carrying away timber from the public lands was decided in Cotton v. United States.* The principles recognized in that case are decisive of the right to maintain this action.

The answer of the court, therefore, to the question propounded by the circuit court, is in the affirmative.

See 19 Op., 710, cited on page 45.

See also 19 Op., 232, cited on page 96.

INJUNCTION.

ERHARDT v. BOARO AND OTHERS.

Appeal from the circuit court of the United States for the district of Colorado (113 U. S., 537).

Mr. Justice Field delivered the opinion of the court:

*

* * It is now a common practice in cases were irremedial mischief is being done or threatened, going to the destruction of the substance of the estate, such as the extracting of ores from a mine, or the cutting down of timber, or the removal of coal, to issue an injunction, though the title to the premises be in litigation. The authority of the court is exercised in such cases, through its preventive writ, to preserve the property from destruction pending legal proceedings for the determination of the title. (Jerome v. Ross, 7 Johns., ch. 315, 332; Le Roy v. Wright, 4 Sawyer, 530, 535.)

NICHOLS v. JONES AND ANOTHER.

Circuit court northern district of Alabama (19 Fed. Rep., 855).

INJUNCTION.

Injunctions are granted to prevent trespasses as well as to stay waste where the mischief would be irreparable, and to prevent a multiplicity of suits.

WILSON AND OTHERS v. ROCKWELL AND OTHERS.

Circuit court district of Colorado (29 Fed. Rep., 674). INJUNCTION-TRESPASS-TITLE.

A party showing an equitable title to realty will be protected against trespassers by injunction, though the location of the legal title has not been finally determined.

*

THEODORE LE ROY v. GEORGE WRIGHT ET AL.
Circuit court northern district of California (4 Sawyer, 530).

COURTS OF EQUITY WILL NOT INTERFERE.

Courts of equity will not ordinarily interfere to injoin the commission of a threatened trespass to real property unless the trespass be one going to the destruction of the substance of the estate, such as the extracting of ores, the cutting down of timber, the digging of coal, and the like. The jurisdiction of the court in such cases is asserted for the preservation of the property pending proceedings at law for the determination of the title.

* 11 Howard, 229.

11023- -4

Digging lead ore from the lead mines upon the public lands of the United States is such a waste as entitles the United States to a writ of injunction to restrain it.

INJUNCTION TO STAY WASTE.

An injunction to stay waste is allowed as a matter of course. (United States Digest, Vol. I, p. 401 (1863); Markham v. Howell, 33 Ga., 508.) Mines, quarries, and timber are protected by injunction, upon the ground that injuries and depredations upon them are or may cause irreparable damage, and also with a view to prevent a multiplicity of actions for damages that might accrue from a continuous violation of the rights of the owners. In such cases the plaintiff's right need not be first established at law. (United States Digest, Vol. III, p. 359 (1871); West Point Iron Co. v. Reymert, 45 N. Y., 703.)

The unlawful quarrying and removal of stone wherein consists the chief value of land may be restrained by injunction. (United States Digest, Vol. XVI, p. 347; Althen v. Kelly, 32 Minn., 280.)

Entry on land and digging up and removing fruit trees thereon is waste which may be enjoined. (United States Digest, Vol. XVI, p. 347; Silva v. Garcia, 65 Cal., 591.)

An injunction will be granted to stay waste threatened or being committed. (United States Digest, Vol. XVII, 337; Sheridan v. McMullin, 12 Oreg., 150.)

INSTITUTION OF CIVIL PROCEEDINGS.

No civil proceedings in connection with timber trespasses on public lands should be instituted in the name of the United States without instructions from the proper authority. See the following letter and the subjoined regulations of the Solicitor of the Treasury referred to therein:

DEPARTMENT OF JUSTICE, Washington, D. C., September 16, 1895.

SIR: I have the honor to acknowledge the receipt of your letter of the 12th instant, in which you request that reply may be made to certain inquiries contained in a letter of the Acting Commissioner of the General Land Office (a copy whereof you inclose) in regard to the institution of civil proceedings in timber trespass cases by United States district attorneys in the various States and Territories without recommendation from the Department of the Interior or instructions from this Department. (1) Considering the several inquiries in their order, I beg to state that I was not aware, until informed by the said letter of the Acting Commissioner, of his office having received information to that effect, that United States attorneys, or any United States attorney, had instituted civil actions for timber trespass without the recommendation or instructions referred to. By the first paragraph of the regulations made by the Solicitor of the Treasury, with the approbation of the Attorney-General, for the observance of United States attorneys and marshals, which

regulations are embodied in the pamphlet of "Instructions to United States Marshals, Attorneys, Clerks, and Commissioners," issued by the Attorney-General July 1, 1895, it is provided that, except in extraordinary cases of emergency, no United States attorney will commence or defend a civil suit or proceeding in court, in the name or for the benefit of the United States, without instructions from the office of the Solicitor of the Treasury, or by direction of the Attorney-General, or some person or court authorized by law so to direct. This provision is found upon pages 52 and 53 of said pamphlet, a copy of which I have the honor to hand you herewith. (2) Should civil action be commenced by a United States attorney, in disregard of said regulation, it would not, in my opinion, render the action void, or jeopardize the interests of the United States involved therein, but would constitute merely a violation of a departmental regulation, and not a violation of law.

