Land, duly and properly entered for a homestead under the
homestead laws of the United States, is not, from the time of
entry, and pending proceedings before the Land Department, and
until final disposition by that department, so appropriated for
special purpose, and so segregated from the public domain as to be
no longer lands of the United States within the purview and meaning
of section 2461 of the Revised Statutes of the
Page 159 U. S. 492
United States, but, on the contrary, it continues to be the
property of the United States for five years following the entry
and until a patent is issued.
Where a citizen of the United States has made an entry upon the
public lands of the United States under and in accordance with the
homestead laws of the United States, which entry is in all respects
regular, he may cut such timber as is necessary to clear the land
for cultivation, or to build him a house, outbuildings, and fences,
and perhaps may exchange such timber for lumber to be devoted to
the same purposes; but he cannot sell the timber for money, except
so far as it may have been cut for the purpose of cultivation, and
in case he exceeds his rights in this respect, he may be held
liable in a criminal prosecution under section 2461 or section 5388
of the Revised Statutes of the United States, or either of said
sections, for cutting and removing, after such homestead entry, and
while the same is in full force, the standing trees and timber
found and being on the land so entered as a homestead.
In holding that, as between the United States and a homestead
settler, the land is to be deemed the property of the former, at
least so far as is necessary to protect it from waste, the Court is
not to be understood as expressing an opinion whether, as between
the settler and the state, it may not be deemed to be the property
of the settler, and therefore subject to taxation.
Shiver was tried upon an information filed in the District Court
for the Southern District of Alabama for cutting and removing 200
pine trees from a quarter section of land in Monroe County which he
had entered as a homestead on January 26, 1894. It appeared that
the cutting began about the first of April, and that all the
standing timber, amounting to about five hundred trees, had been,
either before or after complaint was made against him, cut and
removed from the land; that the defendant and his family were
living on the land, and had erected a box house worth about one
hundred dollars; that the lumber was cut and hauled from the land
by defendant's procurement; that it had been cut all over the land;
that the land cleared amounted to about an acre; that the house was
not yet completed; that the timber was taken to the mill of the
Bear Creek Mill Company, of which defendant was an employee; that
defendant was not living on the land when the cutting began, and
that the trees would make upwards of 150,000 feet of lumber; that
they were not cut for the purpose of clearing the land for
cultivation, and that
Page 159 U. S. 493
such timber was cut within four months after defendant had made
his homestead entry; that the trees yielded an aggregate of the sum
of $126, while the improvements made upon the land cost $229. The
lumber put into the building amounted to 9,765 feet.
There was conflicting evidence as to the motives of the
defendant in cutting and selling the timber. He claimed that the
logs were exchanged for lumber and building material, all of which
were put into his improvement, the government claiming that it was
cut for the purpose of sale and profit.
The court instructed the jury that defendant had the right to
cut timber on his homestead suitable and sufficient to build
necessary and convenient houses, fences, etc., for a home, and to
have that timber sawed into suitable lumber to make such
improvements on his homestead; that he could have exchanged timber
for lumber to make such improvements, but only so much as was
necessary, and that if he only did this, and did it in good faith,
he should be acquitted. On the contrary, that any cutting in excess
of the lumber necessary to make his improvements would be unlawful,
that he had no right to cut trees for the purpose of sale for
profit, or to pay debts or loans of money, or to pay his expenses,
or to buy supplies -- in short, he had no right to cut them for
sale for any such purpose.
Defendant was convicted, and appealed to the circuit court of
appeals, which certified to this Court the following questions:
1. Whether lands duly and properly entered for a homestead under
the homestead laws of the United States are from the time of entry,
and pending proceedings before the Land Department, and until final
disposition by that department, so appropriated for special
purpose, and so segregated from the public domain, as to be no
longer lands of the United States, within the purview and meaning
of section 2461 of the Revised Statutes of the United States.
2. Where a citizen of the United States has made an entry upon
the public lands of the United States under and in accordance with
the homestead laws of the United States, which
Page 159 U. S. 494
entry is in all respects regular, can such citizen he held
liable in a criminal prosecution under section 2461 or section 5388
of the Revised Statutes of the United States, or either of said
sections, for cutting and removing, after such homestead entry, and
while the same is in full force, the standing trees and timber
found and being on the land so entered as a homestead?
