more than one hundred and sixty acres of said lands. When payment is made to effect subrogation as herein provided the register and receiver of the United States land office shall serve notice upon the purchaser that an application for patent for the lands purchased by him has been filed, and that the amount of the drainage charges, penalties, interests, and costs of the sale will be paid to him upon submission of proof of purchase and payment by him of said sums. The receiver shall make such payment as soon as said requirement shall have been fulfilled. If the lands were bid in for a drainage district, the receiver will pay to the proper county officers the amount of the drainage charges, penalties, and interests and costs of sale, together with the additional sum of 6 per centum per annum, to which said drainage district is entitled. All remaining moneys to which the United States may be entitled shall be covered into the United States Treasury and applied as provided by law for the disposal of the proceeds from the sale of public lands. (41 Stat. 393.) See note to § 4976b, ante. § 4976h. (Act Jan. 17, 1920, c. 47, § 7.) Same; copies of notices required by state drainage laws; rights of United States and entrymen. A copy of all notices required by the drainage laws of the State of Arkansas to be given to the owners and occupants of lands held in private ownership shall, as soon as such notice is issued, be delivered to the register and receiver of the United States land office of the district in which the lands are situated where any of the lands subject to the operation of this Act are affected, and the United States and the entryman claiming under the public land laws of the United States shall be accorded the same rights to be heard by petition, answer, remonstrance, appeal, or otherwise, as are given to persons holding lands in private ownership, and all entrymen shall be given the same rights of redemption as are given to the owners of land held in private ownership. (41 Stat. 394.) See note to § 4976b, ante. § 49761. (Act Jan. 17, 1920, c. 47, § 8.) fected. Same; lands not af This Act shall not be effective as to any lands involved in suits instituted on behalf of the United States with a view to quieting title in the Government to such lands until and unless such suits shall be finally determined in favor of the United States. (41 Stat. 394.) See note to. § 4976b, ante. CHAPTER TEN F-PROTECTION OF TIMBER AND DEPREDATIONS § 4979a. (Act Sept. 20, 1922, c. 349.) Protection of timber owned by United States from fire, disease, or insect ravages. The Secretary of the Interior is hereby authorized to protect and preserve, from fire, disease, or the ravages of beetles, or other insects, timber owned by the United States upon the public lands, national parks, national monuments, Indian reservations, or other lands under the jurisdiction of the Department of the Interior owned by the United States, either directly or in cooperation with other departments of the Federal Government, with States, or 2 SUPP.U.S.COMP. '23-95 (1505) with owners of timber; and appropriations are hereby authorized to be made for such purposes. (42 Stat. 857.) This section is an act entitled "An act for the protection of timber owned by the United States from fire, disease, or the ravages of beetles or other insects," cited above. § 4988. (Act June 3, 1878, c. 151, § 5.) Relief from prosecutions on payment for timber cut, etc.; repeal. See U. S. v. Valley Land & Invest ment Co. (C. C. A. Colo.) 258 F. 93. § 4992. (Act March 3, 1891, c. 561, § 8, as amended, Act March 3, 1891, c. 559, Act Feb. 13, 1893, c. 103, Act March 3, 1901, c. 855, Act March 3, 1919, c. 111, Act March 3, 1919, c. 115, and Act Feb. 27, 1922, c. 82.) Cutting timber on certain public lands for certain purposes. In the States of Colorado, Montana, Idaho, North Dakota, and South Dakota, Wyoming, New Mexico and Arizona, and [the District of] Alaska, and the gold and silver regions of Nevada, California, Oregon, and Washington and [the Territory of] Utah in any criminal prosecution or civil action by the United States for a trespass on such public timber lands or to recover timber or lumber cut thereon it shall be a defense if the defendant shall show that the said timber was so cut or removed from the timber lands for use in such State or Territory by a resident thereof for agricultural, mining, manufacturing, or domestic purposes under rules and regulations made and prescribed by the Secretary of the Interior and has not been transported out of the same, but nothing herein contained shall operate to enlarge the rights of any railway_company to cut timber on the public domain, Provided that the Secretary of the Interior may make suitable rules and regulations to carry out the provisions of this act, and he may designate the sections or tracts of land