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(144 C. C. A. 470, 230 Fed. 328.)
chap. 288, Comp. Stat. § 4947, 9 Fed. Stat. Anno. 2d ed. p. 590).
(3) That the land of the plaintiff (United States of America) within the state of Utah is subject to the laws of that state, and its power of eminent domain to take and use property for a public purpose; that the laws of the state of Utah authorized the defendant and its predecessors to construct and maintain the reservoir and flume or conduit upon the plaintiff's land for a public purpose, and the Federal Congress had no power by the Act of 1896, or any other act, to withdraw its land from the operation of such laws, or to prevent the construction or maintenance of such reservoir, flume, or conduit.
(4) That new facts alleged in the answer constitute a defense in the nature of equitable estoppel against the plaintiff.
Defendant also reasserts that the Act of Congress of 1896 was not intended to supersede or modify §§ 2339 and 2340 of the Revised Statutes, nor displace the laws of the state of Utah, nor prevent the construction or maintenance of reservoirs or water conduits upon the public land. Counsel announced, however, that they would not reargue, on this appeal, any points decided on the former appeal, and inasmuch as we are satisfied with the conclusions there reached, neither time nor space will be consumed in unnecessary restatement of the views heretofore announced. A fuller discussion of the facts and principles involved in the issues presented on the last appeal will be found in the reported opinion above cited. The points now urged by defendant will be considered in the order of their statement.
1. That the Act of May 11, 1898, superseded the Act of 1896 and reinstated §§ 2339 and 2340 with respect to rights of way for canals and reservoirs for the generation of electric power. This Act of 1898 provided that the act entitled, "An Act to Amend an Act to Permit the Use of the Right of Way Through
Public Lands for Tramroads, Canals, and Reservoirs, and for Other Purposes," approved January 21, 1895, be amended by adding thereto the following two sections:
"That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of right of way upon the public lands of the United States, not within the limits of any park, forest, military, or Indian reservations, for tramways, canals, or reservoirs, to the extent of the ground occupied by the water of the canals and reservoirs, and fifty feet on each side of the marginal limits thereof, or fifty feet on each side of the center line of the tramroad, by any citizen or association of citizens of the United States, for the purposes of furnishing water for domestic, public, and other beneficial
[Comp. Stat. § 4943, 8 Fed. Stat. Anno. 2d ed. p. 807.]
"Sec. 2. That the rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, nineteen, twenty, and twenty-one of the act entitled 'An Act to Repeal Timber-culture Laws, and for Other Purposes,' approved March third, eighteen hundred and ninety-one, may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation." 30 Stat. at L. 404, chap. 292, Comp. Stat. § 4938, 8 Fed. Stat. Anno. 2d ed. p. 810.
It will be observed that the first of these sections affects only lands not within the limits of any park, forest, military, or Indian reservations. It authorizes a mere permission by the Secretary of the Interior, and obviously adds nothing to the power conferred by the Act of 1896, which, in express terms, permits rights of way for the purposes of generating, manufacturing, or distributing electric power. The
second section is, in effect, amenda-
idea was still, as in the Act of 1891, irrigation."
In the Kern River Co. Case, 38 Land Dec. 302, it was further held: "A right of way under the Act of March 3, 1891, may be acquired only by a company formed for the purpose of irrigation; but a right of way secured under that act may, under the Act of May 11, 1898, be used for purposes of a public nature, as subsidiary to the main purpose of irrigation.
"While the Act of 1898 extended and enlarged the uses which might be made of the rights of way so acquired [under the Act of 1891], that act made no provision whatever for the recognition of any other class of grantee, but merely specified the additional purposes for which the rights of way might be used."
Later, in 1910, the attention of the President was directed to the case of the Ramona Power & Irrigation Company for a right of way over lands in the state of California under the provisions of the Act of March 3, 1891, in order to obtain an expression of his views as to the policy which should be adopted in cases of applications for rights of way under the Act of 1891, as amended by the Act of May 11, 1898, where the primary and principal use of the right of way is sought for the purpose of irrigation, but where there is involved a development of electrical power or energy for the purpose of pumping water to lands from streams, reservoirs, or wells. The President expressed himself, in the case submitted, as of the opinion that the application should be granted, upon the express condition that the right of way is sought and approved for the main purpose of irrigation, and that the power uses are subsidiary to and mainly for the purpose of serving and carrying out irrigation. 39 Land Dec. 309. The decisions of the Land Department referred to cover the period from 1894 to 1910. They consecutively antedate the Act of 1898, and extend through a pe
(144 O. C. A. 470, 230 Fed. 328.)