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case turns upon the question as to what are "lands of the
Unites states" within the meaning of Rev.Stat. § 2461,
providing for the punishment of persons guilty of cutting timber
upon such lands other than for the use of the navy. Obviously the
question is not whether such lands are so far withdrawn from sale
as to be no longer subject to appropriation by any railroad or
other person or corporation to which a land grant has been made,
but whether they are still so far the property of the United States
that the government may protect itself against an unlawful use of
them. Indeed, this Court has settled by repeated decisions that the
claim of a homestead or preemption entry, made at any time before
filing a map of definite location of a railway, prevents the lands
covered by such claim from passing to such railway under its land
grant, even though such entry be subsequently abandoned.
Kansas
Pacific Railway v. Dunmeyer, 113 U. S. 629;
Hastings & Dakota Railroad v. Whitney, 132 U.
S. 357;
Whitney v. Taylor, 158 U. S.
85;
Sioux City &c. Land Co. v. Griffey,
143 U. S. 32. The
same principle applies where lands have been reserved for any
purpose whatever.
Wilcox v.
Jackson, 13 Pet. 498;
Witherspoon v.
Duncan, 4 Wall. 210;
Newhall
Page 159 U. S. 495
v. Sanger, 92 U. S. 761;
Kansas Pacific Railroad v. Atchison &c. Railroad,
112 U. S. 414.
While these cases indicate that lands once appropriated to a
certain purpose thereby cease to be available for another purpose,
there is nothing in them to show that the United States loses its
title to such lands by the first appropriation, or that they cease
to be the property of the government. Upon the contrary, it was
said by this Court as early as 1839, in
Wilcox v.
Jackson, 13 Pet. 498,
38 U. S. 516,
that, "with the exception of a few cases, nothing but the patent
passes a perfect and consummate title." So, in
Frisbie v.
Whitney, 9 Wall. 187,
76 U. S.
193:
"There is nothing in the essential nature of these acts
[entering upon lands for the purpose of preemption] to confer a
vested right, or, indeed, any kind of claim to land, and it is
necessary to resort to the preemption law to make out any shadow of
such right."
In this case, the following extract from an opinion of Attorney
General Bates was quoted with approval:
"A mere entry upon land, with continued occupancy and
improvement thereof, gives no vested interest in it. It may,
however, give, under our national land system, a privilege of
preemption. But this is only a privilege conferred on the settler
to purchase lands in preference to others. . . . His settlement
protects him from intrusion or purchase by others, but confers no
right against the government."
A number of authorities were cited to the same effect. It was
held that it was within the power of Congress to withdraw land
which had been preempted from entry or sale, though this might
defeat the imperfect right of the settler. In the
Yosemite
Valley Case, 15 Wall. 77, the construction given to
the preemption law in
Frisbie v. Whitney was approved, the
Court observing, p.
82 U. S. 88:
"It is the only construction which preserves a wise control in
the government over the public lands, and prevents a general
spoliation of them under the pretense of intended preemption and
settlement. The settler, being under no obligation to continue his
settlement and acquire the title, would find the doctrine advanced
by the defendant, if it could be maintained that be was possessed
by his settlement of an interest beyond the control of the
government, a convenient protection for any
Page 159 U. S. 496
trespass and waste in the destruction of timber or removal of
ores which he might think proper to commit during his occupation of
the premises."
The right which is given to a person or corporation by a
reservation of public lands in his favor is intended to protect him
against the actions of third parties, as to whom his right to the
same may be absolute; but as to the government, his right is only
conditional and inchoate. By the Homestead Act, Rev.Stat. §
2289, certain classes of persons therein specified are entitled to
enter a quarter section of land subject to preemption at a certain
price, upon making an affidavit of facts (§ 2290) before the
register or receiver, including in such affidavit a statement that
"his entry is made for the purpose of actual settlement and
cultivation, and not, either directly or indirectly, for the use
and benefit of any other person." By the Act of March 3, 1891, c.
561, § 5, 26 Stat. 1095, 1098, this affidavit is now required
to state that the settler
"will faithfully and honestly endeavor to comply with all the
requirements of law as to settlement, residence, and cultivation
necessary to acquire title to the land applied for; that he or she
is not acting as the agent of any person, corporation, or syndicate
in making such entry, nor in collusion with any person,
corporation, or syndicate to give them the benefit of the land
entered, or any part thereof, or the timber thereon."
By § 2291, no patent shall issue until the expiration of
five years from the date of the entry, the settler being required
to prove by two credible witnesses that he has resided upon or
cultivated the land for such term of five years immediately
succeeding the time of filing the affidavit, and that no part of
such land has been alienated, except for certain public purposes.
