ting and removing such timber, and, as such facts are necessary of a license to cut or remove timber from the public lands, it was for the defendants and not the plaintiff to establish them. Northern Pacific R. R. Co. v. Lewis, 162 U. S. 376. The defendants plead license and seek to justify under the act of congress approved June 3, 1878, 20 United States Statutes, chapter 150, page 88. The first section of this act is as follows:

"That all citizens of the United States, and other persons, bona fide residents of the state of Colorado or Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, 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 laws 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 the secretary of the interior may prescribe for the protection of the timber, and of the undergrowth growing upon such lands, and for other purposes: Provided, the provisions of this act shall not extend to railroad corporations."

JUDICIAL notice.

The defendants contend, that in order to show license it was not necessary for them to show compliance with the rules and regulations prescribed by the secretary of the interior under the above act, and they further insist that such rules and regulations must be proven as any other fact in the In the case of Caha v. United States, 152 U. S. 211221, it was held that the courts will take judicial notice of rules and regulations prescribed by the department of the interior under act of congress, and therefore it is not necessary to prove them. It is true the rules and regulations in that

case.

case related to local land offices, but that is immaterial as they were prescribed under an act of congress as in this case.

The supreme court of Montana in a well considered case involving a construction of the identical rules and regulations prescribed by the act of congress above set out held that the courts of that state take judicial notice of them.

Counsel for defendants cited the case of the Denver & Rio Grande Railroad Co. v. United States, 54 Pac. 336, decided by this court at the present term, as holding that such "rules and regulations" must be proven as any other fact. An examination of the case shows that the court did not so decide. Similar rules and regulations were not before the court, or involved in the case, and the decision of the court was as to a special act of congress, and not rules and regulations required to be perscribed under a general act of congress.

The law seems to be well settled, that it is only lawful to cut timber upon the public mineral lands of the United States in accordance with the act of congress and the rules and regulations prescribed by the secretary of the interior under the act, and that the burden of proof to show that the timber was lawfully cut or removed is upon the defendant. 69 Fed. Rep. 965.

In the case of the Northern Pacific Railroad Company v. Lewis, 162 U. S. 376, the court says:

"The absolute ownership of these lands being at the time in the United States, it had as owner the same right and domain over them as any owner would have.

right to cut a

No one had the right to enter upon the lands; no one had the stick of timber thereon, without its consent. Any one so going upon the lands and cutting timber would be guilty of the commission of an act of trespass. The government, however, chose to make some exceptions in favor of certain classes of people to whom were given the right to cut timber for certain purposes: First. They were to be citizens of the

United States. Second. Bona fide residents of the state or territory mentioned in the act. Third. They were to be permitted to fell and remove any timber or trees growing or

being on the public lands, provided they were mineral, and not subject to entry under existing laws of the United States; and they were authorized and permitted to fell and remove such timber only for building, agricultural, mining or other domestic purposes. The cutting and removing were to be done under rules and regulations prescribed by the secretary of the interior. Outside of these exceptions, there was no right in any person to cut a particle of timber on these public lands of the government."

These exceptions which may be set up and relied upon as a license and defense in an action by the United States for cutting and disposing of timber from the public lands, are very clearly pointed out in the cases above referred to, and from these authorities and others which might be cited, compliance with the rules and regulations prescribed by the secretary of the interior is just as essential in order to constitute license as is compliance with any part of the act of congress above quoted, and there can be no license which would justify such cutting and appropriation of timber unless compliance with the rules and regulations as well as the statute is shown by the defendant.

There was evidence given as to a partial compliance with the statute and rules, but partial compliance does not constitute license or a defense in a civil action, for cutting or removing of timber from lands of the United States is presumed to be illegal. United States v. Cook, 19 Wall. 591; N. Pac. R. R. Co. v. Lewis, 162 U. S. 376; United States v. Reeder, 69 Fed. 965. And to justify the act and escape liability, full compliance with the act of congress and the rules and regulations defining under what circumstances such timber may be lawfully cut or removed, must be shown.

Defendants contend that these rules and regulations apply to criminal cases only, but we are of the opinion that they apply to both civil and criminal cases.

