82 NATIONAL FOREST MANUAL LAWS. 



Where timber unlawfully cut is seized and subsequently released 

 to the trespasser on payment of its value and his agreement to clean 

 up the cut-over area, the transaction amounts to a sale on condition 

 subsequent, and on his failure to perform the condition the money, less 

 damages caused by the breach, may be refunded under the act of March 

 4, 1907, and the trespassers be held liable for the trespass. (1 Sol. 

 Op., 355.) 



The amended refund provision contained in the act of March 4, 1911, 

 being clearly remedial in character, is retrospective in its operation. 

 (2 Sol. Op., 685; Comp. Dec., Dec. 27, 1911.) 



Moneys erroneously collected on account of a special-use permit to 

 occupy lands listed under the act of June 11, 1906, could not be re- 

 funded under the act of March 4, 1907 (34 Stat., 1256), but may be 

 under the retroactive amendment contained in the appropriation act 

 of March 4, 1911. (2 Sol. Op., 685; Comp. Dec., Dec. 27, 1911.) 



Where by mistake the amount agreed upon in settlement of a tres- 

 pass by boxing for turpentine is twice paid, the excess, payment may 

 be refunded under the amending provision contained in the appro- 

 priation act of March 4, 1911, as "money erroneously collected for the 

 use of any lands." (Case of C. J. Conger, Comp. Dec., Dec. 27, 1911.) 



Moneys collected for a trespass in cutting timber from an unper- 

 fected homestead claim can not be refunded under the amending act 

 merely because final proof has since been made and final certificate 

 issued. If the cutting was in fact illegal when done, the subsequent 

 proof and issuance of certificate does not satisfy the statutory require- 

 ment that the act be "subsequently found to have been legal and 

 proper." (Case of Haney, Comp. Dec., Dec. 27, 1911.) 



Where it is found that money has been collected in excess of the sum 

 properly assessable for cutting timber on National Forest land, the 

 excess may be refunded as "erroneously collected for the use of any 

 lands." (Case of Lopez, Comp. Dec., Dec. 27, 1911.) 



Money collected under a timber-sale contract for timber supposed 

 to have been cut from National Forest land, but afterwards found to 

 have been cut from private land, may be refunded to the owner of the 

 land under the amending act. (2 Sol. Op., 743.) 



No refund can be made to a special-use pasture permittee for depriva- 

 tion of use by a mere trespasser who removes his fence and grazes part 

 of the land. (1 Sol. Op., 662.) 



Unliquidated damages due on account of a trespass can not be set off 

 against moneys in the hands of the Government which should be re- 

 funded under the act of March 4, 1907. (2 Sol. Op,, 355.) 



