The purchaser of timber from a person who made a homestead entry on the public lands for agricultural purposes, and who cut and sold the timber thereon to enable him to cultivate the land and to make other uses thereof under the beneficial provisions of the homestead law and thereafter relinquished his homestead entry, can not defend an action by the Government for the price of timber on the ground that the land was in fact mineral and not agricultural. Bunker Hill, etc., Min., etc., Co. v. United States, 178 Fed. 914, p. 915. See Bunker Hill, etc., Min., etc., Co. v. United States, 226 U. S. 548, p. 549. The law relating to homesteads is similar to the mining laws as to the rights of claimants while engaged in perfecting their titles, and for five years the homesteader can cut only such timber as is reasonably incidental to the cultivation of the land, and can not under color of right denude the soil of its timber for the purpose of selling and disposing of the same. Teller v. United States, 113 Fed. 273, p. 283. Stone v. United States, 167 U. S. 178. e. INDICTMENT FOR CUTTING-SUFFICIENCY. An indictment under this section for cutting timber on the public lands must allege that the timber was cut with intent to export or dispose of the same. United States v. Hacker, 73 Fed. 292, p. 296. See Stubbs v. United States, 111 Fed. 366, p. 367. f. CRIMINAL LIABILITY-PROOF AND defense. Congress, for the purpose of protecting the public domain from the invasion of trespassers, denounced as a crime the cutting of timber on public lands with the intent to export and dispose of the same, and the offense is complete on proof of the cutting on public lands and the admission of the sale. Teller v. United States, 113 Fed. 273, p. 278. Under this statute there are three elements of the offense: (1) Cutting timber; (2) from lands known to be public lands; (3) with intent to export or dispose of the same; and when these three elements are shown to exist the crime is complete. Teller v. United States, 113 Fed. 273. p. 278. Under these statutes if a person enters upon the unoccupied public lands of the United States, knowing the same to be a part of the public domain, and without complying with the requirements of the statute, or attempting to do so, and cuts or causes to be cut timber growing thereon, he may be convicted. Teller v. United States, 113 Fed. 273, p. 275. These statutes make it a misdemeanor for any person to cut timber on the public unoccupied lands with intent to export or dispose of the same. Teller v. United States, 113 Fed. 273, p. 275. While it is necessary under this statute to prove a criminal intent in cutting the timber, still if an accused entered upon the public domain, knowing it was such, without having complied with the provisions of the law giving him a right to do so, and cut timber therefrom, a jury would be authorized to find the requisite criminal intent. Teller v. United States, 113 Fed. 273, p. 278. See Stone v. United States, 167 U. S. 178, p. 188. A defendant charged with cutting timber on the public domain can not prove in justification thereof a custom in the immediate vicinity of entering upon lands, and cutting timber before a patent was obtained, and that the custom was known to the land office, as a general custom to violate a criminal statute can not justify itself, nor can it justify an individual violation of the law. Teller v. United States, 113 Fed. 273, p. 276. Where persons who occupy public lands and are engaged in mining or farming and who had in maintaining themselves and their families cut small quantities of cedar posts on such lands and sold the same to a trading company for needed supplies, and the trading company purchased with the expectation of reselling to other farmers and ranchmen in the vicinity, the fact that such trading company kept no record of cutting, as contemplated by the regulations of the Secretary of the Interior, does not of itself impair the title of the trading company. United States v. Price Trading Co., 109 Fed. 239, p. 246. While a mining location so far segregates the lands thus located from the public domain that no rival claimant can initiate rights thereon until the first location is avoided and the entry canceled, yet it gives him nothing but the right of present and exclusive possession for the purpose of mining and does not prevent the Government from protecting the surface against waste by criminal prosecutions for cutting timber. Teller v. United States, 113 Fed. 273, p. 281. See United States v. Rizzinelli, 182 Fed. 675, p. 