4. AGRICULTURAL ENTRY. Where land is entered under the provisions of that act it is immaterial whether it can be marketed at a profit or not. In that event it is in the nature of an "agricultural entry." 995

5. SALE BY ENTRYMAN. An entryman may legally sell his claim after entry and before the final certifi cate is issued by the Land Department, although the entry was made in behalf of another.6

6. RETURN OF FEES. The fee required to be paid at the time of the presentation of a timber and stone sworn statement should be returned to the applicant in all cases where for any reason other than fraud, the local officers reject such sworn statement at the time of the presentation or at any time prior to the submission of proof in pursuance of the published notice.7

1. 27 Stats. 348; Forsythe v. Weingart, 27 L. D. 680; Henderson v. Fulton, 35 L. D. 652.

2. Henderson v. Fulton, ante.

3. E. M. Palmer, 38 L. D. 294.

4. 20 Stats. 89; Amended, 27 Stats. 348; Regulations, 37 L. D. 289; Duncan v. Archambault, 35 L. D. 498; see Hammel v. Salzman, 17 L. D. 496; Forsythe v. Weingart, ante; Gallagher v. Gray. 35 L. D. 90. The land is appraised by smallest legal subdivisions at their reasonable value, but at not less than $2.50 an acre. Each of such subdivisions must be of the character subject to disposition under the law. This may be determined at any time before the actual issuance of the patent. Albert R. Pfau, Jr., 39 L. D. 359. Land upon which there is a growth of timber useful for mining purposes and so located with reference to mines as to give it a value for such purposes greater than its value for agricultural purposes is timber land within the meaning of the Act of June 3, 1878, and subject to entry under that Act. Grenon v. Miller, 39 L. D. 577. Mere errors of judgment by the applicant as to the character of the land, or as to its unoccupancy will not prevent repayment of the purchase money if the application be rejected. Frank G. Bell, 39 L. D. 191.

5. Narver v. Eastman, 34 L. D. 123; see Forsythe v. Weingart, ante. 6. U. S. v. Biggs, 211 U. S. 507. See U. S. v. Doughten, 186 Fed. 226. That a transfer by the patentee to a corporation consisting of himself and family will not constitute the corporation a bona fide purchaser, see U. S. v. Smith, 181 Fed. 545.

7. Instructions, 39 L. D. 573.

§ 126. Salt Claims-In General. Under a special act all unoccupied public lands of the United States containing salt springs or deposits of salt,1 that is common salt, or chloride of sodium, in its various forms of existence or deposit 2 may be located and patented under the provisions of the law in relation to placer claims.3

2. CHARACTER OF DEPOSIT. It is the actual production of salt, by the usual processes that brings a saline spring or deposit within the purview of the law.1 3. LIMITATION. The same person may not locate nor patent more than one claim.5

4. NITRATE AND BORATE LANDS. Lands chiefly valuable for nitrate or borate deposits are not within the provisions of the special act."

1. 31 Stats. 745; as to saline lands in New Mexico see Terr. of N. M., 35 L. D. 1; in the Philippine Islands see 33 Stats. 695; in Utah see 28 Stats. 109; as excepted from the grant to S. P. R. Co. see Elliott v. S. P. R. Co., 35 L. D. 149.

2. Terr. of N. M., ante; Lovely Placer Claims, 35 L. D. 426. 3. 31 Stats. 745.

4. Lovely Placer

L. D. 299.

5. 31 Stats. 745.

Claims, ante; Jeremy Co. v. Thompson, 20

6. Min. Lands, 1 L. D. 561.

§ 127. Tailings-In General. Tailings deposited on public land initiate no right to dump thereon,1 and such land so covered may be located as a placer claim.2

2. DEPOSITION OF TAILINGS. Mining debris, sand, gravel, sediment or other material may not be deposited so as to injure the land of another, without his consent.3

1. Miser v. O'Shea, 37 Or. 231; see Jones v. Jackson, 9 Cal. 237; O'Keiffe v. Cunningham, 9 Cal. 589.

2. Jones v. Jackson, ante; Rogers v. Cooney, 7 Nev. 213; see Ritter v. Lynch, 123 Fed. 930; Miser v. O'Shea, ante. 3. Woodruff v. N. Bloomfield Co., 18 Fed. 753; Travis Placer Co. v. Mills, 94 Fed. 909; Otaheite Co. v. Dean 102 Fed. 929; Hobbs v. Amador Co., 66 Cal. 161; Yuba Co. v. Cloke, 79 Cal. 239; Fitzpatrick v. Montgomery, 20 Mont. 181; Carson v. Hayes, 39 Or. 97.

CHAPTER XIX.

TIMBER LANDS.

§ 129. In general-mineral land-mineral location-subsisting location-subsequent discovery.

§ 130. Timber cutting on mineral land-purposes-restriction -exceptional right.

§ 131. Timber cutting in forest reserves.

132. Timber cutting on Indian lands-criminal offense. § 133. Timber cutting on abandoned military reservations. § 134. Damages--bona fide purchaser.

