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In letter dated May 11, 1871, to the register and receiver at La Crosse, Wis., this office made espression as follows in regard to Mr. Miller's claim :
By the 10th section of the circular of 24th December, 1855, the register and receiver, as timber agents, are authorized in certain cases to appoint a depnty to investigate and report tbe facts involved in any supposed case of trespass, and allow as compensation a per diem of $3 for time actually employed and mileage at the rate of ten cents per mile for distance actually traveled, but this does not authorize payment for time speut in attendance at court as a witness or in marshaling evidence for the prosecution, which properly forms no part of the duty of a deputy timber agent authorized to be appointed and compensation as aforesaid, and the present claim of Mr. Miller cannot, therefore, be allowed.
From the date of the circular, December 24, 1855, to May 2, 1877, it has been sent to registers and receivers to govern their action, and has purported to be the governing rule, with exceptions as follows, viz:
1. In Minnesota, the duties prescribed by the circular were transferred from the register and receiver for one land district, February 6, 1862, and afterward for all the State, to the surveyor general, and so con. tinued until July 21, 1876, when they were again imposed upon the registers and receivers.
2. The fourth section of this circular is as follows:
Under no circumstances will you compound or compromise with any ench trespassers, or receive any pay or compensation from thein as acquittal or discharge therefrom, or in any other manner; neither will you give any perinission to cut timber or otherwise trespass on the public lands, as there is no authority for any such proceedings; but all such offenses against the law must be prosecuted and tried by the authorities duly constituted for that purpose.
Notwithstanding this direction in the circuiar, it appears that from time to time, commencing in 1860, compromises, with the assent of the Secretary of the Interior, were made with parties who had cut timber upon the public lands. In letter to this office dated March 7, 1860, the Secretary of the Interior authorized compromise on the following terms, viz: Eutry of the land upon which the timber was cut; payment of fifty cents per thousand feet, together with all the expenses incurred in making the seizure; and in letter of 16th of January, 1862, to this office, the Secretary remarks in regard to the opinion of the United States district attorney for Minnesota, which was to the effect that all settlements by way of compromise should be rejected, and offenders should be prosecated and full penalty exacted, that,
The subject is one of interest, and not free from embarrassment. I do not concur with the district attorney in the opinion that no settlement is to be made with tres. passers. It appears to me that the main object proper to be kept in view, should be to make the timber produce to the Government the price of the land.
Subsequently the Secretary concluded that settlement with trespass. ers on the basis of entry of the land, payment of fifty cents per thousand feet and costs attending the seizure would be satisfactory. In course of time, owing to the fact that the lands from which the timber was taken were not subject to cash entry, or suitable for cultivation, and from other causes, the instructions for coin promise came to be a reasonable stump. age according to the market value of the timber cut, at a minimum in no case of less than two dollars and fifty cents per thousand feet and costs."
As sbowing the position which had been assumed by this bureau on the subject of timber on the public lands, I quote the following from the annual report of Commissioner Edmunds for 1864:
Under authority of law and judicial decisions, this office has put in operation repressive measures against the spoliation of the timber on the public lands. These measures have extended to Michigan, Wisconsin, Minnesota, Dakota, Kansas, California, Oregon, Washington, and Nevada. Wherever the trespass has actually taken place, but found not to be willful but through ignorance, it bas not been the policy of the Department to pursue the offenders in a vindictive spirit; but when the lumber has been taken from offered land, simply to require the actual entry of the premises and payınent of costs. In the case of anoff red or unsurveyed land, we have en forced the payment of a liberal stumpage. Where timber is scarce, as in the case of Nevada Ter. ritory, we have issued stringent orders to the district land officers, and to the following effect : The importance of a supply of timber when timber is so scarce would seem to invoke protection in order to preserve it and prevent waste; but as the timber is chiefly to be found in the mountain slopes, on land not adapted to agriculture, it becomes a question as to what extent restriction upon its enjoyment shall be imposed on settlers in the Territory. In the case of pre-emptors and homestead settlers on lands fit for tillage, they are restricted to timber growing on the land for purposes of building, fencing, repairs, and firewood. Neitber pre-emptor nor homestead settler can cut timber for sale until the former bas made entry, and the latter resided five consecutive years on the land. Where land settled and pre-empted is destitute of timber, in that case the party must, ex necessitate, be permitted to take timber from the mountain slopes, but solely for domestic nse, otherwise Nevada plains would be upsettled.