where timber may be cut, and it shall not be lawful to cut or remove any timber except as may be prescribed by such rules and regulations, but this act shall not operate to repeal the act of June third, eighteen hundred and seventy-eight, providing for the cutting of timber on mineral lands. It shall be lawful for the Secretary of the Interior to grant permits, under the provisions of the eighth section of the Act of March third, eighteen hundred and ninety-one, to citizens of Malheur County, Oregon, to cut timber in the State of Idaho for agricultural, mining, or other domestic purposes, and to remove the timber so cut to Malheur County, State of Oregon. It shall be lawful for the Secretary of the Interior to grant permits under the provisions of the eighth section of the Act of March third, eighteen hundred and ninety-one, to citizens of Modoc County, California, to cut timber in the State of Nevada for agricultural, mining, or other domestic purposes, and to remove the timber so cut to Modoc County, State of California. It shall be lawful for the Secretary of the Interior to grant permits, under the provisions of section 8 of the Act of March 3, 1891, to citizens of Washington County, and of Kane County, Utah, to cut timber on the public lands of the counties of Mohave and Coconino, Arizona, for agricultural, mining, and other domestic purposes, and remove the timber so cut to said Washington County and Kane County, Utah. (26 Stat. 1099, 1093. 27 Stat. 444. 31 Stat. 1436. 40 Stat. 1321, 1322. 42 Stat. 398.) This section was again amended by Act Feb. 27, 1922, c. 82, 42 Stat. 398, also cited above, by adding the fourth paragraph. Right Notes of Decisions public lands for a railroad for construction of its road to remaining slashings which he cuts and sells for mining and manufacturing purposes. Caldwell v. United States, 39 S. Ct. 397, 250 U. S. 14, 63 L. Ed. 816, affirming judgment 53 Ct. Cl. 33. to slashings.-The provision that in prosecutions for trespass on public timber lands, or to recover timber or lumber cut, it shall be a defense that timber was cut or removed for use in the state by a resident for mining or manufacturing purposes under rules of the Interior Department, but that this shall not enlarge the rights of a railroad company to cut timber, gives no rights to one cutting timber from § 4992a. (Act Jan. 11, 1921, c. 22.) Cutting timber on certain mineral lands; certain acts extended. Cited without definite application, U. S. v. Southern Pac. Co. (D. C. Cal.) 260 F. 511. Section 1 of an Act entitled "An Act authorizing the citizens of Colorado, Nevada, and the Territories to fell and remove timber on the public domain for mining and domestic purposes," approved June 3, 1878, chapter 150, page 88, volume 20, United States Statutes at Large, and section 8 of an Act entitled "An Act to repeal timber-culture laws, and for other purposes," approved March 3, 1891, as amended by an Act approved March 3, 1891, chapter 559, page 1093, volume 26, United States Statutes at Large, and the several Acts amendatory thereof, be, and the same are hereby, extended so that it shall be lawful for the Secretary of the Interior to grant permits to corporations incorporated under a Federal law of the United States or incorporated under the laws of a State or Territory of the United States, other than the State in which the privilege is requested, said permits to confer the same rights and benefits upon such corporations as are conferred by the aforesaid Acts upon corporations incorporated in the State in which the privilege is to be exercised: Provided, That all such corporations shall first have complied with the laws of that State so as to entitle them to do business therein; but nothing herein shall operate to enlarge the rights of any railway company to cut timber on the public domain. (41 Stat. 1088.) This is an act entitled "An act authorizing the cutting of timber by corporations organized in one state and conducting operations in another," cited above. Became a law without signature of President, by lapse of time. CHAPTER TEN G-UNLAWFUL INCLOSURES § 4997. (Act Feb. 25, 1885, c. 149, § 1.) Inclosure of or assertion of right to public lands without title. 3. Public right of pasturage.-One grazing cattle on public lands cannot acquire an easement for passage of his cattle to his own lands and into public domain superior to the rights of a homestead settler, who desired to fence the unsurveyed lands occupied, for the grazing of cattle is authorized only by implied license. Callison v. Ronstadt (Ariz.) 188 P. 266. 4 Possessory rights of settlers.