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permit land to be acquired on speculation for the use or benefit of another; but it permits any citizen to purchase land for his own exclusive use, though he may at the time have in contemplation a future sale of the same for profit.

United States v. Budd, 144 U. S. 154.

United States v. Detroit Timber & Lumber Co., 131 Fed. 668, p. 674.

Olson v. United States, 133 Fed. 849, p. 852.

United States v. Brace, 149 Fed. 869, p. 872.

This act does not forbid an entryman from alienating his interest in his claim, but makes illegal any prior agreement by which an entryman acts for another in the purchase.

Worden v. United States, 204 Fed. 1, p. 4.

n. CONTRACT OF SALE AFTER APPLICATION-VALIDITY.

The fact that an applicant for a patent to land entered by him has, pending the publication of notice of the final hearing, contracted to convey after the receipt of such patent his rights in the land does not operate to forfeit such rights where he has in good faith complied with the requirements of this section of the statute.

Williamson v. United States, 207 U. S. 425, p. 460.

See United States v. Biggs, 211 U. S. 507, p. 519.

Adams v. Church, 193 U. S. 510.

This statute does not limit the dominion which the purchaser has over the land after it is purchased from the Government or restrict in the slightest his power of alienation. Olson v. United States, 133 Fed. 849, p. 852.

United States v. Budd, 144 U. S. 154.

An applicant for the purchase of timberlands has, after his initial application and before final proof, the right to contract to sell the title thereafter to be acquired and the intending purchaser may lawfully advance to him the money with which to make final proof.

Williamson v. United States, 207 U. S. 425.

United States v. Biggs, 211 U. S. 507.

United States v. Barber Lumber Co., 172 Fed. 948.
United States v. Kettenbach, 175 Fed. 463, p. 464.

Under this statute it is lawful for one desiring to acquire title to timberland to make known his willingness to buy the same at an advance over the Government price, and another person knowing such fact may make an entry with the expectation of selling to such intending purchaser, and an entryman may, at any time after his application, contract to sell to another and the transaction is not illegal if there has been nothing further in the way of communication, contract, or agreement between the parties.

United States v. Barber Lumber Co., 172 Fed. 948, p. 960.

Under this act an applicant, after making his preliminary sworn statement concerning his bona fides and the absence of any agreement with other persons in respect to the title, is not required on his final proof to repeat his bona fides or the absence of any agreement with others in relation to the title of the land, and an indictment for perjury can not be based upon such an affidavit.

Williamson v. United States, 207 U. S. 425, p. 455.
See United States v. Biggs, 211 U. S. 507, p. 520.
United States v. Maid, 116 Fed. 650, p. 652.
Robnett v. United States, 169 Fed. 778, p. 781.

0. BONA FIDE PURCHASER FROM ENTRYMAN-TITLE.

A person with knowledge of fraudulent entries of land under this act can not be a bona fide purchaser of such lands; neither can a corporation formed by him, and the

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stock of which is owned by himself and the members of his family, and an action to cancel the patents issued upon such fraudulent entries is not barred as against such a corporation, though it is not made a party to the action until after the expiration of six years.

United States v. Smith, 181 Fed. 545, p. 554.

Under this statute a person making an entry of lands valuable chiefly for stone, acquires only an equity and his vendee of such equitable title can not be regarded as a bona fide purchaser within the meaning of the statute, as a bona fide purchaser can only be such after the Government by its patent has parted with the legal title. Hawley v. Diller, 178 U. S. 476, pp. 485, 486. Affirming Diller v. Hawley, 81 Fed. 651, p. 655.

9. AGRICULTURAL SETTLEMENT ON STONE LANDS.

A settlement for agricultural purposes on lands chiefly valuable for timber and stone which are unfit for ordinary purposes must be carefully scrutinized, as the exception in the statute is in favor of bona fide settlers.

Wright v. Larson, 7 L. D. 555, p. 556.

Montayo v. Trujillo, 25 L. D. 475, p. 477.
McKay, In re, 8 L. D. 526.

The fact that when an application for a mining claim was located a homestead entry was of record and uncanceled does not of itself affect the validity of such location, as no vested right to the land had attached under the entry, and until such right should attach the lands belong to the United States, and if mineral in character are subject to location and purchase under the mining laws.

Manners Construction Co. v. Rees, 31 L. D. 408, p. 410.

10. AGRICULTURAL ENTRY NOT PERMITTED UNDER THIS ACT. Lands in fact mineral are not subject to agricultural entry, but are open to mining location and subject to the provisions of this act.

Bunker Hill, etc., Min etc., Co. v. United States, 226 U. S. 548, p. 549. Where a tract of land is in fact mineral in character, the title, together with the timber thereon, may be acquired under the mining law; but if the tract is vacant and nonmineral, valuable chiefly for its timber but unfit for cultivation and contains no mining or other improvement, it may be purchased upon the conditions imposed by this act. Gallagher v. Gray, 35 L. D. 90, p. 91.

