In view of the foregoing it follows that the action of your office in reinstating the placer application and authorizing republication and reposting of notice thereof, was not and could not have been prejudicial to any rights of the lode claimants in the premises. By way of emphasis of this it appears, by a certificate of the clerk of the district court of Teller county, Colorado, that since these appeals were taken the jury, sitting in the before-mentioned adverse suit between the parties here, found the issues joined therein for the lode claimants and that they "are entitled to the possession and occupancy of all the ground in conflict between the Jaw Bone lode mining claim and the Damon placer mining claim," and that judgment has been entered accordingly. If the facts were presented to the court as they have been presented here, the court must necessarily have taken the view hereinabove expressed.

So far as the appeal from your office decision of February 23, 1905, questions the reinstatement of the placer application, it is fully answered by what has been said above. In addition it may be said that your office committed no error in rejecting the application for lode patent, because of the pendency of the adverse suit between the parties. Although in such a case as this the remedies open to the lode claimant present possibilities of difference in scope, in that under an adverse suit pursuant to section 2326, Revised Statutes, his claim may be sustained in his behalf to its full extent as located, whilst in a proceeding before the land department, and in reliance upon the reservation under section 2333, there can thereby be awarded to him only his lode and twenty-five feet of territory on each side of its center (Daphne Lode Claim, 32 L. D., 513), the essential issue of the latter proceeding, the known existence of the lode, is presumed to be raised in the former, as it must be if the case is truly presented, and can be fully determined. It is clear that an application for patent embracing a lode within the limits of a placer claim for which patent application is pending can not be permitted to proceed beyond the point of filing in the absence of a determination by the land department that the lode was known to exist at the date of the filing of the placer application (in this case, the date the latter was renewed); and the law does not contemplate a proceeding to that end before the land department, or the acceptance by the latter of such lode application, when an adverse suit against the placer applicant has been begun by the lode claimant, pending final determination of which, under the stay commanded by the statute (Sec. 2326, R. S.), the adverse claimant could not be permitted to prosecute independent patent proceedings as to the land in controversy (Long John Lode Claim, 30 L. D., 298).

The decisions of your office from which the pending appeals are taken are affirmed.

ARID LAND-PAYMENT FOR USE OF WATER-ACT OF JUNE 17, 1902.

INSTRUCTIONS.

There is nothing in the act of June 17, 1902, to prohibit a graduated scale of the annual payments required of users of water from reclamation projects constructed under said act, and in all cases where it is deemed advisable this plan of payment may be adopted.

Acting Secretary Ryan to the Director of the Geological Survey, (F. L. C.) August 16, 1905. (E. F. B.)

In your letter of June 6, 1905, you enclose a letter from the Malheur Water Users Association, stating that if the users of water within the Malheur project are required to pay the contemplated cost of construction, forty dollars per acre, in ten equal annual payments, the cost of the project will be prohibitive. They ask that a graduated payment of one dollar for the first year, two dollars for the second year, three dollars for the third year, four dollars for the fourth year, and five dollars per annum for the remaining six years, be permitted.

You state that the Board of Engineers recommend that the first annual payment be small and that successive payments increase gradually, in which you concur, for the reason that the conditions for developing the project would be best subserved by such an arrange

ment.

There is nothing in the act to prohibit a graduated scale of payments, and in all such cases where it is advisable to do so, it will be adopted.

TIMBER CUTTING-SMELTING PURPOSES-SECTION 8, ACT OF MARCH 3,

1891.

BERT D. WHITE.

The provisions of section 8 of the act of March 3, 1891, as amended by act of the same date, conferring upon the residents of certain States and Territories authority to cut timber on the public lands for agricultural, mining, manufacturing or domestic purposes, contemplate the cutting and use of timber for smelting purposes.

Assistant Attorney-General Campbell to the Secretary of the Interior, August 18, 1905. (E. F. B.)

A letter from the Commissioner of the General Land Office of July 27, 1905, resubmitting an application by Bert D. White for permit to cut lumber on the public lands under authority of section 8 of the act of March 3, 1891 (26 Stat., 1095), has been referred to me for

opinion as to whether or not the application can be granted as to that portion of the timber desired for smelting purposes.

Said section as amended (26 Stat., 1093) provides that in Montana and other States and Territories named therein-

in any criminal prosecution or civil action by the United States for a trespass upon 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 Inte rior, 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 third, eighteen hundred and seventy eight, providing for cutting of timber on mineral lands.

The regulations prescribed by the Secretary for carrying into effect the provisions of the act declare that its operation shall be confined to non-mineral lands, as the act specifically provides that it shall not operate as a repeal of the act of June 3, 1878 (20 Stat., 88)," which makes provision in said States and Territories for the free cutting of timber on the public lands that are known to be of a strictly mineral character for the uses named in said act."

In the instructions governing the granting of permits for the cutting of timber from the mineral lands under the act of June 3, 1878 (29 L. D., 571), "no timber is permitted to be used for smelting purposes, smelting being a separate and distinct industry from that of mining."