(3) It is not now, and so far as I have been able to ascertain, it has not been the practice of this Department to direct the institution of civil proceedings in timber trespass cases, except upon the recommendation of the Department of the Interior. Respectfully,

The SECRETARY OF THE INTERIOR.

JUDSON HARMON, Attorney-General.

REGULATIONS OF THE SOLICITOR OF THE TREASURY.

The following are regulations prescribed by the Solicitor of the Treasury under authority of sections 377 and 379, Revised Statutes, which must be fully and carefully complied with:

1. No United States attorney will commence or defend a civil suit or proceeding in court, in the name or for the benefit of the United States, without instructions from this office or by direction of the Attorney-General or some person or court authorized by law so to direct, except in extraordinary cases, where some material interest of the United States would, in his opinion, be lost or endangered by delay; and in such cases, he will immediately report his action with his reasons therefor.

2. Whenever a United States attorney shall receive from a public officer, or shall in any other manner become possessed of information which shall lead him to believe that a trespass upon the property of the United States, or an infraction of its revenue or other laws, has been committed, he will immediately report such information to this office, with his opinion as to the propriety of instituting suit; or, in case the remedy of the United States would, in his opinion, be lost or endangered by delay, he may immediately commence a suit, and report the same, with his reasons for such proceeding.

TIMBER ON MINERAL LANDS.

Mineral lands are those which are more valuable for the mineral therein (except coal) than for agricultural purposes or for the timber thereon.

The right to take timber from mineral lands for building, agricultural, mining, or other domestic purposes is specially provided for by the following act of Congress.

[Act of June 3, 1878, Chap. 150; 20 Stat., 88.]

AN ACT authorizing the citizens of Colorado, Nevada, and the Territories to fell
and remove timber on the public domain for mining and domestic purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That all citizens of the United
States and other persons, bona fide residents of the State of Colorado,

or Nevada, or either of the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agricultural, mining or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either of said States, Territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, The provisions of this act shall not extend to railroad corporations.

SEC. 2. That it shall be the duty of the register and the receiver of any local land office in whose district any mineral land may be situated to ascertain from time to time whether any timber is being cut or used upon any such lands, except for the purposes authorized by this act, within their respective land districts; and, if so, they shall immediately notify the Commissioner of the General Land Office of that fact; and all necessary expenses incurred in making such proper examinations shall be paid and allowed such register and receiver in making up their next quarterly accounts.

SEC. 3. Any person or persons who shall violate the provisions of this act, or any rules and regulations in pursuance thereof made by the Secretary of the Interior, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not exceeding five hundred dollars, and to which may be added imprisonment for any term not exceeding six months.

CIRCULAR.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., August 5, 1886.

RULES AND REGULATIONS.

By virtue of the power vested in the Secretary of the Interior by the first section of the act of June 3, 1878, entitled "An act authorizing the citizens of Colorado, Nevada, and the Territories to fell and remove timber on the public domain for mining and domestic purposes," the following rules and regulations are hereby prescribed:

1. The act applies only to the States of Colorado and Nevada, and to the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, and Montana, and other mineral districts of the United States not specially provided for.

2. The land from which timber is felled or removed under the provisions of the act must be known to be of a strictly mineral character

and that it is "not subject to entry under existing laws of the United States, except for mineral entry."

3. No person not a citizen or bona fide resident of a State, Territory, or other mineral district, provided for in said act, is permitted to fell or remove timber from mineral lands therein. And no person, firm, or corporation felling or removing timber under this act shall sell or dispose of the same, or the lumber manufactured therefrom, to any other than citizens and bona fide residents of the State and Territory where such timber is cut, nor for any other purpose than for the legitimate use of said purchaser for the purposes mentioned in said act.

4. Every owner or manager of a sawmill, or other person felling or removing timber under the provisions of this act, shall keep a record of all timber so cut or removed, stating time when cut, names of parties cutting the same or in charge of the work, and describing the land from whence cut by legal subdivisions if surveyed, and as near as practicable if not surveyed, with a statement of the evidence upon which it is claimed that the land is mineral in character, and stating also the kind and quantity of lumber manufactured therefrom, together with the names of parties to whom any such timber or lumber is sold, dates of sale, and the purpose for which sold, and shall not sell or dispose of such timber, or lumber made from such timber, without taking from the purchaser a written agreement that the same shall not be used except for building, agricultural, mining, or other domestic purposes within the State or Territory; and every such purchaser shall further be required to file with said owner or manager a certificate, under oath, that he purchases such timber or lumber exclusively for his own use and for the purposes aforesaid.

5. The books, files, and records of all mill men or other persons so cutting, removing, and selling such timber or lumber, required to be kept as above mentioned, shall at all times be subject to the inspection of the officers and agents of this Department.

6. Timber felled or removed shall be strictly limited to building, agricultural, mining, and other domestic purposes, within the State or Territory where it grew.

All cutting of such timber for use outside of the State or Territory where the same is cut, and all removals thereof outside of the State or Territory where it is cut, are forbidden.

7. No person will be permitted to fell or remove any growing trees of any kind whatsoever less than eight inches in diameter.

8. Persons felling or removing timber from public mineral lands of the United States must utilize all of each tree cut that can be profitably used, and must cut and remove the tops and brush, or dispose of the same in such manner as to prevent the spread of forest fires. The act under which these rules and regulations were prescribed provides as follows:

SEC. 3. Any person or persons who shall violate the provisions of this act, or any rules and regulations in pursuance thereof made by the Secretary of the Interior,