riod contemporaneous with its en-
Publie landrights of way
2. Defendant next asserts that its predecessors acquired an express grant of rights of way for its reservoir and flume or conduit under § 4 of the Act of February 1, 1905. This was an act primarily framed to provide for the transfer of forest reserves from the Department of the Interior to the Department of Agriculture. Section 4 (33 Stat. at L. 628, chap. 288, Comp. Stat. § 4947, 9 Fed. Stat. Anno. 2d ed. p. 590) reads as follows: "That rights of way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and across the forest reserves of the United States, are hereby granted to citizens and corporations of the United States for municipal or mining purposes, and for the purposes of the milling and reduction of ores, during the period of their beneficial use, under such rules and regulations as may be prescribed by the
Secretary of the Interior, and subject to the laws of the state or territory in which said reserves are respectively situated."
Defendant's position is that this section makes an unqualified grant in the public domain described, which is self-executing and indefeasible during the period of beneficial use. It is stated by counsel that the rules and regulations referred to could not defeat this grant, nor is the right of way in any sense dependent upon them; that the function of the rules and regulations is to control the method of construction and use so as to prevent damage to the forest, etc.; that § 4 of this act was passed to rebut any presumption or claim that rights of way for the storage and conveyance of water could not be acquired upon the forest reserves.
Assuming that this last statement is true, it by no means follows that the rules and regulations contemplated might not prescribe the method and terms of acquisition. While such rules and regulations could not defeat the grant, they obviously could operate to execute and condition it.
Conceding, without deciding, that the term "municipal" is alone enough to cover and embrace all the domestic and other beneficial uses enumerated in prior acts relating to the same subject, still, in view of the specific and distinctive enumeration of such uses, which the Congress had thought necessary to adopt in such previous legislation, this term can hardly be accorded such a broad significance, unless this act be regarded as a supplement to, rather than a substitute for, what went before; and such it undoubtedly was. There is no reason whatever to regard this act as a departure from the governmental policy on this subject, as evidenced by legislation, beginning at least with the Act of 1891, and developing steadily in the direction of governmental control and conservation of the resources of the nation; but, on the contrary, it was more logi
cally a progressive step in the same direction. It follows that all these acts are in pari materia, and should be construed accordingly. At the time defendant's predecessors entered upon the lands in question, they formed no part of the forest reserves of the United States. Prior to the passage of this act, in the view taken by this court, defendant had acquired no vested right in such part of the public domain. It was, in point of law, a mere trespasser, right of way- and could not, as against the plaintiff, establish a right by making wrongful entry.
"The mere settlement upon public lands and making improvements thereon, without taking some steps required by law to initiate the settler's right thereto, is wholly inoperative as against the United States." Russian-American Packing Co. v. United States, 199 U. S. 570, 50 L. ed. 314, 26 Sup. Ct. Rep. 157; Lake Superior Ship Canal, R. & Iron Co. v. Finan, 155 U. S. 385, 39 L. ed. 194, 15 Sup. Ct. Rep. 115; Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. 668.
The naked terms of the grant did not operate without more to transform an unauthorized entry into a lawful and permanent right of possession. This statute was not selfexecuting. Rights under it, as disclosed by previous legislation of like nature, must be acquired under such reasonable rules and regulations as may be prescribed by the Secretary of the Interior. This is the only construction permissible under the express terms of the statute itself. The Act of February 1, 1905, contains other provisions confirmatory of this view. In addition to the rights granted under § 4, § 2 (33 Stat. at L. 628, chap. 288, Comp. Stat. §§ 4947, 5093, 9 Fed. Stat. Anno. 2d ed. p. 590) authorizes the exportation of wood pulp manufactured from timber in the district of Alaska.
Section 5 (33 Stat. at L. 628, chap. 288, Comp. Stat. § 5142, 9
Fed. Stat. Anno. 2d ed. p. 591) provides "that all money received from the sale of any products or the use of any land or resources of said forest reserves shall be covered into the treasury of the United States and for a period of five years from the passage of this act shall constitute a special fund available, until expended, as the Secretary of Agriculture may direct, for the protection, administration, improvement, and extension of Federal forest reserves."
