376
FEDERAL REPORTER.
tain way, and they were so filled in before the deed was delivered, it would have to be held a valid conveyance. See Pence v. Arbuckle, 22 417; Drury v. Foster, 2 Wall. 24; Allen v. With,row, 110 U. S. 119, 3 Sup. Ct. Rep. 517. Further, even if the deed as a deed was for any reason void, upon the testimony of Lambert and Steele it would have to be adjudged that COllway took the title simply in trust for Heylin; for the rule is and was in the territory of Wisconsin, where this transaction took place, that, when money or other securities of one person are used by another to purchase property in his own name, a resulting trust arises in favor of the party with whose means the purchase is made. Rogan,v. Walker, 1 Wis. 454; Moffattv. Shepard, 2 Bin. 60; Friedlander v. Johnson, 2 Woods, 675. So that under :any event, without considering any questions arising under the last two chains of title set forth by .complainant, I am of the opinion that his title derived under. the Heylin deed is both by the record and the parol testimony good, and decree must go in bis favor as prayed.
UNI'1'El> STATES 11. MURPHY.
«(Jircuit Oourt.
w: D. Michigan, No D
October I, 1887.)
1.
PUBLIO LANDS-CUTTINGTIMIlER-HoMESTEADER'S RiGHTS.
While holding land under a homestead entry, the homesteader can only cut and sell the timber from such portion or parts of the land as are being cleared for cultivation or settlement.!
2. SAME-CUTTING TIMBER-MISTAKEN VIEW OF RIGHTS.
The fact that defendant was' induced, through the wrong representations of the register of the land-office, to believe in the unrestricted right of the homesteader to cut timber from his entry, does not estop the government froJ:Il prosecuting him for such unlawful cutting. It is no defense to a prosecution :for unlawful cutting of timber from public land that there was no criminal intent in the cutting.
3.
SAME-CUTTING TIMBER-CRIMINAL INTENT.
4. SAME-ACTS RELATING TO - CoNSTRUCTION OF, BY SECRETARY OF INTERIOR· .T he interpretation placed upon public land acts by the secretary of the in-
terior is not binding upon the courts.
Criminal Prosecution for Trespass upon Government Lands, cutting and removing timber therefrom. Motion for new triaL G. Ohase Godwin, Dist. Atty., for plaintiff. F. W. Olarkand B. J. Brown, defendant. JACKSON, J., The defendant, having been indicted for cutting and removing timber from certain lands of the United States, contrary to the provisions ofSection 2461, Rev.-St, was tried and convicted, and now moves for a new trial on the groun.d of certain alleged errors committed by the trial judge in the rejection of evidence offered by the defense,
lSee note at end ofca.se.
UNITED STATES V. MURPHY.
and in the instructions given to the jury as to the law applicable to the case. There is no contest or controversy as to the material facts established by the evidence. It is con'ceded, as shown by the defendant's own testimony, that on the twenty-fifth of February, 1885,.the defendant, as the agent and general superintendent of the Spalding LUlr..berCompany, into a contract with one James Henderson,lhe occupant of a homestead' entry loca.ted in Bagley township, Menominee county, Michigan, for the purchase of the pine timber, whether atanding or faUen, on the entire homestead tract of 160 acres. By the terms of the contract, which was reduced to writing, the defendant's principal and its successor had the right "to enter upon said lands at its pleasure, and cut, remove, and carry away said timber, said timber to be cut and removed prior to April 1, 1888, without needless destruction of other merchantable timber;" the redted consideration was $200 paid to the vendor; that, under and in pursuance of said contract, the standing pine timber on said homestead land was subsequently cut and removed, by direction a.nd under the superintendence of the defendant, and converted to the use and benefit of the Spalding Lumber Company; that the timber so purchased, Clit, and removed by the defendant averaged about one pine lree to the acre, scattered over the entire homestead tract of 160 acres; that the defendant, before and at the time of purchasing, cutting, and removing said timber, kne'wthe fact that the land from which it was taken was government land, and that thevendor,Henderson, had only a homestead right or entry in and to the premises on which the timber stood, and from which it was cut and removed. It further appears that Hendersol\, who undl:lrtook to sell said timber, and confer upon defendant the authority to cut and remove it, first preempted this tract of land in the fall of 1882; that on the thirteenth of October, 1883, he changed his to a homestead entry; that while occupying the land under his pre-emption entry he cleared about two acres, and built a small log cabin; that since the date of his pre-emption entry he has resided continuously on the land; that since changing to a his clearing on the land, which homestead entry he has amounted to eight or ten acres in February, 1885; that the timber cut and removed by defendant was not taken from the cleared and cultivated land, or from any portion in process of clearing; that while, in the preliminary negotiations for the purchase of the timber, the defendant had expressed the opinion that Henderson had the right to sell, or would get into no trouble by selling, if he would "put the money on the place," it was no part of the contract of sale that the proceeds of the timber should be applied in improving the homestead. Henderson, however, actually expended a portion of the money received from the sale of the timber, in making improvements on the land and the balance in supporting himself. His homestead entry was made, and the occupation of the land was continued, with the bona jiddntention of completinghis title according to the provisions of the laws; but he has not, in fact. yet perfected his entry and secured title to the land. Whether he
378.,
Ji'El>ERAL REPORTER.
