President may

force.

SEC. 5. That the President is hereby authorized to take such measures as shall be necessary to remove and destroy any unlawful inclosure remove fence by of any of said lands, and to employ civil or military force as may be necessary for that purpose.

SEC. 6. That where the alleged unlawful inclosure includes less than one hundred and sixty acres of land, no suit shall be brought under the provisions of this act without authority from the Secretary of the Interior.

Inclosures of than 160

less

acres.

not affected.

SEC. 7. That nothing herein shall affect any pending suits to work Pending suits their discontinuance, but as to them hereafter they shall be prosecuted and determined under the provisions of this act.

MISCELLANEOUS TRESPASSES AND OTHER OFFENSES AGAINST THE
UNITED STATES.

Destruction of

monu

historic Iments and ruins

Act of June 8, 1906 (34 Stat., 225), for the preservation of American antiquities. Any person who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity, historic and presituated on lands owned or controlled by the Government of the United States, without the permission of the Secretary of the Department of prohibited. the Government having jurisdiction over the lands on which said antiquities are situated, shall, upon conviction, be fined in a sum of not more than five hundred dollars or be imprisoned for a period of not more than Penalty. ninety days, or shall suffer both fine and imprisonment, in the discretion of the court.

The remainder of the foregoing act, authorizing the establishment of national monuments, is printed ante, page 12.

CRIMINAL CODE OF MARCH 4, 1909.

Hunting, etc.,

SEC. 84. Whoever shall hunt, trap, capture, willfully disturb, or kill any bird of any kind whatever, or take the eggs of any such bird, on bird refuges. on any lands of the United States which have been set apart or reserved as breeding grounds for birds by any law, proclamation, or executive order, except under such rules and regulations as the Secretary of Agriculture may, from time to time, prescribe, shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both. (The foregoing section seems to be a codification of the act of June 28, 1906 (34 Stat., 536). That act, however, is not specifically repealed, and it contains the following proviso: "Provided, That the provisions of this act shall not apply to the Black Hills Forest Reservation, in South Dakota.")

Act of Jan. 24, 1905 (33 Stat., 614); act of June 29, 1906 (34 Stat., 607).

The foregoing acts, which authorize the establishment of the Wichita game and bird refuge and the Grand Canyon game refuge contain penal provisions substantially the same as in section 84, supra.

Trespass

on

SEC. 55. Whoever, except forest rangers and other persons employed by the United States to protect the forest, Federal and State officers Bull Run Forest. in the discharge of their duties, and the employees of the water board of the city of Portland, State of Oregon, shall knowingly trespass upon any part of the reserve known as Bull Run National Forest, in the Cascade Mountains, in the State of Oregon, or shall enter thereon for the purpose of grazing stock, or shall engage in grazing stock thereon, or shall permit stock of any kind to graze thereon, shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both.

SEC. 56. Whoever shall knowingly and unlawfully break, open or Breaking inclodestroy any gate, fence, hedge, or wall inclosing any lands of the United sures. States which, in pursuance of any law, have been reserved or purchased by the United States for any public use; or whoever shall drive any cattle, horses, hogs, or other live stock upon any such lands for the purpose of destroying the grass or trees on said lands, or where they may destroy the said grass or trees; or whoever shall knowingly permit his cattle, horses, hogs, or other live stock, to enter through any such stock to trespass. inclosure upon any such lands of the United States, where such cattle, horses, hogs, or other live stock may or can destroy the grass or trees or other property of the United States on the said lands, shall be fined not

Permitting

False personation, etc.

Robbery of United States

property.

Embezzlement, theft, etc.

Receiving stolen property.

Destroying Government survey corners, etc.

Malicious struction

of

United States property, etc.

Perjury.

more than five hundred dollars, or imprisoned not more than one year, or both: Provided, That nothing in this section shall be construed to apply to unreserved public lands.

