of all the surface included within the lines of their locations, and it is the duty of the locator to care for his claim should trespass be attempted thereon, since he is concerned for its protection and may undoubtedly maintain suit to that end. (See 1 L. D., 615.)

MINING GROUND.

UNITED STATES v. LEVI W. NELSON.

District court, district of Oregon (5 Sawyer, 68).

A person occupying a portion of the public land as mining ground under the mining law of the United States is not bound to purchase the same, but until he does so he has a mere license to work the ground for the precious metals therein and has no right to cut or use any timber growing or found thereon, except as the same may be necessary to enable him to mine the same conveniently. SAME.

The defendant occupied 70 acres of public land as mining ground and cut timber from 4 acres thereof in advance of his mining operations and disposed of the same for his own benefit, assigning as a reason therefor that by cutting the timber in advance of the mining operations the stumps would rot and therefore be more easily removed. Held, that this cutting was not necessary to the mining operation, and therefore unlawful.

CUTTING TIMBER ON MILL SITES.

A. B. PAGE.

If such claim be timbered claimant may cut for construction of mill, but not for sale for private gain.

Commissioner McFarland to A. B. Page, Jasper, Colo., March 22, 1883.

Yours of 5th instant received and contents noted. In reply thereto you are advised that any miner holding the possessory right to a vein or lode, or any owner of a quartz mill or reduction works, and not owning a mine in connection therewith, may make location of a mill site, as provided by section 2337, Revised Statutes, and upon complying with the conditions specified therein may obtain patent therefor. The quantity of land embraced in each mill-site claim can not exceed 5 acres, and must be nonmineral in character. If the mill-site claim is timbered there would seem to be no good reason why the lawful claimant should not be permitted to cut and remove the timber thereon for the purpose of constructing a mill, reduction works, tramways, or other accessory required in the development of his mining interests. In permitting the removal of the timber from such mill site or tract of nonmineral land prior to the issuance of patent therefor, it is strictly forbidden to make such timber an article of sale for private gain or speculation, but the same must be used and applied to the actual development of the mining interests of the individual claimant.

OPERATION OF THE ACT OF JUNE 3, 1878 (20 STAT., 88) DISTINGUISHED FROM THAT OF THE ACT OF JUNE 3, 1878 (20 STAT., 89).

UNITED STATES v. SMITH.

Circuit court, district of Oregon (11 Fed. Rep., 487).

TIMBER ON PUBLIC LANDS IN OREGON.

The act of June 3, 1878 (20 Stat., 88), giving permission to the residents of Colorado, Nevada, the Territories, "and other mineral districts of the United States," to cut timber for certain purposes upon the mineral lands therein, does not apply to Oregon, but the subject of cutting timber on the public lands within such State is regulated by the act of the same date (20 Stat., 89), providing, among other things, for the sale of timber lands therein. MINERAL DISTRICT.

This term, as used in the first of the said acts of June 3, 1878 (20 Stat., 88), has no application to Oregon, there being no such division or district of the State established either by law or common reputation.

See decision in full, cited on page 75.

UNITED STATES v. BENJAMIN.

Circuit court, district of California (21 Fed. Rep., 285).

PUBLIC LANDS-CUTTING TIMBER ON MINERAL LANDS IN CALIFORNIA-ACT OF JUNE 3, 1878, CIIS. 150 AND 151.

Timber upon mineral lands in the State of California is protected and governed by the provisions of the act of June 3, 1878, chapter 151 (20 Stat., 89), made specifically applicable to that State, and not by the general provisions of chapter 150 of the act of June 3, 1878 (20 Stat., 88), which can only operate upon "mineral districts," if any there be, not specifically provided for by designating the particular State or Territory in which it is situated by name.

See decision in full, cited on page 80.

TIMBER ON MINING CLAIMS IN CERTAIN FOREST RESERVATIONS IN

COLORADO.

See act of February 20, 1896 (29 Stat., 11), on page 137.

TIMBER AND STONE LAND ACT

[Act of June 3, 1878, Chap. 151; 20 Stat., 89.]

AN ACT for the sale of timber lands in the States of California, Oregon, Nevada, and in Washington Territory.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That surveyed public lands of the United States within the States of California, Oregon, and Nevada, and in Washington Territory, not included within military, Indian, or other reservations of the United States, valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale, according to law, may be sold to citizens of the United States, or persons who have declared their intention to become such, in quantities not exceeding one hundred and sixty acres to any one person or association

of persons, at the minimum price of two dollars and fifty cents per acre; and lands valuable chiefly for stone may be sold on the same terms as timber lands: Provided, That nothing herein contained shall defeat or impair any bona fide claim under any law of the United States, or authorize the sale of any mining claim, or the improvements of any bona fide settler, or lands containing gold, silver, cinnabar, copper, or coal, or lands selected by the said States under any law of the United States donating lands for internal improvements, education, or other purposes: And provided further, That none of the rights conferred by the 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 abrogated by this act; and all patents granted shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under and by the provisions of said act; and such rights shall be expressly reserved in any patent issued under this act.

SEC. 2. That any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation, and valuable chiefly for its timber or stone; that it is uninhabited; contains no mining or other improvements, except for ditch or canal purposes, where any such do exist, save such as were made by or belong to the applicant, nor, as deponent verily believes, any valuable deposit of gold, silver, cinnabar, copper, or coal; that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the Government of the United States 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 penalites 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 second 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 subdivisions, in his office, for a period of sixty days, and shall furnish the applicant a copy of the same for publication, at the expense of such applicant,