683. The mere application for a patent for mineral lands does not entit'e a locator to enter upon the surface and cut and remove the timber thereon, as he could then abandon such application. Teller v. United States, 113 Fed. 273, p. 282. g. TRESPASSER-LIABILITY AND DAMAGES. The cutting of timber by a miner from the public lands adjacent to his mining claim for use in a quartz mill will not be regarded as a willful trespass where the owner of the claim and of the mill cut it under the belief that he was authorized so to do under the statute, and in such case he will be charged with the value of the timber before it was converted into wood. United States v. English, 107 Fed. 867, p. 869. See English v. United States, 116 Fed. 625, p. 627. The owner of a mining claim is not liable for cutting timber on such claim where he has complied with the requirements of the statute and the rules and regulations prescribed by the Secretary of the Interior thereunder; but the burden of proving these facts rests upon him. Stubbs v. United States, 104 Fed. 988, p. 991. Stubbs v. United States, 111 Fed. 366, p. 368. The 15 townships in the Bitter Root Valley formerly occupied by the Flathead Indians became a part of the general public domain by the act of February 11, 1874 (18 Stat. 15), and a person cutting timber thereon is liable as a trespasser. United States v. Blendauer, 128 Fed. 910, p. 913. Overruling United States v. Blendauer, 122 Fed. 703. When the Government finds its trees and timber in the hands but once removed from willful trespassers and asserts its right to such property by the slow process of the law, the holder can not set up a claim for the value which has been added to such property by the guilty party in the act of cutting down the trees and removing the timber, as this would be giving encouragement and offering a reward to such wrongdoer by providing a safe market for what he has stolen and compensation for the labor he has been compelled to do to make his theft effectual and profitable. Wooden Ware Co. v. United States, 106 U. S. 432, p. 437. A civil suit for the conversion of timber under this statute will be supported by proof that the timber was in fact the property of the United States, whether the defendant knew it or not. Stone v. United States, 167 U. S. 178, p. 188. See Wooden Ware Co. v. United States, 106 U. S. 432. 27 STAT. 348, 2 SUPP. 65, AUGUST 4, 1892. LANDS LOCATED FOR BUILDING STONE-PLACER MINING LAWS. AN ACT To authorize the entry of lands chiefly valuable for building stone under the placer mining laws. Be it enacted, etc., That any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims: Provided, That lands reserved for the benefit of the public schools or donated to any State shall not be subject to entry under this act. SEC. 2. That an act entitled "An act for the sale of timberlands in the States of California, Oregon, Nevada, and Washington Territory," approved June 3, 1878 (20 Stat. 89), 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 3, 1878, applicable to all the public-land States. SEC. 3. That nothing contained in this act shall be construed to repeal section 24 of the act entitled "An act to repeal timberculture laws, and for other purposes," approved March 3, 1891 (26 Stat. 1095). D. OIL LANDS LOCATED AS PLACER CLAIMS, p. A. STONE LAND PLACER CLAIM ACT. 1. SCOPE OF ACT. 2. AMENDMENT EFFECT. 3. REPEALING FORCE OF ACT. 1. SCOPE OF ACT. This act extends the timber and stone act of June 3, 1878, to all the public land States and makes land valuable for building stone subject to entry under the placer mining laws. Jamison v. Hayden, 15 L. D. 276, p. 277. By this statute the provisions of the timber and stone act were extended to all the public land States. Dwinnell v. United States, 186 Fed. 754, p. 757. The fact that land may possess incidental advantages other than its valuable mineral deposits will not preclude its disposal under the mining laws; but the purpose of these laws is to insure the extraction and exploitation of mineral deposits rather than the primary nonmineral use of land. Stanislaus Electric Power Co., In re, 41 L. D. 655, p. 659. See United States v. Iron Silver Min. Co., 128 U. S. 673, p. 684. This statute differs from the general mining laws in two particulars: (1) It requires the lands to be chiefly valuable for building stone; (2) lands chiefly valuable for building stone are not to be withheld or excluded from reservations or grants to States for school purposes. Stanislaus Electric Power Co., In re, 41 L. D. 655, p. 657. This act was intended to and does apply only to deposits of stone of special or peculiar value for structural work, such as the erection of houses, office buildings, and such other recognized commercial uses as will demand and secure the profitable extraction and marketing of the products. Stanislaus Electric Power Co., In re, 41 L. D. 655, p. 660. 