cepted, the land will be appraised by a timber cruiser or other employee of the Field Service. Within thirty days after the appraisement, or lapse of the nine months appraisement period, applicant must tender the appraised price, or the valuation made in his application if no appraisement is made, which must not be less than $2.50 per acre. Facilities are provided for reappraisement where protest is made. After payment of purchase price, a date will be set for final proof. Notice that this final proof will be made is posted in the local land office and published in a newspaper nearest the land for the sixty days prior to the day set for final proof. After final proof, if there are no protests or adverses pending, entry will be allowed, and patent will eventually issue. Protests may be made any time before final entry is allowed, and contests may be filed at any time before patent issues.

CHAPTER XXVI

Use of Timber on Public Land

ON MINERAL LAND

ACT OF CONGRESS: That all citizens of the United States and other persons, bona fide residents of the state of Colorado or Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, [North and South Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either of said states, territories or districts of which such citizens or persons may be at the time bona fide citizens, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes; provided, the provisions of this Act shall not extend to railroad corporations.

The miner may cut from his locations upon public land (excluding land in the National Forests) without asking for a permit, all the timber necessary in his mining and development operations; but as he is only an occupant operating under a license, although owning the mineral under his possessory right, he does not own the timber so as to be able to make whatever disposition of it he wishes, until the issuance of the receiver's receipt in the process of patenting the claim. Up to the issuance of the receiver's receipt, he cannot sell any timber from his claim; and it appears that he cannot lawfully cut timber from his locations, without a permit, for other purpose than that connected with their development and the milling, smelting, or reduction of his ores. Though the surplus of timber cut

in clearing the land necessary for mining and occupation purposes, may be sold or used, such cutting should be done under bona fide conditions.

The above Statute refers only to the States mentioned, and not to the other mining-law States referred to in this workCalifornia, Oregon, Washington, and the District of Alaska. A similar provision has been separately provided for Alaska. The Statute by the clause, "and all other mineral districts of the United States", undoubtedly meant to include the mineral lands of California, Oregon, and Washington, but owing to the fact that such a construction would have led to the cutting of large quantities of public timber for commercial purposes and against the intent of the Statute, the Department of the Interior and the courts have held the clause to be surplusage and without weight. The Act applies only to lands subject to mineral entries. Lands subject to mineral entry are lands known to contain such deposits of mineral as warrant a prudent person in expending his time and money in the reasonable expectation of developing a mine thereon.

Application for permit to cut timber without charge in accordance with the above Act, must be presented or mailed to the register and receiver of the local land office, or the Chief of Field Division having jurisdiction over the land, who will supply application forms upon request. Application shall set forth names and legal residences of persons applying to fell and remove timber, names and residences of persons who are to use the timber, amount of timber required for each person, and the use to be made thereof, date it is desired to begin cutting, and description of land to be cut over. No timber may be cut for sale or transported from or used out of the State in which it is cut. Persons who commence cutting before their permits receive the final approval of the Commissioner of the General Land Office, will be liable for a reasonable stumpage if the permits are not approved. Where permits are secured by fraud, or immature trees are taken, or timber is not used or taken in accordance with the terms of the law, the Government will enforce civil and criminal liabilities as in other cases of timber trespass upon public land. These may range from the stumpage

value of the timber cut in the case of an unintentional trespass to the value of the timber where found, and a fine not exceeding $500; to which may be added imprisonment for six months, in case of wilful and malicious timber trespass. There is no authorization to cut any small or limited amount of timber under the above Act without a permit. The Government, of course, has no jurisdiction over the timber on patented claims or land.

ON NONMINERAL LAND

or

ACT OF CONGRESS: And in the states of Colorado, Montana, Idaho, North Dakota, South Dakota, Wyoming, and the District of Alaska, and the gold and silver regions of Nevada and the territory of Utah, [and amended to include New Mexico, Arizona, California, Oregon, and Washington] in any criminal prosecution or civil action by the United States for a trespass on such public timber lands, or to recover timber or lumber cut thereon, it shall be a defense if the defendant shall show that the said timber was so cut or removed from the timber lands for use in such state or territory by a resident thereof for agricultural, mining, manufacturing, domestic purposes, under rules and regulations made and prescribed by the Secretary of the Interior, and has not been transported out of the same; but nothing herein contained shall operate to enlarge the rights of any railway company to cut timber on the public domain, provided that the Secretary of the Interior shall make suitable rules and regulations to carry out the provisions of this Act; and he may designate the sections or tracts of land where timber may be cut; and it shall not be lawful to cut or remove any timber except as may be prescribed by such rules and regulations; but this Act shall not operate to repeal the Act of June third, eighteen hundred and seventy-eight, providing for the cutting of timber on mineral lands. (See p. 156.)

The intention of the above Act is to enable settlers upon public lands and other residents within the States mentionedwhich include all of the mining-law States as treated in this work to secure from public lands of a nonmineral character, timber or lumber for agricultural, mining, manufacturing, or domestic purposes, for use in the State obtained, under rules

and regulations prescribed by the Secretary of the Interior. Such timber or lumber cannot, however, be taken for sale or disposal, for use by other persons, or for export from the State in which cut. Timber or lumber to a stumpage value of $50 a year can be cut without a permit, which is in contrast to the case of cutting on mineral lands where application should be made to cut any appreciable amount. A permit to cut to exceed a stumpage value of $50 per year without charge, can be obtained as on mineral lands. In cases where qualified persons are not in a position to procure timber from public lands themselves, it is allowable to them to secure the cutting, removing, sawing, or other manufacture of the timber through the medium of others upon an agreement with the parties thus acting as their agents that they shall be paid a sufficient sum only to cover their time, labor, and other legitimate expenses incurred in connection therewith, exclusive of any charge for the timber itself; but no person, whether acting for himself, as an agent for another, or otherwise, will be permitted to cut or remove in any one year, timber or lumber to an amount exceeding in stumpage value $50, except upon the granting of a permit.

A homesteader is entitled to use all the timber from his entry necessary to work his land, but before making final proof can dispose of none except the surplus made in the necessary clearing of his land for bona fide cultivation. It is important to note that a corporation, mining or otherwise, cannot obtain timber under the laws herein discussed, either for mineral or nonmineral ground, unless it is organized and chartered under the laws of the State in which it wishes to cut timber. This arises from the facts that both Statutes read that only residents of a State may cut timber in it, and that corporations chartered outside of a State are considered as foreign or nonresident corporations or legal individuals. Timber trespass suits of considerable magnitude have been successfully prosecuted on this point by the Government, notwithstanding that it appears in the light of an unjust technicality. The law that timber cannot be cut in one State to be used in another is strictly enforceable, even though it is to be used