in a newspaper published nearest the location of the premises, for a like period of time; and after the expiration of said sixty days, if no adverse claim shall have been filed, the person desiring to purchase shall furnish to the register of the land office satisfactory evidence, first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper as herein required; secondly, that the land is of the character contemplated in this act, unoccupied and without improvements other than those excepted, either mining or agricultural, and that it apparently contains no valuable deposits of gold, silver, cinnabar, copper, or coal; and upon payment to the proper officer of the purchase money of said land, together with the fees of the regis ter and the receiver, as provided for in case of mining claims in the twelfth section of the act approved May tenth, eighteen hundred and seventy-two, the applicant may be permitted to enter said tract, and, on the transmission to the General Land Office of the papers and testimony in the case, a patent shall issue thereon: Provided, That any person having a valid claim to any portion of the land may object, in writing, to the issuance of a patent to lands so held by him, stating the nature of his claim thereto; and evidence shall be taken, and the merits of said objection shall be determined by the officers of the land office, subject to appeal, as in other land cases. Effect shall be given to the foregoing provisions of this act by regulations to be prescribed by the Commissioner of the General Land Office.

SEC. 4. That after the passage of this act 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 remove, or cause to be removed, any timber from said public lands, with intent to export or dispose of the same; and no owner, master, or consignee of any vessel, or owner, director, or agent of any railroad, shall knowingly transport the same, or any lumber manufactured therefrom; and any person violating the provisions of this section shall be guilty of a misdemeanor, and, on conviction, shall be fined for every such offense a sum not less than one hundred nor more than one thousand dollars: Provided, 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 necessary to support his improvements, or the taking of timber 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. SEC. 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 cutting 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: Provided, 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 further provided, 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 hereby repealed, so far as it relates to the States and Territory herein named. SEC. 6. That all acts and parts of acts inconsistent with the provisions 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).

[Act of August 4, 1892; 27 Stat., 348.]

*

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 hereby, amended by striking out the words "States of California, Oregon, Nevada, and Washington Territory" 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 being 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 repeal section 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 v. WILLIAMS AND OTHERS.
UNITED STATES v. WILLIAMS AND ANOTHER.

Circuit court district of Oregon (18 Fed. Rep., 475).

CUTTING TIMBER ON THE PUBLIC LANDS.

Section 4 of the act of June 3, 1878 (20 Stat., 89), prohibits 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 fast 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 wilful 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 wilful, is the value of the timber in the tree; but where the trespass is wilful, 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.

TRESPASS BY MISTAKE.

The defendant claimed to have taken up a homestead on the northwest quarter of section 22 of township 19, and, while intending to cut saw logs thereon, with intent to dispose of the same, did, by mistake, cut said logs on the northeast quarter of said section. Held, that if the defendant had cut the logs on the northwest quarter, as he intended, it would have been a wilful trespass, and therefore his mistake was immaterial, and he was liable to the United States for the value of said logs as a wilful trespasser.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., June 2, 1896.

SIR: By reference from the Department, I am in receipt of your letter of May 14, 1896, addressed to the honorable Secretary of the Interior, and requesting reply to the following questions:

1. Have we the right to take timber from Government land to satisfy the requirements of our flumes and mines?

2. Have we the right to cut logs for miners owning claims in the neighborhood and to receive toll therefor?

You are advised that under the proviso to section 4, act of June 3, 1878 (20 Stat., 89), the miner is authorized to cut the timber necessary to be cut in clearing his land in the ordinary working of his mining claim, and to support his improvements. The proviso limits the cutting on the public lands to that done by a miner or agriculturist on his claim and for two purposes, viz, to enable him to work his claim for mining or farm purposes and to supply himself with the timber needed for his improvements. 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 any other purpose.

Therefore it appears that you have no right to take timber from vacant Government land to supply your flumes and mines.

In reply to your second inquiry, you are advised that miners have the right to employ others to cut for them such timber as, and above stated, they are authorized to cut either for clearing or for improvements, and they may receive in exchange for timber so cut lumber to be used for the improvements for which the said timber was cut.

It therefore appears that you may negotiate with a miner or agricul turist to cut for him the timber necessary to be removed from his claim in the ordinary adaptation of it to mining or for farm purposes, or the timber needed for improvements.

The timber cut for 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 be applied to such improvements.

Very respectfully,

Mr. W. E. COUL,

E. F. BEST, Acting Commissioner.

Applegate Water Company, Jacksonville, Oregon.

