telephones. water. Electric power, National Parks, California, for electrical plants, poles, and lines for the telegraphs, and generation and distribution of electrical power, and for telephone and telegraph purposes, and for canals, ditches, pipes and pipe lines, flumes, tunnels, or other water conduits, and for water plants, dams, Conveyance of and reservoirs used to promote irrigation or mining or quarrying, or the manufacturing or cutting of timber or lumber, or the supplying of water for domestic, public, or any other beneficial uses to the extent of the ground occupied by such canals, ditches, flumes, tunnels, reservoirs, or other water conduits or water plants, or electrical or other Width of right works permitted hereunder, and not to exceed fifty feet on each side of way limited. of the marginal limits thereof, or not to exceed fifty feet on each side of the center line of such pipes and pipe lines, electrical, telegraph, and telephone lines and poles, by any citizen, association, or corporation of the United States, where it is intended by such to exercise the use permitted hereunder or any one or more of the purposes herein named: Permits not Provided, That such permits shall be allowed within or through any of granted when in- said parks or any forest, military, Indian, or other reservation only upon compatible with public interest. the approval of the chief officer of the department under whose supervision such park or reservation falls and upon a finding by him that the Telegraph and same is not incompatible with the public interest: Provided further, That telephones sub- all permits given hereunder for telegraph and telephone purposes shall ject to R. S., Title be subject to the provision of title sixty-five of the Revised Statutes of the United States, and amendments thereto, regulating rights of way Licenses revo- for telegraph companies over the public domain: And provided further, That any permission given by the Secretary of the Interior under the provisions of this act may be revoked by him or his successor in his discretion, and shall not be held to confer any right, or easement, or interest in, to, or over any public land, reservation, or park. 65. cable. Rights of way mining purposes, etc. Forest transfer act of February 1, 1905 (33 Stat., 628). SEC. 4. That rights of way for the construction and maintenance of for municipal and 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. Electric transmission lines. Limited ments. Agricultural appropriation act of March 4, 1911 (36 Stat., 1235). That the head of the department having jurisdiction over the lands be, and he hereby is, authorized and empowered, under general reguease-lations to be fixed by him, to grant an easement for rights of way, for a period not exceeding fifty years from the date of the issuance of such grant, over, across, and upon the public lands, National Forests, and reservations of the United States for electrical poles and lines for the transmission and distribution of electrical power, and for poles and lines for telephone and telegraph purposes, to the extent of twenty feet on each side of the center line of such electrical, telephone and telegraph lines and poles, to any citizen, association, or corporation of the United States, where it is intended by such to exercise the right of way herein granted for any one or more of the purposes herein named: Provided, That such right of way shall be allowed within or through any national park, National Forest, military, Indian, or any other reservation only upon the approval of the chief officer of the department under whose supervision or control such reservation falls, and upon a finding by him that the same is not incompatible with the Forfeiture and public interest: Provided, That all or any part of such right of way may be forfeited and annulled by declaration of the head of the department having jurisdiction over the lands for nonuse for a period of two years or for abandonment. Reservations. annulment. Permittees may hereunder. That any citizen, association, or corporation of the United States to obtain rights whom there has heretofore been issued a permit for any of the purposes specified herein under any existing law, may obtain the benefit of this act upon the same terms and conditions as shall be required of citizens, associations, or corporations hereafter making application under the provisions of this statute. SPECIAL LEGISLATION GRANTING RIGHTS OF WAY. For Act of May 1, 1906 (34 Stat., 163), granting permit, revocable by Secretary for certain National causes, to occupy for hydroelectric purposes, lands in San Bernardino, Sierra, and San ests in southern Gabriel National Forests, Cal. California. Act June 30, 1906 (34 Stat., 801), authorizing the Secretary of the Interior to sell to Los Angeles wathe city of Los Angeles, Cal., certain public lands in California, and granting rights in, ter supply. over, and through the Sierra Forest Reserve, the Santa Barbara Forest Reserve, and the San Gabriel Timber Land Reserve, Cal., to the city of Los Angeles, Cal. Act of May 18, 1898 (30 Stat., 418), granting the Santa Fe & Grand Canyon Railroad Co. right of way for railroad purposes through the Grand Canyon Forest Reserve in northern Arizona. Act of June 27, 1898 (30 Stat., 493), granting right of way through the Pikes