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d. REGULATION AS TO SAWMILL OWNERS.

The regulations of the Secretary of the Interior require every owner or manager of a sawmill or persons cutting timber to keep a record showing the time when cut, names of parties cutting, description of the land, mineral character of the land, kind and quality of lumber manufactured therefrom and requiring him to take a written agreement from the purchaser that the same should not be used except for building, agricultural, mining, or other domestic purposes.

Powers v. United States, 119 Fed. 562, p. 563.
United States v. Basic Co., 121 Fed. 504, p. 505.

The regulations of the Secretary of the Interior under this act requiring every owner or manager of a sawmill or other person cutting timber under the provisions of this act to keep a record, contemplate the keeping of such record only by persons who make a business of cutting timber on mineral lands and selling it, or who are engaged to a considerable extent in such business, and they do not apply to settlers engaged chiefly in other pursuits who cut small quantities of timber from mineral lands occupied by them.

United States v. Mullan Fuel Co., 118 Fed. 663, p. 666.

9. DUTY OF REGISTERS AND RECEIVERS.

Section 2 of this act requires registers and receivers to ascertain if any timber has been unlawfully cut on mineral lands, and if so, to notify the Commissioner of the General Land Office.

United States v. United Verde Copper Co., 196 U. S. 207, p. 211.

10. PLACER LOCATIONS

-FRAUDULENT DESIGN FOR TIMBER CUTTING.

Placer mining locations can not be made as a blind to cover contemplated timber cutting.

Anderson v. United States, 152 Fed. 87, p. 89.

In an action to recover the value of timber alleged to have been unlawfully cut from the public lands, where the defendant justifies on the ground that the land was mineral in character and the timber cut for mining purposes, it is competent to show that the defendant located some 1,200 acres of land as placer mining claims in the names of his friends and members of his family, and that all the land was covered with valuable timber and that no effort was made to work or develop such placer claims except to perform the assessment work necessary to hold them, where it also appeared in evidence that there was not a paying mine either placer or quartz in the entire region of country in which such timber was cut, and that where ledge mines had been formerly located and abandoned and where practically no ore had been taken or shipped from that particular part of the country in nearly a score of years.

Anderson v. United States, 152 Fed. 87, p. 91.

Where a locator has located more than a thousand acres of land as placer mining claims in the names of his friends and members of his family, and has cut from such lands the valuable timber with which it was covered, a jury in an action for the unlawful cutting of such timber may consider the fact that such locator has done nothing in the way of working or developing the mining claims except to perform the necessary assessment work.

Anderson v. United States, 152 Fed. 87, p. 92.

The qualified locator of a placer mine has a means of protecting the timber growing on his claim and recovering damages from a trespasser who cuts and removes the same. McQuillan v. Tanana Electric Co., 3 Alaska 110, p. 120.

See Rogers v. Soggs, 22 Cal. 444.

McFeters v. Pierson, 15 Colo. 201.

McDonald v. Montana Wood Co., 14 Mont. 88.

11. ACTION FOR DAMAGES.

a. EVIDENCE AS TO MINERAL CHARACTER OF LAND.

Evidence is admissible in an action by the United States for trespass in cutting timber to show that the timber cut was from mineral claims and that the lands were in fact mineral in character, and that it was cut under contract or permits from the locators of mining claims, as permitted under the statute, for the purpose of establishing a rule as to the measure of damages, though the defendant had not strictly complied with all the rules and regulations of the Land Department for the protection of timber. Gentry v. United States, 101 Fed. 51, p. 53. See United States v. Gentry, 119 Fed. 70.

In an action by the Government to recover the value of timber wrongfully and unlawfully cut from the public domain reference may properly be had to the records of the Land Office, where the nature of the land in controversy is a question in issue, for the purpose of determining the character of such lands.

United States v. Van Winkle, 113 Fed. 903, p. 905.
Morgan v. United States, 169 Fed. 242,

p. 247.

In an action by the United States to recover the value of timber cut from the public domain, evidence is properly admissible to show the mineral character not only of the land from which the timber was cut, but also to show the mineral character of other lands in the same vicinity for the purpose of showing the extent of the mineral district. United States v. Rossi, 133 Fed. 380,

p. 381.

b. DEFENSE EVIDENCE OF GOOD FAITH.

The test to determine whether one is a willful or innocent trespasser is not his violation of law in the light of the maxim that every man must know the law, but his honest belief and his actual intention at the time he committed the alleged trespass; but neither a justification of the acts nor any other complete defense is essential to the proof that the person committing such acts was not a willful trespasser.

United States v. Homestake Min. Co., 117 Fed. 481, p. 486.
Durant Min. Co. v. Percy Consol. Min. Co., 93 Fed. 166, p. 168.
United States v. Van Winkle, 113 Fed. 903, p. 905.

