be considered in estimating the relative strength of the inducements upon which Crary and Heiniman acted. When they took the lease and option to purchase the mine it was considered by Dye as worth no more than his debt to Taliaferro, to wit, $112 and the costs of the attachment suit. Taliaferro would have been glad to have taken $500 for it, Heiniman testified. At the time this suit was brought, December, 1900, six months after the lease, it was worth $100,000, according to Heiniman's testimony; $50,000 or $60,000 according to other estimates. This value they might acquire by the payment of $1,500. They would certainly lose it if they did not make such payment. The case, therefore, is very simple. It is a case of mining property bought upon speculation and title to which came through a sheriff's sale, the validity of which sale was either assumed or risked; the development of the mine undertaken in like speculation, but continued in certainty of reward within three days by the discovery of what Heiniman calls in his testimony "the large ore-the pay ore chute." Whether this was the real discovery or that of August following which finally revealed the richness of the mine, matters not. Within a few days there was evidence of value and inducements to the expenditures testified to. Within four months a property which was sold for a few hundred dollars was estimated by mining experts to be worth $100,000. Such inducement existing for Heiniman and Crary to complete their contract, we are asked to believe that they were misled by the declarations of Dye to action detrimental to their interest We are unable to yield to the contention. That they felt satisfaction at the declarations may be. That they labored an extra day or spent an extra dollar upon the faith of them the record fails to establish.

Another contention remains to be noticed. Dye owned fivesixths of the mine; the other one-sixth was owned by the Apex Gold Mining Company. Dye did not do the assessment work upon the mine for 1898, and the work was done by the mining company. There was an attempt at forfeiture of Dye's interest, but the notice of publication was not given by the mining com

pany but by one T. C. Johns, who described himself as coöwner with Dye. Johns was the manager of the company. Subsequently Taliaferro paid to one T. R. Walsh for Johns Dye's proportion of the expenditure for the work. Dye did not do or offer to do any assessment work for 1898.

Upon these facts plaintiff in error seemed to have contended in the Supreme Court of the Territory that Dye had forfeited his rights to Johns, considered as coöwner with Dye, and that Taliaferro by paying Johns became substituted to his rights. To this contention the Supreme Court made answer that a forfeiture had not been effected, because Johns was not a coowner with Dye, but that the Apex Mining Company was, and that the company had not given notice of forfeiture. Plaintiffs in error now change their contention or the form of it. They now contend that after Taliaferro purchased the property at sheriff's sale, and before the forfeiture occurred under the advertisement against Dye by his co-tenant Taliaferro paid to the coöwner or its agent the amount claimed, and thereby protected himself under § 31261 of the Compiled Laws of New Mexico, 1897, and ended also Dye's interest. But this contention involves again the validity of the sheriff's sale and the attitude of Dye to the sale. Besides, the liability for the assessment work had not taken the form of a lien.

It is further contended that an undivided interest in a mining claim can be abandoned, and that Dye's acquiescence in the sheriff's sale constituted an abandonment of the claim and an election to accept the sale as a disposition of his property. We do not concur in the view that Dye's acts constituted an abandonment of his claim.

Judgment affirmed.

1 When any property shall be sold subject to liens and encumbrances, the purchaser may pay the liens and encumbrances and hold the property discharged from all claims of the defendant in execution; but the defendant may redeem the property within one year after the sale thereof, paying to the purchaser, his heirs or assigns, the purchase money with interest. When redeemed, the purchaser shall have the growing crops and shall not be responsible for rents and profits, but he shall account for wastes.

208 U.S.

Argument for Plaintiff in Error.

STARR v. CAMPBELL.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WISCONSIN.

No. 132. Argued January 23, 24, 1908.-Decided February 24, 1908.

The restrictions on the right of alienation of lands to be allotted in severalty under the Chippewa Treaty of 1854 extend to the disposition of timber on the land as well as to the land itself; and the consent of the President to a contract for cutting timber does not end his control over the matter; he may put conditions upon the disposition of the proceeds. United States v. Paine Lumber Co., 206 U. S. 467, distinguished.

THE facts are stated in the opinion.

Mr. W. M. Tomkins for plaintiff in error:

Indian allottees under the Chippewa treaty of 1854 are vested with sufficient title in their allotments to authorize the sale by them of their standing timber without the approval of the President. United States v. Paine Lumber Co., 206 U. S. 467.