Peak Timber Land Reserve and the public lands to the Cripple Creek District Railway Co. Act of July 8, 1898 (30 Stat., 729), granting right of way through the Pikes Peak Timber Land Reserve and the public lands to the Cripple Creek Short-Line Railway Co. Act of January 10, 1899 (30 Stat., 783), granting the Saginaw Southern Railroad Co. a right of way for railroad purposes through the San Francisco Mountains Forest Reserve. Act of February 28, 1899 (30 Stat., 910), to grant to the Pasadena & Mount Wilson Railway Co. right of way and certain lands for railroad purposes through the San Gabriel Forest Reserve. Act of June 6, 1900 (31 Stat., 657), to grant right of way over Government lands for a pipe line for the conveyance of water to Flagstaff, Ariz. Act of February 25, 1903 (32 Stat., 907), granting the Central Arizona Railway Co. a right of way for railroad purposes through the San Francisco Mountains Forest Reserve, in the Territory of Arizona. RIGHTS OF WAY IN ALASKA-RAILROADS, TRAMROADS, AND Act May 14, 1898, sections 2-9 (30 Stat., 409). DECISIONS RELATING TO RIGHTS OF WAY. Rights of way for Government uses.-A way of necessity is reserved to the Government where a tract of National Forest land is entirely cut off from a public highway by other lands formerly a part of the public domain. (2 Sol. Op., 973.) Act of August 30, 1890 (26 Stat., 371, 391), reserves right of way for Government reclamation projects and is valid. (United States v. Van Horn, 197 Fed., 611.) Act of August 30, 1890 (26 Stat., 371, 391), reserves right of way for Governmental purposes only. (Solicitor to Forester, Oct. 3, 1910.) The Secretary of Agriculture is authorized to acquire, by purchase or condemnation, rights of way for roads needed as outlets for National Forest timber. Such rights of way are not additions to National Forests within the meaning of the prohibition contained in the act of March 4, 1907. (Same.) Construction of Forest Service telephone lines over unreserved public lands need not be protected by prior reservation of a right of way by the Interior Department, but as a matter of policy a reservation should be requested. (1 Sol. Op., 276.) The construction and maintenance of roads and trails by the Forest Service upon unsurveyed vacant public lands, although such lands are outside the National Forests, is authorized and such construction and maintenance operates as a reservation of right of way which will not be affected by subsequent sale or disposition of the lands. (1 Sol. Op., 482.) The consent of the landowner must be secured for the construction of a Forest Service telephone line along a public highway passing over patented land. (1 Sol. Op., 295.) Powers and discretion of Secretary.-The exercise of the jurisdiction of the Secretary of the Interior over applications for rights of way within reservations under these acts involves more than a mere legal discretion and he should look beyond the mere technical sufficiency of the application and in a broad view subserve the interests of the whole people. (California-Nevada Canal, Water & Power Co., 40 L. D., 380.) "Under act March 3, 1891, c. 561, §§18, 19, 26, Stat. 1101, 1102 (U. S. Comp. St., 1901, pp. 1570, 1571), granting right of way for irrigating canals, ditches, and reservoirs over the public lands to irrigation companies, upon the filing of a map thereof and its approval by the Secretary of the Interior, such approval is essential, and where it was Santa Fe & supply. & Central Arizona Ry. Co. refused as to a reservoir because the site had been previously withdrawn from sale or entry and reserved by the United States, the company acquired no right or easement by the filing of its maps.' (United States v. Rickey Land & Cattle Co. et al., 164 Fed., 496.) Under the act of March 3, 1891 (26 Stat., 1095), the approval of the Secretary of the Interior is necessary to the acquisition of a right of way over, on, or across a National Forest. (Pope, J., in United States v. The Henrylyn Irrigation District, The Inter-Mountain Water Co., and J. A. McIlwee, decided Nov. 25, 1912, district court of the United States for the District of Colorado.) Railroad rights of way.-The Secretary of the Interior may, under the act of March 3, 1899 (30 Stat., 1233), grant or refuse to grant railroad rights of way through the forest reserves, and, as a condition of making the grant, he may impose conditions, as by requiring the company to execute a bond with sureties binding itself and its successors to pay for any and all damages to the public lands, the timber, natural curiosities, and other public property thereon, from such occupation and use of the reservation. (United States v. Bailey, 178 Fed., 302.) In such a case a receiver of the railroad is its "successor," and the bondsmen will be liable with him in a suit on the bond. (Íd.) On application for a railroad right of way over lands upon which are possible power sites examination should be made to determine whether the lands may be used to the best advantage for power sites or other power purposes, and the question of approving the application will then be determined by considerations of the greatest public good to result from the one or the other use. If the decision is in favor of the power use, the lands will then be withdrawn, unless the road can be so located as not to interfere