70 NATIONAL FOREST MANUAL LAWS. 



FROM HOMESTEAD CLAIMS. 



The settler upon a homestead claim may cut such timber as is 

 necessary to clear the land for cultivation or to build him a house, 

 outbuildings, and fences, and, perhaps, as indicated in the charge 

 of the court below, to exchange such timber for lumber to be de- 

 voted to the same purposes, but not to sell the same for money, 

 except so as the timber may have been cut for the purpose of cultiva- 

 tion. While, as was claimed in this case, such money might be used 

 to build, enlarge, or finish a house, the toleration of such practice 

 would open the door to manifold abuses, and be made an excuse for 

 stripping the land of its valuable timber. One man might be content 

 with a house worth $100, while another might, under the guise of using 

 the proceeds of the timber for improvements, erect a house worth sev- 

 eral thousands. A reasonable construction of the statute a construc- 

 tion consonant both with the protection of the property of the Gov- 

 ernment in the land and the rights of the settler we think restricts 

 him to the timber actually cut or the lumber exchanged for such 

 timber and used for his improvements, and to such as is necessarily 

 cut in clearing the land for cultivation. (Shiver v. United States, 159 

 U. S., 491, 498; see also, United States v. Cook, 19 Wall., 591; Conway 

 v. United States (C. C. A.), 95 Fed., 615.) 



The cutting and removal of timber from a homestead claim must be 

 for a legitimate purpose, having some connection with the cultivation 

 and improvement of the land, but it is error to instruct the jury that 

 the timber could onjy be cut "in pursuance of a definite plan that the 

 plow should follow the ax," and that if the timber was cut from lands 

 ''not put in cultivation, and not to be put immediately into cultiva- 

 tion, then the law presumes that they intended to violate the law." 

 (Grubbsv. United States (C. C. A.), 105 Fed., 314.) 



After final proof and the issuance of final certificate, homestead 

 entrymen may cut and remove timber from their claims for any pur- 

 pose. (1 Sol. Op., 327.) 



FROM MINING CLAIMS. 



An occupant of a mineral claim, who has applied for patent, has no 

 right to cut and sell the timber thereon before payment of the Govern- 

 ment price and issuance of final certificate, and a license from him to 

 so cut the timber is no protection to the licensee. (Teller v. United 

 States (C. C. A.), 113 Fed., 273; see also United States v. Nelson, 5 

 Sawyer, 68.) 



When, however, the timber on a mining claim in a national forest 

 is infested with insects so as to be a menace to the young and growing 

 trees, the Government, having the paramount title, may, through the 

 Forest Service, sell and dispose of such timber, even without the con- 

 sent of the claimant. (Lewis et al. v. Garlock (United States, inter- 

 venor), 168 Fed., 153.) 



FROM RAILROAD LANDS. 



The grant to the Northern Pacific Railroad Co. vested in the grantee 

 a present title to the odd sections on the definite location of the road, 

 but the Government makes its own surveys, and until survey by the 

 Government the United States retains at least a special property in 

 all the timber in the township and may recover for timber cut by the 

 company or its grantees notwithstanding a survey made by the com- 

 pany shows the land cut over to be an odd section. Such a survey is 

 inadmissible as evidence that the land is part of an odd section. (United 

 States v. Montana Lumber Co., 196 U. S., 573.) 



The mineral return of the Surveyor General under the grant to the 

 Central Pacific Railroad Co., of July 1, 1862, and July 2, 1864, is 

 merely prima facie evidence of the mineral character of the land, 

 which may be inquired into by the Department of the Interior at any 

 time before patent. (2 Sol. Op., 897.) 



The Department of Agriculture is not authorized to handle the sale 

 of timber cut in trespass upon lands within the primary limits of the 

 Northern Pacific Railroad grant, even though such lands lie within 

 the exterior limits of a National Forest. (1 Sol. Op., 541.) 