is in a position to do so does not appear from the record; nor is it material in the consideration of the questions presented by the pending motion. " . ' , The fact is clear and uncontroverted that, at thl'l time defendant pur-· the pine timber on and from this homestead chased, cut, and still hold, the title both to the entry, the United States held, land and to the trees standing theJ;eon. The homesteader not having then so fulfilled his obligations under the law as to enti.tle him to a patent, theJand was governmentland, and the timber was governmenttimbel'. This'was all known to the defeJ;ldant when he bought the pine trees, and when he cut and remOVed, or caused or procured thesame to be cut and removed, from the Jand, not for the use, benefit, and advantage of the land or homesteader, but for the Spalding Lumber Company. These facts and circumstances' btiog the defendant directly within the letter oithe statute, (section 2461rRev. St.,) and subject him to the penalties therein provided, unless he can bring himself within some recognizedexception .created by, or arising under, the homestead laws. The value or the timber so (}ut l/iUd,repH}ved being shown, the defendant's the case of the govadmitted acts, done with full: knowledge, make ernment, and the emus probandi rests upon him to extract the case from the penal conseqt:Jl:lnces of an infrl,tCtionof the law. .What. are the defenses , , . relied onto do this? In thefirst,place,Jt il'l urged that congress, by the enactment of the pre-emption atld40mestead laws, has so far modified the provisions of section 2461, Rey. St., which embodies ,the act of March 2, 1831, that homesteaders occupying publiclands.under such laws may cut, sell, and use the timbertbel'eon for the purposes of such occupation. This was so held in US., v"Nelson, 5 Sllwy. 68i and it is undoubtedly a correct proposition thatsection 2461, ReV'. St.; is to be construed in connection with the homestead laws. and thl.\\, in so far as the latter confer,rights and pri vileges in respect to the use or sale of timber by the homesteader, its provisions "rata be modil;ied.Assuming then, as contended by his counsel, that theJ defendant il'lentii#ld to claim and rely upon an the rights which the homesteader, Henderson, had in, to, and over the timber cut and are brought directly up to the important questi01il.:in the cuseas to what, under the law, are the rights of the homesteader. in respect to timber standing upon the homestead land. How .extent, and :w.hat conditions and restrictions, may far, and to he cut and .remove the timber, or confer upon another lawf1,l1 authority to cut and remo,ve i,t j 'while occupying the land in good faith, and before perfecting his entry by the acquisition of the title? It admits oino doubt that .the settler.on public lands, whether he secures a mere right of occwpancy, like,the Indian, or an inceptive on conditions prf?o or inchoate right to the land in .the nature of an '-cedent, such as,th,ehomestead.lawsconfer, has not an unlimited 01' ,unrestricted power.'aud authority of disposition over the timbel' standing upon his homestead entJ:;y, which is in fa{ft only an application to purchase, giving the appJicantnoproperty in either the land or timber thereon,
379
until acq]..lifud by compliance with the requirements of the law. Pendingthisacquisition of the title, the homesteader is authorized (section 2288,Rev.St.) to transfer, by warranty against his own acts, any porticm o£his homestead for church, cemetery, or school purposes. or for right of way of railroads,-his conveyance, however, being worthless against the government if he should fail to perfect his claim, (9 C. L. O. p. 94;) but there is no prov;sion of the statute expressly declaring to what extent he may sell or dispose of timber for purposes other than these. His entry is to be for his "exclusive use and benefit," and for 'the purposes of actual settlement and cultivation. Section 2290. To effectuate and accomplish these objects oOhe law, judicial construction has clearly and liberally defined the homesteader's rights. By numerous decisions of the federal courts it is settled that his right of user and over the tirnber is qucilified by the nature and character of his interest in and possession of the land. While in the ocCUpatioIl of the premises with the "bona. fide" intention of completing his hOD;lestead, it is held that the homesteader may clear of the land for the purpose of cUltivation and settlement. In making clearing for these objects he may cut and remove the timber, and such portions of the timber so cut and removed from the clearings intended for cultivation or tillage as may not be n13eded on the place for the improvements thereon he may sell; but not further or otherwise. He may also use the timber in the erection of buildings necessary for the convenient occupation of the land, and its improvement; that is to say, better adapting it to convenient occupation. The timber may also words, be used for necessary and proper fencing anci repairs. In the homesteader may use or dispose of timber as an incident to