The defendant, Bacheldor, was indicted, tried and convicted in the First judicial district court, under section 2461, Rev. Stat. U. S., for unlawfully cutting timber upon public lands. The defendant admitted the cutting, but justified it under an act of congress granting to the Denver & Rio Grande Railroad Company a right of way, and the right to take from the public lands adjacent thereto stones, earth, water, and other materials required for the construction, etc., of the railway. The question arises as to the meaning of the word “adjacent” in this act. The timber was cut some twenty or twenty-four miles in a direct line from the right of way. The distance by wagon road was much further. The court below charged the jury that the word “adjacent,” as used and applied in the act of congress, meant and extended to the tier of townships lying adjoining on either side of the townships upon, through, and over which the line and right of way of the railroad runs.
The question as to the intent of congress employing the word “adjacent” in the act has been before the courts a number of times, but there has been a marked disinclination to define its.meaning with exactness, and there has been quite a difference of opinion expressed. See U. S. v. Denver & R. G. R. Co., 31 Fed. Rep. 889, per Judge Hallett; same case, as appealed, 34 Fed. Rep. 841, per Justice Brewer; U. S. v. Chaplin, 31 Fed. Rep. 890, per Judge Deady; U. S. v. Lynde, 47 Fed. Rep. 297, per Judge Knowles; U. S. v. Railroad Co., 29 Alb. Law Journal 24; 1 Am. and Eng. Ency. Law [2 Ed.] 634; Secretary Teller to the Commissioner of General Land Office, 1 Land Dec. Dep. Int.610; Stone v. U. S., 64 Fed.Rep. 673; Secretary Vilas to the Attorney General, 8 Land Dec. Dep. Int. 41; U. S. v. Denver & R. G. R. Co., 150 U. S. 1. It is manifest that what would be adjacent under some circumstances would not be under others. The condition of the country through which the right of way extends should be considered. But still the mere poverty in building materials' of the county in the immediate neighborhood of the right of way would not be sufficient to extend the meaning of “adjacent” to reach remote lands from which such materials may be supplied. The lands from which such materials are taken must at least lie near, the term “adjacent” being in this connection relative. The condition of the country can not make lands adjacent which are not; but the statute should receive such a liberal construction as will carry out the objects intended. Perhaps the safer course in ascertaining the meaning of such terms is in the process of exclusion and inclusion, a method which has accomplished so much for our common law. It is safer to say what in a given case is excluded from the meaning of adjacent than to say what under all circumstances it includes. We need not determine whether in all cases timber may be taken from the public lands under such license, so far as the outer lines of the townships adjoining those through which the road runs; but it must be recognized that lands are not adjacent which lie beyond the tier of townships adjoining those through which the right of way runs, as in the case at bar. The township is the largest subdivision of land designated in the government survey; and, in laying down this limit, we can not say that the court below committed error. The judgment will therefore be affirmed.
Smith, C. J., and Collier, J., concur.