By § 2297, if, before the expiration of the five years, the
settler changes his residence or abandons the land for more than
six months at any time, the lands so entered shall revert to the
government, and by § 2301, the settler may at any time before
the expiration of the five years obtain a patent for the lands by
paying the minimum price therefor and making proof of settlement
and cultivation, as provided by law, granting preemption
rights.
Page 159 U. S. 497
From this resume of the Homestead Act it is evident first that
the land entered continues to be the property of the United States
for five years following the entry, and until a patent is issued;
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 only, as is necessary to
carry out the purposes of the act. The object of this legislation
is to preserve the right of the actual settler, but not to open the
door to manifest abuses of such right. Obviously the privilege of
residing on the land for five years would be ineffectual if he had
not also not right to build himself a house, outbuildings, and
fences, and to clear the land for cultivation, and to that extent
the act limits and modifies the act of 1831, now embraced in
Rev.Stat. § 2461. It is equally clear that he is bound to act
in good faith to the government, and that he has no right to
pervert the law to dishonest purposes or to make use of the land
for profit or speculation. The law contemplates the possibility of
his abandoning it, but he may not in the meantime ruin its value to
others who may wish to purchase or enter it.
With respect to the standing timber, his privileges are
analogous to those of a tenant for life or years. In this
connection, it is said by Washburn in his work upon Real Property
(first ed.), vol. 1, p. 108:
"In the United States, whether cutting of any kind of trees in
any particular case is waste seems to depend upon the question
whether the act is such as a prudent farmer would do with his own
land, having regard to the land as an inheritance, and whether
doing it would diminish the value of the land as an estate."
"Questions of this kind have frequently arisen in those states
where the lands are new and covered with forests, and where they
cannot be cultivated until cleared of the timber. In such case, it
seems to be lawful for the tenant to clear the land if it would be
in conformity with good husbandry to do so, the question depending
upon the custom of farmers, the situation of the country, and the
value of the timber. . . .
Page 159 U. S. 498
Wood cut by a tenant in clearing the land belongs to him, and he
may sell it, though he cannot cut the wood for purposes of sale; it
is waste if he does."
By analogy, we think the settler upon a homestead 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 far 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 manifest abuses
and be made an excuse for stripping the land of all 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 of the rights of the settler we think restricts him to the
use of the timber actually cut, or to the lumber exchanged for such
timber and used for his improvements, and to such as is necessarily
cut in clearing the land for cultivation
While this question never seems to have arisen in this Court
before, in
United States v.
Cook, 19 Wall. 591, a suit in trover for the value
of timber cut from an Indian reservation, it was held that while
the right of use and occupancy by the Indians was unlimited, their
right to cut and sell timber, except for actual use upon the
premises, was restricted to such as was cut for the purpose of
clearing the land for agricultural purposes; that while they were
at liberty to sell the timber so cut for the purpose of
cultivation, they could not cut it for the purpose of sale alone --
in other words, if the cutting of the timber was the principal, and
not the incident, then the cutting would be unlawful and the timber
when cut became the absolute property of the United States. Their
position was said to be analogous to that of a tenant for life,
the
Page 159 U. S. 499
government holding the title, with the rights of a
remainder-man.
In the courts of original jurisdiction it has been uniformly
held that a similar rule applied to homestead entries.
United
States v. McEntee, 23 Internal Revenue Record 368;
United
States v. Nelson, 5 Sawyer 68;
The Timber Cases, 11
F. 81;
United States v. Smith, 11 F. 493;
United
States v. Stores, 14 F. 824;
United States v. Yoder,
18 F. 372;
United States v. Williams, 18 F. 475;
United States v. Lane, 19 F. 910;
United States v.
Freyberg, 32 F. 795;
United States v. Murphy, 32 F.
376. This general consensus of opinion is entitled to great weight
as authority.
While we hold in this case that, as between the United States
and the settler, the land is to be deemed the property of the
former at least so far as is necessary to protect it from waste, we
do not wish to be understood as expressing an opinion whether, as
between the settler and the state, it may not be deemed the
property of the settler, and therefore subject to taxation.
Carroll v.
Safford, 3 How. 441;
Witherspoon v.
Duncan, 4 Wall. 210;
Railway
Co. v. Prescott, 16 Wall. 603;
Railway
Co. v. McShane, 22 Wall. 444;
Wisconsin Central
Railroad v. Price County, 133 U. S. 496.
As the land in question continued to be "the land of the United
States" within the meaning of section 2461,
The first question must be answered in the negative, and the
second in the affirmative.