his ment, cultivation, and iD;lprovement of the land. I;Iehas only those rights in or over the property which are nece88ary totheperjecting oj hia title. His title can only be perfected by settling upon and improving the land for cultivation. For these purposes he may exercise over the timber, but he is not allowed to sever the timber from the land for the purpose of sale and traffic. As held in the Timber (hses, 11 Fed. Rep. 81, "a settler on the public lands has no authority to go outside of the improvements, cut or sell timber, and thus denude the land, and destroy the value of the public domain, even though he intends to acquire the title under his claim." The authorities, which need not be commented on in detail, fully sustain and support this statement of the law, and the proposition above stated. U; S. v. Cook, 19 Wall. 591; U. S. v. McEntee, 23 Int. Rev. Rec. 368; The Timber (hse8, 11 Fed. Rep. 81; U. S. v. Stores, 14 Fed. Rep. 824; U. S. v. William.8, 18 Fed. Rep. 478; [T. S. v. Lane, 19 Fed. Rep. 910j my v. U. S., 4 Dill. 465j and U. S. v. Smith, (U. S. Dist. Court Ark., April Term, 1882.) In the instruction to special timber agents issued by the interior department, June 1, 1883, for the protection of timber on public lands, and which were in full force when Henderson took out his homestead entry October 13, 1883, the rights of homesteaders as defined and declared in these decisions were fully set forth, as follows, .viz. :
380
"(7) L.and!l covered by hoi11estead or pre-emption claims are lands upon whicb citizens of the United $tates bave made entry, and have filed certain papers in the proper district land-office, obligating themselves to conform to the requirements of the law as to occupancy, cultivation, and improvement. (8) The claimant to any sucb land. provided he is living upon, cultivating, and improving, the same in accordance with law, and the rules and regulations ptescribed by· this department, is permitted to cut and remove, or cause to be cu,t. and removed, from the portion the1'eof to be cleared for culti'oation, so .much timbei as actually necessary fen' that purpose, or for buildings, fep,ces, and other improvements on the land entered. (9) In clearing for cultivation, should there be a sif,rplus of timber over what is needed tM purpose above specified, he may sell or dispose of such surplus,. but it is not allowable for him to denude the land of its timber1'01' the purpose of sale or speculation until he has made final proof and acquired title. (10) * * * (11) No person other than the makin,lI the entry has a right to cut timber from su(!h landfor any pU1-pose whatever." "(33) Any person who fells or removes timber, or who hires others to fell or remove timber, or who incites or induces others to felI or remove timber, from government land, for his personal benefit or advantage, or for the purpose of speculation and gain. (except he bas the right or permission so t.o do as specified under beads of 'Lands Covered by Homestead or Pre-emption Entry,' ·Rights of Railroad Companies,' and' Mineral Lands, ') is a timber trespasser upon the government land." And upon the duplicate receiver's receipt furnished Henderson at the time of making· his homestead entry there was indorsed in red ink a marginRl note as follows: , "Timber land embraced in a homestead or other entry not consummated, may be clearlld in order to cultivate the land, and improve the premises, but for no other purpose. If after clearing the land for cultivation. there remains mbre timber than is reguired for improvement, there is no objection to the settler disposing of the same. But the question whether the land is being cleared of its' timber fm'legttimate purposes is a! question offact which is liable to be raised at any time. If the timber is cut and removed 1'01' any other pttrpose,· it will be SUbject the entry to cancellation, and the person who cut it will be liable to civil suit for recovery of the. value of the said timber, and also to criminal prosecuti01h under section 2461, Rev. St." This direct notice to the homesteader, and the foregoing instructions tospooial timber agents, merely embodied what the courts had previously decided to be the rights of claimants under homestead entry. They Were in no sense departmental constructions of the law, or regulations adopted independent of such decisions. On the trial the defense asked leave to show that it was the general understanding among lumbermen in that section that the homesteader could sell the standing timber on the land if he applied the proceeds in the improvement of his homestead, and the support ofhimself while perfecting his entry; and, further, that this understanding had been de!ived from the register of that district, Mr. Oochran, who informed homesteaders, when they made their entries, that the ruling of the secretary of the interior on the subjeotof their rights to and authority over the timber on their homestead entries were broader and more enlarged than defined in said botice upon their receipt, and in said eighth and ninth instructions. to special timber ·agents.
