UNITED STATES

v.

PLOWMAN

Mr. Justice Holmes delivered the opinion of the court.

' -This is an action to recover the,value of timber cut fro^m the public domain in Idaho. The defendant justifies under the act of June 3,-1878, c. 150. 20 Stat. 88. That act authorizes citizens of the United States and other persons, bona fide residents of 'certain States and Territories', in'cluding Idaho, “and all other mineral districts of the United States,” to .cut “for building, agricultural, mining, or other, domestic purposes,, any timber or other trees growing or being on the ^ public lands, such lands being mineral, and no.t subject to entry under existing laws of the United States, except for mineral entry” in the State, Territory, or district of their residence. This authority is given subject'to regulation by the Secretary of the Interior for the protection of the timber and undergrowth, and is not given to railroads. The only question before us'is how far the authority extends with reference to the specific land upon which the wood is cut.

There was a trial by jury and the issue is exhibited suffi-' ciently by a passage or two from the charge, and the instructions asked on behalf of the Government but refused. The passages frqm the charge are as follows: “The law caiinot.be construed to limit the cutting of timber simply to ground that is known to contain mineral, or ground which is or which might be legally located as a mining claim.” . . . “The law includes as mineral lands not only those traets in which mineral has actually been discovered and which has been or-could be legally located as mining locations, but also all other lands lying in reasonably close proximity to or in the general neighborhood of such known mineral tracts.” . . . “Take, for instance, a large section of', country. . . . There in the lower part of the map, as you will see, is a section of country about six miles square; the upper part, indicates another section six miles square. We will suppose novf there is found here .and there in that section of country mineral locations. They may not be contiguous; they may even be some distance apart; but you.will be justified, under the law as I have given it to you, in holding all that particular section of country to be mineral ground.” . . . “The question for you to decide is. not whether those little tracts' on that map there — the ground cut over by the defendant:— contain mineral, but whether-, that whole section.- of country surrounding that for miles around is what may be denominated a mineral country. If you find it .is a mineral country within the meaning of the-law as I have-defined it to you, then your verdict must be for the defendant.” The Govérn- ' ment asked for instructions that it was not sufficient to show that the land in question was adjacent to lands valuable for mineral. purposes, but that the authority given by tile act extended only to lands valuable for minerals. It is needless to set them-forth at length. There was a verdict and judgment for the defendant. The ruling and refusals were excepted to, but the exceptions were óvérruled and the judgment affirmed by the Circuit Court of Appeals, 151 Fed. Rep. 1022, S. C., 81 C. C. A. 682, on the authority of United States v. Basic Co., 121 Fed. Rep. 504, and United States v. Rossi, 133 Fed. Rep. 380. The case then was brought to this court.

The instructions appear to us to have paid too little regard to the words of. the act, defining the land on which it permits timber to be cut as “mineral, and not subject to entry under existing laws of the United States, except for mineral entry.” As was said in Northern Pacific R. R. Co. v. Lewis, 162 U. S. 366, 376, “The right to cut is exceptional and quite narrow,” and the party claiming the right must prove it. The only lands excluded in 1878 or now from any but mineral entry are lands “ valuable for minerals” or containing “ valuable mineral deposits.” Rev. Stats., §§ 2318, 2319, 2302. See § 2320. The matter was much discussed in Davis v. Weibbold, 139 U. S. 507, and there it was'said that the exceptions of mineral land from preemption and settlement, .etc.., “are not held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and. to justify expenditure for its extraction, and known to be so at the date of the grant,” p. 519. A Land Department rule is quoted, with seeming approval, that “if the land is worth more for agriculture than mining, it is not -mineral land, although it may contain some measure of gold or silver,” pp. 521, 522, citing United States v. Reed, 12 Sawy. 99, 104. Again it-.was said, “the exception of mineral lands from grant'in the Acts of Congress should be considered to apply only to such lands as were at the time of the grant known to be so valuable for their minerals as to justify expenditure for their extraction,” p. 524. These are the tests to which the act of 1878 must be taken to refer, since it refers to and rests upon the statutes construed to adopt these tests.

It is said that such a construction empties the statute of all its use, because if the land is known to be valuable for minerals a mining claim to it will be located, only the owners-of which can cut the timber, whereas the-statute gives the right to all residents. If that were true, courts still would be bound by the explicit and unmistakable words. It is not unknown, when opinion is divided, that qualifications sometimes are inserted into an act that are hoped to make it ineffective. But the objection is stated too strongly. As pointed out at the argument, in 1878 probably' there was a great deal of mineral'land still unexplored ,on which claims had not been located, not to speak of mere exceptional cases in which, the act wohld apply. The regulations of the Secretary of the Interior for a long time, and it would seem always, have been in 'accord with our bpiniop ánd the language of the act.

Judgment reversed.

Mr. Justice McKenna dissents.