SEC. 32. Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States or any department, or any officer of the Government thereof, and shall take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any department, or any officer of the Government thereof, any money, paper, document, or other valuable thing, shall be fined not more than one thousand dollars, or imprisoned not more than three years, or both.

SEC. 46. Whoever shall rob another of any kind or description of personal property belonging to the United States, or shall feloniously take and carry away the same, shall be fined not more than five thousand dollars, or imprisoned not more than ten years, or both.

SEC. 47. Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.

SEC. 48. Whoever shall receive, conceal, or aid in concealing, or shall have or retain in his possession with intent to convert to his own use or gain, any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, which has theretofore been embezzled, stolen, or purloined by any other person, knowing the same to have been so embezzled, stolen, or purloined, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both; and such person may be tried either before or after the conviction of the principal

offender.

SEC. 57. Whoever shall willfully destroy, deface, change, or remove to another place any section corner, quarter-section corner, or meander post, on any Government line of survey, or shall willfully cut down any witness tree or any tree blazed to mark the line of a Government survey, or shall willfully deface, change, or remove any monument or bench mark of any Government survey, shall be fined not more than two hundred and fifty dollars, or imprisoned not more than six months, or both.

de- SEC. 60. Whoever shall willfully or maliciously injure or destroy any of the works, property, or material of any telegraph, telephone, or cable line, or system, operated or controlled by the United States, whether constructed or in process of construction, or shall willfully or maliciously interfere in any way with the working or use of any such line, or system, or shall willfully or maliciously obstruct, hinder, or delay the transmission of any communication over any such line, or system, shall be fined not more than one thousand dollars, or imprisoned not more than three years, or both.

Arrests by forest officers.

SEC. 125. Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury, and shall be fined not more than two thousand dollars and imprisoned not more than five

years.

PROCEDURE.

Act of February 6, 1905 (33 Stat., 700), for the protection of the public forest 1eserves and national parks of the United States.

All persons employed in the forest reserve and national park service of the United States shall have authority to make arrests for the violation of the laws and regulations relating to the forest reserves and national parks, and any person so arrested shall be taken before the nearest United States commissioner, within whose jurisdiction the reservation or national park is located, for trial; and upon sworn infor

mation by any competent person any United States commissioner in the proper jurisdiction shall issue process for the arrest of any person charged with the violation of said laws and regulations; but nothing herein contained shall be construed as preventing the arrest by any officer of the United States, without process, of any person taken in the act of violating said laws and regulations.

UNITED STATES REVISED STATUTES.

SEC. 183. Any officer or clerk of any of the Departments lawfully Officers, etc., may administer detailed to investigate frauds or attempts to defraud on the Governoaths. ment, or any irregularity or misconduct of any officer or agent of the United States, shall have authority to administer an oath to any witness attending to testify or depose in the course of such investigation.

DECISIONS RELATING TO TRESPASSES.

CUTTING OF TIMBER.

IN GENERAL.

By a modification of the earlier doctrine of equity, injunction will now lie to prevent irremediable mischief to the substance of the estate as by the mining of ores or the cutting of trees by one in possession of lands while the title is in litigation. (Erhardt v. Boaro, 113 U. S., 537.)

Where one has unlawfully cut timber from lands of the United States it is no defence that he acted in accordance with a general custom in the locality, known to the general land office, of entering lands and cutting the timber before patent issued. (Teller v. United States (C. C. A.), 113 Fed., 273.)

An instruction to the jury that if defendant entered upon public land knowing it to be such, without having complied with the provisions of law giving him a right to do so, and cut timber therefrom, they would be authorized to find the requisite criminal intent, fairly states the law, and is as favorable as the defendant is entitled to. (Teller v. United States (C. C. A.), 113 Fed., 273.)

FROM PUBLIC MINERAL LANDS.

The act June 3, 1878 (20 Stat., 88), seems to apply only in the States and Territories specifically mentioned therein. (United States v. Smith, 11 Fed., 487; United States v. Benjamin, 21 Fed., 285; United States v. English, 107 Fed., 867.)