Should parties file for mountainous land, not fit for cultivation, in order to cut and sell the timber, the register and receiver are directed to cause it to be seized and sold, for by so doing they would to some extent protect mill owners from the exactions of specalators.
* Persons wbo bave invested in saw mills, and are reaping large profits from the necessities of the settlers, must pay a reasonable tariff per one thousand feet of timber sawed, as stumpage, say not less than one sixth the value per one thousand feet of the man nfactured lumber at the mill. This would be moderate, in view of the great demand for timber in the Territory, and but consistent with houest principles, that a. compensatory return should be made for the timber.
In order to effect such an arrangement, the laud officers are authorized to consult the United States district attorneys as to the best mode of securing a revenue from the timber, payable quarterly, on each and every thousand of feet sawed at the respective mills, or used as cord wood, hewn timber, or other description of timber, on a sworn statement of the number of feet taken. Should the “mill” owners, « cord wood," ** hewn timber,” or “other timber" holders refuse to enter into such stipulation, the register and receiver are directed to advise then that the timber is public property and liable to seizure; and where the negotiation with theni is not satisfactory, the register and receiver must promptly seize any timber cut upon the public lands.
The policy pursued bas been quite efficient in mitigating the evil, and that, too, not only without any cost to the Government, but leaving the avails of seizure in the Treasury of over ten thousand dollars.
Similar practice was afterward authorized in the Territory of Utah.
This practice of collecting stumpage became universal, and on my coming into office, June 26, 1876, I found that it was uniformly the cus. tom in all parts of the United States and Territories, wbere there was timber growing upon the public lands, and it so continued until the attention of the Department was called to it, and the actiug Secretary of the Interior, under date of July 17, 1876, directed that the local officers be required to obtain tbe approval of the Department betore compromising any case. As indicated in the quotation made from the report of 1864, and from other information in possession of this ottice, the cutting and removal of timber appears to have been, in many cases, by previous agreement with the officials.
In letter of August 22, 1876, J. H. Baker, esq., surveyor general for Minnesota, remarks as follows, in regard to settling tinber cases in that State:
Io using the term "settlements," it is not understood by this office that the parties ebarged with trespass are in any way acquitted or discharged from any offense against the law, and is, tberefore, in bo sense a compromise of any criminal act. As a rule, the parties committing the trespass are irresponsible, and it prov-8 tu be quite difficnit to trace tbe logs to the parties purchasing. When so traced they are generally in the kands of responsible parties, believed to be innocent purchasers, and settlements, with deferred payments, are made by the purchaser assuming the stumpage due the Government, at dates on which ibey bad agreed to pay the original holders. These adjust
ents are acceded to to save absolute loss.
3. Prior to 1872 the collections made for stumpage or sale of timber were carried to the credit of the judiciary fund, and the agents depu. tized by the registers and receivers were paid from this fund ; but it having been decided that this could no longer properly be done, the first appropriation for paying expenses of suppressing depredations on the public timber was the appropriation of $10,000, June 10, 1872, (Stats., vol. 17, p. 659.)
Since that there have been annual appropriations for the purpose, as follows: March 3, 1873, $8,000, (vol. 17, p. 517 ;) June 23, 1874, $5,000, (vol. 18, p. 213;) March 3, 1875, $5,000, (vol. 18, p. 384;) July 31, 1876, $5,000, (vol. 19, p. 122;) March 3, 1877, $5,000, (vol. 19, p. 349 ;) and the agents deputized by the registers and receivers bave been paid from these appropriations for their services and expenses until January 9, 1877, when the following circular letter was issued to registers and receivers :
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
Tashington, D, C., January 9, 1877. REGISTER and RECEIVER :
GENTLEMEN: I have to direct that, on receipt hereof, you report to this office whether or not you have, or have had, any deputy timber agents employed under the 10th section of the circular of Decentber 24, 1855; if so, give the name of any such deputy, the date of his employment, and how long his services will probably be requir d; also the amount of liabilities you have incurred up to date as timber agents under that circular.
