In Error to the District Court of the United States for the District of'Montana.

This action was instituted by the United States to recover from the defendant the sum of ?28, the value of 20 trees alleged to have been wrongfully cut by him on certain lands situate in the Como Reserve, in the Missoula Land" District, in the state of Montana. The defendant, in his answer, denies that plaintiff was the owner of the land upon which the trees were cut; denies all damages charged against him; and, for an affirmative defense, alleges that the lands described in the complaint are not, and since the 5th day of June, 1872, have not been, public lands, and that neither the President of the United States, nor any officer thereof, has the right, power, or authority to set apart as, or declare the lands mentioned in the complaint to be, a part of any forest'reserve; that the said lands are embraced within the 15 townships above the Lo Lo Fork of the Bitter Root River, in the Bitter Root Valley, referred to in the act of Congress approved June 5, 1872, c. 308, 17 Stat. 226, as such 15 townships have been definitely fixed and determined by the survey and maps of the said Bitter Root Valley approved by the Department of .the Interior; that on the 3d day of February, 1892, an order was transmitted by the' Commissioner of the General Land Office to the register and receiver of the United States land office at Missoula, Mont., purporting to reserve from disposition, under the general laws of the United States, certain lands in the Bitter Root Valley, embracing the lands described in the complaint herein, and designating the said lands.as the “Lake Como Forest Reserve,” and that, save for the said order, no act was ever done or performed by the President of the United States, or by the Land Department, creating or purporting to> create any forest reserve embracing said lands; that .on or about July 14, 1899, the Commissioner of the General Uaná Office addressed a letter to the receiver of the United States land office at Missoula, Mont, directing the said officer not to dispose of certain lands in the Bitter Boot Valley embracing the lands mentioned in the complaint herein, and purporting to set apart and reserve the same, pending the determination of the advisability of including the same in the Bitter Hoot Forest Reserve, but defendant avers that no action has ever been taken by the President of the United States, or by the Band Department of the government, to embrace or include the same in the said Bitter Root Forest Reserve. Defendant further avers that he is, and at all times herein mentioned was, a citizen of the United States, over the age of 21 years, and that he has never entered any lands under the provisions of the homestead act, and that on the 15th day of July, 1899, he settled on the lands mentioned in the complaint heroin with Use intention at that time to enter the same and acquire title to the same under the provisions of the homestead laws of the United States; that, with'a view to the perfection of his settlement upon the said lands, and to enable him to construct a house thereon and to establish his residence thereon, he eni: down certain trees growing thereon, intending to use the logs which might bo hewn therefrom to construct a residence for himself upon the said land, and that the said trees so cut down were used by the defendant on the said land in constructing Ills said residence, and that the trees so cut. down are the trees referred to in the complaint herein as having been on the said land wrongfully and unlawfully cut down, and that the use of the same in rlie construction of his said residence constitutes the conversion and. disposition of the same referred to in the complaint; and that the entry so as aforesaid made by the defendant upon the said lands for the purpose of making a settlement thereon, with a view to acquire title to the same under the homestead laws of the United States, constitutes the entry complained of in the complaint, and, by reason of the facts aforesaid, the defendant denies that Ms said entry was wrongful or'unlawful, or that his cutting of the said timber was wrongful or unlawful, or tiiat he converted the same. To this answer the plaintiff interposed a demurrer upon the grounds "that the affirmative allegations contained in said defendant's answer did not, nor did either or any of them, state facts sufficient to constitute a defense to the cause of action set out in plaintiff's complaint heroin.” The court below ■overruled this demurrer. The plaintiff declined to file any replication to the answer, and elected to stand upon its demurrer, whereupon the court ordered tiie complaint dismissed. From the judgment of dismissal the plaintiff sued out a writ of error to this court, assigning as error: "(1) The court erred in overruling the demurrer interposed by the plaintiff to the affirmative niaiter set up in defendant’s answer. (2) The court erred in rendering judgment in said cause against said plaintiff and dismissing said action.”