See 21 Stat. 140, p. 1216. 1. PURPOSE AND APPLICATION. One object of the statute was to enable the inhabitants of Nevada, California, and Washington Territory to purchase certain timber lands, and another to prevent the committing of waste on the public lands of the States and Territories named in the act, but it was not the purpose to interfere with the agriculturist and miner who mined without committing actual waste in the cutting of timber from the public lands. Instructions-Timber Cutting, In re, 1 L. D. 600, p. 601. This statute was intended to enable settlers in regions where timber is scarce to utilize it so far as is necessary for domestic and mining purposes, and courts will not presume that the regulations adopted by the Secretary of the Interior were intended to place embarrassing and unnecessary restrictions in the way of such use. United States v. Price Trading Co., 109 Fed. 239, p. 245. See Stubbs v. United States, 111 Fed. 366, p. 368. Section 4 of this act was not put in force in the State of Colorado by the amendment of March 3, 1891 (26 Stat. 1093), but it was made applicable and put in force in all the public land States by the act of August 4, 1892 (27 Stat. 348), and this includes the State of Colorado. Stubbs v. United States, 104 Fed. 988, p. 991. Stubbs v. United States, 111 Fed. 366, p. 367. Section 4 of this act was not in force in the State of Colorado on and after March 3, 1891, so far as it related to cutting timber on lands not mineral. Stubbs v. United States, 104 Fed. 988, p. 991. See Stubbs v. United States, 111 Fed. 366. This act, by its terms, is made applicable to the States of California, Oregon, and Nevada, but lands chiefly valuable for stone may, in other States, be located under the placer mining laws. Freezer v. Sweeney, 8 Mont. 508, p. 513. The mineral districts of California were included in this act, and all privileges granted to the inhabitants of the mineral districts of the States and Territories named were granted to the inhabitants of such mineral districts of California. Instructions-Timber Cutting, In re, 1 L. D. 600. By this amendment the provisions of the statute were extended to all publicland States and as so extended were in force and governed any offenses thereafter committed. The statute is based manifestly upon the possibility that much of the timber and stone on such lands would not be needed for years to come, and that the opportunities thus afforded for increased valuation should not be monopolized by a few, but should be open equally to all, so that any such increment might be shared widely by the people of the United States, and was an attempt to widely distribute and popularize the ownership of these lands and Congress did not mean to shut out the citizens of the United States who live at great distances or were physically incapacitated to explore the woods or who could not, for any reason, personally inspect the land. Hoover v. Salling, 110 Fed. 43. Robnett v. United States, 169 Fed. 778, p. 781. 2. CONSTRUCTION OF ACT. Section 4 must be given such a construction as will prohibit the taking of timber from the adjacent public lands by a miner or agriculturist in any case not strictly within the proviso, as the purpose of the statute is to preserve the timber on the public domain against cutting for any purpose other than that of clearing the land for the purpose of agriculture or the ordinary working of a mining claim by a miner, or for supporting the necessary improvements of each. United States v. English, 107 Fed. 867, p. 869. See English v. United States, 116 Fed. 625, p. 626. The proviso contained in section 4 does not permit the taking of timber from public lands for the conduct of a permanent business, as such use is not an improvement. United States v. English, 107 Fed. 867, p. 868. See United States v. Hacker, 73 Fed. 292. Congress did not by the amendment of August 4, 1892, intend to withdraw the privilege conferred by this statute on residents of the States and Territories where there was a dearth of timber, but continued the right to devote such timber as was found standing on mineral land to agricultural, mining, and other domestic uses. United States v. Price Trading Co., 109 Fed. 239, p. 248. 