cultivation of the land and manifesting an intention to make permanent occupancy and bona fide settlement, is legitimate and proper to be done. The land can be cleared and timber sold, if cut down for the purpose of cultivation; but if sale and traffic is the only reason for severing the timber, and it is not done with a view of improving the land, the intentions of the law-giver are subverted." The jury found a verdict for the U. S.

Section 2319 of the Revised Statutes, (Sec. 1 of the Act of May 10, 1872 declares that " All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase and the lands in which they are found to occupation and purchase by citizens of the United States," under certain regulations as to quantity and work thereon during the period between selection and purchase. Among the conditions upon the keeping of which this right of occupation rests is the performance of a certain amount of labor upon the premises annually. If the claim is a vein or lode the occupant may purchase the same upon proof of the performance of the conditions precedent by paying therefor at the rate of $5 per acre, or if, as in this case, it be a "placer," at the rate of $2 50 per acre. (Title 22, Ch. 6 R. S). It is manifest from the reading of the whole of this chapter of the Revised Statutes, that in contemplation of the law this right or privilege of exploration and occupation is only given as preliminary to a purchase by the occupant, and that if it shall be ascertained that the location contains "valuable mineral deposits" he will proceed without unnecessary delay to obtain a patent from the United States therefor by making proof of the location and labor thereon and the payment of the purchase price therefor. But, as was held in Chapman vs Toy Long (U. S. Circuit Court, Oregon Dis., 1876), there is no specific provision of the law compelling the occupant to purchase, any he may continue to hold the claim by occupation and labor so long as he desires and then abandon it.

The defendant in this case occupies the premises under this law and claims the right to cut and remove the timber therefrom as incidental to and in aid of his right to mine thereon. But he is not the owner of the land until he pays for it and obtains the United States patent. It is a part of the public · lands. In the meantime the defendant is occupying it under a mere license from the government which may be revoked at any time by the repeal of the act giving it.

The defendant, however, is not to be considered in default for not having paid for the land. His license under the statute to occupy and work it as mining ground is sufficient for that purpose until withdrawn by Congress, without purchasing it. But in considering the question whether this land is occupied by the defendant solely as mineral land or in whole or in part for its timber; and whether the trees in question have been cut and removed only as a necessary and convenient means of working the ground as a placer mine, and not otherwise, the fact that he has occupied it under the act of 1872, for near six years, as land containing "valuable mineral deposits," without availing himself of his right to purchase it at the mere nominal price of $2 50 per acre cannot be overlooked. If the land or the greater portion of it is of little or no value as mining ground but valuable for its timber, the defendant might occupy it for a few years until he had stripped the tract of its timber and worked

out the few acres that really contained valuable deposits and then abandon it to the government.

In the region where this land is situated timber is very scarce and valuable. The temptation to locate 160 acres of timber land as mining ground, and by putting a few dollars worth of labor upon it annually as such, be enable to dispose of the timber upon it at from $50 to $100 an acre, is very great, and if the defendant's construction of the law is to obtain there is nothing to prevent its being done. No proof is required as to the amount of mineral deposit in the land; and the only security against the law being used as a cover to strip the public lands of their valuable timber is to limit the right of the locator of a mining claim to the use of such timber thereon as is necessary to the actual working of such claim.

Apply these suggestions to this case. The defendant has located 70 acres of land under the mining law and occupied it as a mining claim for several years. During this time he has worked over two or three acres of the ground and cut timber off of four other acres and disposed of it for his private benefit-sold it for firewood probably.

It is admitted that the defendant has a right to cut down or destroy the trees so fast as the earth in which they stand is dug or washed away in the process of mining; and it may also be admitted that such timber may be used or disposed of by the locater in any way that is most profitable to himself rather than to let it remain on the ground to decay. But whether the cutting of the timber is merely incidental to a bona fide mining operation, or the mining operation is a mere pretext for appropriating and disposing of the timber is a question of fact to be determined in each case by its own circumstances.

But when a party goes beyond this and removes and disposes of acres of timber in advance of his mining operations for no better reason than that “it is better" for the purpose of mining to remove the timber "so far in advance of the work as to give opportunity for the stumps to rot" before the bank on which they stand is sluiced or dug down, in my judgment he is speculating in United States timber rather than mining for the precious metals. If the law were construed so as to permit four acres of timber to be removed to give the tumps time to rot before mining operations were commenced, the timber from 10, 50, or 100 acres might be removed for the same reason. The removal of timber from a mining claim to be justifiable should proceed pari passu with the operation of mining. Whoever wants to go further or faster than this, and for any reason appropriate the timber to his own use in advance of his mining operations, can only do so safely by paying the purchase price of the land and becoming the owner thereof.

There must be judgment for the plaintiff on the verdict.

