71 P. 954 | Ariz. | 1903
The complaint in this action, brought by the United States against the United Yerde Copper Company, a corporation, alleges that one Rafael Lopez, a citizen of the United States, and a tona fide resident of the territory of Arizona, between the fifteenth day of February, 1900, and the seventeenth day of April, 1901, wrongfully cut and removed from the unsurveyed public mineral lands of the United States a large amount of timber, the property of the United States, and sold the same to the defendant, and that the defendant used the timber for the purpose of roasting ore at its mines situated in the territory, in violation of act of Congress of June 3, 1878, (20 Stats. 88, 1 Supp. Rev. Stats. 166 [U. S. Comp. Stats. 1901, p. 1528],) and of the rules and regulations of the secretary of the interior promulgated under the authority of the act. A general demurrer was interposed to the complaint, and a special demurrer on the ground that the complaint alleged that the timber was used by the defendant “for the purpose of roasting ore, which the defendant had a right to do under the act,” such use being “licensed and permitted by the act.” The demurrer was sustained, and judgment entered thereon for the defendant.
The legal right of the United States to recover the value of the timber from the one who unlawfully cuts it, or from any purchaser of such timber, is well established. Wooden Ware Co. v. United States, 106 U. S. 432, 1 Sup. Ct. 398, 27 L. Ed. 230; Northern Pacific R. R. Co. v. Lewis, 162 U. S. 376, 16 Sup. Ct. 831, 40 L. Ed. 1002. The absolute ownership of these lands being in the United States, no one had the right to enter upon the lands, or cut timber therefrom, without its consent. The government chose to make some exceptions in favor of certain classes of people, to whom were given the right to cut timber for certain purposes. The broad general rule being against the right, and the right to cut being exceptional, for specified purposes only, such right, if acquired by the defendant by reason of a compliance with the provision of the statute, should have been shown by it. In the absence of evidence establishing such right, the presumption is that the cutting is illegal, and, as a matter of practice, a complaint simply alleging the cutting would state a cause of action; but in this instance the complaint has gone farther,
The act in question, omitting the parts not material, is 'as follows: “All citizens of the United States and other persons, bona fide residents of the . . . territories of . . . Arizona, . . . 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 laAVS 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 thé secretary of the interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes.” Act June 3, 1878, 20 Stats. 88, 1 Supp. Rev. Stats. 166 [U. S. Comp. Stats. 1901, p. 1528],
Under this act the secretary of the interior, on January 18, 1900, promulgated certain rules and regulations governing the felling and removing of timber from the public domain for mining and domestic purposes; such rules, so far as material, being as follows:—
“(4) The uses for which the timber may be felled or removed are limited by the wording of the act to ‘building, agricultural, mining, or other domestic purposes.’
“(5) No timber is permitted to be felled or removed for purposes of sale or traffic, or to manufacture the same into lumber or other timber product as an article of merchandise, or for any other use whatsoever, except as defined in section 4 of these rules and regulations. ’ ’
“(7) No timber is permitted to be used for smelting purposes, smelting being a separate and distinct industry from that of mining.”
It will be observed that by section 7 of these rules the secretary of the interior decides that the use of timber for smelting purposes is not permitted under the license given by the above act, for the reason that smelting is a separate and distinct industry from that of mining. Under these rules this action was brought on the theory that the use of the timber for roasting ore was a use for smelting purposes, and hence prohibited.
The power and authority of the secretary of the interior to make such rules as may be proper with respect to the cutting and removal of timber under the act has been upheld by the courts. Northern Pacific R. R. Co. v. Lewis, 162 U. S. 376, 16 Sup. Ct. 831, 40 L. Ed. 1002; United States v. Williams, 6 Mont. 379, 12 Pac. 851. While the act directly clothes the secretary with the power to prescribe rules and regulations concerning the cutting and removal of timber, and his interpretation of the intent and true meaning of the act would be entitled, to great weight, it will not be contended that the secretary, by any rule or regulation, has the power to enlarge or restrict the purposes expressed in the act for which such timber may be used; so that if, by the act itself, Congress has given the right to use such timber for roasting ore, any rule promulgated by the secretary that would prohibit such use would be unauthorized and illegal. We have, therefore, to consider whether such use is authorized by the act itself. The act allows such use for building, agricultural, mining, and other domestic purposes. It is apparent, therefore, that if the use of timber for roasting ore is entitled to be classed as a use for “mining purposes,” such use is within the terms of the act.
We think it was the intent of Congress by this act to encourage and develop the industry of mining, and in so doing to enable miners to make free use of the timber on the mineral lands in the development of their mines, and for all purposes-that may be classed under the head of mining; and that they were not restricted in such use to the employment of timber in the mine itself, but its application and use was intended
We believe that the defendant in this instance was fully protected by the statute in using the wood sued for, under the license granted in the act to use wood for mining purposes, unless the roasting of ores should properly be classed as a part of the process of smelting, and is, for that reason, not included in -the general classification of mining purposes. The complaint alleges that this wood was used by the defendant for the purpose of roasting ore at its mines in Yavapai
It is urged by the counsel for the appellant that: “Both as a matter of common knowledge and as a matter of definition of the words, ‘roasting ore’ is a part of the process of smelting, and the use of wood for the purpose of roasting ore as set forth in the complaint is using it for smelting purposes. Therefore, the allegation of the complaint being that the timber was used by the app.ellee for roasting ore, it states a proper cause of action, and is not obnoxious to demurrer.” In support of this proposition he quotes the definition from the Standard Dictionary of the verbs “smelt” and “roast,” as follows: “Smelt: To obtain (a metal) from the ore by a process that includes fusion; also in a more limited sense to reduce ores, sweepings, metallurgical products, etc., by fusion in a furnace.” “Roast: [The only definition applicable in the discussion] : (4) Metal. To heat highly (metallic ores) with access of air, but without. fusing, for the purpose of driving off or volatilizing impurities, or for oxidizing them.” ¥e think that from the authority herein cited by himself, the counsel has proven the reverse of the proposition, and that, without looking farther than the definition above, it is shown
These definitions of the term “smelt,” taken in connection with the fact that smelting is ordinarily accomplished by means of extensive plants erected for that purpose, and very often at great distances from the mines producing the ores smelted, while only the most extremely sulphide ores are roasted, and the roasting, when done, is frequently accomplished in a primitive manner by the combustion in the open air of the sulphur, arsenic, and more volatile portions of the ore, and in all cases, whether in the primitive manner mentioned or in reverberatory furnaces, is accomplished without any fusion or melting of the metal contained in the ore, satisfy us that the process of roasting ores, instead of being included in, is entirely different and distinct from, smelting, and the use of wood therefor is properly included among the uses authorized by the statute for “mining purposes.”
Where a company extracts the ores from its mines, carries that part needing such treatment to the roasting dump, uses wood in roasting therefrom the sulphur, arsenic, and other volatile substances, and then runs the ore through its reduction plant and converts the same into a merchantable product, the extraction of the ore from the mines, the roasting it upon the dumps preparatory for its final reduction in the furnaces and other reduction plants established for that purpose, is clearly a part of mining, and the whole process of such extraction and preparation, taken together, is within the protection of the statute.
We feel that in the consideration of this subject the practical, usual, and ordinary meaning of the words “mining” and “mining purposes,” etc., should govern, rather than any narrow meaning that might be argued out from the definitions given by the lexicographers. The roasting of the more sul
The demurrer to the complaint was properly sustained. The judgment of the lower court is therefore affirmed.
Kent, C. J., and Davis, J., concur.