with future power uses. (Continental Tunnel Ry. Co., 39 L. D., 86; see also Denver & Rio Grande R. R. Co., 39 L. D., 209, and Skagit Power Co., 39 L. D., 89.) Where a railroad company consents in writing to the location of a store upon its right of way within a National Forest, thus waiving its right to exclusive possession, the Forest Service may issue a permit for such store, thus legalizing the occupancy so far as the Government is concerned. (2 Sol. Op., 790.) Under the act of March 3, 1875 (18 Stat., 482), granting to railroads the right of way through public lands, such grant took effect upon the construction of the road. (Jamestown & Northern R. Co. v. Jones, 177 U. S., 125; Minneapolis, etc. R. Co. v. Doughty, 208 U.S., 251; Stalker et al. v. Oregon Short Line R. R. Co.,225 U. S., 142.) of A railroad company does not acquire a vested right under the act of March 3, 1875 (18 Stat., 482), over unsurveyed land by filing a map the route in the local and General Land Offices. (1 Sol. Op., 459.) No rights are acquired as against the United States until the line has been ascertained by actual construction or the application has been approved by the Secretary of the Interior, and rights initiated subsequent to temporary or permanent withdrawals are subject to such withdrawals. (Same.) Irrigation rights of way.-Prior to approval by the Secretary of the Interior, the inchoate right acquired by an application for right of way under the act of March 3, 1891, is subject to the power of Congress to deny the right by making other disposition of the lands affected. (Sierra Ditch Water Co., 38 L. D., 547.) The approval by the Secretary of Agriculture of an application for a right of way under the acts of March 3, 1891, and May 11, 1898, for a reservoir site within a National Forest does not vest an easement in the applicant, but is merely advisory to the Secretary of the Interior and subject to his paramount jurisdiction under his said acts. (California-Nevada Canal, Water & Power Co., 40 L. D., 380.) Approval of applications for rights of way under the act of March 3, 1891, as amended by the act of May 11, 1898, for primary purposes of irrigation, are subject to all valid existing rights and upon the express condition that the right of way be used for the main purpose of irrigation; that any electrical power or energy developed thereunder is to be primarily used for the purpose of irrigation; and any abandonment or violation of such use, or neglect to comply with the provisions of the law. will work a forfeiture which will be enforced by appropriate.ne ceedings. (Instructions, case of Pamma Power & Irrigation Co., 39 L. D., 309; see also Kern River Co., 38 L. D., 302.) Applications for rights of way under the provisions of the act of March 3, 1891, and section 2 of the act of May 11, 1898, will not be allowed except upon a satisfactory showing that the right of way is desired for the primary purpose of irrigation. (Inyo Consolidated Water Co., 37 L. D., 79.) Whenever in his judgment the granting of a right of way under the act of March 3, 1891, over a national park would interfere with proper occupation of the reservation by the Government, the Secretary of the Interior may withhold his approval therefrom. (Sierra Ditch & Water Co., 38 L. D., 547.) There is no authority under the irrigation right of way act of March 3, 1891, to require the applicant to keep the reservoir or lake open to the public for fishing purposes. (1 Sol. Op., 174.) Electric power rights of way.—A company organized chiefly for the purpose of generating and distributing power is not within the purview of the act of March 3, 1891; and where an application by such a company for right of way under that act has been approved, for lands now within a National Forest, the company may be permitted to relinquish all rights under such approval and amend its application to bring it within the act of February 15, 1901, failing to do which, action should be taken by the Land Department with a view to revocation of such approval. (The Kern River Co., 38 L. D., 302.) A right of way for the development of electric power could not be acquired under the act of 1866 (Rev. Stat., 2339). Congress did not, in that act, contemplate power companies, because none were then in existence. (The Kern River Co., 38 L. D., 302, 309.) Under the act of February 15, 1901, the Secretary of the Interior may, in his discretion, refuse to approve an application until the applicant files a stipulation to comply with "all laws or regulations now in force or which may hereafter be passed or promulgated." (Decision of Secretary of the Interior of Sept. 16, 1912 (unpublished), in case of Central Colorado Power Co.) The rights of way granted by section 4 of the Forest Transfer Act are limited to municipal and mining purposes, including the milling and reducing of ores, and an application under it should not be allowed where it appears that the chief purpose for which the right is desired is the generation of power for commercial use and that its utilization for mining operations is merely incidental to such purpose. (Northern California Power Co., 37 L. D., 80.) A right of way for a ditch for mining purposes, acquired under the act of July 26, 1866, prior to the creation of a National Forest, can not legally be used to convey water for the