3. POLICY TO PROTECT TIMBER AND MINERALS. The policy of the Government, as manifested by this and kindred legislation, was to protect the timber on the public domain except as against certain necessary and specified uses in mining and tilling, and the mischief intended to be prevented outside of the wanton destruction was its sale. United States v. Hacker, 73 Fed. 292, p. 295. Lands duly entered for homestead are, under this section, still so far the property of the United States that the Government may protect itself against an unlawful use thereof, and may punish the settler for unlawfully cutting the timber thereon. Shiver v. United States, 159 U. S. 491, p. 494. The Government has no adequate way of protecting its public lands and timber by fencing and vigilant attention as an individual owner, and its liberality in allowing timber to be cut on its lands for mining, agricultural, and other specified uses has been used as a screen for the lawless depredator who destroys and sells for profit, and it has long been a matter of complaint that the depredations of these public lands are rapidly destroying the finest forests in the world. Wooden Ware Co. v. United States, 106 U. S. 432, p. 436. As between the United States and a settler, the land is deemed the property of the United States, at least so far as may be necessary to protect it from waste. Shiver v. United States, 159 U. S. 491, p. 499. The power of regulation and disposition of mineral lands or other lands conferred upon Congress only ceases when all the preliminary acts prescribed by Congress for the acquisition of the title, including the payment of the price for the land, have been performed by the locator or settler. United States v. Braddock, 50 Fed. 669, p. 673. This act only authorizes the sale of such surveyed public lands in certain States as were valuable chiefly for timber and stone but unfit for cultivation. Pierce v. Bond, 22 L. D. 345. Lands chiefly valuable for timber but unfit for cultivation, within the meaning of this act, include lands valuable for timber where the timber is so extensive and so dense as to render the tract as a whole, in its present state, substantially unfit for cultivation, though they may be made fit or suitable for cultivation by removing the timber. United States v. Budd, 144 U. S. 154, p. 166. Johnson v. Bridal Veil Lumbering Co., 24 Oreg. 182, p. 185. By this original act and the amendatory act, lands chiefly valuable for timber and for stone were made subject to sale prior to a public offering, but it was not the making of a new classification, and if not purchased under this or the amendatory act in advance of their public offering were then subject to private cash entry the same as other public lands, and the timber and stony character and unfitness for cultivation were regarded merely as a circumstance to be considered in passing on the good faith of the settlement entryman. Jones v. Aztec Land & Cattle Co., 34 L. D. 115, p. 117. See McKay, In re, 8 L. D. 526. Wright v. Larson, 7 L. D. 555. Keller v. Bullington, 11 L. D. 140. A claimant under this act has the burden of proving that the chief value of land is its timber. Smith v. Buckley, 15 L. D. 321, p. 324. See United States v. Budd, 144 U. S. 154. In a controversy arising upon a protest by a mineral claimant against an application to purchase under this act lands returned as of little value for agricultural purposes and chiefly valuable for the timber thereon, the burden of proof rests upon the mineral protestant. Purtle v. Steffee, 31 L. D. 400, p. 401. 5. STONE LANDS-DISPOSAL. This act is a congressional interpretation of the mining laws then in force to the extent of holding that they did not provide a mode of disposing of land valuable chiefly for stone. Jacob, In re, 7 C. L. O. 83, p. 84. Congress intended from the whole act to provide a method by which title might be acquired to land which was unfit for cultivation and nonmineral in character containing valuable deposits of stone. Andrew v. Stuart, 31 L. D. 264, p. 266. These acts place stone lands in a class separate and distinct from other mineral lands and seem to indicate that the word "mineral," as used in prior statutes, had a limited definition and included metalliferous minerals only. Northern Pac. R. Co. v. Soderberg, 99 Fed. 506, p. 507. See Northern Pac. R. Co. v. Soderberg, 104 Fed. 425. The term mineral is more frequently applied to substances containing metals, but in its proper sense includes all fossil bodies or matters dug out of mines, and in this sense beds of stone may be included in the word mineral. McGlenn v. Wienbroeer, 15 L. D. 370, p. 373. Rosse v. Wainman, 14 M. & W. 859. Stone aken from quarries is mineral. McGlenn v. Wienbroeer, 15 L. D. 370, p. 373. Micklethwait v. Winter, 5 Eng. Law & Eq. 526. The provisions of this section are inconsistent with the idea that lands chiefly valuable for stone can be located under any mining law. Wheeler v. Smith, 5 Wash. 704, p. 710. By this act Congress recognized the fact that a stone quarry is not a placer mine. Conlin v. Kelly, 12 L. D. 1, p. 3. The act of August 4, 1892 (27 Stat. 348), did not take building stone outside of the provisions of this statute or add it to the class of substances known as mineral, but only provided that lands chiefly valuable for building stone could be entered under the placer mining laws. Randolph, In re, 23 L. D. 516, p. 517. Randolph, In re, 23 L. D. 329. This act in effect amends the mining statutes so as to make lands chiefly valuable for building stone subject to entry under the placer mining laws, but it does not dispense with the rule requiring the discovery and location, and both must precede entry, and when made the claimant is protected in his possessory right so long as he complies with the laws and the regulations. Randolph, In re, 23 L. D. 329, p. 330. 