-The title to public lands as between persons neither of whom connects himself with the government is considered as vested in the first possessor whose possession will support ejectment against a trespasser. This rule is especially applicable to tidelands in Alaska, where by reason of the coast conformation such lands are largely used as sites for various industries. Arness v. Petersburg Packing Co. (C. C. A. Alaska) 260 F. 710. Under the Oregon statutes, in force in Alaska, a paper title is not essential to the maintenance of ejectment, and one who has been in possession of real property and has been ousted by a mere intruder may maintain ejectment for its recovery. Id. A mere trespasser, or possessor who has no other evidence of title than an occupancy of the land, is without authority to question the validity of patent for the land in due form and signed by the proper officers. Albritton V. Shaw (La.) 87 So. 32. The title of the United States government to public land carries with it everything growing on or affixed to the soil; and the fact that one in possession, claiming title in good faith, plants such lands to crops, gives him no right to such crops; he is only a trespasser, and the land and the crops belong to the United States government. Ellis v. Sutton (Miss.) 88 So. 519. Though the title of one who had entered on swamp lands which had been transferred to the state of Missouri by the United States, and by the state to the county, was only equitable, yet, the consideration having been paid, such title is sufficient to sustain action of ejectment. Missouri State Life Ins. Co. v. Russ (Mo.) 214 S. W. 860. Cited without definite application, McKelvey v. U. S. (C. C. A. Idaho) 273 F. 410; Jacob Hoffmann Brewing Co. v. McElligott (D. C. N. Y.) 259 F. 321. § 4998. (Act Feb. 25, 1885, c. 149, § 2.) Suits for violations of pre ceding section. Trespass on public lands and actions therefor. In a suit brought by the United States under this section for unlawful inclosure and occupancy of public lands, where the evidence shows that none of the defendants were at the time of suit maintaining such inclosure, so as to warrant an injunction, but that it may have been built and maintained by some of them in the past, a dismissal of the bill should be without prejudice to the right to sue at law for damages for use and occupation. U. S. v. Bothwell (C. C. A. Wyo.) 277 F. 419. Damages. A mining location of public lands withdrawn from entry or settlement by executive order, made under advice of counsel that the order was void, or at least did not affect such location, concerning which there existed doubt among the profession until such authority was upheld by the Supreme Court by a divided court, was in moral good faith, so that, under Civ. Code La. art. 501, the locators were entitled to credit for the expense of drilling the wells and producing the oil in suits to recover from them the value of the oil removed from the lands. Mason v. U. S., 43 S. Ct. 200, 67 L. Ed. Where oil had been taken by certain of the defendants from public lands and royalty therefor paid to other defendants, the latter are liable for the full amount of such royalty, since they have been to no expense in producing the oil, and the other defendants are jointly liable as joint tort-feasors to the same amount, though the royalties exceeded the difference between the value of the oil produced and the expenses of producing it, for which, under the circumstances, the defendants were entitled to credit. Id. Where oil was taken from public lands under circumstances entitling the defendants to credit for the expense of extracting it, and the net value exceeded the amount of the royalties paid, a judgment holding the producers liable for the net value of the oil produced, and the producers liable in solido for the royalties in addition thereto, was erroneous, as entitling the government to recover the amount of the royalties twice. Id. Civ. Code La. art. 501, providing that the owner of land, the products from which were taken by another in good faith can recover the value of the product on reimbursing the other person for his expenses, will be applied in a federal suit in equity by the United States to enjoin continuing trespasses on its land and to recover for the conversion of oil taken therefrom. Id. Where the land in controversy had been for many years treated by government officials as having been conveyed by patent to defendants' predecessor in title, and defendants were in possession of the land and extracted the oil therefrom in good faith, they were innocent trespassers and entitled to credit for the cost of drilling and operating the wells on the land in an accounting for the value of the oil produced therefrom. Jeems Bayou Fishing & Hunting Club v. U. S., 43 S. Ct. 205, 67 L. Ed. — Where, in a suit for accounting, the United States recovers the value of oil wrongfully extracted from public lands under an invalid location, the allowance of interest is within the discretion of the court, in the absence of statute; but where, under the state statute, a recovery for conversion includes interest from the date of conversion, interest should be from that date. Chanslor-Canfield Midway Oil Co. v. U. S. (C. C. A. Cal.) 266 F. 145, modifying decree (D. C.) U. S. v. ChanslorCanfield Midway Oil Co., 266 F. 142. Motion to remand granted ChanslorCanfield Midway Oil Co. v. U. S., 41 S. Ct. 148, 254 U. S. 664, 65 L. Ed. 464. The measure of recovery by the United States for an alleged unlawful appropriation of public lands is not governed by local laws or decisions, but by general principles having uniform operation in all federal courts. Mason v. U. S. (C. C. A. La.) 273 F. 135. Where the lessor had been in possession of land for a long time, claiming it under a patent issued to a remote grantor, though the land in controversy was outside of the line of the patent shown on the plat as the meander line of a lake, and no claim to the land was made by the government until after lessees had struck oil thereon and were removing the oil therefrom, lessees are not willful trespassers on the public lands, and are entitled, on an accounting for the oil taken, to credit for the expense of producing it. Jeems Bayou Hunting & Fishing Club v. U. S. (C. C. A. La.) 274 F. 18. Cited without definite application, McKelvey v. U. S. (C. C. A. Idaho) 273 F. 410. some persons from others, whether permanently or temporarily. McKelvey v. U. S., 43 S. Ct. 132, 260 U. S. 353, 67 L. Ed. § 4999. (Act Feb. 25, 1885, c. 149, § 3.) Obstruction of settlement on or transit over public lands. Validity. This section and the one following construed as penalizing the transient obstruction of passage over public lands by particular persons, by violence or intimidation, on the part of the persons not acting as owners, or agents, is not invalid as encroaching on the police power of the states, as it does not deal with personal violence as such, or affect the power of the state to deal therewith. McKelvey v. U. S., 43 S. Ct. 132, 260 U. S. 353, 67 L. Ed. This section so far as it prohibits the prevention and obstruction of free passage over unoccupied public lands, is valid, under Const. art. 4, § 3, authorizing Congress to make all needful rules and regulations respecting the territory or property belonging to the United States. McKelvey v. U. S. (C. C. A. Idaho) 273 F. 410, certiorari granted 42 S. Ct. 48, 257 U. S. 625, 66 L. Ed. 403. Offenses.-This section is not limited to a continuing obstacle, but includes a transient obstacle to passage by particular persons on a particular occasion, such as by intimidation and threats of violence, especially as passage or transit is not "free," when withheld by 1 This section is not limited to acts amounting to an occupancy of the lands or to the obstruction of intended settlers, but applies to the obstruction of free passage to persons driving a band of sheep, by using firearms to intimidate them from crossing unoccupied lands. McKelvey v. U. S. (C. C. A. Idaho) 273 F. 410, certiorari granted 42 S. Ct. 48, 257 U. S. 625, 66 L. Ed. 403. Indictment.-An indictment for preventing or obstructing free passage over public lands, in violation of this section, need not negative the exception contained, in the proviso in favor of persons who have gone on, improved, or occupied 'such lands, claiming title thereto in good faith. McKelvey v. U. S., 43 S. Ct. 132, 260 U. S. 353, 67 L. Ed. --. The proviso is not a component part of the definition of the offense, and need not be negatived in an indictment. McKelvey v. U. S. (C. C. A. Idaho) 273 F. 410, certiorari granted 42 S. Ct. 48, 257 U. S. 625, 66 L. Ed. 403. § 5000. (Act Feb. 25, 1885, c. 149, § 4, as amended, Act March 10, 1908, c. 75.) Violations of act punishable. Criminal liability. This section applies to persons other than owners, part owners, or agents obstructing free passage over the public lands, in violaof the preceding section. McKelvey v. U. S., 43 S. Ct. 132, 260 U. S. 353, 67 L. Ed. tion This section is not limited to owners, part owners, or agents, but applies to one who with no pretended claim of right or ownership, by threats and intimidation, prevents another from driving stock across public lands. Kelvey v. U. S. (C. C. A. Idaho) 273 F. 410, certiorari granted 42 S. Ct. 48, 257 U. S. 625, 66 L. Ed. 403. Mc Evidence.-On a trial for preventing and obstructing free passage across public lands by force and intimidation, official plats of townships in which the lands in question were situated were competent to prove the lands were public lands, though a part of such townships were privately owned. McKelvey v. U. S. (C. C. A. Idaho) 273 F. 410, certiorari granted 42 S. Ct. 48, 257 U. S. 625, 66 L. Ed. 403. On a trial for preventing and obstructing free passage over unoccupied public lands by force, threats, and intimidation, evidence held sufficient to sustain a verdict as against all the defendants convicted, Id. (1509) |