2. AMENDMENT-EFFECT. By this amended statute the fourth section of the act of June 3, 1878 (20 Stat. 89), was extended to and put in force in all the public-land States, including the State of Colorado. Stubbs v. United States, 111 Fed. 366. This amended statute applies to all the public-land States and provides that stone lands may be purchased in small tracts of less than 40 acres, as provided in the placermining laws. Pierce v. Bond, 22 L. D. 345, p. 346. This act does not withdraw land chiefly valuable for building stone from entry under any existing law applicable thereto. Hayden v. Jamison, 16 L. D. 537, p. 539. See Hayden v. Jamison, 24 L. D. 403. Until this enactment there was no statute allowing lands valuable for stone to be entered under any of the mining laws. Hayden v. Jamison, 16 L. D. 537, p. 539. Prior to this act there was no authority to locate and purchase lands chiefly valuable for building stone under the placer-mining laws. Hayden v. Jamison, 16 L. D. 537. Clark v. Ervin, 17 Ĺ. D. 550, p. 551 (on review). Thorne v. Kinsey, 18 L. D. 416, p. 417. See Conlin v. Kelly, 12 L. D. 1. 3. REPEALING FORCE OF ACT. This act so far repeals the act of June 3, 1878, and the act of March 3, 1891, as to make the provisions of section 4 of the act of June 3, 1878 (20 Stat. 89), in force in all the public-land States, embracing the State of Colorado. Stubbs v. United States, 111 Fed. 366, p. 367. Overruling Stubbs v. United States, 104 Fed. 988. This act repeals section 2461 R. S. so far as it relates to the cutting or removing of timber from the public lands with intent to export or dispose of the same. Morgan v. United States, 148 Fed. 189, p. 193. B. STONE LANDS. 1. ENTRY AS PLACER CLAIMS. 2. MINERAL AND MINERAL LANDS INCLUDE STONE. 3. KINDS OF STONE INCLUDED. 4. KINDS OF STONE NOT INCLUDED. 5. GRANTS FOR SCHOOL PURPOSES. 6. RAILROAD GRANTS DO NOT INCLUDE. 7. ENTRYMAN'S POWER TO SELL. 1. ENTRY AS PLACER CLAIMS. Land containing stone valuable for general building purposes only was not subject to entry under the mining laws prior to the passage of this act. Minnekahta Stone Mine, In re, 15 L. D. 256. See Conlin v. Kelly, 12 L. D. 1. Under this act lands chiefly valuable for building stone may be entered as a placermining claim if it has not been reserved for the benefit of public schools or donated to a State. Minnekahta Stone Mine, In re, 15 L. D. 256. Harper, In re, 16 L. D. 110. Clark v. Ervin, 16 L. D. 122. South Dakota v. Vermont Stone Co., 16 L. D. 263. Van Doren v. Plested, 16 L. D. 508, p. 510. Shepherd v. Bird, 17 L. D. 82, p. 84. Pacific Coast Marble Co. v. Northern Pac. R. Co., 25 L. D. 233, p. 244. Hayden v. Jamison, 26 L. D. 373. Piatt, In re, 33 L. D. 270, p. 271. Henderson v. Fulton, 35 L. D. 652, p. 664. Zimmerman v. Brunson, 39 L. D. 310, p. 313. Meiklejohn v. Hyde, 42 L. D. 144, p. 145. This act, construed in connection with the act of July 5, 1884 (23 Stat. 104), makes land valuable for building stone within an abandoned military reservation subject to location under placer-mining laws. Randolph, In re, 23 L. D. 516, p. 518. The fact that this section provides that lands chiefly valuable for building stone may be entered and title acquired thereto under the laws relating to placer-mining claims does not avail a defendant who does not plead such right and where the evidence was that the notice of his claim posted on the land was dated long after the commencement of the action. Northern Pac. R. Co. v. Soderberg, 86 Fed. 49, p. 51. This act authorizes the exploration and occupation of mineral deposits, including stone, and the right granted necessarily carries with it a license to take what may be found in the course of exploration and apply it to the discoverer's own use, and a person acting under this statute in taking stone upon the public domain is not a trespasser. Sullivan v. Schultz, 22 Mont. 541, p. 546. 2. MINERAL AND MINERAL LANDS INCLUDE STONE. The term "mineral," as used in this statute, is not merely a synonym for "metal,” but is a comprehensive term including every description of stone and rock deposit whether containing metallic substances or entirely nonmetallic. Northern Pac. R. Co. v. Soderberg, 99 Fed. 506, p. 507. |