6. PARTICULAR KINDS OF STONE INCLUDED. Lands containing valuable building stone are subject to entry under this act. The presence of fire clay or even coal, timber, and stone lands is no bar to entry under this act. McIntosh v. Savage, 16 C. L. O. 159. Lands that are unfit for agriculture and chiefly valuable for a deposit of slate are subject to entry under this act. Parks v. Hendsch, 12 L. D. 100, p. 101. Land containing stone suitable for making lime may be properly entered or purchased under the stone and timber act. Shepherd v. Bird, 17 L. D. 82, p. 84. See Conlin v. Kelly, 12 L. D. Î. Pacific Coast Marble Co. v. Northern Pac. R. Co., 25 L. D. 233, p. 241. Land that is rough and rocky, covered with bowlders and sharp jutting ledges of rock, but wholly unfit for cultivation and containing a valuable ledge or quarry of building granite of great length, is subject to entry under this act, when shown to be more valuable for its stone than for agricultural or grazing purposes. Mordecai v. California, 17 L. D. 144. Jacob, In re, 7 C. L. O. 83, p. 84. 7. STONE LANDS EXCEPTED FROM RAILROAD GRANTS. This statute defines the status of mineral lands included within the limits of the grant to the Northern Pacific Railroad Company and does not include land valuable chiefly for stone. Northern Pacific R. Co. v. Soderberg, 104 Fed. 425, pp. 429, 430. An entry under this statute of lands within the indemnity limits under the grant to the Northern Pacific Railroad Company which have been withdrawn and suspended from entry and sale gives the entryman the beneficial interest and equitable title as against the railroad company where it had filed its selection of land but which had not been approved by the Secretary of the Interior. Hoyt v. Weyerhaeuser, 161 Fed. 324, p. 326. 8. APPLICATION TO PURCHASE. a. FILING AND EFFECT. The procedure under this statute embraces, first, a statement verified by oath of the character of the lands, the right of the applicant to enter, and the purpose of his proposed entry, and, second, after notice a hearing either ex parte or upon contest and before allowance of the application the statement must be supported by satisfactory proof, and such statement is simply an initial paper upon which the machinery of the Land Office is to be set in motion, and it is not accepted as proof, nor does it perform the office of proof. Robnett v. United States, 169 Fed. 778, p. 782. The mere filing of an application to purchase under this act confers upon the applicant no right as against the United States and until he acquires a vested right in the land it may be withdrawn from sale. United States v. Braddock, 50 Fed. 669, p. 672. The second section of this act permits a competent person to file with the register of the proper district a statement of a tract of land he desires to purchase and requires him to show that the same is valuable chiefly for its timber or stone, is uninhabitable, contains no mining or other improvements, and contains no valuable deposits of gold, silver, cinnabar, copper, or coal. United States v. Braddock, 50 Fed. 669, p. 671. The filing of the preliminary affidavit does not operate as a complete segregation of the tract from the public lands. Smith v. Martin, 2 L. D. 33. An applicant for land under this act has the burden of establishing the fact that the land was of the character mentioned at the date of the hearing. Smith v. Buckley, 15 L. D. 321, p. 322. See Hughes v. Tipton, 2 L. D. 334. No vested right is acquired by an application to purchase land either for the timber or stone until the final proofs have been passed upon and approved by the Land Department. Board of Control, Canal No. 3 v. Torrence, 32 L. D. 472, p. 474. See Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 Ú. S. 301, p. 311. Under this statute an application to purchase and the payment of the purchase money for such land is equivalent to entry, and no rights are secured prior to such application and payment. Randolph, In re, 23 L. D. 329, p. 330. See Hayden v. Jamison, 24 L. D. 404. b. MINERAL LANDS NOT SUBJECT TO PURCHASE. If land applied to be purchased under this act is known to be chiefly valuable for mineral it contains, it is no more subject to a timber and stone application than to the State selection. McFarland v. Idaho, 32 L. D. 107, p. 109. This act expressly excludes land containing gold, silver, cinnabar, copper, or coal. McIntosh v. Savage, 16 C. L. O. 159. By the express provisions of this section the mineral lands, in the broadest sense of that term, are excluded from the provisions of the chapter. Instructions Timber Cutting, In re, 1 L. D. 600, p. 601. |