TIMBER UPON MINERAL LANDS 275 



authorizing the use of timber from, any mineral lands for 

 building, agricultural, mining, or other domestic purposes 

 within certain named states and territories and in all other 

 mineral districts, was held not to apply to Oregon in which 

 there was no "mineral district" established either by law or 

 common reputation; : and it was held in another case that 

 the cutting of timber from mineral lands within the state 

 of California was governed by the provisions of the act of 

 June 3, 1878, Chapter 151, (20 Stat. L., 89), which specifi- 

 cally mentioned California, and not by the act of the same 

 date, Chapter 150, granting a special license for the cutting 

 of timber from mineral lands but not specifically naming 

 California. 2 The decision in liiited States v. Smith, that 

 the act authorizing the removal of timber from mineral 

 lands for domestic purposes in general was not applicable 

 to Oregon, was followed in a decision rendered in 1901 

 which held that the use of timber from the public lands at a 

 quartz mill in that state was a viloation of the said act and 

 was not permissible under the proviso in section 4 of the 

 "Timber and Stone Act" of June 3, 1878, Chapter 151, 

 (20 Stat. L., 89) which declared that nothing therein con- 

 tained should prevent any miner or agriculturist from clear- 

 ing his land in the ordinary working of this mineral claim, 

 improving his farm for tillage, or taking the timber neces- 

 sary to support his improvements. 3 In reaching this con- 

 clusion the court took notice of the fact that in interpreting 

 the "Timber and Stone Act" (Chap. 151, June 3, 1878) the 

 Department of the Interior had instructed its officer? and 

 agents that where timber for mining or agricultural purposes 

 could not be obtained on the land entered it might be taken 

 from other public land near by. ' The courts at first 

 adopted the view that Chapter 150, June 3, 1878, author- 

 ized the cutting of timber for domestic uses from lands other 

 than those actually entered or actually shown to be mineral 

 provided they were within a well defined mineral district; 5 

 but later decisions declared that the defendant in a prose- 



1. U. S. v. Smith, Cir. Ot. Oregon (11 Foci. 487), 8 Sawy. 100. 



2. U. S. v. Benjamin, Oir. Ot. Oregon (21 Foci. 285.) 



8. U. S. v. English et al., Oir. Ot, Oregon (107 Fed. 807) Aff'd in ll(i I<Vd. 

 O. C. A. 81. 



4. See also U. S. v. Smith, Oir. Ot. Oregon (11 Fed. 487). 



5. U. S. v. Richmond Mining Co., Oir. Ct, Nev. 1880 (40 Fed. 41 H: I . S. 



wards, Dist. Ot. Colo. 1880, (38 Fed. 812). 



