THE TIMBER CASES.

District court, western district of Missouri (11 Fed. Rep., 81).

PUBLIC LANDS-RIGHTS OF SETTLERS.

Where a person enters upon public land with a view of preempting it, and before the expiration of the year during which he ought to have proven up his claim he homesteaded his preemption, the preemption as well as the homestead must have been taken in good faith for the purpose of residence, settlement, and improvement.

SAME-RIGHT TO CUT TIMBER.

A person entering on the public land for the purpose of preemption, or to secure a homestead, in good faith, may cut the timber standing thercon for the purposes of cultivation, and after applying such portion as can be used for the improvement he may sell or dispose of the balance.

SAME-RESTRICTION AS TO RIGHT.

A settler on the public lands has no authority to go outside of the improvements, cut or sell timber, and thus denude the lands and destroy the value of the public domain, even though he intends to acquire the title under his claim.

See "Use of public timber by virtue of right of occupancy," case of United States v. Cook (19 Wall., 591), on page 47.

See also, decision in case of Isadore Cohn (20 L. D., 238), cited on page 26.

UNITED STATES v. YODER.

District court, district of Minnesota (18 Fed. Rep., 372).

ACTION OF TROVER-RIGHT OF SETTLERS TO CUT TIMBER AND IMPROVE LAND BEFORE PREEMPTION.

A settler claiming in good faith a homestead can, for the purpose of improving the land, cut down the necessary timber before he files his entry in the land office. There is nothing in the homestead act requiring an entry in the land office before settlement.

UNITED STATES v. LANE.

Circuit court, eastern district of Wisconsin (19 Fed. Rep., 910).

PUBLIC LAND-ENTRY-RIGHT TO CUT TIMBER.

One who has entered upon public land according to law for the purpose of claiming a homestead therein, and is residing thereon in good faith and improving it for agricultural purposes, is entitled to cut so much timber from the land as is necessary for his actual improvements; but until he has received his patent he can not cut timber for any other purposes nor under any other conditions.

UNITED STATES v. PERKINS ET AL.

Circuit court, western district of Louisiana (44 Fed. Rep., 670).

PUBLIC LANDS-CUTTING TIMBER-SUBSEQUENT PURCHASE.

Where a homesteader, who has never had possession of the land included in his homestead claim, and whose entry has been canceled, buys the land from the Government, such purchase does not pass title to timber which he had cut from the land before his purchase and after he had learned that his homestead entry was invalid.

SAME MEASURE OF DAMAGES.

In an action by the United States for the value of timber bought by defendant from a trespasser who had knowingly cut it from the public land, the measure of damages is the value of the timber at the time of the purchase.

STONE v. UNITED STATES.

Circuit court of appeals, ninth circuit (64 Fed. Rep., 667).

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PUBLIC LANDS-SETTLERS-CUTTING AND SELLING TIMBER-LIABILITY OF PUR

CHASERS.

Where settlers on public lands file declarations under the preemption or homestead laws, with intent to defraud the Government by removing and selling the timber thereon, and then leaving them, a purchaser of such timber is liable to the Government for its value.

SAME-ACTION FOR VALUE OF TIMBER PURCHASED-BURDEN OF PROOF.

In an action by the United States to recover the value of timber cut from public lands, where defendant claims that he purchased the timber from settlers on such lands under the preemption and homestead laws, the burden is on him to show the good faith of such settlers, and their right to cut and sell such timber.

UNITED STATES v. MURPHY.

Circuit court, western district of Michigan, northern division (32 Fed. Rep., 376). PUBLIC LANDS-CUTTING TIMBER-HOMESTEADER'S RIGHTS.

While holding land under a homestead entry the homesteader can only cut and sell the timber from such portion or parts of the land as are being cleared for cultivation or settlement.

SAME-CUTTING TIMBER-MISTAKEN VIEW OF RIGHTS.

The fact that defendant was induced, through the wrong representations of the register of the land office, to believe in the unrestricted right of the homesteader to cut timber from his entry, does not estop the Government from prosecuting him for such unlawful cutting.

SAME-CUTTING TIMBER-CRIMINAL INTENT.

It is no defense to a prosecution for unlawful cutting of timber from public land that there was no criminal intent in the cutting.

SAME-ACTS RELATING TO-CONSTRUCTION OF, BY SECRETARY OF INTERIOR.

The interpretation placed upon public-land acts by the Secretary of the Interior is not binding upon the courts.

In the case of a homesteader purporting to convey by bill of sale right to the timber on his claim subsequent to abandonment of the land, parties taking the timber under such "bill of sale" held to be trespassers and liable to the United States for the full value of the timber, wherever and in whatever condition found. (See Land Office Report for 1889, p. 291, case of U. S. v. John C. Kirby et al.)

BEATTY, J.

THE UNITED STATES v. HENRY HAZLETT.

Circuit court, district of Idaho.

