lands were public lands, to stand between them and the government; and the further important fact that defendant had fully exhausted all his privileges of purchasing land under the stone and timber act, all conduce to show, and, in our opinion, satisfactorily show, that defendant well knew the land was public land, and had all the criminal intent required by section 2461, Rev. St., and the act of June 3, 1878, to constitute the offense there denounced. In our opinion, none of the facts relied upon by him as evidence of an innocent intent or purpose were relevant or material to the case.

The next assignments of error relate to the cutting of timber by the defendant on the Montezuma placer claim, and arise on the following state of facts: One Mullison had been in possession of the Montezuma placer claim, working the same for the precious metals therein, for about 30 years prior to 1898, but he had never applied for a patent, or taken steps to acquire title from the United States prior to that day. In October of that year Mullison and the defendant entered into a contract by which it was agreed that defendant, in consideration of being permitted to cut all the tie timber growing thereon, should pay all the expenses, including the government price of $2.50 per acre, for securing a patent by Mullison to his claim. Pursuant to this agreement, Mullison, early in January, 1898, applied for a patent, and between that day and June 22, 1898, defendant proceeded to cut and did cut over about 300 acres of the claim, and advanced money amounting to about $2,000 for the payment of the expenses and purchase price of the land from the United States. On June 22, 1898, the payment was made, and Mullison secured a receiver's receipt for the same, entitling him in due course to a patent for the lands. The contention of defendant's counsel, based on several assignments of error relating to the exclusion of evidence and the court's charge, to which particular reference need not now be made, is that his cutting timber from this land after the application for a patent was made, and before the money was paid and a receiver's certificate secured, does not constitute an offense under the statutes of the United States. His proposition is that the ultimate payment of the money and securing the receiver's receipt conferred upon Mullison a title to the land, which, by relation, operated as of the date of the application, and in fact as of the time of his original location of the claim, and therefore that the cutting of timber at the time in question with the consent of Mullison constituted no violation of the laws of the United States. It may be conceded that the payment for the land conferred upon Mullison an equitable title to the same, which entitled him to a patent, and that he was not required to wait for the actual issue of a patent converting the equitable right into a legal title before exercising all the incidents of ownership. This, we think, is the law as established by the authorities (Witherspoon v. Duncan, 4 Wall. 210, 18 L. Ed. 839; Stark v. Starrs, 6 Wall. 402, 417, 18 L. Ed. 925; Deffeback v. Hawke, 115 U. S. 392, 405, 6 Sup. Ct. 95, 29 L. Ed. 423; Cornelius v. Kessel, 128 U. S. 456, 460, 9 Sup. Ct. 122, 32 L. Ed. 482; Railroad Co. v. Whitney, 132 U. S. 357, 361, 10 Sup. Ct.

112, 33 L. Ed. 363; Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U. S. 428, 12 Sup. Ct. 877, 36 L. Ed. 762; Bardon v. Railroad Co., 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806; Bogan v. Mortgage Co., II C. C. A. 128, 63 Fed. 192), and the contention of the government in this case to the contrary is not well founded. The foregoing cases are, however, no authority for the proposition that lands cease to be public lands, or that a claimant secures an equitable right to a patent, until all the acts are performed and all the money is paid by the claimant, which are made by the law prerequisite to securing the legal title. Mullison, it appears, had located upon and worked his claim for some 30 years prior to 1898, and had thereby, under the mining laws, secured the right of possession to work the claim for precious metals as long as he desired to exercise that right, and had also acquired the option to apply for, and, on certain terms prescribed by law, to secure from the United States a patent conferring upon him title in fee simple to the lands contained in the claim, with all its incidental rights, privileges, and immunities. It is strenuously argued by defendant's counsel that the possessory title acquired by Mullison by virtue of the location, record, and working of his claim for so long a time segregated the same from the public domain, and conferred upon him such an equitable right as entitled him or his licensees to all the rights and incidents of absolute ownership. We cannot agree to any such proposition. Three separate rights or titles are recognized by the supreme court in and to public lands. In Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., supra, the court quotes approvingly from an opinion of the secretary of the interior, as follows: "By the laws of the United States, three distinct classes of titles are created, namely: (1) Title in fee simple; (2) title by possession; (3) the complete equitable title." Title by possession is the first one in order of time acquired. Possession of a mining claim, in accordance with the provisions of the statute, by well-settled authority, confers the right, subject to certain limitations and conditions, upon a locator, to work the claim for precious metals for all time, if he desires to do so; but confers no right to take timber, or otherwise make use of the surface of the claim, except so far as it may be reasonably necessary in the legitimate operation of mining. The next right in order of time is the equitable one, already defined. The last one in the sequence is the perfect legal title in fee simple absolute, created by the issue of the patent by the United States. The claimant may be entirely satisfied with his possessory title, and be neither able nor willing to perform the further acts or pay the further consideration requisite to securing the equitable or legal title. For reasons of public policy, and for the purpose of encouraging the mining industry, the United States gratuitously grants the privilege to any citizen, or person having declared his intention to become a citizen, of locating a claim for mineral lands and working the same for precious metals; but it has not seen fit to give away the land containing the minerals, but, on the contrary, has adopted the policy of selling the same to the locator, if he desires to purchase, on terms fixed by the acts of congress.

