274 TIMBER TAKEN FROM PUBLIC LANDS 



cision by the Supreme Court directly sustaining this view, 

 and the Department of the Interior still insists upon its 

 right and duty to determine from what areas timber is to be 

 cut when the amount to be taken in any consecutive twelve 

 months exceeds $50 in stumpage value, and requires that 

 the timber be cut by the user or by his agent. l The right 

 to cut under this act is a special license, and the burden is 

 upon the one cutting to show the mineral character of the 

 land. 2 The cutting of timber from mineral lands for sale 

 to a railroad company for purposes other than those of con- 

 struction, authorized under the act of March 3, 1875 (18 

 Stat. L. 482), was held a violation of the act of June 3, 1878 

 (20 Stat. L. 88) ; 3 and the removal of timber from a mining 

 claim and its disposal to the benefit of the claimant some time 

 in advance of the actual beginning of mining operations was 

 held to constitute an unnecessary and therefore unlawful 

 removal of timber. 4 However, the Department of the 

 Interior has held that a locator of a mining claim has a 

 sufficient interest in the same to enable Tirm to maintain a 

 suit to prevent trespass thereon. 5 



In construing the two acts of June 3, 1878, one (20 Stat. 

 L., 88) granting the free use of timber in certain portions 

 of the public lands for special purposes, and the other, (20 

 Stat. L., 89) providing for the sale of timber lands and for 

 other purposes, the Department of the Interior held that 

 the former related to all mineral lands of the United States 

 but not to lands of non-mineral character and did not 

 authorize the cutting of timber for sale or commerce, and 

 that the latter, as amended by the act of August 4, 1892 

 (27 Stat. L., 348) related to all non-mineral lands of the 

 United States in all public-land states, and prohibited the 

 cutting of timber on any such lands except as provided in 

 the act. 6 



The act of June 3, 1878, Chapter 150, (20 Stat. L., 88), 



1. Circular G. L. O. March 25, 1913, No. 222, 42 L. D. 30. See U. S. v. Plowman. 216 



U. S. 372. 



2. Northern Pacific R. R. Co.. v. Lewis (162 U. S. 366.); Lynch v. U. S. 138 Fed. 



535. 71 C C. A. 59. 



3. U. S. v. Eureka & P. R. Co.. Cir. Ct. Nev. (40 Fed. 419). 



4. U. S. v. Nelson, Dist. Ct. Ore. (5 Sawyer 68) 



5. Lewis Smith, et al. 1 L. D. 615. U. S. v. RizsrinelU, Cir Ct. Ida. (182 Fed. 675). 



(Nat'l For). 



6. 24 L. D. 167; 29 L. D. 349. 