In the instructions for carrying into effect the provisions of the act of March 3, 1891 (29 L. D., 572), the uses for which timber may be taken by settlers and other residents of the State or Territory are defined in section 3 to be "strictly for their own use for firewood, fencing, building; or other agricultural, mining, manufacturing or domestic purposes," and in section 5 it is stated that "the uses specified in section 3 constitute the only purposes for which timber may be taken from the public lands in said States and Territories, under this act."

While there is no specific prohibition against the use of timber for smelting purposes in the instructions last referred to, the two acts have been administered by the land department as conferring the same benefits and privileges and containing the same limitations and restrictions as to use, differing only in this, that one is confined to mineral, and the other to non-mineral, lands, hence by necessary im

plication the regulations of the Department forbid the taking of timber from non-mineral lands for smelting purposes.

The question as to whether a permit can be given for the taking and use of timber from non-mineral lands under authority of the act of March 3, 1891, is submitted for opinion in view of the decision of the Supreme Court in United States v. United Verde Copper Co. (196 U. S., 207), which holds that smelting is a domestic industry contemplated by the terms of the act of June 3, 1878, and that the Secretary of the Interior cannot, by regulation, abridge the permission given by Congress so as to deprive a domestic industry from the use of timber as authorized by said act.

The decision involved a construction of the act of June 3, 1878, authorizing the free use of timber from mineral lands, and as the Department has construed and administered the acts as having practically the same scope and purpose, and containing the same limitations and restrictions, that decision would seem to control as to this application, unless there is a material distinction in the two acts. In the act of June 3, 1878, the language is " for building, agricultural, mining, or other domestic purposes," whereas the language in the act of March 3, 1891, is for agricultural, mining, manufacturing, or domestic purposes," the word "other" being omitted in the later

act.

This omission would seem to be of minor importance, especially in view of the fact that the two acts have been construed as having the same purpose, differing only as to the character of the lands from which the timber may be taken, were it not for the fact that the court gave to the word "other" material weight as an important factor in the interpretation of the statute.

After observing that the permission given by the statute is not confined to the special enumeration of industries, but extends to "other domestic purposes," the court says

Counsel for the Government recognizes this, and substitutes for " domestic" the word "household," and contends that the word "other" should be treated as an intruder and eliminated from the statute, and making the latter read that timber may be felled for “building, agricultural, mining or domestic purposes.“ But we are not permitted to take such liberty with the statute, if "domestic " has a meaning consistent with the intentional use of the word "other.” It has such meaning. It may relate, it is true, to the household. But, keeping its idea of locality, it may relate to a broader entity than the household. We may properly and accurately speak of domestic manufactures, meaning not those of the house but those of a county, state or nation, according to the object in contemplation. So in the state the word "domestic" applies to the locality to which the statute is directed, and gives permission to the industries there praeticed to use the public timber. This definition of “domestic" gives the word an apt and sensible meaning, and we must regard the association of the word "other" with it as designed, not as accidental.

So that although smelting may be a separate industry from mining, it is not deprived of the license given by the statute, as the general clause “other domestic purposes " is as much a grant of permission to the industries designated by it to use timber as though they had been especially enumerated, and their rights are as inviolable as the rights of the industries which are enumerated."

The important significance given by the majority of the court to the word "other," as used in the statute, is further illustrated by the views expressed in the dissenting opinion that the word "other" can not be used as an enlargement of the word "domestic,” “and that it should be confined, as are the preceding words, to timber used for other analogous structural purposes and for household consumption— in short, to other purposes domestic in their character."

Construing the two acts in the light of that decision alone, the omission of the word "other" from the act of March 3, 1891, must be regarded "as designed, not as accidental," and that it was the intention of the legislature to limit the free use of timber taken from non-mineral public lands, to the industries specifically enumerated and for household consumption, or uses strictly domestic in their character, as the absence of the enlarging word "other" associated with the word " domestic " limits the operation of the general clause.

But the several acts authorizing the free use of timber from the public lands, having application respectively to particular localities or the character of the lands, have the same general scope, purpose and limitation and must be construed in pari materia.

Substantially the same right that is given by the act of March 3, 1891, to the free use of timber from the unreserved public lands for domestic purposes, is by the act of June 4, 1897 (30 Stat., 11, 36), extended to forest reservations. That act provides—

The Secretary of the Interior may permit, under regulations to be prescribed by him, the use of timber and stone found upon such reservations, free of charge, by bona fide settlers, miners, residents and prospectors for minerals, for firewood, fencing, buildings, mining, prospecting, and other domestic purposes, as may be needed by such persons for such purposes; such timber to be used in the State or Territory, respectively, where such reservation may be located.

The act of July 1, 1898 (30 Stat., 597, 618), authorizes the Secretary of the Interior

to grant permits under the provisions of the 8th section of the act March 3, 1891, to citizens of Idaho and Wyoming to cut timber in the State of Wyoming west of the Continental Divide on the Snake River and its tributaries to the boundary line of Idaho, for agricultural, mining, or other domestic purposes, and to remove the timber so cut to the State of Idaho.

The question as to whether this act authorized the cutting and removal of timber from forest reservations within the locality men

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