The right to cut timber under this act extends only to lands valuable for minerals and not to lands adjacent thereto, or lying in a recognized mineral region, but not themselves valuable for their minerals. (United States v. Plowman, 216 U. S., 327.)

The cutting of timber from mineral lands for roasting of ores is authorized by the act of 1878, whether this process be considered a part of the mining or as smelting. In either event the use is for "domestic purposes. (United States v. United Verde Copper Co., 196 U. S., 207.) One who cuts timber from public mineral lands and sells the same, or the lumber manufactured therefrom, without taking from the purchaser a written statement of the purposes for which the same is intended to be used, as required by the regulations of the Secretary of the Interior, is guilty of a violation of the statute. (United States v. Redes, 69 Fed., 965.)

The act of 1878 (20 Stat., 88) and the act of March 3, 1891 (26 Stat., 1093), have been construed by the land department as having practically the same scope and purpose, the one applying only to mineral and the other only to nonmineral lands. Held, therefore, on the authority of United States v. United Verde Copper Co., supra, that the latter statute authorizes the use of timber for smelting purposes. (34 L. D., 78.)

FROM HOMESTEAD CLAIMS.

The settler upon a homestead claim may cut such timber as is necessary to clear the land for cultivation or to build him a house, outbuildings, and fences, and, perhaps, as indicated in the charge of the court below, to exchange such timber for lumber to be devoted to the same purposes, but not to sell the same for money, except so as the timber may have been cut for the purpose of cultivation. While, as was claimed in this case, such money might be used to build, enlarge, or finish a house, the toleration of such practice would open the door to manifold abuses, and be made an excuse for stripping the land of its valuable timber. One man might be content with a house worth $100, while another might, under the guise of using the proceeds of the timber for improvements, erect a house worth several thousands. A reasonable construction of the statute-a construction consonant both with the protection of the property of the Government in the land and the rights of the settler-we think restricts him to the timber actually cut or the lumber exchanged for such timber and used for his improvements, and to such as is necessarily cut in clearing the land for cultivation. (Shiver v. United States, 159 U. S., 491, 498; see also, United States v. Cook, 19 Wall., 591; Conway v. United States (C. C. A.), 95 Fed., 615.)

The cutting and removal of timber from a homestead claim must be for a legitimate purpose, having some connection with the cultivation and improvement of the land, but it is error to instruct the jury that the timber could only be cut "in pursuance of a definite plan that the plow should follow the ax," and that if the timber was cut from lands "not put in cultivation, and not to be put immediately into cultivation, then the law presumes that they intended to violate the law." (Grubbs v. United States (C. C. A.), 105 Fed., 314.)

After final proof and the issuance of final certificate, homestead entrymen may cut and remove timber from their claims for any purpose. (1 Sol. Op., 327.)

FROM MINING CLAIMS.

An occupant of a mineral claim, who has applied for patent, has no right to cut and sell the timber thereon before payment of the Government price and issuance of final certificate, and a license from him to so cut the timber is no protection to the licensee. (Teller v. United States (C. C. A.), 113 Fed., 273; see also United States v. Nelson, 5 Sawyer, 68.)

When, however, the timber on a mining claim in a national forest is infested with insects so as to be a menace to the young and growing trees, the Government, having the paramount title, may, through the Forest Service, sell and dispose of such timber, even without the consent of the claimant. (Lewis et al. v. Garlock (United States, intervenor), 168 Fed., 153.)

FROM RAILROAD LANDS.

The grant to the Northern Pacific Railroad Co. vested in the grantee a present title to the odd sections on the definite location of the road, but the Government makes its own surveys, and until survey by the Government the United States retains at least a special property in all the timber in the township and may recover for timber cut by the company or its grantees notwithstanding a survey made by the company shows the land cut over to be an odd section. Such a survey is inadmissible as evidence that the land is part of an odd section. (United States v. Montana Lumber Co., 196 U. S., 573.)

