The provision of the General Railroad Right of Way Act of March
3, 1875, granting a beneficiary railroad company the right to take
from the public lands adjacent to its line timber necessary for the
construction of its railroad must be strictly construed, and does
not permit that portions of trees remaining after extraction of
ties be appropriated either as a means of business or profit or to
compensate the agents employed by the railroad to do the
tie-cutting. P. 250 U. S.
A grant of "timber" for purposes of railroad construction is not
a grant of "trees." P. 250 U. S.
Page 250 U. S. 15
Section 8 of the Act of March 3, 1891, c. 561, 26 Stat. 1089,
enacting that, in proceeding growing out of trespasses on public
timber lands in Colorado and some other states, it shall be a
defense that the cutting or removal was by a resident of the state
for agricultural, mining, manufacturing, or domestic purposes,
under rules of the Interior Department, etc., but providing that
nothing in the act contained shall operate to enlarge the right of
any railway company to cut timber on the public domain, gives no
protection to persons who, having cut ties as agents of a railroad
company under the Act of March 3, 1875, supra,
appropriate the remaining tops of the trees cut for the purpose of
sale. P. 250 U. S.
The right to take timber granted by the Act of March 3, 1875,
cannot be enlarged by a permission from an official
of the General Land Office. P. 250 U. S. 22
53 Ct.Clms. 33 affirmed.
The case is stated in the opinion.
Page 250 U. S. 17
MR. JUSTICE McKENNA delivered the opinion of the Court.
This action was brought by appellants to recover the value of
certain timber cut from the public lands of the
Page 250 U. S. 18
United States in the State of Colorado, called "tie slash" or
"tie slashing," the term being used to describe the tops of trees
the bodies of which have been used for making railroad ties.
The right of recovery is based upon contracts with the Denver,
Northwestern & Pacific Railway Company, which had been given
the right to cut timber upon the public lands adjacent to the line
of its road by the Act of Congress of March 3, 1875, c. 152, 18
The Court of Claims sustained a demurrer to the petition and
dismissed it. To review that action this appeal has been
Appellants were, in June, 1906, by due appointment of the
railway company, its timber agents, to cut timber from the public
lands for construction of the railroad under the act of Congress,
and by agreement with the company they were given all of the "tie
slash" of the trees cut down for the purpose. Pursuant to the
contract, and prior to October, 1906, they manufactured and
delivered to the company 88,797 ties, which left a large amount of
By a letter from one N.J. O'Brien, describing himself as "Chief,
Field Division, G.L.O.," and expressed to be by instructions from
the Commissioner of the General Land Office, there was granted to
appellants authority to cut timber under the act of Congress and
"to sell and dispose of all tops and lops of trees that" they
"might cut for construction" of the road which could not be used
for road construction purposes. Inquiry first was to be made of the
officers of the railway company if they would purchase the tops and
lops appellants had on hand.
The letter contained a ruling of the Land Office that
contractors should confine their cutting strictly to such timber as
was needed by the railway company, and that such "refuse" as
resulted from such cutting might "be
Page 250 U. S. 19
disposed of by the railroad company or by the contractors
without violation of existing law." A violation of the law, it was
stated, would require a notice to the company to nullify the
contract and agency, and would subject the contractors to be
proceeded against "as in ordinary cases of timber trespass."
Thereafter, appellants entered into another contract with the
company under which they manufactured additional ties and delivered
them to it, and a further amount of "tie slash" was left. A large
amount of this appellants agreed to sell to the Fraser River Timber
Company of Denver, Colorado, and to the Leyden Coal Company of the
same place they sold 200 cars of mining props cut by them from the
"tie slash," all to be used in the state of Colorado.
March 2, 1907, the land from which the ties had been cut was by
presidential proclamation included in the Medicine Bow National
Forest, and the officers of the Forest Service permitted appellants
to remove the poles already cut from the "tie slash" and also to
have all of tops and refuse on the so-called "fireguard" 200 feet
wide along the railway for a distance of two miles, but refused to
allow them to have any of the remainder of the "tie slash," and
took possession of and sold it, and the proceeds were covered into
the Treasury of the United States. To recover the sum of the
proceeds thus covered into the Treasury, or such other amount as
might be found to have been received by the United States from such
sale, this action was brought.