This action is for the replevin of a lot of cedar posts, and is submitted to the court for hearing upon an agreed statement of facts from which

it appears that such posts were cut by defendant from a tract of 10 acres of the public lands of the United States; that said 10 acres were a part of a tract of 160 acres upon which one Brennan had resided for two years with the intention of entering it as a homestead when surveyed; that defendant had a contract with the Union Pacific Railway Company to deliver it posts at Pocatello to fence its railroad track which had been completed and in operation for over eight years prior; that such place of delivery was 700 miles from the place of cutting such posts; that said Brennan intended to clear said 10 acres for agricul tural purposes and that the defendant, for the purpose of fulfilling his said contract with the railway company entered into a contract with said Brennan for the timber on said 10 acres and thereafter cut and removed the same from the land and had possession thereof when it was seized by plaintiff.

The first question is, whether the contract between the defendant and the homesteader for the timber is a valid one as against the plaintiff. The rule is well settled by numerous decisions that in actions by the United States, and especially in civil actions, for the cutting of timber on the public lands, it devolves upon the Government only to show the character of the lands and the cutting of the timber thereon, whereupon the onus probandi rests with the defendant to show such cutting was lawful.

It is also well settled that the homesteader can not cut or remove timber from his homestead for the sole purpose of selling it, but he can from time to time cut only such as is actually necessary for his use upon the premises in making the necessary improvements thereon and in clearing the land in good faith for agriculture or some other useful purpose; that if after so cutting timber in the actual process of clearing the land and making use thereof in his necessary improvements there is a surplus he may sell it.

In an action brought against a homesteader for an unlawful cutting or disposition of timber it devolves upon him to produce the facts showing his good faith. He should show the improvements he has made upon the land, the buildings and fences erected, the land cleared and how far cleared, the character of his residence upon the land, and any other facts going to show that his occupation of and acts concerning the land were those of an actual homesteader.

It is also the law that if the homesteader attempts to dispose of timber from his claim contrary to law the person contracting with or purchasing of him gets no title. If, therefore, the facts in this case do not show that the homesteader had a right to sell the timber under the circumstances he did, it follows that the defendant procured no title thereto.

What now are the facts and to what conclusion do they lead? It appears that defendant, to carry out his contract with the railway company, contracted with the homesteader for the timber upon 10 acres of

the homestead tract, and proceeded to cut and remove it. It does not appear that the land was cleared or that any improvements of any kind were made upon the land or that the land was in any way benefited by the acts of either party; and so far as the facts go it only appears that the defendant cut and removed this timber to be disposed of to the railway company. It is alleged that the homesteader had resided on the land for two years and intended to clear and enter it; but something more than mere intentions must appear, and if he had resided there the motive of his residence and occupation must be shown. The facts as stated, instead of leading to the conclusion that the land was actually occupied as a homestead and the timber was removed therefrom in good faith in the process of clearing and improving the land, rather point to the conclusion that defendant's contracts were made to avoid the law and cut the timber simply for the purpose of fulfilling his railway contract, and that Brennan's sole object was to receive money for the timber and not to clear the land or improve it. If such contracts and such facts will justify the cutting and removal of timber from the Government lands, then there is nothing in the law to prevent the destruction of all timber on all lands subject to occupation and entry. I can not so construe the law and must conclude the defendant did not by the acts stated procure title to the posts involved in this action.

I do not mean to be understood as holding that a homesteader may not employ others to clear or improve his land; but when he does, it must appear that such employment is made in good faith to have the land actually cleared and not leave the contract open to a well-grounded suspicion that it is to avoid the law and to dispose of the timber for profit instead of improving the land.

The question was raised whether the law gives the railway company the right to procure from the public domain timber supplies for its use, and if it does, whether it does not follow that defendant's contract with Brennan, being for the purpose of furnishing such supplies, is lawful. The first Congressional act granting railroads rights to timber and other material from the public lands is that of 1875 (1 Supp. Rev. Stat., 1890), by which it is provided that they may take "from the public lands adjacent to the line of said road material, earth, stone, and timber necessary for the construction of said railroad."

The evident construction of this act, as has been held, is that it applies only to those lands lying along the line of the road, and does not include those situated a long distance from it; also that the right continues only during the time of the original construction of the road, and not to subsequent repairs, changes, or improvements. (Denver R. R. v. United States, 34 Fed. Rep., 838.)

It does not appear by the facts whether these posts were 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 over eight years after the completion and operation of the road. Moreover, 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 railroads from their benefits. (1 Supp. Rev. Stat., 166, 939.) It must follow that the railway company had no such right to the timber on the public lands for the purpose named in this case as will justify or sustain the contract of defendant with Brennan. Certainly the railway company has the right to purchase any timber of anyone having the right to sell.

The defendant having no title to the posts in controversy, judgment for such posts or their value of $125 and costs of action against him is now ordered.

CUTTING TIMBER ON SHARES.

UNITED STATES v. JAMES AUTREY.

District court, southern district of Alabama, May 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 sufficient 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 you 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 a part 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..

"Let me illustrate what I mean to make the proposition clearer to you. If the defendant wanted 9,000 or 10,000 feet of lumber to make his improvements, he had the right to cut or cause to be cut as many trees as were necessary for that purpose, whether it be 30, 40, or 50— 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 number of trees would be an unlawful cutting.

"He had not a right to cut trees on his homestead for the purpose of sale or profit, or to pay debts or loans of money, or to pay his expenses,