Mullison's location, record, and working of his claim secured to him the possessory title only. While his location so far segregated and withdrew the land from the public domain that no rival claimant could successfully initiate any right to it until his location was avoided and his entry was canceled (James v. Iron Co., 46 C. C. A. 476, 107 Fed. 597, 603, and cases there cited; Hartman v. Warren, 22 C. C. A. 30, 76 Fed. 157, 160; Pacific Ry. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122), it gave him nothing but "the right of present and exclusive possession" for the purpose of mining. It did not devest the legal title of the United States, or impair its right to protect the land and its product, by either civil or criminal proceedings, from trespass or waste. While for the purpose of subsequent entry and location by private parties the lands which Mullison claimed were segregated from the public domain and appropriated to a private purpose, they were so segregated for that purpose only, and the legal and equitable title to them still remained in the government and they were still "lands of the United States" within the meaning of section 2461, Rev. St., and the act of August 4, 1892 (27 Stat. 348), which are under consideration in this case. Shiver v. U. S., 159 U. S. 491, 494, 16 Sup. Ct. 54, 40 L. Ed. 231. The case of Belk v. Meagher, 104 U. S. 279, 283, 26 L. Ed. 735, 737, relied on by defendant's counsel, clearly recognizes the limited character of the right conferred upon a locator. The court there says (page 283, 104 U. S., page 737, 26 L. Ed.):

"The language of the act is that the locators 'shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, which is to continue until there shall be a failure to do the requisite am unt of work within the prescribed time.' Congress has seen fit to make the possession of that part of the public lands which is valuable for minerals separable from the fee, and to provide for the existence of an exclusive right to the possession, while the paramount title to the land remains in the United States."

The two titles recognized by the United States confer totally different rights. The first one confers a right (and it may properly enough be said to be vested in the locator) to the possession of the land for the purpose of carrying on his mining operations as long as he performs the required conditions. This, however, he may at any time abandon by ceasing to perform the conditions upon which it depends. The second is a complete and absolute title, which may or may not be acquired by the locator, and, if acquired, is for other and valuable considerations moving from him to the United States. This title is dependent upon no conditions, but confers all the rights incident to an indefeasible estate in fee simple. Considerations like the foregoing conclusively show that there is no warrant for the contention that the locator's right of possession segregates the land from the public domain, and appropriates it to a private purpose in any such way as to withdraw it from the effect of the provisions of the criminal statutes under which the defendant was convicted. After the locator shall have applied for a patent, in the event in the exercise of his option he sees fit to do so, and after he shall have fully perfected his entry upon the land by the

payment of the purchase price, and not till then, has the land ceased to be a part of the public domain, and not till then has he acquired any vested right to the absolute title. Witherspoon v. Duncan, supra. When such an entry is made, the land is not only withdrawn from the public domain, but the entryman has acquired an equitable title, and thereafter, and not till then, the United States holds the legal title in trust for him.