11. FORFEITURE OR CANCELLATION OF ENTRY.

Lands regularly entered as chiefly valuable for timber and stone can not be forfeited in the hands of a bona fide purchaser.

Hawley v. Diller, 75 Fed. 946.

See Diller v. Hawley, 81 Fed. 651.

The Land Department may cancel an entry made under this statute when the proof shows that the same was fraudulently made.

Diller v. Hawley, 81 Fed. 651.

Overruling Hawley v. Diller, 75 Fed. 946.

12. RECOVERY OF MONEY ON CANCELLATION OF ENTRY.

An entryman under this statute can not recover the money paid by him on making the entry where the entry has been canceled on the ground of fraud and false swearing. Emmons v. United States, 175 Fed. 514, p. 516.

A cancellation of timber and stone entries made at a hearing before the Commissioner of the General Land Office, on account of false swearing and fraud upon the part of the entryman, is an adjudication of a fact and is not subject to attack in a collateral proceeding.

Emmons v. United States, 175 Fed. 514, p. 516.

An entryman under this statute whose entry has been canceled at a hearing duly had before the Commissioner of the General Land Office on the ground of fraud and false swearing can not, in an action by him to recover the money paid on such entry, claim that he has not had his day in court within the constitutional provision, as the statute under which the entry is made is both a contract and a law, and he proceeds with notice that if he take a false oath with reference to his entry he can not obtain the land nor recover back his money, and the judgment of the Land Department is conclusive on this question.

Emmons v. United States, 175 Fed. 514, p. 516.

This statute imposes upon a claimant one condition that he shall be subject to the pains and penalties of perjury, and another that he shall forfeit the money paid for the land; but each condition is separate and distinct and neither depends upon the other, and in a proper case the party may be subject to either penalty or in other cases a party may suffer the penalty of both conditions.

Emmons v. United States, 175 Fed. 514, p. 516.

13. PATENT CANCELLATION.

A patent to timber and stone lands under this act can not be canceled where the entryman or patentee concealed from the land officers immaterial facts in order to obtain the patent to the receipt of which he is undoubtedly entitled.

United States v. Kettenbach, 175 Fed. 463, p. 465.

Reversed in part in United States v. Kettenbach, 208 Fed. 209.

Patents issued under this act may be set aside and canceled for fraud in the patentee in conspiring to purchase entries pursuant to an agreement to transfer the title to persons not bona fide purchasers for value.

United States v. Kettenbach, 208 Fed. 209, p. 213.

14. STATE SELECTIONS-BASIS.

This act shows that Congress supposed stone lands to be selectable by a State, and debars the taking up of deposits of stone in any land selected by a State; and the affidavit required of the claimant by the second section is substantially the usual affidavit which is required to be made by all entrymen of agricultural lands to the effect that the land is nonmineral and is not sought to be entered for speculation.

Wheeler v. Smith, 5 Wash. 704, p. 709.

It is essential to the State's claimed right of indemnity selection that lands intended to be used as the basis therefor shall have been lost to the State by reason of their mineral or saline character or otherwise reserved from the State's grant; but unless they were known to be mineral or saline in character at the time of survey, they were not lost to the State but passed to it under its grant, and no indemnity can be obtained therefor.

Bond v. California, 31 L. D. 34,

p. 36.

15. REGULATIONS BY SECRETARY.

While this section provides that effect shall be given to the provisions of this statute by regulations to be prescribed by the Commissioner of the General Land Office, yet

this power can be construed only as authorizing the Commissioner to adopt rules and regulations for the enforcement of the act and not such as are destructive of the rights conferred by the statute, and such rules and regulations can not go beyond the requirements of the act itself.

Williamson v. United States, 207 U. S. 425, p. 462.

Robnett v. United States, 169 Fed. 778, p. 781.

The regulations adopted by the Secretary of the Interior under this statute contemplate that a record shall be kept by persons engaged in operating sawmills or those who are engaged in felling timber on mineral lands and cutting it into some form suitable for building, agriculture, mining, or other domestic uses, and it can not apply to individual ranchmen who cut timber on mineral lands for their own use and who cut a small quantity and sell it to a neighbor for their domestic purposes.

United States v. Price Trading Co., 109 Fed. 239, p. 245.

See Stubbs v. United States, 111 Fed. 366, p. 368.

United States v. Mullan Fuel Co., 118 Fed. 663, p. 666.

16. CUTTING OF TIMBER.

a. CONSTRUCTION AND MEANING OF ACT.

Section 4 is construed as though it read thus: "that after the passage of this act it shall be unlawful to wantonly destroy, cut, or cause or procure to be cut, any timber growing on any lands of the United States, in said States or Territories, or remove, or cause to be removed, any timber from said public lands, with intent to export or dispose of the same," and the proviso to the section is not inconsistent with this interpretation.

