A person who enters upon the land of the United States by permission of the owner but solely for his own purpose and benefit has the legal status of a licensee. 60-58 Under the Federal Tort Claims Act, the legal duty of the United States to a licensee is determined by the law of the State in which the incident giving rise to a claim by a licensee occurred; and in most jurisdictions a landowner is not under a legal duty to take affirmative steps to make the premises safe for a licensee. 60-58

A visitor to a public museum operated by the National Park Service is an invitee. 61-226 An invitee cannot recover for an injury suffered in a fall on a floor without showing that the floor was negligently maintained by the owner of the premises, and that such negligence caused the fall and the resulting injury. 61-226

An invitee must exercise ordinary and reasonable care and prudence. 61-226

The National Park Service is not an insurer of the safety of an invitee to its 61-226

museums.

lawfully in the Platt National Park, Oklahoma, the damage amounting to $8.45. Held, That a claim for this amount, under the circumstances shown, comes within the scope of the act of Dec. 28, 1922 (42 Stat. 1066). 54-287

An employee of the United States, in the course of employment for and on behalf of the United States, negligently caused injury to the private automobile of a private citizen lawfully upon the public highway, the damage amounting to $275.76, to cover repairs. Held, That a claim for this amount, under the circumstances shown, comes within the scope of the act of Dec. 28, 1922 (42 Stat. 1066). 54-300

A motorist following another vehicle along the highway must keep his automobile under such control and at such a distance behind the leading vehicle as will enable him to cope with the exigencies of ordinary travel.

54-348

The claimant rented an automobile for $25 for the period during which his own was being repaired, it having been damaged by reason of the negligence of a Government employee and used the rented automobile for necessary transportation. Held, That since it is well settled that deprivation of use of property is a proper item of damages to be recovered from the person whose negligent act necessitated its repair, the rental value of the claimant's automobile should be considered as a claim "on account of damages to or loss of privately owned property" within the meaning of the act of Dec. 28, 1922 (42 Stat. 1066), and the amount so expended for rental may be regarded as the reasonable rental value of the damaged automobile. 56-245

Claim for damage to private property under the act of June 28, 1937 (50 Stat. 321), denied, irrespective of negligence on the part of Government employee, where evidence indicates negligence by claimant's own operator. 56-258

Negligence of private driver, which would preclude allowance of any claim submitted by him, cannot be imputed to passenger who presents meritorious claim and is shown not to have been engaged in joint enterprise nor involved in directing 57-77 operation of the private car.

A mere showing by a claimant that his automobile was damaged when a Government motor vehicle skidded on a slick, icy road and sideswiped the claimant's automobile does not meet the test prescribed by Congress for the making of awards under the Federal Tort Claims Act. 60-252

Skidding on an icy street or road does not, as a matter of law, establish that the driver of the skidding motor vehicle was guilty of a negligent or otherwise wrongful act or omission in the operation of the vehicle. 60-252

The bailee of an automobile, who is responsible to the bailor for all damage under $100 done to the vehicle during the period of the bailment, may properly file a claim against the United States under the Federal Tort Claims Act for compensation because of damage in the amount of $69.15 to the bailed automobile allegedly as a result of a negligent or wrongful act or omission on the part of a Government employee acting within the scope of his employment.

60-252

Where the driver of a Government vehicle, without having given a signal of his intention to do so, changed his course slightly and invaded the left side of the highway to the extent of 2 feet in order to avoid endangering anyone who might step suddenly into the highway fom a truck parked alongside the highway on the Government driver's right, and the Government vehicle was struck from the rear by a privately owned automobile traveling at a high rate of speed and was hurled from the highway into the parked truck, the United States is not liable under the Federal Tort Claims Act to the owner of the parked truck for the damage resulting to it. 60-399

VIII. PERSONAL INJURY OR DEATH By the terms of the act of Dec. 28, 1922 (42 Stat. 1066), the head of an Executive Department of the United States Government, acting on its behalf, is authorized to "consider, ascertain, adjust, and determine any claim accruing after Apr. 6, 1917, on account of damages to or loss of privately owned property, where the amount of the claim does not exceed $1,000, caused by the negligence of any officer or employee of

the Government acting within the scope of his employment," the amount found due to be certified to Congress as a legal claim for payment, but no claim to be considered unless presented within one year from the date of its accrual. 54-286

The scope of the act of Dec. 28, 1922 (42 Stat. 1066), does not embrace claims for personal injury, but only claims for damage to or loss of privately owned property. 54-287

IX. PROPERTY DAMAGE By the terms of the act of Dec. 28, 1922 (42 Stat. 1066), the head of an Executive Department of the United States Government, acting on its behalf, is authorized to "consider, ascertain, adjust, and determine any claim accruing after Apr. 6, 1917, on account of damages to or loss of privately owned property, where the amount of the claim does not exceed $1,000, caused by the negligence of any officer or employee of the Government acting within the scope of his employment," the amount found due to be certified to Congress as a legal claim for payment, but no claim to be considered unless presented within one year from the date of its accrual. 54-286