§ 129. In General. Surveyed land within the public domain chiefly valuable for timber but unfit for cultivation at the time of sale,1 non-mineral in character, unoffered, unreserved, unappropriated, uninhabited and without improvements (except for ditch or canal purposes), save such as were made by or belong to the claimant 2 may be acquired under the provisions of the "Timber and Stone Act." 3

2. MINERAL LAND. If the land be mineral in character the title thereto together with the timber thereon may be acquired under the mining laws.4

3. MINERAL LOCATION. Until the final entry of the land as "timber land" it is subject to mineral location."

4. SUBSISTING LOCATION. Where, at the time of the issuance of a "timber patent" there was a valid subsisting mining claim upon the land covered thereby the patentee will be held as the trustee for the mineral claimant.

5. SUBSEQUENT DISCOVERY. Discovery of mineral subsequent to the issuance of such a patent will inure to the benefit of the patentee.7

1. U. S. v. Budd, 144 U. S. 154; Thayer v. Spratt, 189 U. S. 346; Gibson v. Smith, 18 L. D. 249; Johnson v. MacMillan, 22 L. D. 647; see Instructions, 21 L. D. 67; see Bunker Hill Co. v. U. S. 178 Fed. 914.

2. Circular, 6 L. D. 114.

Improvements will not exclude land from disposal unless made and maintained under a bona fide occupation of the land, see Kingston v. Eckman, 22 L. D. 234. Abandoned mineral workings are no bar, see Chormicle v. Hiller, 26 L. D. 9-413. Burden of proof rests upon timber claimant. Peasely v. Whiting, 20 L. D. 24.

3. 27 Stats. 88. As to timber lands in California, see U. S. v. Benjamin, 21 Fed. 285.

As to "all the public land states," see Circular, 15 L. D. 360.

4. Gallagher v. Gray, 35 L. D. 90.

5. See Mery v. Brodt, 121 Cal. 332.

6. Id.

7. See Shaw v. Kellogg, 170 U. S. 312; Cowell v. Lammers, 21 Fed. 200.

§ 130. Timber Cutting on Mineral Land. Timber on land belonging to the United States and known to be so valuable for its minerals as to justify expenditure for their extraction may be felled and removed by citizens and bona fide residents (not railroad corporations) of the "mining states" and other mineral districts of the United States.1

2. PURPOSES. The timber may be used for building, agricultural, mining, smelting, roasting of ores, or "other domestic purposes."

3. RESTRICTION. The "cutting" is subject to such rules and regulations as the Secretary of the Interior may prescribe.3

4. EXCEPTIONAL RIGHT. The right to cut is exceptional and quite narrow. The party claiming it must prove it.4

1. U. S. v. Plowman, 216 U. S. 372, reversing s. c. 151 Fed. 1022, based upon U. S. v. Basic Co., 121 Fed. 504 and U. S. v. Rossi, 133 Fed. 380.

2. 20 Stats. 88; U. S. v. Price T. Co., 109 Fed. 239; Teller v. U. S., 113 Fed. 273; U. S. v. Edgar, 140 Fed. 655; U. S. v. United Verde Co., 196 U. S. 207; Gallagher v. Gray, 35 L. D. 90; Centerville Co., 39 L. D. 80.

As to sale and use of timber on unreserved public land in Alaska, see Regulations, 36 L. D. 536; Instructions, 36 L. D. 73.

3. 20 Stats., ante.

4. Instructions, 21 L. D. 67; Johnson v. MacMillan, 22 L. D. 647; U. S. v. Plowman, ante.

That a miner may cut timber in the ordinary working of his mining claim, see Gallagher v. Gray, ante; as to cutting timber necessary for the reduction of ores, see U. S. v. United Verde Co., ante.

§ 131. Timber Cutting in Forest Reserves. The timber (and stone) found upon forest reservations may be used free of charge, by bona fide settlers, min

ers, residents and prospectors for minerals, for fire wood, fencing, buildings, mining, prospecting and "other domestic purposes" as may be needed by such persons within the state or territory wherein such reservations may be located; as permitted by the Secretary of Agriculture under regulations prescribed by him.1

1. 30 Stats. 34; see 33 Stats. 628; U. S. v. United Verde Co., 196 U. S. 207; see Rules and Regulations, 24 L. D. 589; U. S. v. Rizzinelli, 182 Fed. 675.

§ 132. Timber Cutting on Indian Lands. Where the fee remains in the United States, Indians residing on reservations or allotments may, from year to year, under such regulations as the President may prescribe fell, cut, remove, sell or otherwise dispose of the dead timber standing or fallen on such reservation or allotments for the sole benefit of such Indian or Indians.1 2. CRIMINAL OFFENSE. Unlawful cutting of standing timber on such lands is a criminal offense.2

1. 25 Stats. 673; see 30 Stats. 501; Pine River Co. v. U. S., 186 U. S. 279.

2. 25 Stats. 166.

§ 133. Timber Cutting on Abandoned Military Reservations. Timber cutting on an abandoned military reservation not restored to the public domain is unlawful.1

1. Fort Cameron Reserve, 2 L. D. 822.

§ 134. Damages. In an action to recover damages for cutting and carrying away timber from the public or Indian lands, the rules for assessing them are as follows. (1) When the defendant is a wilful trespasser, the full value of the property at the time of bringing the action, with no deduction for his labor and expense. (2) When the defendant is an unintentional or mistaken trespasser, the value at the time