UNITED STaTES V. MURPHY.
381
The ruling referred to was made on the twentV-fseventh November, 1883, in the case of John W. Baird, who was reported for cutting and removing timber from certain unsurveyed lands in Washington Territory. The special agent reported that Baird was a" squatter," and intending to make the claim his home, and, working in good faith to that end, supposed he had "a Tight to clear off and Bell the timber." The commissioners recommended that no criminlll proceedings should be entered against him, but that the 'case should'be referred to the attomey general with request that the proper llleasures be taken to secure the timber in question, and dispose of it for the United States. The secretary of the interior declined to accede to this suggestion, and in his letter to the commissioner expressed the opinion that, if Baird had taken the land in good faith, he was the owner thereof for all practicable purposes, although the title remained in the government. And"If it appears that he has cut more timber than he was compelled to cut t() clear up the land, he is not liable, either criminally or civilly, for doing sO,if all the time he has the honest purp()Se of Ultimately completing his title under the laws oithe United States. A jury, satisfied of that fact, would not, properly .instructed by the court, find him guilty of trespass. Whether he is or is not a trespasser does not depend on how many trees he cuts, but on the · bona fide' character of 'his settlement. Baird was justified in doing whatever clearing was necessary to put in a crop, and he might cut and sell the timber to aid him in so doing, or he might sell timber to support his family whileclearing his land and raising his crop. if during all that time, he had a · bona fide' settlement 01,1 the land," etc. At the close of his letter the secretary says: "Paragraphs 8 and 9 of instructions to special agents of the general landoffice appointed to prevent timber depredations, relating to trespassers on lands covered by pre-emption and homestead claims, should be revised to conform with the views herein expressed." It did not appear that any modifications of instructions 8 and 9, as above quoted, were ever actually promulgated as suggested by the secretary, and the trial judge refused to allow the defense to introduce· thfr proposed evidence as to the understanding of lumbermen derived from the register who undertook to inform homesteaders oftheir rights to sell under the ruling in the Baird Case. It is said that this ruling of the secretary, and the revision of instructions 8 and 9 therein suggested, has all the force and effect of law; inasmuch as by Election 2478, Rev. St., the commissioner of the general land-office, under the direction of the secretary of the interior, is authorized to enforce and carry into execution any part of the public land laws not otherwise specially provided for. Where a department of the government is authorized by statute to make regulations, such regulations, when made and promulgated, have the force of law; but authority "to enforce and carry laws into execution" does not confer authority to make regulations inconsistent with the provisions of the statute as construed and interpreted by the courts. In respect to the ruling in the Baird Case, it is to be observed that all the circumstances of the case are not disclosed in the opinion. It does not appear what was the character and extent
382
REPORTER·.
