Year: 1874

We publish the following decision
of United States Court Commissioner
Whiting on the case of Whitesides,
which has elected considerable inter-
est in its trial, and stands as somewhat
of representative case. The decis-
ion may perhaps throw some light on
the veXed question.


The Uuited States rs. William White


sides.


The complaint in this case
charges the defendant with un-
lawfully cutting and destroying tim
Der growing on the public lands of the
United States.


The defendant admits the cutting,
and the proof is conclusive upon this
point. But the defendant undertakes
to justify OH the ground that the tim
Der was cut up into stove-wood for do
mestic use, and that it was required
for use on his incohate pre-emption
claim to 100 acres of Government
land. The proof shows the land to be
within the Railroad Reserve but upon
an even section, belonging to the
Government, and not the odd section
held by the Railroad Company.


Defendant proved that he applied to
the Land Office and offered to pre-
empt the quarter section where the
alleged tfespass was committed, and
claimed to be in possession with some
small Improvements which he he had
bought of former occupant. That
he was informed by the Register of
the Land Office that the land could
not be entered, or even a declaratory
statement filed, until after an official
survey of the township in which it
lay had been made, and the plat filed
in the Land Office in Los Angeles.


The defendant was in possession
awaiting the action of the Govern
ment to enable him to perfect his pre-
emption.


According to the rulings of the Land
Office, party entitled to pre-emp-
tion OF l60 acres of Government land,
who has complied with the law and
taken the requisite steps towards per-
fecting his claim, has the right to cut
timber upon it for the purpose of clear
ing the land for cultivation, putting
up buildings, fences and building
bridges, and also for necessary fuel for
his own use during the time he is per-
fecting his title; but he cannot despoil
the timber for mere speculation or
gain, by selling timber or firewood to
other persons.


BY the rules of evidence the defend
ant is permitted to testify on his own
behalf. He swears positively that he
cut the wood in question for his own
use, intending to burn it in his house
upon the claim, where the trespass was
alleged to have been committed.
There was no pretense that he was
clearing the land for cultivation.


No positive evidence has been offer
ed to contradict the statement of the
defendant that the wood was for his
own use, but there is some circum-
stantial evidence tending to discredit
his statement in that particular. 1t is
in proof that his own family are, and
for many years have been, living in
Grass Valley, Nevada county, in this
State, and that they have homestead
there in his wife's name; that defend
ant himself is, and for the past year
has been, boarding with a family by
the name of Bohannan, occupying his
house on his claim; that they are his
tenants. The defendant states that
he is expecting his own family to live
on the place next Winter and that his
tenant, Bohannan, will leave.


After the wood was seized by the
land agent Of the Government, the de-
fendant bought it at public sale, and
afterwards hauled it away and sold it
in the market, as he had frequently
sold other wood from that claim with
in the past twelve months. This is
another circumstance tending to dis
credit the defendants testimony as to
his original intention.


But as his dedoreal statement is not
directly contradicted, | am inclined to
the opinion that he could not he con-
victed if put upon his trial. l shall
therefore discharge the defendant, and
leave him to consult his own con-
science as to his real motivein cutting
wood upon land to which he had no
title and to obtain which he had barely
taken an inoipient step.


b. c. WHITING,


L. S. Court Commissioner.


October 6, 1874.


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