CHAPTER XVIII 



THE POLICY OF THE NATIONAL GOVERNMENT 



IN REGARD TO THE FREE USE OF TIMBER 



TAKEN FROM PUBLIC LANDS 



174. Use of Timber by Settlers and Temporary 

 Occupants. The terms of the various donation and pre- 

 emption acts and of the homestead act of May 20, 1862, 



(12 Stat. L., 392) and its amendments, clearly indicated a 

 purpose on the part of the Government to encourage settle- 

 ment of the public lands. Many of these lands were heavily 

 timbered and it was impossible to cultivate any part of them 

 until the timber was removed. Furthermore, the home- 

 stead act required a residence of five years upon the land 

 before a patent would be issued. Although the act of March 

 2, 1831 (4 Stat. L., 472), and that of March 3, 1859 (11 Stat. 

 L., 408), imposed penalties for the cutting of timber of any 

 kind from the public lands of the United States, and although 

 it was well settled that the title to the lands remained in the 

 United States until patents were issued, the executive offi- 

 cers of the Government and the courts took the position that 

 the provisions of the preemption and homestead acts modi- 

 fied the application of the penal statutes against trespass and 

 adopted the rule that bona fide settlers might lawfully cut 

 such timber from their claims as they needed for firewood 

 or for the agricultural development of the lands entered in 

 the way of building, fencing, etc. 1 



When it was once conceded that bona fide settlers on un- 

 surveyed lands and homesteaders might lawfully cut timber 

 from their claims for the purpose of clearing the land for 

 agricultural use, it became logically necessary to hold that 

 timber thus cut in good faith might be sold, or otherwise 

 disposed of, rather than destroyed or allowed to waste. 2 



1. U. S. v. Nelson, 5 Sawy, 68. 27 Fed. Cas. No. 15,864. 



2. Shiver v, U. S., 159 U. S. 491, 16 S. Ct. 54, 40 L. Ed. 231 : U. S. v. Taylor, 35 Fed. 



484; U. S. v. Murphy, 32 Fed. 376; U. S. v. Williams, 18 Fed. 475, 9 Sawy. 

 374; The Timber Cases. 11 Fed.81, 3 McCrary 519. 



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