An employee of the United States, in the course of employment for and on behalf of the United States, negligently caused injury to the automobile of a private citizen lawfully in the Platt National Park, Oklahoma, the damage amounting to $8.45. Held, That a claim for this amount, under the circumstances shown, comes within the scope of the act of Dec. 28, 1922 (42 Stat. 1066). 54-287

The scope of the act of Dec. 28, 1922 (42 Stat. 1066) does not embrace claims for personal injury, but only claims for damage to or loss of privately owned property. 54-287

By the terms of the act of Dec. 28, 1922 (42 Stat. 1066), the head of an Executive Department of the United States Government, acting on its behalf, is authorized to "consider, ascertain, adjust, and determine any claim accruing after Apr. 6, 1917, on account of damages to or loss of privately owned property, where the amount of the claim does not exceed $1,000, caused by

the negligence of any officer or employee of the Government acting within the scope of his employment", the amount found due to be certified to Congress as a legal claim for payment, but no claim to be considered unless presented within one year from the date of its accrual. 54-300

Any doubt as to the intent of Congress concerning payment of damages for loss of use of damaged property may be resolved by construing the statute (act of Dec. 28, 1922, 42 Stat. 1066), to require certification, thereby affording an opportunity for a conclusive legislative construction.

56-245

The act of Dec. 28, 1922 (42 Stat. 1066) should be construed so as to afford relief to a person suffering property damage by reason of the negligence of a Government employee to the same extent as if the issues were to be litigated between private individuals. 56-245

The act of Dec. 28, 1922 (42 Stat. 1066) authorizes the heads of departments to consider and certify to Congress claims filed "on account of damages to or loss of privately owned property *** caused by the negligence of any officer or employee of the Government * * *." By error the General Land Office allowed homestead entry of certain land already patented and the entryman sold the standing timber, which was cut and removed. The claimant company, in which title had vested through mesne conveyances, filed a claim for the loss of the timber. Held, That under the doctrine of res ipsa loquitur the erroneous allowance of the homestead entry was an act of negligence by a Government employee. 56-250

The erroneous allowance of a homestead entry on land already patented held under the circumstances to be the proximate cause of damage to the lawful owner of the property, since the cutting of standing timber is, in a timber country, a natural and foreseeable consequence of the Government's allowing the entryman to go upon the land.

56-251

X. TRESPASS

A trespass upon privately owned land due to a forced landing of an airplane is a "wrongful act," within the meaning of that term as used in 28 U.S.C. 2672, even though the pilot used due care in the handling of the aircraft. 60-337

The Government is liable for the damage resulting from a forced landing on privately owned land of an airplane piloted by an employee of the Government acting within the scope of his employment.

60-338

The United States is liable for injuries to a known trespasser in the vicinity of an instrumentality under the immediate control of one of its employees, resulting from a failure to exercise reasonable care to control the instrumentality to prevent injury or to give a warning which is reasonably adequate to enable the trespasser to protect himself. 61-219

TOWNSITES

Land which is shown to be more valuable at date of application for townsite purposes than for the stone it contains is not subject to acquisition under the timber and stone law. 52-36 Regulations of Apr. 27, 1927, townsites, parks, cemeteries, and recreational sites (Cir. No. 1132). 52-106

The acts of Congress relating to townsites recognize the possession of mining claims within their limits and the mere filing of a declaratory statement by a townsite trustee is no bar to the exploration and purchase of mineral lands therein. 52-426 A finding by the department in a proceeding between a mining claimant and a townsite applicant that there had been no discovery of mineral is conclusive as to the status of the mining claim at the time of the hearing, but a finding made in dismissing without prejudice a mining claimant's protest against a townsite application is not conclusive on the mining claimant.

52-427

As between mineral and townsite claimants, the conditions with respect to the character of the land, as they exist at date of entry or at the time when all the necessary requirements of law have been complied with by the one seeking title, determine whether the land is subject to sale or

other disposal under the law upon which the application for patent is based.

52-427 In construing the townsite laws in their relation to the mining laws, the term "date of townsite entry" means the date when final entry of the townsite is made and certificate of purchase issued, or when the right of the townsite claimants becomes vested. 52-427

The superior right of a mining claimant who makes discovery subsequent to the filing of a townsite declaratory statement by another depends upon whether or not discovery of mineral was made prior to final entry of the townsite or prior to the date that the townsite claimants have done everything required under the laws and regulations to entitle them to a certificate of purchase, and the issuance of it is all that remains to be done.