exclusive purpose of generating hydroelectric power for commercial sale. (2 Sol. Op. 728.) A right of way for a mining ditch acquired under the act of 1866 prior to the creation of a National Forest is a mere easement, and the lands affected become part of a subsequently created National Forest, subject, however, to the easement for mining purposes. (2 Sol. Op., 728.) A power permit may be issued for lands embraced in a mining claim, and if by a private arrangement with the power company the mineral claimant waives his right of exclusive possession, this department may collect from the power company the usual charge for the use of such land for power purposes. (2 Sol. Op., 763.) The approval of a map of right of way under the act of May 14, 1896, confers merely a permission amounting to a personal license revocable by operation of law through transfer or assignment, or expressly by the Secretary. (2 Sol. Op., 925.) There is no authority in the Secretary of Agriculture to grant a power permit affecting National Forest lands withdrawn by the President as a power site under the act of June 25, 1910. Applications for such permits may, however, be received for submission to the President. (2 Sol. Op., 817.) The act of February 15, 1901, authorizing the granting of revocable power permits, etc., does not extend to Alaska, (2 Sol. Op., 803), but permits for power rights of way may be granted under the act of June 4, 1897, 30 Štat., 11. (2 Sol. Õp., 1032.) Persons entitled to allotments. Transmission lines, etc.—The authority to grant fifty-year easements for transmission and other lines under the act of March 4, 1911 (36 Stat., 1235), is vested in the Secretary of Agriculture when and in so far as the lands affected constitute portions of the National Forests. (29 Op. Atty. Gen., 303.) Telegraph lines. The act of July 24, 1866 (now Rev. Stat., sec. 5263), granting rights of way for telegraph lines does not apply to National Forest lands. (1 Sol. Op., 266, 452.) INDIAN ALLOTMENTS IN NATIONAL FORESTS. Act June 25, 1910 (36 Stat., 855), relating to Indian allotments, etc. SEC. 31. That the Secretary of the Interior is hereby authorized, in his discretion, to make allotments within the National Forests in conformity with the general allotment laws as amended by section [16] of this act, to any Indian occupying, living on, or having improvements on land included within any such National Forest who is not entitled to an allotment on any existing Indian reservation, or for whose tribe no reservation has been provided, or whose reservation Applications to was not sufficient to afford an allotment to each member thereof. All culture. Secretary of Agri- applications for allotments under the provisions of this section shall be submitted to the Secretary of Agriculture, who shall determine whether the lands applied for are more valuable for agricultural or grazing purposes than for the timber found thereon; and if it be found that the lands applied for are more valuable for agricultural or grazing retary of the Inte- purposes, then the Secretary of the Interior shall cause allotment to be made as herein provided.1 Action by Sec rior. TOWNSITES. Section 2286 and sections 2380 to 2394, inclusive, Revised Statutes, provide methods of acquiring public land for town-site purposes on the vacant unreserved lands of the United States. Act of March 3, 1877 (19 Stat., 392), provides for additional town sites. Act March 3, 1891 (26 Stat., 1101), provides for town sites on mineral lands. There are also various acts applicable to individual States. See circular Department of Interior of August 7, 1909 (38 L. D., 92). A town site actually settled and occupied before the creation of a National Forest is excepted from the proclamation, even though the land is unsurveyed; and an occupant of lands within the town site can not be required to take out a forest service permit. (2 Sol. Op., 726.) ADMINISTRATIVE SITES. The withdrawal of an administrative site riparian to a stream does not of itself reserve water for administrative uses on such site; and the right to such water can be secured only by appropriation under the State laws. (1 Sol. Op., 590.) The establishment of a forest reserve does not contemplate the actual use or occupancy of any particular tract within the designated boundaries of the reserve; hence there is no incongruity in providing that, after the creation of the reserve, lands may be prospected, and, if shown to be mineral in character, located and entered under the mining laws. The purposes for which the withdrawal now proposed to be made (administrative site) contemplates and requires the actual use and occupancy of each tract and the expenditure of money upon each or most of such tracts, and this of necessity excludes the operation of any other claim. Land not known at the time to be mineral in character may be devoted to purposes recognized by law as proper in the aid of the objects sought to be attained by establishment of forest reserves, or coming within the purview of the appropriation acts for protection and administration of such reserves and subsequent discovery of mineral therein will not affect its use for those purposes or render 1 This section does not apply to the Minnesota National Forest. (Letter Secretary of the Interior to Secretary of Agriculture, Sept. 27, 1912.) |