TIMBER TRESPASS-HOMESTEAD AND PRE-EMPTION.

INSTRUCTIONS.

Commissioner McFarland to Special Agent Prosser, October 24, 1881.

Yours of September 5, at hand and contents noted. From what you say in relation to the numerous saw mills in the section of country drained by the Palouse, Touchet, and Spokane Rivers, and the amount of timber driven from Idaho to the mills in Washington Territory, it is presumable that the public timber lands are being extensively depredated upon, not only by the mill men but by pretended homestead and pre-emption claimants, who file on timber lands for the sole purpose of removing the timber and abandoning their entry thereafter.

In relation to the Oregon Improvement Company (a State organization) and the mill men obtaining control of large quantities of timber land under the act of June 3, 1878, it would be well for you to make inquiries as to how it was done, as the said act provides that no person or association of persons shall be entitled to purchase more than 160 acres. If larger quantities have been obtained, fraud would seem to be manifest.

As a timber agent you, of course, are not expected to look up fraudulent land entries, but in connection with your duties you may at times be able to obtain information on the matters above referred to, which, hereafter, may be of service to this office in detecting frauds.

While it is desirable that the legitimate occupation of lumbering should not be interfered with, yet it is proper to see that the timber upon the public lands is protected and saved from wanton waste and destruction, by all the means lawfully at your command, and that parties engaged in the business of lumbering are not pursuing their occupation in an unlawful manner.

Your position in regard to the liability of Messrs. Cannon and Warner (or any others in the same business) is correct. They cannot be permitted to purchase logs or timber coming from public lands of irresponsible parties, and escape their full share or even the entire responsibility for the trespass. They are as liable criminally and civilly as the original depredator, and will be proceeded against.

In relation to the school lands, or sections sixteen and thirty-six, it matters not if surveyed or not, so far as the act of cutting and removing the timber therefrom; it is an unlawful act and the person so depredating is a trespasser and must be dealt with accordingly. The title to this class of lands remains in the government until it is passed to the State. You will report all cases of trespass on said lands for prosecution.

RESERVATIONS.

MEMORANDUM OF DIFFERENT PROVISIONS BEARING UPON THE SUBJECT OF RESERVATIONS BY THE PRESIDENT.

1st. The Executive power is expressly vested in the President by the first section of the second article of the Constitution of the United States.

⚫ 2d. By the fourth section of the act of Congress approved April 24, 1820, vol. 3, page 567, making further provision for the sale of the public lands, that is known as the law establishing the cash land system, authority is conferred on the President for offering the public lands for sale by proclamation "at such time or times as the President shall by his proclamation designate for the purpose," etc.

3d. Under this delegation of authority, proclamations from time to time have been issued and sales held, and in those proclamations terms were inserted to the effect "lands appropriated by law for the use of schools, military, or other purposes be excluded from sale." These laws have in practice been regarded as designed to exclude all interests that had an inception under law or pursuant to law and as excluding from such sales reservations for military, naval, or other public uses.

4th. In the pre-emption law of 29th May, 1830, vol. 4, page 421, there is the following clause:

Nor shall the right of pre-emption, contemplated by this act, extend to any land which is reserved from sale by act of Congress, or by order of the President, or which may have been appropriated for any purpose whatsoever.

Here is an express exclusion used of the highest grade of interest under the law, from interference with lands reserved "by order of the President."

5th. By the tenth section the act of 4th September, 1841, vol. 5, page 456, the acquirement of pre-emption under that general and permanent prospective pre-emption is expressly excluded from "lands included in any reservation by any treaty, law, or proclamation of the President of the United States or reserved for salines or other purposes."

6th. By the act of Congress approved March 3, 1853, vol. 10, page 246, it is declared that all public lands in California shall be subject to pre-emption, and to be offered at public sale with certain specified exceptions and with the general exception, viz, "reserved by competent authority." The stipulations in the aforesaid acts of 1830 and 1841 expressly indicate that that competent authority is by the President.

7th. Then in the twelfth section of said act of 3d March, 1853, there are excluded from disposal certain lands, viz, mineral, "or lands reserved for any public purpose whatsoever," vol. 10, page 248.

Sth. By the act of 3d March, 1863, vol. 12, page 754, it is made the duty of the President to reserve town sites from the public lands, either surveyed or unsurveyed town sites on the shores of harbors, at the

juncture of rivers, important portages, or any natural or productive centers of population.

9th. Then there is the act of March 1, 1817, vol. 3, page 347, conferring authority on the Secretary of the Navy, under the direction of the President of the United States, to reserve live oak and red cedar lands, with penalty for cutting and destroying trees.

March 2, 1831, another act was passed extending the interdict against spoliation.

The supreme court in the case of United States v. Briggs, 9 Howard, considered this statute as authorizing the protection of all timber on public lands, and punished for trespass.

That the power resides in the Executive from an early period in the history of the country to make reservations has never been denied either legislatively or judicially, but on the contrary has been recognized. It constitutes in fact a part of the land office law, exists ex necessitate rei, as indispensable to the public weal, and in that light, by different laws enacted as herein indicated, has been referred to as an existing undisputed power too well settled ever to be disputed.

PROVISIONS OF LAW.

IN REFERENCE TO THE AUTHORITY OF THE PRESIDENT TO MAKE RESERVATIONS OF THE PUBLIC LANDS.

April 12, 1792.-Fort Washington for the accommodation of a garrison at the fort. Vol. 1, p. 252.

March 26, 1804, Sec. 6.-Salt Springs in Indiana Territory, with con. tiguous sections. Vol. 2, p. 280.

April 21, 1806, Sec. 11.-Public lands in the W. Territory of Orleans, may reserve from sale for schools, seminary, salt spring. U. S. Laws vol. 2, p. 394.

March 31, 1807, Sec. 5.-Lead mines in Indiana Territory, which were excepted in the President's proclamation of November 19, 1807, for the sale of public lands in Indiana Territory. U. S. Laws, vol. 2, p. 449. February 10, 1811, Sec. 10.-In Territory of Louisiana, school, seminary, salt springs, lead mines. Vol. 2, p. 621.

March 3, 1811, Sec. 10.-In Territory of Louisiana, schools, seminary, salt springs, lead mines. Vol. 2, p. 665.

March 3, 1815, Sec. 5.-Part land south of the State Tennessee, for sale, except reservations for schools, etc. Vol. 3, p. 229.

March 5, 1816, Sec. 1.-In Indiana Territory, salt springs, lead mines, school sections. Vol. 3, p. 257.

May 29, 1830, Sec. 4.-No pre-emption attaches to any land which is reserved from sale by act of Congress or by order of the President, or which may have been appropriated for any purpose whatever. Vol. 4, p. 421.

June 28, 1832, Sec. 1.-Lots and building in Saint Augustine and Pensacola for public purposes. Vol. 4, p. 550.

June 26, 1834, Sec. 4.-Sale of public lands in Illinois, Missouri, and Wisconsin, except school and such other reservations as the President shall retain for military posts, any law of Congress heretofore existing to the contrary notwithstanding. Vol. 4, p. 687.

March 3, 1863, vol. 12, p. 754.—Town sites on the shores of harbors, at the junction of rivers, important portages, or any natural prospective centers of population.

March 3, 1863, vol. 12, p. 819.-Reservation for Indians.

April 8, 1864, vol. 13, p. 39.-Indian reservation in California.

October 21, 1869, vol. 18, p. 689.-President may reserve military posts and set aside permanent reservations.

(See Grisar v. McDowell, 6 Wallace Reports, p. 381, relative to rights of the President to reserve parcels of lands.)