The mineral return of the Surveyor General under the grant to the Central Pacific Railroad Co., of July 1, 1862, and July 2, 1864, is merely prima facie evidence of the mineral character of the land, which may be inquired into by the Department of the Interior at any time before patent. (2 Sol. Op., 897.)

The Department of Agriculture is not authorized to handle the sale of timber cut in trespass upon lands within the primary limits of the Northern Pacific Railroad grant, even though such lands lie within the exterior limits of a National Forest. (1 Sol. Op., 541.)

FROM LIEU SELECTION.

Prior to the approval of a selection under the indemnity school and university land grants title in the land remains in the United States and no one has a right to go upon the land and cut the timber therefrom. (1 Sol. Op., 468.)

DAMAGES-INNOCENT AND WILLFUL TRESPASSES.

One innocently purchasing timber unlawfully and willfully cut from Government lands and transported to market by his vendor is liable for its value at the time and place of his purchase without any deduction for value added by the acts of the willful trespasser. (Woodenware Co. v. United States, 106 U. S., 432.)

In a case of innocent trespass the measure of damages is the value of the timber after it was cut at the time and place where it was cut. (United States v. St. Anthony R. R. Co., 192 U. S., 524; 1 Sol. Op., 298; 40 L. D., 518, 525.)

In a letter of instructions to the United States attorney at Helena, Mont., dated September 7, 1910, the Acting Attorney General, after reviewing the authorities and discussing the conflicting cases, says:

"After a somewhat careful examination of the authorities cited and many others, the department is of the opinion that, where timber has been inadvertently cut from the public lands, (1) the timber immediately after felling becomes the personal property of the United States (Sampson v. Hammond, 4 Cal., 184); (2) an action of trover will lie for its conversion (Sampson v. Hammond, supra; White v. Yawkey, 108 Ala., 270, 275); (3) the value of the property when first taken is the measure of damages recoverable (Woodenware case, 106 U. S., 432, 434); and (4) the value of the property when first taken, within the meaning of the Woodenware case, is its value immediately when it takes the form of personal property-i. e., immediately after severance from the freehold (White v. Yawkey, 108 Ala., 270, 274, 275)."

In Pine River Logging Co. v. United States (186 U. S., 279, 293) the doctrine of the Woodenware case as to willful trespasses is stated to be that "if the trespass be willfully committed the trespasser can obtain no credit for the labor expended upon it, and is liable for its full value when seized;" and this rule was applied in the case under consideration, the parties in the possession of the timber at that time being found to have participated in the trespass.

Where timber is cut upon public land by one who knows that the land belongs to the Government, or who has no reasonable ground to believe that it belongs to himself or to some one under whom he claims, the trespass is a willful one. (Bly v. United States, Fed. case No. 1581, 4 Dill., 464.)

In actions of trespass where the injury has been wanton and malicious or gross and outrageous, courts permit juries to add to the measured compensation of the plaintiff, which he would have been entitled to recover had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called "smart money." (Day v. Woodworth, 13 How., 362, 371; see also Barry v. Edmunds, 116 U. S., 550.)

Where the defendant admits the cutting and removal of timber from public lands, the Government is entitled to at least nominal damages, in the absence of direct evidence of the value of the standing trees. (United States v. Mock, 149 U. S., 273; see also United States v. Taylor, 35 Fed., 484.)

In trover for crude turpentine unlawfully but not willfully taken from pine trees, the measure of damages is its value at the time of conversion with interest. (Quitman Naval Stores Co. v. Conway, 58 So. Rep., 840; Solicitor to his Assistant at Albuquerque, Dec. 26, 1912.)

FIRE TRESPASSES.

In United States v. Henry Clay (unreported), Southern District of California, the defendant was indicted under section 52, of the Criminal Code, and the jury were charged by Judge Wellborn in part as follows: