ADAMS, District Judge,
after stating the case as above, delivered the opinion of the court.
Several errors are assigned, hut they appear to be comprehended in tw.o of them, namely: First, that the court erred in holding that the answer of the defendant, Conway, did not set forth a defense; and, second, ibat the court erred in holding that upon the pleadings the plaintiff was entitled to a judgment for $1,853.77.
The test of the sufficiency of the answer must be found in a consideration of the rights of Boyington, under whom the defendant was acting, and of the rights acquired hv, and obligations imposed upon, Conway, by the contract alleged to have been entered into between him and Boyington. It appears that Boyington had duly entered the lands from which the logs were taken, under the homestead laws of the United States, and was in the year 1896 residing on said lands, and engaged generally in performing such acts as were required to ripen his entry into a patent. It is a well-settled construction of the homestead statute that wdiile a settler acquires no title to the lands entered by him until the issue of the patent, at the expiration of live years after the entry, he has nevertheless a right during these five years to treat the lands as’ his own, in a certain qualified sense, — to the extent, at least, of performing those acts which are required under the law to enlitle him to a patent therefor. He must reside and continue to reside upon the lands entered, and cultivate and continue to cultivate the same for a period of five years. To perform these conditions necessary to the acquisition of title, he clearly has the right to utilize the timber growing upon the land for the purpose of building himself a house to live in, and such outhouses and fences as may be reasonably necessary for his initial and progressive farming operations. He may also, and must, in the performance of the condition of cultivation, first prepare the land therefor. If there be growing trees or dead timber, which are impediments to successful husbandry, he may clearly remove the same, or cause them to be removed, so far as the legitimate purpose of cultivation reasonably warrants; and he may, subject to such limitations, sell the same, and appropriate the money realized therefrom. While a settler may avail himself of these necessary privileges, he must at all times act in good faith in the exercise of them. He cannot invoke or pretend to exercise them as a cover to despoil the lands of their timber, or to make, profit out of them, without regard to the legitimate purpose of building bim a home, outbuildings, and fences, and fitting the soil for cultivation and use. Shiver v. U. S., 159 U. S. 491, 16 Sup. Ct. 54; The Timber Cases, 13, Fed. 81; U. S. v. Yoder, 18 Fed. 372; U. S. v. Lane, 19 Fed. 910; U. S. v. Ball, 31 Fed. 667; U. S. v. Murphy, 32 Fed. 376; U. S. v. Nelson, 5 Sawy. 68, Fed. Cas. No. 15,864. In the case of Shiver v. U. S., supra, the supreme court remarks as follows:
“Witli respect to the standing timber, his [the settler’s] privileges are analogous to those of a tenant for life or years.”
[618] Quoting from Washburn, in his work on Beal Property, the court, referring to lands which are new and covered with forests, and which cannot be cultivated until cleared of the timber, continues as follows:
■‘In such case it seems to he lawful for the tenant to clear the land, if it would he in conformity with good husbandry to do so; the question depending-upon the custom of farmers, the situation of the country, and the value of the timber. * * * By analogy, we think that the settler upon a homestead may cut such timber as is necessary to clear the land for cultivation, or tó build him a house, outbuildings, and fences, and perhaps, as indicated in the charge of the court below, to exchange such timber for lumber to be devoted to the same purposes, but not to sell the same for money, except so far as the timber may have been cut for the purpose of cultivation. * * * A reasonable construction of the statute, — a construction consonant both with the protection of the property of the government in the land 'and of the rights of the settler, — we think, restricts him to the use of the timber actually cut, or to the lumber exchanged for such timber, and used for his improvements, and to such as is necessarily cut in clearing the land for cultivation.”
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ADAMS, District Judge,
after stating the case as above, delivered the opinion of the court.
Several errors are assigned, hut they appear to be comprehended in tw.o of them, namely: First, that the court erred in holding that the answer of the defendant, Conway, did not set forth a defense; and, second, ibat the court erred in holding that upon the pleadings the plaintiff was entitled to a judgment for $1,853.77.
The test of the sufficiency of the answer must be found in a consideration of the rights of Boyington, under whom the defendant was acting, and of the rights acquired hv, and obligations imposed upon, Conway, by the contract alleged to have been entered into between him and Boyington. It appears that Boyington had duly entered the lands from which the logs were taken, under the homestead laws of the United States, and was in the year 1896 residing on said lands, and engaged generally in performing such acts as were required to ripen his entry into a patent. It is a well-settled construction of the homestead statute that wdiile a settler acquires no title to the lands entered by him until the issue of the patent, at the expiration of live years after the entry, he has nevertheless a right during these five years to treat the lands as’ his own, in a certain qualified sense, — to the extent, at least, of performing those acts which are required under the law to enlitle him to a patent therefor. He must reside and continue to reside upon the lands entered, and cultivate and continue to cultivate the same for a period of five years. To perform these conditions necessary to the acquisition of title, he clearly has the right to utilize the timber growing upon the land for the purpose of building himself a house to live in, and such outhouses and fences as may be reasonably necessary for his initial and progressive farming operations. He may also, and must, in the performance of the condition of cultivation, first prepare the land therefor. If there be growing trees or dead timber, which are impediments to successful husbandry, he may clearly remove the same, or cause them to be removed, so far as the legitimate purpose of cultivation reasonably warrants; and he may, subject to such limitations, sell the same, and appropriate the money realized therefrom. While a settler may avail himself of these necessary privileges, he must at all times act in good faith in the exercise of them. He cannot invoke or pretend to exercise them as a cover to despoil the lands of their timber, or to make, profit out of them, without regard to the legitimate purpose of building bim a home, outbuildings, and fences, and fitting the soil for cultivation and use. Shiver v. U. S., 159 U. S. 491, 16 Sup. Ct. 54; The Timber Cases, 13, Fed. 81; U. S. v. Yoder, 18 Fed. 372; U. S. v. Lane, 19 Fed. 910; U. S. v. Ball, 31 Fed. 667; U. S. v. Murphy, 32 Fed. 376; U. S. v. Nelson, 5 Sawy. 68, Fed. Cas. No. 15,864. In the case of Shiver v. U. S., supra, the supreme court remarks as follows:
“Witli respect to the standing timber, his [the settler’s] privileges are analogous to those of a tenant for life or years.”