It was not intended that this part of the public domain should longer be appropriated and used without return to the government, absent express permission by Congress. United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480. Finally, appellant has made no application, and received no permission, either under the Act of 1898 or the Act of 1905. It can claim no rights under acts with which it has not complied. Mills v. Stoddard, 8 How. 345, 12 L. ed. 1107; United States v. Utah Power & Light Co. (C. C. A.) 126 C. C. A. 376, 209 Fed. 562. It will be seen, by reference to the opinion, that both these acts were before this court on the former appeal. It was not thought then, and is not thought now, that they were intended to, or do, impair the governmental policy announced in the Act of 1896.
3. But the defendant insists that the land of the plaintiff within the state of Utah is, in any event, subject to the laws of that state and its power of eminent domain; that those laws authorize the defendant and its predecessors to construct and maintain its reservoirs and flume or conduit upon the plaintiff's land. It bases its contention upon the generally accepted propositions that each state of the Union is an independent sovereign, and has all the rights and powers of such, except as they may be restricted or limited by the Federal Constitution, whereas the government of the United States is said to be one of delegated, limited, and enumerated
(144 C. C. A. 470, 230 Fed. 328.)
powers; that the right of eminent domain is an attribute of sovereignty; that § 3 of article 4 of the Federal Constitution, providing that "Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," is not a grant of power by the states to the United States, but is, however, a grant of power to Congress as a branch of the Federal government. The reasoning upon which this conclusion is based is thus stated in the brief: "The states never had the power to control or dispose of property of the United States (except that each state had the right to take property within its jurisdiction for a public purpose). The territory of the United States was not within the states. As soon as this was ceded to and became the property of the United States, the power of control and disposition necessarily passed to the United States. There was no occasion in the Constitution for any express grant to the United States of power to control and dispose of its own property. Such power existed as soon as the new political entity was created by the Constitution. This clause is, however, a grant of power to Congress. It designates Congress as the branch of the Federal government which can exercise the power of control and disposition which the United States holds inherently as the owner of the property."
An inconsistency in this argument is at once apparent. If § 3 of article 4 of the Federal Constitution is not to be interpreted as a grant of power by the states to the United States, for the reason that the states never had power to control or dispose of the property of the United States, and could not, therefore, presumably grant away a power which they did not possess, it is, by the same token, difficult to perceive how that clause can, nevertheless, be regarded as a grant of power to Congress. It was also
suggested at the argument that the land in question was not embraced within any territory in contemplation by the framers of the Constitution. This entire line of argument is special pleading, false in premise, and unsound in logical sequence. The government of the United States is in a sense one of delegated, limited, and enumerated powers, and such powers as are not delegated to it by the Constitution, nor prohibited by the Constitution to the states, are reserved to the states respectively, or to the people. But the clause in question is no less a delegation of express power to the Federal government because it is abstract and general, rather than concrete and specific. The states were forming for themselves and their successors a central government which should be supreme within a defined jurisdiction. This clause is sufficiently broad to cover not only conditions then existing, but all future expansion and development. It is a distinction without a difference to say that it embodied a grant to the Congress, but not to the government itself. The Supreme Court has held that it is a grant of power to the United States of control over its property. Kansas v. Colorado, 206 U. S. 89, 51 L. ed. 971, 27 Sup. Ct. Rep. 655; Light v. United States, 220 U. S. 523-537, 55 L. ed. 570, 574, 31 Sup. Ct. Rep. 485; United States v. Utah Power & Light Co. 126 C. C. A. 376, 209 Fed. loc. cit. 557, and cases cited.
It is true that in some of the earlier decisions the validity of the exercise of the right of eminent domain by a state over the lands of the United States has received apparent recognition. United States v. Railroad Bridge Co. 6 McLean, 517, 531, 533, Fed. Cas. No. 16,114; United States v. Chicago, 7 How. 185, 12 L. ed. 660; Illinois C. R. Co. v. Chicago, B. & N. R. Co. (C. C.) 26 Fed. 477; Union P. R. Co. v. Burlington & M. River R. Co. (C. C.) 1 McCrary, 452, 3 Fed. 106; Union P. R. Co. v. Leavenworth, N. & S. R. Co. (C. C.) 29 Fed. 728;