railroad is sent to an appellate jury for trial, the court should approve or disapprove the finding of the viewers respecting its necessity; for if the court does not concur in opinion with the viewers, there is nothing to be tried.

Brown v. Corey, 43, 495 (1862). Proceedings may be had against the owner of a stratum of coal, as contradistinguished from the proprietor of the surface, to obtain from him an underground right of way.

An entry on another's land to build or use a lateral railroad is an entry under the State, exercising the right of eminent domain, and in pursuance of public law; and all private contracts are subordinate thereto.

"If the Lateral Railroad Law had not been, long ago, rescued from this reproach, it had been condemned, long ago, as unconstitutional. It was founded in the experience of a great public want, and was passed for public purposes. Was not the development of our mineral resources a public object? Was it not a great public interest to augment the tonnage of canals and railroads, which had cost the State many millions to construct? The man whose minerals lay within three miles of a State canal, but could get them into it only by crossing the intervening land of an unneighborly owner, had been taxed as well as his forward neighbor to build that canal was it not reasonable and just to give him not a private, but a public way, he paying all damages he should occasion? Nobody will doubt the State might enter and build a railroad on his land—it is equally clear that the State might delegate her right of eminent domain to a corporation or an individual. But then the entry is under the State and in pursuance of public law. No covenants or private contracts between citizens can possibly be violated in such a case, because none can stand in the way of State authority. It is a resumption by the sovereign of a clear right of sovereignty, in subordination to which the covenants of the deed were made. Had the parties contracted expressly against the exercise of this right, they could not have bound the sovereign — much less can their covenants, made for other purposes, be permitted to have the effect claimed for them."

The measure of damages in such case is the injury done to the tract as a whole, or the difference between its value at the time of the entry and its value after the completion of the railroad.

Lyon v. Gormley, 53, 261 (1866). The Lateral Railway Act of May 5, 1832, "was intended to give the petitioner nothing more than a privilege to open, construct, complete and use a railway through the lands of another. The owner of the land is not divested of his right to the freehold, nor of his title to the stone, wood or minerals. The act fastens upon his land a servitude; but it does not disturb any right or ownership not essential to that servitude." The petitioner does not acquire the ownership of the materials which he may excavate, and having dug out coal in constructing his underground way, and having sold the same, he is liable in trover to the owner of the land.

Keeling v. Griffin, 56, 305 (1867). The act of March 29, 1840, is a supplement to the act of May 5, 1832, is in pari materia with it, and should be so construed. Neither act authorizes the connection of a lateral road, except with a public improvement, railroad, or highway,

as enumerated in those acts. "It must be admitted that the act of May 5, 1832, the first act in this State giving authority to private or unincorporated persons to exercise the right of eminent domain, and take private property for the purpose of constructing lateral railways to connect with public highways, was very narrowly within constitutional sanction; and had it not been for provisions contained in it, that the public might use such roads when made, on conforming to certain regulations and paying tolls, together with the reserved right of the State to take such improvements at any time on reimbursing the cost of construction, the act never could have been sustained, as I think is shown in the opinion of Woodward, J., in Hays v. Risher, 8 Casey, 169. The constitutionality of the act and its supplements, however, has been affirmed in numerous cases on these and other grounds, and is not now an open question."

Hays v. Briggs, 74, 373 (1873). If the petitioner is dissatisfied with the extent of the allotment by the viewers, he should file exceptions; on an appeal by the land-owner, the jury can allot less but not more than the viewers. The appeal under the act of Nov. 17, 1871, is confined to the assessment of damages, the necessity for a landing for petitioner, and the necessity of the owner to retain the land for his own use. The "landing" contemplated is for loading and unloading boats, not for a harbor for them, whether empty or laden. A lateral railway may be constructed to a river over an intervening railroad. A landing cannot be taken under the act of 1871, if the owner requires and in good faith intends to use the land for his own purposes, whether presently or in the future.

Waddell's Ap., 84, 90 (1877). The act of June 13, 1874, which gives to persons owning anthracite coal lying on both sides of any river a right of way across or under the same, is unconstitutional. It takes private property for private use.

It authorizes a private road connected with no highway or place of necessary public resort, one which the public has no implied right or license to use.

Salt Co. v. Brown, 7, 191 (1874). A corporation West Virginia. owning coal lands having made application to obtain a subterranean right of way through the lands of another person under secs. 44 and 45, ch. 43, of the Code,' it appeared that the coal could not be mined and transported without going through defendant's land; that the company used the coal in their salt works and to sell to the people in and about the town of H., who could also obtain it from other sources; that the public would not use the subterranean way desired, but only the company.

It was accordingly held that the purpose of the way was not of public utility, and the right could not be acquired.

III. TIMBER RIGHTS.

At common law the mere right to mine, to extract, and remove the minerals from land gave no right to use or consume the timber upon that land, except in the case of tenants for life, who were 1 This statute is no longer in force. See Code of 1891, chaps. 42 and 43.

working open mines, or a tenant for years with a right to mine. Of course, if the removal of the timber were necessary in order to reach the minerals, it might be removed, but its use was not an implied right of the mine owner.