Gentry v. United States, 101 Fed. 51, p. 54.

In an action by the Government to recover the value of wood or lumber made from trees and timber wrongfully cut on mineral lands, the defendant may introduce evidence of innocence and good faith in mitigation of damages under the general denial or a plea of justification.

United States v. Homestake Min. Co., 117 Fed. 481, p. 490.

United States v. Van Winkle, 113 Fed. 903, p. 905.

Gentry v. United States, 101 Fed. 51, p. 54.

In an action for wrongfully and unlawfully cutting timber on the public domain a defendant may show that in cutting the timber he acted under what he believed to be the lawful authority of the United States, and it is the province of the jury to determine whether his action was in good faith and to measure the damages accordingly, and if they find he acted in good faith the verdict should be for the value of the timber as cut and not as manufactured into lumber.

United States v. Van Winkle, 113 Fed. 903, p. 905.
See Gentry v. United States, 101 Fed. 51.

In an action of trespass by the United States for damages for cutting timber evidence is admissible for the purpose of showing whether the trespass was intentional or unintentional and in the honest belief that the defendant was lawfully exercising a right which he had or whether he was acting with the willful intention of taking property to which he knew he had no right.

Gentry v. United States, 101 Fed. 51, p. 53.
See United States v. Gentry, 119 Fed. 70.

In an action by the United States for damages for the willful cutting of timber in violation of this statute a defendant may prove, in order to prevent the assessment of punitive or exemplary damages, that he acted under the advice of reputable counsel. United States v. Mullan Fuel Co., 118 Fed. 663, p. 667. United States v. Homestake Min. Co., 117 Fed. 481, p. 488.

C. BURDEN OF PROOF.

In an action by the United States to recover for cutting and taking timber on the public domain the burden is on the defendant to show that the timber was taken for the purposes prescribed by the act, and in the manner directed by the rules and regulations of the Secretary of the Interior.

United States v. Basic Co., 121 Fed. 504, p. 508.

A person charged with cutting timber in violation of this statute is not required to prove that the apparent character of the land was such as to inspire in an experienced miner the belief that he could work it as a mine at a profit, and whether or not the land was mineral within the meaning of the statute is a question of fact to be inferred from its surroundings and appearances.

Morgan v. United States, 169 Fed. 242, p. 248.

d. WILLFUL TRESPASS-PROOF AND PRESUMPTION.

In an action for damages for a trespass for cutting timber on public lands, alleged to have been committed willfully, knowingly, and without any permit or authority from the Secretary of the Interior, or without any authority or permit whatever, the Government must prove a willful trespass in order to entitle it to recover the value of the manufactured lumber or wood, even in the absence of an answer, and the legal presumption of a willful trespass from an unexplained cutting may be completely overcome by the evidence on the part of the Government and the recovery limited to the value of the wood and timber in the trees.

United States v. Homestake Min. Co., 117 Fed. 481, p. 489.

The taking of timber from the public lands raises the presumption that it was willfully and intentionally taken, but it is a disputable presumption of fact which may be overcome by proof.

United States v. Homestake Min. Co., 117 Fed. 481, p. 486.

The general rule is that a person taking timber from the lands of the United States is a willful trespasser, but this statute carves an exception out of the rule and gives to the bona fide residents of certain States the lawful authority to cut and remove timber from mineral lands for certain purposes subject to the rules prescribed by the Secretary of the Interior, and the bona fide resident must fairly and fully comply with the requirements of the act and the rules promulgated by the Secretary in order to except himself from the claims of trespassers.

United States v. Gentry, 119 Fed. 70, p. 74.

e. WILLFUL TRESPASS-MEASURE OF DAMAGES.

In an action for damages for a trespass for cutting timber on public lands, where the trespass was willful and intentional, the measure of damages is the value of the manufactured lumber or wood, but where the trespass was committed under a mistaken belief of his right to do so, on the part of the alleged trespasser, the measure of damages is the value of the wood or timber in the trees.

Powers v. United States, 119 Fed. 562, p. 567.

Bolles Wooden Ware Co. v. United States, 106 U. S. 432.

Benson Min., etc., Co. v. Alta Min., etc., Co., 145 U. S. 428.
United Srates v. Mock, 149 U. S. 273.

Fisher v. Brown, 70 Fed. 570.

Gentry v. United States, 101 Fed. 51.

United States v. Van Winkle, 113 Fed. 903.

United States v. Homestake Min. Co., 117 Fed. 481, p. 482, 489.

United States v. Coughanour, 133 Fed. 224, p. 225.

See United States v. Bitter Root Dev. Co., 133 Fed. 274, p. 278.
United States v. Gentry, 119 Fed. 70.

Morgan v. United States, 169 Fed. 242, p. 250.

See Bly v. United States, 3 Fed. Cas. 767.