ofthe,eutting,nor whether the timber was out and ren.1oved. from the land generally,or only from that portion of it which WlIS being cleareq, fw cultivatUmJo,ndiJettlement.It does ,appear clearing with a bondjiddntention ofsettling the land; i",.. no doubt true, tM ti;mber cut and sQldwas,taken from thatclearing,:.theruling of the be reconciled with the decision of which ciefine the homesteader's right.. The defense,! however, togiveit a wider and claim that it is a construction of·the,law giving the "bona fide'.' homosteader the right to cut and sell timber. for the support of himselland family, without reference to allyimnlediate: clearing for cultivain the improvetion,especially if he intends to apply the proceeds ment of his claim.· The trial judge ,refused to reeognize the binding force ofthllit opinion, as thus . Did he commit an error in so doing?' We think not. The secretary of the interior i800t authorized, by the statutes relating to public lands and homestead entries, to make any regulations which would. be in conflict with the law,or which would enlargetbe rights of the homesteaders thereunder·. Their rights are fixed and defined by the statute, which"it is the province of the court to construe.. TIle ,secretarycan the law, nor place upon it any cOl1structionwhich would be binding upon the c<,lUrts." This is well settled.ln:U. S. v. Dickson, 15 Pet. 161, the treasury department had 20 years placed aeertain construction upon an act of confor more· gress. The supreme court declined to follow that construction.. The court say: "The construction so given by the treasury department to any law affecting its arrangements and concerns ·il!! certainly entitled. to great respect. Still, however, jf it is not inconformity t!> the true intendment and prOVisions of the law. it cannot be permitted to. conclude the jUdgment of a court of justice. The construction given to the law by any department of the executive the benefit of an opposing argugovernment is necessarily ea: parte, ment ina suit where the very matteris in controversy; and, when the construction is once given, there is no opportunity to question or revise it by those who are most interested in it as officers, deriving their salary emoluments therefrom, for they cannot bring the case to the test of a jUdicial decision. It is only when theYilre sued by the government for some supposed, default or balance that they can assert their rights. But it is not to be forgotten that ours is a government of laws, and not of men: and that the judicial department has imposed upo:n it by the constitution the solemn duty to interpret the laws in the last resort; and: however disagreeable that duty may be. in cases wbere its own jUdgment shllrU differ from that of other high functionaries, it'!!! not at liberty to surrender or to waive it."
Any other rule than that here announced would subordinate the judicial to the executive department of the government. The cases cited and relied upon by the defense do not,. when carefully examined, conflict with the principle as staten by the court in the case of U. S. v. Dickson. ' If, thenjtheopinion of the secretary of the interior in the Baird Case was intended, as the defense contend, to enlarge the rights of homesteaders beyond what the courts had construed them to be under the law, the trial judge properly disregarded it as neither binding upon the court,
UNITED STATES 'D. MURPHY.
888
nor constituting any justification 'or defense, even if the defendant was lQd to rely upon it under information derived from the register. In Whitesides v. U. S., 93U. S. 257, it is Baid that" IndifJiduals as well as the:courts m'U8t take notice of thement of authority coriferred by law upon a aming in an ojftcial capacity, and the 'fule applies in such a case of the law furnishes no ea:cusefor any mistake or wrongful act." It is urged that the actioh of ,the government officials in inducingtpe belief that the homesteader could dispose of the timber on his entry without restriction while occupying iii good faith, and on which it is claimed the defendant relied in· purchasing, and cutting and removing thepin6'trees,should estap the government from maintaining this prosecution. The rule stated in Whitesides v. U. S., 93 U. S. 247, is a sufficient answer to this suggestion. . There is no estoppel against the governmel:.t in such Carr v. U. S., 98 U. S. 438. If the defendant has really been misled'to his prejudice by wrong representations, or information communicated:tohim through the interior or its subordinate agents, that would present grounds for executive clemency, but would not constitute any legal defense fora wrongful act, prohibited by law. It is Iiext urged that therew(lS' no criminal intent in the defendant's acts. A sufficient answerto this is found in theract that the penalty unrkr the,etatuteUiincurredwithout any criminal intent. The timber was cut and removed from government land urider no mistake or accident. There was no mistake in point of fact. The defendant, knowing all the facts, intended to do just what he did do. The only mistake, if there was any, was a mistake of law as towhat he could lawfully do. In U. S. v. Darton, 6 McLean, 46, the defendant was allowed to show that he got over on government land and cut timber by mUitake, supposing it be,. longed to his principal. He did not intend to cut government timber. But in the present case the defendant intended to cut just where he did cut, and the only ground on which he can defend or protect himself against the penalty imposed by the' statute, is to show that he did this authority. No evidence was produced or offered tending to show any mistake made by defendant, sach as would properly raise any question as to his intent. His taking legal advice, or consulting "lawyers before this, on some such this particular one; some other such subiect,"-'-does not, of course, constitute any.defense, or'negatIve law imputed to him in doing the forbidden act; even if any criminal intent had to be shown. The trial judge, we 'think, properly held that"When, by the admission of the defendant himself, he knew that he was upon the land of the homesteader,and cut timber not in the clearing, or in the course of clearing, but from the tract generally, selecting that which w;a.s marketable, and removed it, that closes the case so far as the jury is concerned. and no evidence of good faith or of intent will be admissible." The court also properly deciined to charge ihejury that, if the money obtained from the sale of the timber was used by the homesteader in the iD1provement of the homestead, he had a right to s lll. The right to sell
384'
FEDERA'L REPORTER.