PAYMENT OF $2.50 PER ACRE, UNDER SECTION 5 OF THE ACT OF JUNE 3, 1878 (20 STAT., 89), ONLY RELIEVES FROM CRIMINAL LIABILITY.

UNITED STATES v. SCOTT ET AL.

Circuit court, northern district of California (39 Fed. Rep., 900).

PUBLIC LANDS-CUTTING TIMBER-PAYMENT FOR LAND.

A party prosecuted for cutting timber on the public lands under section 2461, Revised Statutes, is only relieved from the criminal prosecution and liabilities provided for in said section 2461 by payment of $2.50 per acre for the land on which it is cut, in pursuance of the provisions of the act of 1878 (1 Supp. Rev. Stat., p. 329, sec. 5); he is not relieved from his civil common-law liability to the United States as owner of the land for the value of the timber cut.

SECTION 2461, U. S. R. S., NOT REPEALED BY THE ACT OF JUNE 3, 1878 (20 STAT., 89).

DEPARTMENT OF THE INTERIOR,

Washington, D. C., September 24, 1878. SIR: I have the honor to transmit herewith a copy of a telegram received from Special Agent Hobbs, dated San Francisco, Cal., June 21, 1878, in which he states that the United States attorney says: "The repeal of the old timber law leaves no criminal statute in force under which a party may be prosecuted for past offenses, unless suits are already commenced." I also transmit copy of the rules and regulations adopted by this Department in accordance with the provisions of two certain acts of Congress approved June 3, 1878, in relation to the sale and disposal of timber lands, and the punishment for depredations thereon (Pamphlet Laws for 1877-78, pp. 85, 89, 90, 91).

These acts provide for the sale and disposal of timber lands, and also specify in what cases prosecutions shall be brought for depredations thereon in the future. The fifth section of the act entitled "An act for the sale of timber lands in the States of California, Oregon, Nevada, and Washington Territory," provides for the settlement of cases prosecuted under section 2461 of the Revised Statutes. I do not understand, however, that either of said acts was intended to repeal section 2461, nor in any manner to affect the prosecution 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 necessarily, 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 recommend that you will instruct the United States attorney for the State of California to prosecute all cases of trespass, wherever committed, if he shall deem the evidence in his possession sufficient to warrant the prosecution, which may be, or may have been reported to him, in the same manner that they were heretofore prosecuted; and if the persons thus prosecuted are convicted, and desire to make settlement in accordance with the terms of

the fifth section of said act, that settlement should be made accordingly, and the further proceedings in the case dismissed.

Very respectfully,

Hon. CHARLES DEVENS,

C. SCHURZ, Secretary.

Attorney-General.

[16 Op., 189.]

Sections 4 and 5 of the act of June 3, 1878, chapter 151, entitled "An act for the sale of timber lands in the States of California, Oregon, Nevada, and in Washington Territory," construed in connection with section 2461, Revised Statutes, punishing the cutting or removal of timber growing on the public lands.

DEPARTMENT OF JUSTICE, October 22, 1878.

SIR: I have carefully considered paragraph 1 of the "Rules and Regulations for the Protection of Timber," etc, transmitted with your letter of September 24, in connection with Revised Statutes, section 2461, and the two acts of June 3, 1878.

Section 4 of the longer of these two acts merely singles out from the offenses described in section 2461 that of cutting or removing timber "with intent to export or dispose of it," and affixes to it a new and different penalty.

Section 5 simply allows all persons prosecuted for the cutting or removal of timber, "except those who cut or removed with intent to export," to relieve themselves from the penalties prescribed in section 2461 by the payment at the rate of $2.50 an acre of the land on which the trespasses were committed. The effect of this provision is to release offenders from the penalties incurred for offenses committed under the former law prior to the passage of the new act, on their compliance with the specified conditions; those 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 provision that limits its operation to prosecutions actually pending when the act was passed.

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 section 2461. It is a necessary implication from these special provisions that the former law continues in force in respect to all cases to which they do not apply.

I am therefore of opinion that paragraph 1 of the rules and regulations transmitted is in accordance with law.

The United States attorney for the district of California has been instructed to be governed in his official action in regard to timber cases by the views expressed in this letter, a copy of which has been forwarded to him.

Very respectfully,

Hon. CARL SCHURZ,

Secretary of the Interior.

CHAS. DEVENS.