In future employ no deputies without specific authority therefor first obtained from this office. Very respectfully,
J. A. WILLIAMSON,
A statement of these facts was made to the Department January 24, 1877, with the conclusion, after a review of the whole subject, that there were no practical results in the way of suppression of depredations or collection of values through the registers and receivers; the total amount of money deposited in the Treasury on account of timber tres. pass from the 1st of January, 1856, being the beginning of our records upon the subject, to that date being $199,998.50, and the total amount paid out for service rendered and expense during the same period $45,624.76, leaving a balance net to the United States, if no appropriation had been made, of only $154,373.74, being a little more, if any, than the value of timber on five thousand acres of good pine land. The recommendation was made that thereafter the registers and receivers should no longer take charge of the timber business, but, so far as the limited appropriation would defray the expense, special agents should be appointed by this office to act in the premises.
Section 453, Revised Statutes of the United States provides that, The Cominissioner of the General Land Office shall perform, under the direction of the Secretary of the Iuterior, all executive duties a pertaining to the surveying and the sale of the public lands of the United States, and in any wise respecting such public lands. *
It is beld by the Supreme Court in the case of the United States vs. Cook, (19 Wallace, 591,) that “the timber while standing is a part of the realty, aud it can only be sold as the land could be, aud unless lawfully cut will remain the property of the United States."
The appropriation available at that time, that of July 31, 1876, which is, along with other appropriations, to be expende under the direction of the Commissioner of the General Land Office, was made in the fol. lowing language: “ To meet expenses of suppressing depredations upon
the public lands, $5 000.” It was thought that in view of these provisions of law authority existed for the appointment of special agents by this office.
The Department, under date of the 5th of April last, concurred with this office that the system heretofore adopted had failed to accomplish the desired purpose, and approved the action in discontinuing it and in employing special agents, and directed as follows:
First. Tbat bereafter all agents employed for this purpose be employed by you, and borne on your rolls as clerks or employés; tha, they be detailed for special duty to act under your instructions in ascertaining when, where, and by whom depredations have been committed upon the public lands, and to report to you the facts in each case.
Second. If, upon an examination of the reports so obtained, you find that the facts elicited in any case warrant the commencement of legal proceedings to punish the trespassers, or to collect damages for the waste already committed, or both, you will report the same to this Department with your opinion thereon, in order that such further procerdings may be had in the premises as the case may require.
Third. No agents employed by you will be permitted to make any compromise for depredations on the public lands, but if any propositions for settlement are submitted to them you will instruct them to report the same to you with a full statement of the facts in the case, showing the nature and extent of said depredations, when and by whom committed, the amount and value of the timber when cut, and the value of the land in its pr: sent and former condition, all of wbich, together with your opinion thereon, you will transmit to this Department for further consideration.
Fuarth. If, in any case, the emergincies should seem to require more prompt action than is contemplated in the abor, directions, in order to arrest the offender or to secure tbe Government for the damages suffered, you will instruct your agent to apply to the United States district attorney for the district in which the waste was committed, to institute the proper legal proceedings for that purpose. This course, however, must be taken only in cases where the evidence is clear and indisputable.
In the execution of this direction the following circular was prepared and sent to all the registers and receivers :
DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
Washington, D, C., May 2, 1877. To REGISTERS and RECEIVERS of United States land offices :
GENTLEMEN: The Secretary of the Interior has concluded to change the method formerly adopted for protecting the timber on the public lands, by which you were made agents for that purpose within the limits of your respective land districts, as per circular of December 24, 1855. Pursuant to directions from him of the 5th ultimo, the instructions of that circular are hereby revoked.