But the license to mine on the public lands which prior to 1866 was assumed to exist, carried with it as incidental the right to use wood from the public domain,' and the mining statutes subsequently passed by Congress, were construed to give the occupant of mining ground on the public domain the right to cut and remove so much of the timber thereon as was necessary to the actual working of the claim. For such cutting of timber he was not subjected to the penalties of Rev. Stats. 2461.

The rights of miners to cut and use timber of the public domain 2 are now defined by two statutes of June 3, 1878, chaps. 150 and 151 (20 Stat. 88, 89). The first of these is as follows: -

"That all citizens of the United States and other persons, bona fide residents of the State of Colorado, or Nevada, or either of the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either of said States, Territories, or districts, of which such citizens. or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, the provisions of this act shall not extend to railroad corporations.

"Sec. 2. That it shall be the duty of the register and the receiver of any local land office in whose district any mineral land may be situated to ascertain from time to time whether any timber is being cut or used upon any such lands, except for the purposes authorized by this act, within their respective land districts; and, if so, they shall immediately notify the Commissioner of the General Land Office of that fact. And all necessary expenses incurred

1 Tarter v. Spring Creek W. & M. Co., 5 Cal. 395; Rogers v. Soggs, 22 Cal.

444.

2 The right to cut timber on State land is given to miners in Wyoming by act of March 4, 1897, c. 77.

in making such proper examination shall be paid and allowed such register and receiver in making up their next quarterly accounts.

"Sec. 3. Any person or persons who shall violate the provisions of this act, or any rules or regulation in pursuance thereof made by the Secretary of the Interior, shall be deemed guilty of a misdemeanor, and upon conviction, shall be fined in any sum not exceeding five hundred dollars, and to which may be added imprisonment for any term not exceeding six months."

The second act, as amended by the act of Aug. 4, 1892, provides for the sale of timber lands in all the public land States, and in its fourth section prescribes a penalty for cutting timber on the public lands: "Provided, that nothing herein contained shall prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim or preparing his farm for tillage, or from taking the timber necessary to support his improvements, or the taking of timber for the use of the United States, and the penalties herein provided shall not take effect until ninety days after the passage of this act."

The first of these acts applies only to the States and Territories. enumerated, having no application to California and Oregon. This, at least, is the position of the Circuit Courts in those States, though contrary to the previous decision of the Land Department. The miner may have all the timber he may need to make the working of his claim possible. Its use in quartz mills and reduction works and for tramways is use for mining purposes. The provision for the enactment of rules by the Interior Department has been decided in Montana not to be unconstitutional. When the United States bring an action to recover a penalty under the third section, it is not necessary for them to negative every possible fact or circumstance that would justify the defendant in taking the timber. It is sufficient to show that the defendant took timber from the public domain, and the justification of the act must appear as a defence. Prima facie one taking timber from the public lands is a trespasser, and he must prove the facts necessary to bring himself within the provisions of the act. A defence to an action for a penalty under the second act must show that the timber in question was cut upon the defendant's claim in the ordinary course of working the same (or farming as

1 See, however, United States v. Eaton, 144 U. S. 677: In re Kollock, 165 U. S. 526.

the case might be), or was taken from the public lands for the necessary improvements thereon. And this defence must rest upon a bona fide mining operation, not upon one which is a mere pretext to cover speculation in timber. Whether it is such is a question of fact to be determined by the circumstances of the

case.

The owner of a mining claim has the right to the timber thereon, and must protect it from trespassers. He cannot look to the government to bring suit for him. But the removal of the timber is not such an irremediable injury as will be restrained by injunction. It does not destroy or injure the estate in its mineral character, but only affects the cost of fuel.

The rules and regulations prescribed by the Secretary of the Interior, by virtue of the power given him by the first of the above acts, are as follows (5 L. D. 129, Circular of Aug. 5, 1886) : —

"1st. The act applies only to the States of Colorado and Nevada, and to the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, and Montana, and other mineral districts of the United States not specially provided for.

"2d. The land from which timber is felled or removed under the provisions of the act, must be known to be of a strictly mineral character, and that it is not subject to entry under existing laws of the United States, except for mineral entry.'

"3d. No person, not a citizen, or bona fide resident of a State, Territory, or other mineral district provided for in said act, is permitted to fell or remove timber from mineral lands therein. And no person, firm, or corporation felling or removing timber under this act shall sell or dispose of the same, or the lumber manufactured therefrom, to any other than citizens and bona fide residents of the State or Territory where such timber is cut, nor for any other purpose than for the legitimate use of said purchaser for the purposes mentioned in said act.

"4th. Every owner or manager of a saw mill, or other person felling or removing timber under the provisions of this act, shall keep a record of all timber so cut or removed, stating time when cut, names of parties cutting the same or in charge of the work, and describing the land from whence cut by legal subdivisions if surveyed, and as near as practicable if not surveyed, with a statement of the evidence upon which it is claimed that the land is mineral in character, and stating also the kind and quantity of