In arriving at this conclusion it is not necessary to impute to the defendant a conscious purpose to practise any of the devices which it has been shown his construction of the law would permit. They have only been suggested to show that the consequences of such a construction would be a material perversion and abuse of the law, and therefore it ought not to prevail. The defendant may have been honestly mistaken as to his rights, or he may have become so accustomed to the violation of the law with the apparent consent of the government, that he regarded it as of no effect.

Since the settlement of this coast the law has been enforced by fits and starts—most oftenly against the "small-fry." The executive department, in case of the large operations at least, has usually nullified the action of the courts by arbitrary pardons or ignored the law by compromising in advance with the trespassers in consideration of a trifling compensation, called “stumpi age." In 1864, a party who had openly taken hundreds of thousands of doll lars worth of a rare and most valuable cedar timber from the public lands near Port Orford, and manufactured and sold the same in the San Francisco market, was found guilty in this court of violating the statute and fined the com paratively small sum of $18,700-the smallest fine the law allowed. Shortly after, the executive department without consulting the district attorney or having any information concerning the merits of the case except the ex parte and interested statements of the defendant, granted him a full and unconditional pardon.

Under these circumstances I do not deem it expedient to punish the defendant farther than the law requires. The government by its indifferene: and neglect to enforce the law has encouraged its violation.

The defendant will be sentenced to pay a fine equal to triple the value of the timber cut and removed-$75.

Rufus Mallory, for the United States.

L. O. Stearns, for the defendant.

VOL. I.

FEBRUARY 23, 1878.

No. 26

Current Topics.

In presenting this, the last number of the S. F. LAW JOURNAL, we take the opportunity of thanking our subscribers for the aid extended us in estab lishing permanently a journal whose object is the aid and the general interest of the Bar of the Pacific Coast. We can now safely state to our friends that our enterprise is permanent, and fixed. The interest taken and the encouragement extended demonstrates its practicability. At the end of the short space of six months we have worked into the attention and favor of the entire profession. Our next number will be issued under our new title of which we have given notice. We hope to keep the JOURNAL always up to the standard that the most exacting shall fix, and with the corps of assistants with which we begin our new volume, we are certain we make no hasty or doubtful promises when we say that the succeeding volume will excel the one we are now closing.

We furnish with this number a complete index of all the California Supreme Court decisions reported in this volume, and those of the U. S. District and U. S. Circuit Courts of this district. The labor has been great in its preparation but when the profession can be better served no labor shall be shunned by us however excessive. With the index will be found also a table of cases which will aid in a reference to the decisions. A table of subjects of decisions from other States which have been reported in full will be found on page 421. We think with the arrangement made, no difficulty will be found in an effort to ascertain any particular decision desired.

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Supreme Court of California.

[No. 4476.]

[Filed February 18, 1878.]

BY THE COURT.

ROGERS vs. SHANNON.

STATE LANDS. The plaintiff stated that the defendants made application to purchase prior to him but failed to state in their affidavits that there was no occupation of said lauds adverse to their own and also failed to state that the township in which said lands are situate had been sectionized and subject to preemption three months or over. HELD, that the complaint did not state facts, showing that the plaintiff had the better right to purchase.

PRACTICE AND PLEADINGS.-When a cause is submitted upon the pleadings the defendant is not entitled to affirmative relief when the complaint does not state facts sufficient for a cause of action; the judgment should be for costs only.

This is a contest, certified to the District Court by the Surveyor-General, as to the right of the parties respectively, to purchase portions of a thirtysixth section. At the trial, the cause was submitted on the pleadings, and judgment was entered in favor of the defendants, Perkins & Robertson, awarding to them the superior right to purchase the land, from which judgment the plaintiff appeals. The plaintiff's application to purchase, as stated in the complaint, was, in all respects, regular; and standing alone, would have shown in him a prima facie right to purchase. But after setting forth the nature of the plaintiff's application, the complaint proceeds to state the proceedings taken by Perkins and Robertson respectively in their applications to purchase, which were prior in point of time to the application of the plaintiff. The only vice imputed by the complaint to these applications, is that the affidavits of the applicants failed to state that there was no occupation of said lands adverse to their own, and also failed to state that the township in which said lands are situate had been sectionized and subject to pre-emption three months or over, and that no adverse occupant had been in occupation of said lands adverse to any occupation that the applicants might have, for more than sixty days; and by reason of this alleged defect, the complainant claims that the applications were void. No other reason is alleged in the complaint why these prior applications were invalid. It is not alleged that when the applications were made, the township lines had not been established so as to clearly show that the land sought to be purchased was included in a thirty-sixth section.

The particular reasons assigned in the complaint for impeaching the validity of these applications are not well founded. By section 11 of the Act of March 28, 1868, providing for the sale and management of the lands of the State, the