Until it is finally determined that a homestead entry is void
because made on mineral land open to mining location under the Act
of June 3, 1878, the land is segregated from the public domain and
the entryman cannot cut timber thereon in violation of the law
applicable to homestead entries.
Page 226 U. S. 549
An entryman claiming rights of a homesteader is estopped from
defending against violations of the law on the ground that, under
another statute, the land is not open to homestead entry.
One buying from an entryman lumber cut in violation of law from
the homestead does so with notice, and is liable for the timber
unlawfully removed by the entryman.
178 F. 914 affirmed.
The facts, which involve the rights of a homesteader to cut
timber on the land entered and the effect of the entry as
segregating the land from the public domain, are stated in the
opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
In 1903, Messenger made a homestead entry in the Coeur D'Alene
Land District. He claimed to have entered in good faith, and
testified that he lived on the land with his family for some time.
While thus in possession, he cut many of the trees into stulls,
which, with the cordwood, he sold to the Bunker Hill Company. In
1905, he abandoned the land and the government brought suit against
the mining company and recovered judgment for the value of the
timber in its improved state. 178 F. 914.
In this Court, plaintiff in error claims that the land, not
being suited for agricultural purposes, could not be entered as a
homestead (Rev.Stat. § 2303), but, being mineral land, in fact was
open to mining location and subject to the provisions of the Act of
June 3, 1878, 20 Stat. 88, c. 150, which authorizes any citizen to
"enter upon public lands, being mineral lands," open to mineral
entry, in order to cut timber therefrom for mining purposes. It
argues that the
Page 226 U. S. 550
homestead entry was void, and that any citizen, Messenger
included, could treat the land as public, and cut the timber for
mining purposes. It offered evidence tending to sustain its
contention as to the character of the land, and excepts to the
court's ruling that Messenger and his vendee were estopped from
making such claim.
The statute on which the mining company relies applies only to
public lands, while this was no longer public in the full sense,
although the title remained in the government, which could have
cancelled Messenger's entry on proof that it was valuable for
mineral purposes.
Deffeback v. Hawke, 115 U.
S. 392. But until some such action by the United States,
Messenger's entry segregated the land from the public domain and
made it so far private as to withdraw it from the operation of the
law permitting other citizens to locate mines or cut timber on
public mineral land.
Hastings & D. R. Co. v. Whitney,
132 U. S. 357;
Shiver v. United States, 159 U. S. 495.
Until his claim was cancelled, Messenger was entitled to exclude
others from the quarter section. And as they would have been
estopped, as against him, from denying that he was lawfully in
possession of it as a homestead, so was he estopped from denying
that it was a homestead when sued for cutting timber in violation
of the law applicable thereto. He could not claim the rights of a
homesteader in land intended for settlement and cultivation
(Rev.Stat. § 2290) and at the same time defend under another
statute which related to public land valuable for mineral purposes.
The mining company bought with notice that Messenger was a
trespasser, and is liable for the timber unlawfully removed by its
vendor.
Affirmed.