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to exceed three years, within the discretion of the Commissioner of the General Land Office, within which to furnish proof, as required by said acts, of the completion of said work.

SECOND DESERT-LAND ENTRIES.

Act of March 26, 1908 (35 Stat., 48).

Act of February 3, 1911 (36 Stat., 896).

LIMITATION TO 320 ACRES UNDER ALL LAND LAWS, EXCEPTING MINERAL LAWS.

Act of August 30, 1890 (26 Stat., 391).

Act of March 3, 1891, section 17 (26 Stat., 1095).

SECRETARY OF INTERIOR AUTHORIZED TO GRANT FURTHER TIME FOR MAKING FINAL PROOF.

Act of April 30, 1912 (37 Stat. 106).

DECISIONS Under the DESERT-LAND LAWS.

Land that produces a natural growth of timber is not subject to desert entry, and it is immaterial whether such timber is of value or not. (15 L. D., 271.)

Lands that, one year with another, for a series of years will not without artificial irrigation produce reasonably remunerative crops are desert within the meaning of the desert land law. (Penderson v. Parkinson, 37 L. D., 522.)

Lands situated within a notoriously arid or desert region, and themselves previously desert within the meaning of the desert land law, do not necessarily lose their character as desert lands merely because of unusual rainfall for a few successive seasons their productiveness was increased and larger crops were raised thereon; and under such circumstances a strong prepoderance of evidence will be required to take them out of the class of desert lands. (Same.)

One who makes desert entry of such lands must, however, clearly show, in submitting proof, not only that he has the right to a sufficiency of water to successfully irrigate the lands, and that the system of ditches is adequate for that purpose, but also that the necessary supply of water has been actually used on said lands in a manner to prove the beneficial results. (Same.)

SCHOOL LANDS.

DECISIONS AS TO SCHOOL LANDS IN NATIONAL FORESTS.

Title to school sections does not pass until approval of the survey by the General Land Office, and a forestry withdrawal between the date of actual survey in the field and the date of such approval, prevents the vesting of title and the selection of lieu lands under the act of June 4, 1897. (F. A. Hyde & Co., 37 L. D., 164.)

School sections surveyed before inclusion within the boundaries of a National Forest have vested in the State, and are not affected by the forestry proclamation. The State is not empowered to select other lands in place of such sections under Revised Statutes, sections 2275, 2276, as amended by the act of February 28, 1891. (Hibberd v. Slack, 84 Fed., 571.)

In Montana, Washington, North and South Dakota, a forestry withdrawal prior to survey makes a school section a part of the National Forest so long as the reservation continues, but the State may, if it choose, take indemnity. (State of Montana, 38 L. D., 247.)

Under the grants to North and South Dakota, Montana, and Washington (act Feb. 22, 1889, 25 Stat., 676), the States take no right until the lands are surveyed. (Clemmons v. Gillette, 33 Mont., 821; 83 Pac., 879; Contra State v. Whitney, 120 Pac., 116.)

The State of Idaho can not authorize the cutting of timber from unsurveyed school sections. (United States v. Bonners Ferry Lumber Co., 184 Fed., 187.)

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The acts of Congress "reserving" sections 16 and 36 for the Territory of Arizona did not vest any title in the Territory, even after survey, but such sections remain subject to the plenary power of disposal by Congress. (2 Sol. Op., 793.)

The provisions in the enabling act of New Mexico, that the grants of sections 2, 16, 32, and 36 within National Forests shall not vest title in the State while the National Forests continue to exist, and that said sections "shall be administered as a part of said forests," fixes and controls the status of all these sections, notwithstanding the previous grant of sections 16 and 36 to the Territory. (2 Sol. Op., 848.)

School sections in National Forests in New Mexico are subject to administration by the Forest Service, whether surveyed or unsurveyed, and the title remains in the United States so long as the forests exist. (2 Sol. Op., 863.)

An application by the governor of a State for the survey of public lands for purposes of selection under the provisions of the act of August 18, 1894 (28 Stat., 394), and the withdrawal of the lands for that purpose by the Secretary of the Interior, does not prevent the President from including the lands in a National Forest and thereby defeating the State's preference right of selection. (27 Op. Atty. Gen., 605.)

in

Such application for survey and the withdrawal thereon do not constitute a legal entry," a "lawful filing," or a "valid settlement the meaning of the exceptions contained in a forestry proclamation. (Id., 605.)

