United States v. Smith

• Decision Date: 21 April 1882
• Citation: 11 F. 487
• Parties: UNITED STATES v. SMITH. (NO. 771.)
• Court: U.S. District Court — District of Oregon

11 F. 487

UNITED STATES v. SMITH. (NO. 771.)

United States Circuit Court, D. Oregon.

April 21, 1882

J. F Watson, for plaintiff.

John J Balleray, for defendant.

DEADY D. J.

This action is brought by the United States to recover from the defendant the sum of $10,000 damages for wrongfully cutting and carrying away certain timber, between January 1, 1879 and the commencement of the action, August 17, 1881, then being and growing upon that parcel of the unsurveyed public lands of the plaintiff situated in Baker county, Oregon which, if surveyed, would be township 11 south, of range 40 east of the Wallamet meridian, with intent to dispose of the same; and for that he 'did convert and dispose of the same.'

The defendant, for answer to the complaint, denies the allegations thereof, and for a further answer says that at the time of committing the alleged unlawful acts the defendant was a citizen of the United States, over 21 years of age, and a bona fide resident of 'a mineral district of the United States,' consisting of Baker, Grant, Union, Umatilla, and Wasco counties, the same being 'the fourth mineral district of the United States in the state of Oregon,' and that while he was such a resident he did enter upon the unsurveyed tract of public land aforesaid, the same being within said mineral district, and 'cut and remove therefrom a small number of trees growing thereon;' that said tract of land was mineral land, and not subject to entry under any law of the United States, 'except for mineral entry;' that said trees were 'cut and removed, and actually used, for building, agricultural, mining, and domestic purposes by defendant and others within said mineral district;' and that the cutting and removing of said trees constitute the trespass mentioned in the complaint. The plaintiff demurs generally to this defence.

The first act of congress which in terms authorized or permitted the cutting of timber upon the public lands by a private person for any purpose, was passed June 3, 1878, (20 St. 88,) and is entitled 'An act to authorize the citizens of Colorado, Nevada, and the territories to fell and remove timber on the public domain for mining and domestic purposes. ' This act contains three sections. The first one authorizes any bona fide resident of the states aforesaid or either of the territories-- naming them-- 'and all other mineral districts of the United States,' 'to fell and remove, for building, agricultural, mining, or other domestic purposes,' any trees growing upon the public lands, 'said lands being mineral,' and not then subject to entry, 'except for mineral entry;' subject to such regulations as the secretary of the interior may prescribe for the protection of the timber upon said lands, and other purposes; with a proviso that the act should not 'extend to railroad corporations.' The second section makes it the duty of the officers of any local land-office, 'in whose district any mineral land may be situated,' to ascertain whether timber is cut or used upon such mineral lands, 'except for the purposes authorized by the act,' and to give notice thereof to the commissioner of the general land-office. The third section prescribes the punishment for a violation of the act, or the rules made in pursuance thereof.

The act is very loosely and unskillfully drawn, and abounds in unnecessary and indefinite phrases and clauses of the and-so-forth character. The privilege conceded by it is limited to citizens of the United States, 'and other persons,' resident in certain states and territories, naming them, 'and all other mineral districts of the United States. ' It allows timber, 'or other trees,' to be cut for building, agricultural, mining, 'or other domestic' purposes, subject to such regulations as the secretary of the interior may prescribe for the protection of the timber and undergrowth, 'and for other purposes.'

On the same day another act was passed, (20 St. 89,) entitled 'An act for the sale of timber lands in the states of California, Oregon, Nevada, and Washington territory. ' This act contains six sections. The first, second, and third ones provide for the sale of the 'unsurveyed public lands' within these states and this territory not included in any reservations of the United States, valuable chiefly for timber or unfit for cultivation, which have not been offered for sale, in quantities not exceeding 160 acres to one person or association, at the minimum price of $2.50 per acre; with a proviso that the act should not, among other things, authorize the sale of a 'mining claim,' or 'lands containing gold, silver, cinnabar, copper, or coal. ' Section 4 provides 'that after the passage of this act it shall be unlawful to cut, or cause or procure to be cut, or wantonly destroy, any timber growing on any lands of the United States' in the states or territory aforesaid, 'or remove or cause to be removed any timber from such public lands with intent to export or dispose of the same;' * * * and that any person so offending shall, on conviction, be fined for every such offence not less than $100 nor more than $1,000, with a proviso that the act shall not '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. ' Section 5 provides for the relief of persons prosecuted in said states and territory for the violation of the timber act of March 2, 1831, (4 St. 472; section 2461, Rev. St.,) and repeals section 4751 of the Revised Statutes, providing for the disposition of penalties and forfeitures incurred under said act or section, and directs that all moneys collected under that act shall be covered into the treasury of the United States. Section 6 provides that all acts...