In this case the United States has parted with the legal title by a patent in the usual form, except that it contains a restriction, hat the grantee shall not sell, lease or in any manner alienate the tract of land without the consent of the President. Such a patent conveys the title in fee simple to the grantee. Libby v. Clark, 118 U. S. 250; Schrimpscher v. Stockton, 183 U. S. 290; Lykins v. McGrath, 184 U. S. 169.

The restriction in the patent is simply upon the alienation of the "tract of land." By the terms of the treaty the land is assigned to the allottee for his separate use. The allottee can use timber land if he cannot dispose of the timber. United States v. Paine Lumber Co., 206 U. S. 467.

What the allottee can himself do, he can also do by an agent. If he has the right to cut the timber himself he can certainly authorize another to cut it for him.

Argument for Defendant in Error.

208 U.S.

The sale of the standing timber in this case was consented to by the President. The land is not the land of the United States, and the timber when cut did not become the property of the United States.

When consent to alienation is given, the President's authority over the matter is ended. Permission once given cannot be revoked. Doe v. Beardsley, 2 McLean, 412. Limitations and restrictions on the use of property are not favored, and although they will be enforced when the intent is clear, ordinarily all doubts will be resolved against them. Wakefield v. Van Tassell, 95 Am. St. Rep. 267, note A, page 214. The consent of the President is no formal proceeding; it is a mere matter of permission. Lomax v. Pickering, 173 U. S. 26.

Where the United States conveys property to an Indian absolutely, that is, without any condition or restriction on its alienation, he can dispose of the same at his pleasure and give good title to his grantee. United States v. Ritchie, 17 How. 525; Mann v. Wilson, 23 How. 457; Crews v. Burchman, 1 Black, 352; Wilson v. Wall, 6 Wall. 83; Pennock v. Commrs., 103 U. S. 44; Elwood v. Flannigan, 104 U. S. 563; Jones v. Meehan, 175 U. S. 1.

The patent in this case is not one of the so-called trust patents, provided for in the Dawes Act of February 8, 1887, under which the United States retains the legal title, and is the trustee with the rights of such trustee to the trust property in whatever form it may be found.

Here the patent conveys to the Indian the absolute litle in fee subject only to the restriction upon alienation.

The Solicitor General for defendant in error:

That conferring citizenship upon an Indian does not necessarily free him from the guardianship of the United States in respect to property granted him by the General Government has been recognized both by this and other Federal courts. United States v. Rickert, 188 U. S. 432; Matter of Heff, 197 U. S. 488, 508, 509; Cherokee Nation v. Hitchcock, 187 U. S. 294,

307, 308; United States v. Thurston Co., 143 Fed. Rep. 287, Circuit Court of Appeals, Eighth Circuit; National Bank of Commerce v. Anderson, 147 Fed. Rep. 87, Circuit Court of Appeals, Ninth Circuit; Hitchcock v. United States ex rel. Bigboy, 22 App. D. C. 275.

The restriction upon alienation embraces the sale of the standing timber. Hitchcock v. United States ex rel. Bigboy, supra. It is an elementary principle of the common law that standing timber is a part of the realty. United States v. Cook, 19 Wall. 591, 593; Blackstone's Commentaries, Bk. 2, p. 18; Williamson, Real Property, pp. 78,.79.

It seems fair to say that, as Congress had been repeatedly advised by the reports of the Interior Department of the conditions as to "logging" upon the Bad River and other reservations in Wisconsin, it is both the legislative and executive construction of the treaty of September 30, 1854, with the Chippewas, that the restriction upon alienation covered the timber upon such lands. United States v. Paine Lumber Co., 206 U. S. 467, discussed and distinguished.

Assuming that the sale of the timber would be an alienation of the land within the meaning of the treaty of 1854, and the patents issued thereunder, and that such timber could not therefore be sold without his consent, the President, as a condition of his consent, might make any proper regulation with regard to the disposition of the proceeds thereof that the wel fare of the allottee might appear to him to require. United States v. Thurston Co., 143 Fed. Rep. 287; National Bank of Commerce v. Anderson, 147 Fed. Rep. 87.

By leave of court, Mr. Charles Quarles and Mr. Francis H. De Groat filed a brief herein on behalf of the Red Cliff Lumber Company, as interested in the decision of this cause.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This writ of error is directed to a judgment sustaining a demurrer to a complaint in an action to recover certain moneys VOL. OCVIII-34