This brings us to a consideration of the effect to be given to the application for a patent made by Mullison on January 5, 1898, and to the perfection of his entry by payment of the purchase price on June 22, 1898. Between these dates the trespass charged against the defendant was committed. Counsel strenuously urge that Mullison's actual payment for the land on June 22, 1898, and securing the receiver's certificate of such payment, conferred title on him by relation certainly as of January 5, 1898, when he applied for the patent. The argument need not here be repeated, nor the authorities again referred to, showing that the payment for the land and securing the receiver's receipt therefor operated to create a perfect equitable title in Mullison. "The equitable title accrues immediately upon purchase, for the entry entitles the purchaser to a patent, and the right to a patent once vested is equivalent to a patent issued." Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., supra. But does this title relate to or become effective as of any day prior to the actual payment of the purchase price in any such sense as to entitle the applicant for a patent, or any one acting under or by his authority, to enter upon the land in the meantime, and appropriate the timber to his or their own use? The application for a patent in and of itself imposes no obligation upon the applicant to pursue his purpose to secure a patent. It is only the first step to that end. He is afterwards required by the mining laws to perform certain other prerequisite duties, and particularly to make payment for the land and secure the receiver's receipt therefor. At any time prior to the actual payment it is within the power of the applicant to abandon his purpose. Can it be possible that congress intended to open the door to such depredation and fraud as would be feasible on defendant's theory? According to it, Mullison might have made a formal application for a patent, proceeded to sell and dispose of the timber growing on the land, impairing its value accordingly, and then, without penalty, have abandoned his entry, leaving the land wasted, and stripped of its timber, which might have been its chief value, for the government to hold without the probability of sale. Unless congress. by clear and unambiguous expression of its will has left this door open, we will not open it. We not only fail to find any such expression of legislative intent, but authority and reason alike conduce to the contrary. In U. S. v. Nelson, 5 Sawy. 68, Fed. Cas. No. 15,864, a case much like the present was considered. A locator of a placer claim had taken all the steps entitling him to a patent for the land, except the final payment of the price fixed by law. Afterwards he cut timber therefrom, not incidental to a bona fide mining operation, but for the purpose of selling it as firewood. The

court held that this constituted an offense, within the meaning of section 2461, supra, and among other things said:

* *

*

"The defendant in this case occupies the premises under this law, and claims the right to cut and remove the timber therefrom as incidental to and in aid of his right to mine thereon; but he is not the owner of the land until he pays for it and obtains the United States patent. It is a part of the public domain. In the meantime the defendant is occupying it under a inere license from the government, which may be revoked at any time by the repeal of the act giving it. If the land, or the greater portion of it, is of little or no value as mining ground, but valuable for its timber, the defendant might occupy it for a few years until he had stripped the tract of its timber and worked out the few acres that really contained valuable deposits, and then abandon it to the government. * The temptation to locate 160 acres of timber land as mining ground, and by putting a few dollars worth of labor upon it annually, and thereby be enabled to dispose of the timber upon it at from $50 to $100 an acre is very great; and, if the defendant's construction of the law is to obtain, there is nothing to prevent its being done. * The removal of timber from a mining claim, to be justifiable, should proceed pari passu with the operation of mining. Whoever wants to go further or faster than this, and for any reason appropriate the timber to his own use in advance of his mining operations, can only do so safely by paying the purchase price of the land and becoming the owner thereof."

The views so expressed by the district judge in that case commend themselves to our reason, and, it appears, so commended themselves to the reason of the supreme court of the United States that that court cites it in support of its decision in the case of Shiver v. U. S., supra.

The law relating to the acquisition of homesteads is so akin to that relating to the acquisition of mineral claims that the principles governing the rights of claimants while engaged in perfecting their titles are conceded by counsel in their argument to be similar. The homestead settler acquires no title until five years after his entry. During these years he must, among other things, reside upon the land entered, and cultivate the same. The performance of such acts, like the final payment by a claimant of mineral land, entitles him to a patent. In homestead cases the rule is well settled that the settler may cut during those five years only such timber as is reasonably incidental to cultivation, and cannot, under color of exercising this right, denude the land of its timber for the purpose of selling the same and securing its purchase price. Stone v. U. S., 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127; Shiver v. U. S., 159 U. S. 491, 16 Sup. Ct. 54, 40 L. Ed. 231; U. S. v. Cook, 19 Wall. 591, 22 L. Ed. 210; Conway v. U. S., 37 C. C. A. 200, 95 Fed. 615; Grubbs v. U. S., 44 C. C. A. 513, 105 Fed. 314. In the case of Shiver v. U. S., supra, the question turned upon what is meant by "land of the United States" within the meaning of section 2461, Rev. St., providing for the punishment of persons guilty of cutting timber upon such lands. After making a résumé of the provisions of the homestead act, Mr. Justice Brown, speaking for the court, says:

"It is evident: First, that the land entered continues to be the property of the United States for five years following the entry; second, that such property is subject to divestiture upon proof of the continued residence of the settler upon the land for five years; third, that meantime such settler has the right to treat the land as his own so far, and so far