Hereafter, as it may be found advisable, from time to time, for the end in view, clerks or employés will be detailed from this office to act onder instructions of the Commissioner in ascertaining when, where, and by whom depredations have been committed upon the public lands, and to report to him the facts in each case.
If, upon an examination of the reports so obtained, the Commissioner finds that the facts elicited in any case warrant the commencement of legal proceedings to punish the trespassers, or to collect danages for the waste already committed, or both, he will report the same to the Secretary of the Interior, with bis opinion thereon, in order that such further proceedings may be had in the premises as the case may require.
The clerks or employés de ailed as aforesaid will not be permitted to make any compromise for depredations committed on the public lands. If any propositions are submitted to them with tbat object, they will be required to report the same to this office, with a full statement of the facts in the case, showing the nature and extent of said depredations, when and by whom committed, the amount and value of the timber wben cnt, and the value of the land in its present and former condition, all of which, together with the opinion of the Comunissioner, will be submitted to the head of the Department for further consideration.
If, in any case, the emergencies should seem to require more prompt action than is contemplated in the rules above indicated in order to arrest the offender, or to secure the Government for the damages suffered, it will be the duty of the clerk or employé detailed to act in the matter to make direct application to the United States district attorney for the district in which the waste was committed, to institute the proper legal proceedings for that parpose. This course, however, must be taken only in cases wbere the evidence is clear and indisputable.
The foregoing is communicated for your information. You will observe therefrom
that you are pot bereafter to act as agents for the protection of the public timber, although your co-operation is expected whenever you may be called on to render assistence to officials cbarged with the duty. Very respectfully,
J. A. WILLIAMSON,
Further report upon the subject was made by this office to the Department under date of the 16th August, in which it is proposed to use from the contingent fund of this office seven to ten thousand dollars in addition to the appropriation above referred to, in detraying the expense of persons to be appointed and borne on the rolls of this office to detect timber trespass.
A division of the States having public lands iuto districts was recommended, and that one clerk be detailed to take charge of the division, and others to act under his direction. These recommendations met with the approval of the Department, wbich was communicated under date of the 18th August last, and in accordance with this and the authority of the Department letter of April 5, 1877, heretofore mentioned, as wany persons as the funds available would warrant have been detailed and have been appointed, and sent to the various localities where depredations were supposed to exist.
The persons sent to Minnesota and Louisiana have been longest in the field, and bave been most successful in their efforts. In Louisiana over 100,000 logs have been seized under civil process issued by the United States court, and 92,710 have been sold by the United States marshal; 17,980 of these logs were sold to outside parties, realizing $10,901.55, and 74,730 were bought in on behalf of the Government, at a cost of $9,898.16, to prevent them from being sold at a sacrifice, a combination having been made to prevent competition, and these are pow held until a sufficient price can be obtained for them. Other oper. ations, extensive in their nature, are in course of process in Louisiana and other Southern States.
The clerks detailed as special agents to detect timber trespassers in the State of Minnesota have reported to date 61,708,564 feet (board measure) of white pine logs cut and removed from the vacant pub. lic lands in that State, 56,957,808 feet of which were cut and removed between the years 1868 and 1876, and for which no stumpage appears to have been collected. It is believed that parties who handled the logs are willing, in order to avoid litigation, to compromise for this trespass according to the custom then in force under instructions from this office, which, at the rates of stumpage charged in these years, would place in the United States Treasury about $161,000, net, and sare expense of suits. The balance of trespass, 4,751,756 feet, was cut and removed from the public lands in Minnesota and Wisconsin, and under instructions from this Department twenty-nine civil suits were instituted at the last term of the United States district court at Saint Paul, Minn., against the trespassers. The jury returned verdicts in nineteen cases in favor of the Government for the value of the logs in the booms. In six others, demurrers to complaints were overruled, with leave to answer. Of the remaining four, three were too late for terın, and one continued on motion of the United States district at. torney. Twenty-five indictments were found by the grand jury, and trial and conviction were had in one case. Pleas of guilty were entered in three cases, and all the rest have been transferred to the United States circuit court which convenes next December. Most of the transfers were ordered by the court on account of various difficult questions of