UNITED STATES f1. EDWARDS.
(Diafrict Oowrt,D. Oolorado.
PuBLIO LANDS-MINERAL LANDS.
June 12, 1889.)
Land returned on the go"ernmentsurvey as mineral land, of broken and rugged surface, with every indication of mineral ground, but on which no mines have been located,though inthe vicinity of valuable mines. and which is unfit for cultivation and !lntry as,agricultural lands, is within the meaning of act Congo June 3, 1878, allowing timber to be taken from mineral lands on the public domain for building, agricultural, mining, or .other domestic
At. Law. ., . ,.John D. Flemin.q, Dist. Atty., for.theUnited States. '.1. B. Belford, for defendant.
HALLET'r, J. This actiqllis to recover the value of timber taken from puqlic lands in Eagle All facts alleged in the cOmplaint are admitted, e:x:cepting the character of the land from which the tirp:ber was taken; and as to matter, the land is described with 'view toascertai'n whether the t.tse if! to the act of June 3, 1878, (20St, 88,)allowirig timber to from mineral lands of the public domain "for building, agricuitural, mining, or other domestic purposes." In the, statement of facts it,appears. that the land is of "a broken and r()yky surface, cut up by ledge!" @d ravines, and with every indication ,of ,being mineral ground." In plat of the government survey' it was returned as mineral land·.... No mines have .been found or located on any frqm which, the timber was taken, but valuable mines of the have been opened in the same township, and within' a few miles of that place. The la.nds appeltr to be high and rugged mountains, unfit for or pasturage. Although no mines have been. found in them, they are of' a character to contain mines, and may hereafter prove to be v1!luaple for mining purposes. So far as it relates to the matter in issue, tM act of 1878 is as f61l0,w!!: ,
domestic purposes, any timber or other trees gl'owinl't 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."
. "that all citizens of the UJ;lited States and other persons, bona fide residents Of the stflte of Colorado. I/C I/C I/C shall be, lind are hereby anthorized and permitted to fell and remove. for building, agricultural, mining. or other
ltwill be observed that the lands referred to from which timber may he taken are such as are subject to entry as mineral lands, as distinguished trom those which may be occupied under the pre-emption, homestead, and other acts relating to agricultural lands. In the practice of the .land departinent of the government these are classified by the' surveyors employed to survey public lands, and marked on the p1atsof such'8urveysas "mineral lands. " But this classification is subject to re"lew in the 'and may beset aside on proof the lands are' more valuable for agricultural or pastoral use than for any metal they
may contain. So that the character of the land, whether mineral or agricultural, is always, when contested, a matter of fact to be decided on evidence, rather than upon the classification in the land-office.. But it is not altogether a question of finding valuable ore or metal in the ground from which the timber is taken. Obviously the act of congress is not limited to land which is or may be actually occupied for mining purposes. After location made, the timber on a mining claim belongs to the claimant, and it cannot be supposed that congress intended to give it to another. Furthermore, the grant is of timber on lands subject to mineral entry, and not subject to entry as agricultural lands, which means such as may be taken for mining purposes, as distinguished from such as have been taken in that way. Without attempting to describe mineral lands in a way which may be sufficient for all cases arising under the act of 1878, it seems clear that the lands mentioned in the complaint and in the statement of facts are of thatoharacter. They are in a mountain region, in the vicinity of valuable mines, and have some indications of valuable metals in them. They are unfit for cultivation and for pasturage, and are not subject to entry under the pre-emption or other laws relating to agriculturallallds. It is conceded that the timber was taken and used for the purposes mentioned in the act, and the defendant is a citizen orthe state, and thus entitled to the benefit of its provisions. Judgment will beentered.for defendant.
«(JirlJult (Jourt, S. D. Mississippi, E. D.
RAILROAD COMPANIES-AcCIDENTS AT CROSSINGS.
It is the duty of a person approaching" railroad crossing to'stop and look in both directions for approaching trains. and also to listen for the same pur· pose, PMticularlywhen lje has reason to believe a.train is likelysoQn to pass, and if he fails to perform this duty, or sees the approaching train and doe!:! not wait for it to pass, he Rssumes the risk of accident and cannot recover, unless defendant's employes, seeing him on the track, neglected tOUS8 the means reasonably within their power to prevent the accident,