TRESPASSES DECISIONS. 113 



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.) 



Timber trespass upon railroad lands. 



The grant to the Northern Pacific Eailroad 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 sur- 

 vey 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 sur- 

 vey made by the company 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, 1861, 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.) 



Timber trespass upon lieu selection. 



Prior to the approval of a selection under the indemnity school and 

 university land grants, title in the land remains in the iTnited States 

 and no one has a right to go upon the land and cut the timber there- 

 from. (1 Sol. Op., 468.) 



Damages — Innocent and willful trespasses. 



One innocently purchasing timber unlawfully and willfully cut 

 from Government lands and transported to market by his vendor is 

 liable for its value at the time and place of his purchase without any 

 deduction for value added by the acts of the willful trespasser. 

 (Woodenware Co. v. United States, 106 U. S., 432.) 



In a case of innocent trespass the measure of damages is the value 

 of the timber after it was cut at the time and place where it was cut. 

 (United States v. St. Anthony R. R, Co., 192 U. S., 524; 1 Sol. Op., 

 298; 40 L. D., 518,525.) 



In a letter of instructions to the United States attorney at Helena, 

 Mont., dated September 7, 1910, the Acting Attorney General, after 

 reviewing the authorities and discussing the conflicting cases, says : 



"After a somewhat careful examination of the authorities cited 

 and many others, the department is of the opinion that, where timber 

 has been inadvertently cut from the public lands, (1) the timber 

 immediately after felling becomes the personal property of the 

 United States (Sampson v. Hammond, 4 Cal., 184) ; (2) an action of 



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