The elements for consideration are not many. The first of these
is the Act of 1875, supra.
It grants as right of way to
the railway company (the grant is to railroad companies of a
certain description -- we make it particular for convenience)
through the public lands of the United States to the extent of 200
feet on each side of its central line, and the right to take from
the public lands
Page 250 U. S. 20
adjacent to its line " . . . timber necessary for the
construction of said railroad." The right given is to take
"timber," and this, it is argued, necessarily means "trees," and,
as there is no provision for disposition of what shall be left of
them after using such portions for railroad purposes, it must be
determined by "reason and analogy," and from these appellants argue
that the railway company was entitled to the "tie slash" as
incident to its right to cut under the act of Congress. They adduce
United States v.
19 Wall. 591; Shiver v. United
States, 159 U. S. 491
Stone v. United States, 167 U. S. 178
The instances of the cases, however, are not in analogy to that
of the case at bar. In the first, the right was given to Indians as
a legitimate use of land reserved by them from the cession of a
larger tract to the United States, the right of use and occupancy
being unlimited. The second case involved the cutting and sale of
timber by a homesteader, and they were considered a use of the
land, his privileges with respect to standing timber being
analogous to those of a tenant for life; the third case was of like
kind, and the other two cases were cited. Other cases referred to
by appellants struggled with the problem without solving it, and we
need not review or comment upon their reasoning, nor consider some
The contention of appellants encounters the rule that statutes
granting privileges or relinquishing rights are to be strictly
construed; or, to express the rule more directly, that such grants
must be construed favorably to the government, and that nothing
passes but what is conveyed in clear and explicit language --
inferences being resolved not against, but for, the government.
Wisconsin Central R. Co. v. United States, 164 U.
; United States v. Oregon & California R.
Co., 164 U. S. 526
the government invokes the rule in the present case and cites in
implied support of the invocation United States v. Denver &
Rio Grande Ry. Co., 150 U. S. 1
, and in
Page 250 U. S. 21
support of it United States v. Denver & Rio Grande Ry.
190 F. 825, 828. And these cases were cited by the Court
of Claims for its judgment.
The rule, it seems to us, is particularly applicable. There was
a grant of timber by the Act of March 3, 1875, not of trees, but of
timber for purposes of railroad construction, not as a means of
business of of profit; nor could it be made an element, as
contended, of compensation to the agents employed to cut it.
Appellants invoke the Act of March 3, 1891, c. 561, 26 Stat.
1095, 1099, in justification and as giving them a right
independently of their asserted right derived through the railway
company. Section 8 of that act provides that, in criminal
prosecutions for trespass on public timber lands in Colorado (and
some other states) or to recover timber or lumber cut, it shall be
a defense to show that the timber was cut or removed from the lands
for use in the state by a resident thereof for agricultural,
mining, manufacturing, or domestic purposes under the rules of the
Interior Department, and had not been transported out of the state.
But it is provided that nothing in the act contained shall operate
to enlarge the rights of any railway company to cut timber on the
public domain, and there are other provisions giving the Secretary
of the Interior the power to designate the tracts from which the
timber may be cut or to prescribe the rules and regulations for the
We think it is clear that appellants are not within the
provisions of the act. They are not and were not in the designated
classes, nor contemplated the uses which the act protects. They
were agents of the railway company for so much of the timber as was
to be used in railroad construction; of what was left, they were
simply vendors for profit. To enable them to so use the act or to
use it for any but the designated purposes would be a violation of
that provision of the act which forbids its operation
Page 250 U. S. 22
"to enlarge the rights of any railway company to cut timber on
the public domain;" it would make the act available to a railroad
as a means of profit or other purpose than road construction. And
its value would be a temptation to do so. In this case, it is
alleged that the value of the "tie slash" that the officers of the
Forest Service took possession of (it was only part of that which
was cut) "was, and is, $26,454.90."
Finally, appellants rely upon the letter of the Chief, Field
Division, General Land Office, supra.
The immediate answer
is that made by the Court of Claims: the want of power in the
officer to enlarge the Act of March 3, 1875, and to give rights in
the public lands not conferred by it.
MR. JUSTICE McREYNOLDS took no part in the decision.