In the United States v. Murphy, 32 Fed. Rep. 378, the court says: "Under the provisions of section 2461, whoever cuts and removes timber from public lands, which includes

all that the government holds title to, must be prepared to show, when indicated or sued as a trespasser, lawful authority for his act."

It seems clear that the court erred in refusing the instructions above set out, and that the second error is well assigned. The motion for a new trial based upon these assignments, should have been allowed and a new trial granted.

The judgment of the court below will be reversed and the cause remanded with instructions to the court below to set aside the judgment, grant a new trial, and proceed in accordance with this opinion.

costs.

Judgment reversed and cause remanded at defendants'

Mills, C. J., Parker and Crumpacker, JJ., concur; Leland, J., absent.

[No. 799. August 29, 1899.]

TOWN OF ROSWELL, Appellant, v. F. DOMINICE,

Appellee.

SYLLABUS BY THE COURT.

STREET IMPROVEMENTS-PETITION-SPECIAL ASSESSMENT-VALIDITY.—A petition by the owners of at least one-half of the property fronting upon a street in a municipal corporation, is a jurisdictional prerequisite to the validity of a special assessment upon such abutting property for street grading and improvement.

Appeal, from a decree for defendant, from the Fifth Judicial District Court, Chavez County. Affirmed.

The facts are stated in the opinion of the court.

G. A. RICHARDSON for appellant.

The town of Roswell, as a municipal corporation, had full power and authority to levy and make a special assessment

on property within its borders for the improvement of its streets, for draining its lots and blocks, and grading and graveling its highways. Laws 1881, chap. 32, sec. 13; Laws 1893, chap. 78, sec. 3; Laws 1897, sec. 2415; Laws 1897, sec. 2488; Comp. Laws 1884, sec. 1635; 2 Dill. Munic. Corp., sec. 752; Laws 1897, sec. 2402, sub-secs. 76, 80, 81, 82; 10 Am. and Eng. Ency. Law, 279; Cooley on Tax. [2 Ed.] 616.

Property frontage is the proper basis for a special assessment, and the cost is not always borne by those only who are specially benefited. 10 Am. and Eng. Ency. Law, "Local Improvements;" Crawford v. People, 82 Ill. 557; Van Tassel v. Jersey City, 37 N. J. 128; Mix v. Shaw, 106 Ill. 425; White v. People, 94 Id. 604; Springfield v. Green, 120 Id. 269; Shaw v. Dennis, 5 Gil. (Ill.) 405; Petition of Lowden, 89 N. Y. 548; 10 Am. and Eng. Ency. Law, 206; Dickson v. Racine, 65 Wis. 306.

JOHN FRANKLIN for appellee.

Section 2488, Comp. Laws 1897, from which appellant claims to derive its power to levy the assessment, is unconstitutional and void. Cooley, Const. Lim. 55; 1 Dill. Munic. Corp., sec. 94; People v. Mayor, etc., 4 N. Y. 427; Keith v. Wilson, 44 N. E. Rep. (Ind.) 13; Morse v. Westport, 33 S. W. Rep. (Mo.) 182; Barnes v. Dyer, 56 Vt. 469; Rubber Co. v. Commissioners, etc., 9 Vr. (N. J. Law) 190; State v. Newark, 8 Id. 415; Stuart v. Palmer, 74 N. Y. 183. See, also, Bradley v. Fallbrook, Irr. Dist., 68 Fed. Rep. 948; Davidson v. New Orleans, 96 U. S. 104; Hagar v. Reclamation Dist., 111 Id. 711; 24 Am. and Eng. Ency. of Law 61; Thomas v. Gain, 35 Mich. 162.

No such petition having been presented to the board as is required by the Laws of 1891, asking for the passage of ordinance No. 54, the same is void. Zeigler v. Hopkins, 117 U. S. 683; 2 Dill. Munic. Corp., secs. 800, 801; Holland v. Baltimore, 11 Md. 186; Andrey v. Dallas, 35 S. W. Rep. 726; VOL. 9 N. M.-40