was limited to 8UrpZUS timber removed from clearing, or portions of the land in course of clearing, and not needed for the improvement of the placs. We think the authority to sell, as construed by the decision cited,. is restricted, substantially, as stated by the trial court, and that any other construction of the law would· open the widest door to the spoliation of the public domain. The defense in this case, if sustained, would have the effect of enlarging the rights of homesteaders far beyond anything ·yet. conceded them by the most, liberal construction of, the homestead laws· .It is not pretended that thetimberin this case was sold and purchased, or cut and removed, with the view or for the purpose of clearing the land from which it was taken. It would have been ridiculous in the extreme to have claimed that an average of one or one and a half trees to the acre, scattered over 160 acres oftimber land, was cut and removed as an incidentto the clearing of the land for cultivation, or was intended as the initial or .preliminary' step in th!j,t direction. No evidence tending to suppott.such a proposition was introduced or offered by the defense. The cutting.aod removing the timber was attempted to be justified or excused on other grounds which have already been considered. We regard it the soundest interpretation of the homestead law, and most in harmony with the decided weight of authority, to hold that the sale of timber by the homesteader should be confined to that taken from such portion or parts of the land as are being cleared for cultivation or settlement. The sale, or cutting and removal, of timber from portions of the lands not .cleared, or in course of 'clearing, is not in the line of perfecting his title. Under the provisions ofsection 246.1, whoever cuts and removes timber fr,om public lands-which include. all tbat the government holds title to-must be prepared to show, when indicted or sued as a trespasser, lawful authority for his act. If he-is a homesteader, he may show his occupation of the land under entry, and that the timber was cut and removed for the purpose of clearing the ground for cultivation, or for fencing, or for the erection or· repair of neoessaryand convenient buildings. When he shows that the cutting was ;done for these purposes, which are germain and incidental to the improvement of his homestead in the way required by the law in order to ,perfect and complete his title, his defense is made out. But when he makes sale of timber scattered over the entire tract covered by his entry, not with a view or purpose of clearing the land for tillage, but to raise money for his support or other uses, his act is unlawful, and he subjects himself to the penalties provided by section 2461,Rev. St. Under the facts and cirdisclosed in this case, the vendor, Henderson, had no authority to sell the pine timber bought by the defendant, and for cutting and removing that timber the defendant was properly found guilty, under instructions which contain no reversible error. When analyzed, the substance of the defense is that the defendant did not violate the law as he construed it, or as he understood the officials Qithe interior'department had construed it in declaring the rights of the homesteader, whose good faith would constitute or furnish a valid and
UNITEln STATES V. MURPHY.
385,
lawful excuse fQrhiB act in cutting ani removing the timber. This is not a'valid defense. The law reserves the title in the government until the homesteader proves up his .claim and his patel1t issues. Before titl6t is perfected, it prohibits the sale of any portion of the land, (or standing tiil1ber, which constitutes part of the realty,) except for church, cemetery, school, and railroad purposes. But while occupying in good faith, and while his title is inchoate, the law authorizes the homesteader to improve the land for purposes of settlement and cultivation, which includes clearing for tillage, fencing, and the erection of convenient buildings; and, as an incident to such clearing, he may cut and sell so much of the timber taken from the cleared tract as is not needed for other legitimate purposes on the land. This incidental power of disposition extends only to surplus timber cut and removed from so much of the tract as is cleared, or in process of clearing, for cultivation. The case has !l0 far been considered upon the assumption that the fendant, by and under his purchase, had the same right to cut and remove timber that the homesteaqer himself possessed. In what has been said it is not 'intended to admit or concede this proposition, for the. homesteader's entry is required to be made for his "exclusive use and benefit," for the purpose of settlement and cultivation; and