LIEU SELECTIONS.

The act of June 4, 1897, authorizing selections of land in lieu of those embraced in forest reserves was repealed by the act of March 3, 1905. (33 Stat., 1254.)

A pending unapproved application to make forest lieu selection will not prevent withdrawal of lands embraced therein for the purpose of reserving the power sites thereon for public uses. (Sherar v. Veazie, 40 L. D., 549.)

An application to make forest lieu selection of unsurveyed lands not identified with reference to natural boundaries or monuments or such markings upon the ground as would constitute notice to intending settlers is no bar to the attachment of rights under the act of May 14, 1880; and while approval of the township plat of survey is an identification of the lands as of the date of such approval, and, by relation, as against the Government, as of the date of the filing of the application, it does not and can not so attach as to cut out intervening adverse settlement claims. (F. A. Hyde et al., 40 L. D., 284.)

Upon approval of an application to make forest lieu selection the the title of the Government to the lands relinquished as base therefor attaches, under the doctrine of relation, as of the date the selection was perfected and entitled to be approved. (A. G. Strain, 40 L. D., 108.)

RAILROAD GRANT LANDS.

Unclassified odd sections within the primary limits of the Northern Pacific Railroad grant, even though not surveyed, form no part of the National Forests within which they lie, and the Forest Service has no power of administration over them. (1 Sol. Op., 79; see also, 1 Sol. Op., 294 and 541.)

Legal title to all odd sections, not mineral, within the 10-mile limit passed to the Central Pacific Railroad Co., upon definite location of its line, without the issuance of patent. (2 Sol. Op., 897.)

The exception of lands returned and denominated as mineral must also be held to operate, as of the date of the definite location of the road. A subsequent survey and return as mineral of lands not mineral in fact would not divest the company's title. (Same.)

The mineral or nonmineral character of lands within the grant limits of the Southern Pacific Railroad Co. can be conclusively determined by the Department of the Interior, either by the issuance of patent upon the Surveyor General's ex parte return as to the character of the lands, or after a hearing properly applied for to test the return of the Surveyor General. (Same.)

A selection by the Northern Pacific Railway Co. under the act of March 2, 1899 (30 Stat., 993), is a "lawful filing" such as excepts the land from a forestry proclamation. Should the selection fail, however, the land would become a part of the National Forest. (1 Sol. Op., 463.) Neither the railway company nor its assignee has any right to cut timber from an unapproved selection made under that act. (Same.) Land embraced in a bona fide settlement claim is not subject to selection by the Northern Pacific Railway Co. under the act of March 2, 1899, and a selection allowed for land at the time covered by such claim can not stand notwithstanding the settlement claim may have been subsequently abandoned. (Frank et al. v. N. P. Ry. Co. on review, 37 L. D., 502.)

RIGHT OF WAY LAWS.

Deficiency appropriation act of March 3, 1899 (30 Stat., 1214).

[1233] In the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby.

HIGHWAYS AND RAILROADS.

UNITED STATES REVISED STATUTES.

SEC. 2477. The right of way for the construction of highways over public lands not reserved for public uses is hereby granted.

Wagon roads, railroads, and other highways.

Highways.

Right of way for railroads granted through

Width of right

Act of March 3, 1875 (18 Stat., 482), granting rights of way for railroads. The right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any State or Territory, except the District of Columbia, or public lands. by the Congress of the United States, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad; also ground adjacent to such right of way for station buildings, depots, Station buildmachine shops, side tracks, turn-outs, and water stations, not to exceed ings, etc. in amount twenty acres for each station, to the extent of one station for each ten miles of its road.

of

way.

Joint use of canyon, pass, or

SEC. 2. That any railroad company whose right of way, or whose track or roadbed upon such right of way, passes through any canyon, defile. pass, or defile, shall not prevent any other railroad company from the use and occupancy of said canyon, pass, or defile, for the purposes of its road, in common with the road first located, or the crossing of other railroads at grade. And the location of such right of way through any canyon, pass, or defile shall not cause the disuse of any wagon or other public highway now located therein, nor prevent the location through the same of any such wagon road or highway where such road or highway may be necessary for the public accommodation; and where any change in the location of such wagon road is necessary to permit the passage of such railroad through any canyon, pass, or defile, said railroad company shall, before entering upon the ground occupied by such wagon road, cause the same to be reconstructed at its own expense in the most favorable location, and in as perfect a manner as the original road: Provided, That such expenses shall be equitably divided between any number of railroad companies occupying and using the same canyon, pass, or defile. SEC. 3. That the legislature of the proper Territory may provide for Condemnation the manner in which private lands and possessory claims on the public lands of the United States may be condemned; and, where such provision shall not have been made, such condemnation may be made in accordance with section three of the act entitled "An act (to amend an act entitled an act) to aid in the construction of a railroad and telegraph line from Missouri River to the Pacific Ocean, and to secure to the

Equitable division of expense.

over private lands and possessory claims.