United States v. Hacker, 73 Fed. 292, p. 293.

See English v. United States, 116 Fed. 625, p. 626.

The cutting of timber upon mineral lands in California is governed by this statute, and not by the general provisions of the act of June 3, 1878 (20 Stat. 88).

United States v. Benjamin, 21 Fed. 285, p. 287.

b. PURPOSES FOR WHICH TIMBER MAY BE CUT.

The proviso of this section is a specification of the purposes for which timber may be lawfully cut or removed and expressly legalizes some acts both of removal and cutting which would otherwise be forbidden by the body of the act and relate to the removal as well as to the cutting of the timber.

United States v. Hacker, 73 Fed. 292, pp. 293, 295.

The proviso of section 4 limits the scope of the words "with intent to export or dispose of the same," by making it lawful for a miner or homestead settler to cut timber from such land even though with intent at the time to sell it, provided the cutting be done in the necessary preparation of the land for the use for which it was intended. United States v. Hacker, 73 Fed. 292, p. 295.

The overt acts to which this act relates are the cutting of timber, the destruction of timber, and the removal of timber; and the statement of the intent to export or dispose of such timber concludes the enumeration of all these acts, and an intent to dispose of the timber is wholly inconsistent with its wanton destruction.

United States v. Hacker, 73 Fed. 292, p. 293.

C. WHO PERMITTED TO CUT.

Citizens and residents are permitted to take from nonmineral public lands such timber as they may require in the improvement of their farms or mines, there not being sufficient timber on their respective claims for the uses and purposes specified. Instructions-Timber Cutting, In re, 1 L. D. 600, p. 602.

The term "taking timber necessary to support their improvements" applied to a miner must mean all the timber he might need to make the working of his mine possible and as to a farmer all the timber he might need for the use of such farm.

Instructions-Timber Cutting, In re, 1 L. D. 600, p. 602.

The right to cut and remove timber from the public nonmineral lands is confined to the resident miner and agriculturist, and it is therefore unlawful for millmen to cut and remove from such public nonmineral lands any timber to be sold in the general market or for exportation or to be used for any purpose other than those specified. Instructions-Timber Cutting, In re, 1 L. D. 600, p. 603.

Under this section the miner and agriculturist within the mineral districts of California are permitted to go upon the nonmineral lands to procure timber as they may need in the development of their mining claims or for the improvement of their farms; but they are restricted to the use of such timber only as may be actually required for the development and improvement of their particular claims and farms, but they may employ others to procure such timber for them.

Timber Cutting, In re, 1 L. D. 616, p. 617.

Bona fide residents are permitted to cut and remove, or to purchase from others, timber upon the public mineral lands if the same is not intended for export, and if the timber is less than eight inches in diameter, where it is not wantonly wasted or destroyed.

Circular, In re, 1 L. D. 696, p. 698.

The cutting and removing of mesquite is restricted and confined to actual settlers and bona fide residents upon mineral lands and is permitted for building, agricultural, mining, and domestic purposes, and it may be cut and removed from the public mineral lands for sale to any actual settler or resident, but only for uses and purposes described, but such cutting or removing is prohibited if for sale to any railroad as an article of fuel or repair.

Circular, In re, 1 L. D. 696.

Possession of a mining claim in accordance with the provisions of the statute confers the right on a locator to work such claim for precious metal, but confers no right to take timber or otherwise make use of the surface except as may be necessary for mining purposes.

Teller v. United States, 113 Fed. 273, p. 280.

See Benson Min., etc., Co. v. Alta Min., etc., Co., 145 U. S. 428.

United States v. Rizzinelli, 182 Fed. 675, p. 681.

Under this act persons occupying the publie lands in Oregon under the mining' preemption, or homestead laws may cut and use the timber thereon for the purposes of such occupancy, and may also take other timber from the public lands, if needed, sufficient to maintain the necessary improvements on the land so occupied. United States v. Smith, 11 Fed. 487, p. 492.

This statute prohibits the cutting or unwarranted destruction of any timber growing on any public lands in California, but permits miners and agriculturists to clear their land in the ordinary working of a mining claim or farm, and take the timber necessary to support their improvements.

United States v. Benjamin, 21 Fed. 285, p. 287.

d. HOMESTEAD SETTLER NOT PERMITTED TO CUT TIMBER.

An entryman of a homestead on the public lands can not, neither can his assignee, justify the cutting and sale of timber under this statute on the ground that the land was in fact mineral and not agricultural.

Bunker Hill, etc., Min., etc., Co. v. United States, 178 Fed. 914.
See Bunker Hill, etc., Min., Co. v. United States, 226 U. S. 548, p. 549.

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