[618] Quoting from Washburn, in his work on Beal Property, the court, referring to lands which are new and covered with forests, and which cannot be cultivated until cleared of the timber, continues as follows:
■‘In such case it seems to he lawful for the tenant to clear the land, if it would he in conformity with good husbandry to do so; the question depending-upon the custom of farmers, the situation of the country, and the value of the timber. * * * By analogy, we think that the settler upon a homestead may cut such timber as is necessary to clear the land for cultivation, or tó build him a house, outbuildings, and fences, and perhaps, as indicated in the charge of the court below, to exchange such timber for lumber to be devoted to the same purposes, but not to sell the same for money, except so far as the timber may have been cut for the purpose of cultivation. * * * A reasonable construction of the statute, — a construction consonant both with the protection of the property of the government in the land 'and of the rights of the settler, — we think, restricts him to the use of the timber actually cut, or to the lumber exchanged for such timber, and used for his improvements, and to such as is necessarily cut in clearing the land for cultivation.”
Such being the principles controlling the rights of a settler under the homestead act, it now becomes necessary to analyze the defendant’s answer, and see if the facts there disclosed exonerate him or Boyington, under whom he was acting, from liability for cutting the logs in- question. The answer, as hereinbefore substantially set out, contains much unnecessary narration, and some statements are found in it possibly suggestive of facts which may be evoked at a trial in disproof of the defense sought to be pleaded; but we have reached the conclusion that there are averments found in the answer, which, if true, constitute a defense. It is alleged that the character of the lands from which the logs were cut was such as to render it expedient, proper, and necessary, and therefore a part of good husbandry, to remove the scattered timber in order to fit the land for pasturage and cultivation, alleged to have been the purpose of the settler in making his entry. It is further alleged that Boyington was unable, by reason of his age and poverty, to do the necessary clearing, and for that reason made a contract with Conway to clear the same; agreeing to give him the timber to be cut from said land, provided Conway would erect a frame dwelling house and other buildings thereon for Boying-ton, break such portions of the land as could be cultivated, furnish Boyington money for the purchase of the requisite stock to outfit his farm, and furnish Boyington with provisions sufficient to keep him and his hired man, to the extent, all told, of the value of $800. In other words, Conway was to pay $800 for the timber, and make payment thereof in doing the work and furnishing the money and provisions for the purpose just specified. It is further alleged that Conway performed the terms of his contract, and particularly alleged that Boyington, in making the contract, acted in good faith, with the honest intention of thereby improving the lands and making the same fit for a stock farm and for cultivation-, to such an extent as was practicable, and that Conway, in the performance of his part of the contract, acted in good faith, believing that Boyington was clearing the lands in good faith for the purpose of cultivation. These averments, in our opinionyare the equivalent of saying that the timber was caused to be cut by the settler in order to fit and prepare the land for culti-[619] val ion. If these averments are true, — and we must so treat them for the purposes of this case, — and if the defendant was engaged in doing the work of clearing in good faith, for the purpose of preparing the land for cultivation, then, (¡ven though the settler was to receive in money the value of the timber so cut, the act would he justifiable, under the law, aud the person employed to do it would not be liable to the United States therefor. As has been frequently expressed in judicial utterances found in the cases above cited, the question is one of good failh on the part of the sel tier. The cutting, to he justifiable, must he fairly and reasonably an incident to real cultivation and im-X>róvement, as distinguished from a denuding of the land of its timber merely for the purpose of sidling the timber and securing the purchase price. The portion of the answer already considered was intended to stale a complete defense or a bar to the cause of action, but there is another filature of the answer which sets forth, in our opinion, a partial defense. That is ,the portion of the answer averring that Oon-way was to employ and did employ the timber cut, either directly or indirectly, in erecting a dwelling house and necessary outbuildings for the settler. To the extent to which the logs cut went into the construe! ion of such dwelling house and outbuildings, under the authorities already cited, or to the extent to which the money received for the logs was in good faith employed to construct a dwelling house and outbuildings, there could he no recovery in this case.
The construction which we have placed upon the answer of Conway seems to he the same as that given it by the plaintiff in the case below. Its replication apparently concedes that the defendant had stated a valid defense, but by its general denial and affirmative aver-ments it challenges the good faith of the alleged cultivation, and denies the alleged use of timber cut for outfitting the lands with requisite buildings for farming operations.
We are also of the opinion that the amount of the plaintiff’s damages was fairly put in issue by the pleadings. Defendant not only denied, in and by his general denial, the allegation that the logs cut were of the value of §1,681.15, hut he specially denied that plaintiff had been damaged in the amount claimed by it. Under the authority of the cases of Stone v. Quaal, 36 Minn. 46, 29 N. W. 326, Nunnemackcr v. Johnson, 38 Minn. 390, 38 N. W. 351, and Bank v. White, 38 Minn. 471. 38 N. W. 361, this pleading put the plaintiff upon its proof of damages. It results that the judgment must be reversed, and the cause remanded for a new trial, and it is so ordered.