Filing of map. Surveyed and unsurveyed

lands.

Approval.

Forfeiture.

Not to apply to reservations.

Amendment and repeal.

Ditches and

canals constructed by authority of Government.

Water

and rights of way for

same.

Patents subject

Government the use of the same for postal, military, and other purposes, approved July first, eighteen hundred and sixty-two," approved July second, eighteen hundred and sixty-four.

SEC. 4. That any railroad company desiring to secure the benefits of this act shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the Secretary of the Interior, the same shall be noted upon the plats in said office; and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way: Provided, That if any section of said road shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road.

SEC. 5. That this act shall not apply to any lands within the limits of any military, park, or Indian reservation, or other lands specially reserved from sale, unless such right of way shall be provided for by treaty stipulation or by act of Congress heretofore passed.

SEC. 6. That Congress hereby reserves the right at any time to alter, amend, or repeal this act, or any part thereof.

(This act is made applicable, at least conditionally, to National Forest lands by the act of March 3, 1899, ante, p. 51.)

Sundry civil appropriation act of August 30, 1890 (26 Stat., 371, on p. 391.).

In all patents for lands hereafter taken up under any of the land laws of the United States * * * west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described, a right of way thereon for ditches or canals constructed by the authority of the United States.

RIGHTS OF WAY FOR WATER FOR IRRIGATION AND POWER

DEVELOPMENT.

UNITED STATES REVISED STATUTES.

SEC. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

SEC. 2340. All patents granted, or preemption or homesteads alto vested rights. lowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.

Irrigation rights of way.

Act of March 3, 1891 (26 Stat., 1095), to repeal the timber-culture laws, and for other purposes.

SEC. 18. That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory, which shall have filed, or may hereafter file, with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction Not to interfere of such canal or ditch: Provided, That no such right of way shall be so with Govern- located as to interfere with the proper occupation by the Government of reserves. of any such reservation, and all maps of location shall be subject to the

ment occupation

approval of the Department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.

SEC. 19. That any canal or ditch company desiring to secure the Maps to be filed benefits of this act shall, within twelve months after the location of ten and approved. miles of its canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

Compensation

vate rights.

for injury to pri

Individuals and associations.

SEC. 20. That the provisions of this act shall apply to all canals. ditches, or reservoirs, heretofore or hereafter constructed, whether constructed by corporations, individuals, or association of individuals, on the filing of the certificates and maps herein provided for. If such ditch, canal, or reservoir, has been or shall be constructed by an individual or association of individuals, it shall be sufficient for such individual or association of individuals to file with the Secretary of the Interior, and with the register of the land office where said land is located, a map of the line of such canal, ditch, or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association, if any there be. Plats heretofore filed shall have the benefits of this act from the date of their filing, as though filed under it: Provided, That if any section of said canal or ditch shall not, Rights forfeited by noncomplebe completed within five years after the location of said section, the tion of works. rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture.

SEC. 21. That nothing in this act shall authorize such canal or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance, and care of said canal or ditch. [See provision next below.]

Act May 11, 1898 (30 Stat., 404).

Limitation of

use.

Additional and

SEC. 2. That the rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, subsidiary uses. 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.

Act of May 14, 1896 (29 Stat., 120).

SEC. 2. 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 to the extent of twenty-five feet, together with the use of necessary ground, not exceeding forty acres, upon the public lands and the forest reservations of the United States, by any citizen or association of citizens of the United States for the purposes of generating, manufacturing, or distributing electric power.

Act of February 15, 1901 (31 Stat., 790), relating to rights of way through certain parks, reservations, and other public lands.

* *

is authorized and em

Permissive rights of way.

Electric power.

Permissive

The Secretary of the Interior * powered, under general regulations to be fixed by him, to permit the rights of way. use of rights of way through the public lands, forest and other reservations of the United States and the Yosemite, Sequoia, and General Grant

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