52-427

Where lands are excluded from a national forest withdrawal and simultaneously included within a townsite withdrawal, the later withdrawal will attach immediately upon relinquishment or upon reversion to the United States by forfeiture of lands which had been excepted from the operation of the first withdrawal because of prior valid appropriation. 53-65

The distinction that may be made in law between assignees and transferees and those who succeed to the title or interest in property upon and in consequence of the demise of the owner is not a sufficient reason for modification of the existing rule of the Department that in the purchase of a town lot all necessary papers and patent will be issued in the name of the purchaser. 53-146

ment work within the period prescribed by law, all his rights against the Government in and to the location are extinguished, and entry and performance thereafter by him or his successors of work on the claim constitute a trespass and neither revive nor initiate any rights. 52-296

The Land Department will not demand compensation on the ground of unauthorized use of public lands if the facts fail to show that an increased burden had been placed on the lands after a right-of-way thereover, which had become vested under sections 2339 and 2340, Revised Statutes, could have been no longer augmented except in accordance with later legislation.

52-726

Regulations of June 10, 1933, in re coal trespass, amending Cir. No. 953, July 19, 1924 (see 50 L.D. 501); Cir. No. 1135 (Oct. 1, 1927, 52 L.D. 216); and Cir. No. 1309. 54-226

Cir. No. 1309, Aug. 17, 1933 (54 I.D. 226) amended Sept. 4, 1935. (Cir. No. 1366) Coal Trespass Regulations. 55-347

The occupancy of the public lands for the construction of a pipeline before approval of the pipeline right-of-way application constitutes a trespass. 57-79

The settlement and improvement of lands in the public domain expressly withdrawn from settlement and entry create no rights in the occupant but constitute an unlawful use, rendering the occupant liable for damages in trespass: Held, one who occupies lands within a stock-driveway withdrawal and constructs thereon dwellings, barns, pens, corrals, shops, filling stations and buildings for other commercial enterprises is not a settler, possessed of the settlement rights recognized by the courts, but a trespasser who must respond in damages for his unlawful use of another's land. 58-707

II. MEASURE OF DAMAGES Instructions of Oct. 1, 1927, payment for coal mined pending applications for lease or permit. Cir. No. 953 (July 19, 1924, unpublished) supplemented. (Cir. No. 1135.) 52-216

For the purpose of assessing charges for trespass upon public lands by a power company, the factor of "total capacity of powersite" within the meaning of regulation 7 of the departmental regulations of Aug. 24, 1912 (41 L.D. 150), under the act of Feb. 15, 1901 (31 Stat. 790), is determined by permanent features of stream flow such as conduits and forebays; consequently capacity of installed water wheels which is apt to change frequently with increase in market demand, replacement, or improvement in design, is not to be

In the absence of Federal legislation fixing the measure of damages for trespass and conversion affecting United States property, the General Land Office (BLM) instructs its trespass agents that under Mason v. United States, 260 U.S. 545 (1923), State law, meaning statutory law, relating to trespass damages is binding on Federal courts. It also instructs them that in the absence of State statutes the rules of Federal common law govern, namely, the interpretations of the common law made by the Federal courts, thus implicitly recognizing the doctrine of Swift v. Tyson, 16 Pet. 1 (1842). Question therefore arises whether the decision in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), requires these instructions to be changed so as to state that in the absence

The Supreme Court not having stated its grounds for denial of certiorari in this case, the Government's argument is not foreclosed. Further, it appears reinforced by subsequent decisions expanding the definition of Federal questions. For the Congress has occupied the field of public lands under the Constitution and, in statutes of various types, has recognized a duty to protect the public property in its care and to enforce the public's rights against trespass, whether civil or criminal. The whole question of trespass and enforcement of Federal rights against it may therefore be considered primarily a matter deriving from Federal sources, both policy and law, even in the absence of an express statute, and as such a Federal question would be subject to Federal decisional law rather than to the rules of the State, whether written or unwritten. 58-695

Decision that measure of damages for trespass on Federal property is a Federal question would make both the Mason and the Erie cases (260 U.S. 545; 304 U.S. 64), inapplicable to trespass cases and would require the instructions to state that in the absence of express Federal legislation only Federal decisional rules of damage control. 58-696

The foregoing (Mason case, 260 U.S. 545) considerations are persuasive both that the Erie decision (304 U.S. 64) is inapplicable here and that trespass on Federal property is a Federal question controlled by Federal decisional law under the exception to the Rules of Decision Act. At present however there is no compelling legal reason for revision of the instructions to accord with these assumptions. 58-696

Damages for unlawful uses of Government lands are controlled by the law of trespass and its rules for the measure of damages, not by provisions of statutes or of regulations fixing charges for corresponding lawful uses. 58-708

When a trespasser not only injures an owner by depriving him of his chosen use of his property or of his privilege of withholding it from use but also tortiously uses that property for his own purposes and gain, the damages for which he is responsible are determinable not by reference to