he is forbidden tq alienate any portion of hls efaim, except for church, cenletery, school, ll,4.d"railrol;\d. purposes. .Rights and privileges which were intended or personal and exclusive benefit and advanconferred for the tage, to enable him to comply with the obligations, requirements, lind general policy of the law in settling, improving, and cultivating the land, so as to complete and perfect his title thereto, (until which time he is forbidden to alienate except for certain purposes,) can hardly be the subject of lawful purchase by Tpe eleventh and thirty-third instructions to special agents, above quoted, seem to embody a correct statement of the law on this question. So that. in any view that can be taken of this case, the defendant's act in causing the timber to be cut and removed from the puBlic land in question was a trespass, for which he was properly convicted; there being no reversible error in the rulings of the trial judge upon the]aw and evidence. The motion for new trial is accordingly overruled and disallowed. SAGE and SEVERENS, JJ., concur. NOTE. PuBLIO LANDS - CUTTING TIMBER ON. One who enters upon public land in good faith for the purpose of aecuring title by pre-emption, or of claiming a homestead therein, may cut so much timber atanding on the land as is necessary for cultivation, and the timber so cut he may dispose of to the best advantage possible; but he cannot go outside of his im provernents to cut and sell timber, though he intend to acquire title under his claim. The Timber Cases, 11 Fed. Rep. 81; U. S. v. La.ne. 19 Fed. Rep. 910; U. S. v. Williams, 18 Fed. Rep. 475. See, also, U. S. v. Smith, lll!'ed. Rep. 487. But where a settlP-r is acting in good faith he may, for the purpose of improvement. cut timber even before he files his entry in the land office. U. S. v. Yoder, 18 Fed. Rep. 372. And where a settler on public lands has removed timber for other than the purpose of tillage, a subsequent Issuance of the certificate of the register and receiver of the land-office to such settler, stating that.he has complied With the law in making setU. S. v. Ball, 31 tlement, will relieve him from liability for such wrongful V .32F.no.6-25
386'
Fed.. 667. So a settler, who, pending an aetion for the recovery of the value of timber' which he has wrongftillyollt a!;ld' Bold to defendants, becomes entitled to the lssltance:of the patent to the 'land b,Y.the payment of the purchase money in full, _ thereby defeats the right of the plaintltr,to recover, such action of the settler in securing,an,equitllble title being held to relate back to the original eutry. U. S. v. Stores, 14 Fed. Rep. 824. . MEASV311l 011' PAMAGES. In case ,a trespass public lands consisting in the wrongful cutting of timber thereon is inadvertent, the measure of damages is the. value of the timber in the trees j but in case the trespass is willful, the measure of damages is thll value of the property at the time the action is brought, with no deduction for the labor put forth and the expense incurred qyt1:te trespasser.. U.S. v. Williams, 18 Fed. Rep. 475. And an innocent purchaser from'a willful trespasser is liable for the full value of the timber at the time of the purchase. ' U. S. v. HeHner, 26 Fed. Rep. BO.
'UNI:l'EDSTATES il.MANN.
(Oirtmit Cburt,
w: D. Michigan, N. D.
Indictment ber.
Trespass on Government Lands, cutting and removing tim-
JACKSON,J. The presented On the moqpn for new trial in this, case substantially the, same as those considered, and determined in the foregoing case U.S. v. Murphy. ante, 876, and the conclusions reached in that case aie equally applicable to'this. The motion for a new trial is lngly overruled and ,
'UNITtD STATES V.
(Two .Cases.) 1887.) EXISTENCE 01l'
(DiatrictOourt!D. Oalifornia.
(JuSTONS ,DUTIES- INDIOTMENT FOR, F ALSlll BIJ,LS OF LADING. . ' . ',
OTHER
The facdhai at the time a person'ent'ered merchandise lit the custom-house there were in existence, to his knowledge., several copies of the bills of lading presented by J:!,im..does notmakellis sWOrn statement, as required by Rev: St. U. S. 2841: tltai he does not kiiow ofot believe in the existother than those produced by him, a ence of any invoices or bills of false oath; as the other invoices or bills' of ladinlrintended by the statute -are bills of lading or invoices different from those presented, and not merely the copies thereof which by commeroiaJ usage or statute are required to be procured. ., . Swearing',with respect to a foreign entry of goods'
Indictment for at the custom-house.
, JohnT. O(J.lrey, U; S. the United States.
;H.
Milton HOFFMAN,
,defendant.,
for
J., (charging jury.) This defendant is indicted for false 'The facts of. case are not !'. It ,admitted that
is