A person cutting and disposing of timber on a mining claim can not be held in damages as a willful trespasser merely because he failed to keep a record of the details of the transaction as prescribed by the regulations of the Secretary of the Interior, where he believed he was a resident, and his failure to keep such record was due to his ignorance that it was required.

Powers v. United States, 119 Fed. 562, p. 568.

f. RIGHT OF UNITED STATES TO Recover.

There can be no recovery by the United States for timber cut on a mining claim and on mineral land where such timber was cut in preparing for and in mining such land.

United States v. Ellis, 122 Fed. 1016, p. 1018.

The United States can not sue and recover from a trespasser for timber cut by him on mineral land, where the same is cut under a homestead entry or residence, unless the land is thrown back upon the United States impaired in value.

United States v. Ellis, 122 Fed. 1016, p. 1017.

The United States can not recover for timber cut on unsurveyed land within the limits of a railroad grant, and which, when surveyed, would fall within the limits of an odd-numbered section, as the Government had parted with its title to such section. United States v. Mullan Fuel Co., 118 Fed. 663, p. 664.

See Buttz v. Northern Pac. R. Co., 119 U. S. 55.

Northern Pac. R. Co. v. Cannon, 46 Fed. 237.
Denny v. Dodson, 32 Fed. Cas. 899.

Parties cutting timber prior to the date of this act will not be proceded against if the cutting would not be unlawful if done after the enactment thereof.

Breman, In re, 2 L. D. 823, p. 824.

g. LIABILITY OF RAILROAD COMPANY.

This statute expressly denies to railroad companies the right to cut timber on the public mineral lands for any purposes.

United States v. Eureka, etc., R. Co., 40 Fed. 419, p. 421.

A railroad company is liable for timber or wood bought by it for fuel from persons who cut it from the public mineral lands.

United States v. Eureka, etc., R. Co., 40 Fed. 419, p. 421.

A railroad company has no greater right to take timber for construction purposes from mineral public lands than from agricultural public lands, as this section expressly provides that its provisions shall not extend to railroad corporations.

Hall, In re, 2 L. D. 814.

h. CRIMINAL LIABILITY-INTENT.

Under an indictment for cutting timber on mineral lands for an unauthorized purpose the intent is wholly immaterial.

United States v. Reder, 69 Fed. 965.

This statute repealed in part section 2461, and modified the intent necessary to make cutting or removing of timber from the public land an offense, and narrows such intent to a purpose to export or dispose of the same.

Morgan v. United States, 148 Fed. 189, p. 193.

26 STAT. 1093, 1 SUPP. R. S. 939, MARCH 3, 1891.

TIMBER CUTTING ON MINERAL LANDS-AMENDMENT.

(26 Stat. 1095, p. 1099, sec. 8.)

AN ACT To amend section 8 of chapter 561 of an act approved March 3, 1891, entitled "An act to repeal timber-culture laws, and for other purposes."

Be it enacted, etc., That section 8 of an act entitled "An act to repeal timber-culture laws, and for other purposes," approved March 3, 1891, be, and the same is hereby, amended so as to read as follows:

"SEC. 8. That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.

"And in the States of Colorado, Montana, Idaho, North Dakota and South Dakota, Wyoming, and the District of Alaska, and the gold and silver regions of Nevada and the Territory of Utah in any criminal prosecution or civil action by the United States for a trespass on such public timber lands or to recover timber or lumber cut thereon, it shall be a defense if the defendant shall show that the said timber was so cut or removed from the timber lands for use in such State or Territory by a resident thereof for agricultural, mining, manufacturing, or domestic purposes under rules and regulations made and prescribed by the Secretary of the Interior, and has not been transported out of the same, but nothing herein contained shall operate to enlarge the rights of any railway company to cut timber on the public domain, provided, that the Secretary of the Interior may make suitable rules and regulations to carry out the provisions of this act, and he may designate the sections or tracts of land where timber may be cut, and it shall not be lawful to cut or remove any timber except as may be prescribed by such rules and regulations, but this act shall not operate to repeal the act of June 3, 1878, providing for the cutting of timber on mineral lands."

A. TIMBER-CUTTING ACT-AMENDMENT.

1. POWER TO PERMIT CUTTING.

2. PURPOSE FOR WHICH TIMBER IS CUT.

3. PRIVILEGE OF CUTTING TIMBER NOT REPEALED.

4. CRIMINAL PROSECUTION

DEFENSE.

1. POWER TO PERMIT CUTTING.

The policy of permitting the carrying on of extensive businesses in the manufacture and sale of lumber not only to the miners but for all the uses of the cities which may grow up by reason of the mining industry, and without compensation to the Government for the timber cut for such lumber, rests with Congress and not with the courts.

United States v. Rossi, 133 Fed. 380.

United States v. Edgar, 140 Fed. 655, p. 661.

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