112 LAWS APPLICABLE TO THE NATIONAL FORESTS. 



The act of 1878 (20 Stat., 88) and the act of March 3, 1891 (26 

 Stat., 1093), have been construed by the land department- as having 

 practically the same scope and purpose, the one applying only to 

 mineral and the other only to nonmineral lands. Held, therefore, on 

 the authority of United States v. United Verde Copper Co., supra, 

 that the latter statute authorizes the use of timber for smelting pur- 

 poses^ (34 L. D., 78.) 



Jurisdiction over matters relating to the cutting of timber upon 

 lands within the _ surface area of mining claims within National 

 Forests is vested in the Department of Agriculture and not in the 

 Department of the Interior. (H. T. Mecum, 43 L. D., 465.) 



Timber trespass upon 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 culti- 

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

 used to build, enlarge, or finish a house, the toleration of such prac- 

 tice 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 several thousands. A reasonable construction of the 

 statute — a construction consonant both with the protection of the 

 property of the Government in the land and the rights of the settler — 

 we think restricts him to the timber actually cut or the lumber ex- 

 changed 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; U. S. 

 v. Eiemeyer, 94 Fed., 147; U. S. v. Haymaker, 199 Fed., 644.) 



The cutting and removal of timber from a homestead claim must 

 be for a legitimate purpose, having some connection with the cultiva- 

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

 jury that the timber could only 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 imme- 

 diately into cultivation, then the law presumes that they intended 

 to violate the law." (Grubbs v. United States (C. C. A.)", 105 Fed.. 

 314; see also Stone v. United States, 167 U. S., 194.) 



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.) 



Timber trespass upon 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 

 Government 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.) 



