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 (Decision of Secretary of the Interior of Sept. 16, 1912 (unpublished), in case of Central Colorado Power Co.)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 Stat., 11. (2 Sol. Op., 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 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

culture.

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.)

it liable to exploration, location, or entry under the mining laws. (Opinion of the Assistant Attorney General, 35 L. D., 262-268.)

SPECIAL USE PERMIT.

A special use permit for the use of lands for a summer home remains in full force and effect and gives the permittee complete right of possession and use as against subsequent locators of a mining claim. (Le Roy et al. v. Swanson; unpublished findings of the county court of Colorado for Clear Creek County, date Feb. 6, 1912.)

TIMBER AND STONE FOR UNITED STATES RECLAMATION WORKS.

Act of February 8, 1905 (33 Stat., 706).

Service may use

In carrying out the provisions of the national irrigation law approved Reclamation June seventeenth, nineteen hundred and two, and in constructing material from Naworks thereunder, the Secretary of the Interior is hereby authorized to tional Forests. use and to permit the use by those engaged in the construction of works under said law, under rules and regulations to be prescribed by him, such earth, stone and timber from the public lands of the United States as may be required in the construction of such works, and the Secretary of Agriculture is hereby authorized to permit the use of earth, stone and timber from the forest reserves of the United States for the same purpose, under rules and regulations to be prescribed by him.

SILVICULTURE.

TIMBER SALES.

Timber sales provisions of act June 4, 1897 (30 Stat, 11, 35), as amended by act June 6, 1900 (31 Stat., 661).

a p

For the purpose of preserving the living and growing timber and Timber, promoting the younger growth on forest reservations, the Secretary of praisal and sale. the Interior, under such rules and regulations as he shall prescribe, may cause to be designated and appraised so much of the dead, matured, or large growth of trees found upon such forest_reservations as may be compatible with the utilization of the forests thereon, and may sell the same for not less than the appraised value in such quantities to each purchaser as he shall prescribe, to be used in the State or Territory in which such timber reservation may be situated, respectively; but not for export therefrom.1

*

*

*

Advertisement

of sale.

Emergency

of advertisement.

2 [Before such sale shall take place notice thereof shall be given for not less than thirty days, by publication in one or more newspapers of general circulation, as he may deem necessary, in the State or Territory where such reservation exists: Provided, however, That in cases of unusual emergency the Secretary of the Interior may, in the exercise of his discretion, permit the purchase of timber and cord sales in advance wood in advance of advertisement of sales at rates of value approved by him and subject to payment of the full amount of the highest bid resulting from the usual advertisement of sale: Provided further, That he may, in his discretion, sell without advertisement, in quantities to suit applicants, at a fair appraisement, timber and cord wood not exceeding in value one hundred dollars stumpage: And provided further, That in cases in which advertisement is had and no satisfactory bid is received, or in cases in which the bidder fails to complete the where bid unsatisfactory, etc. purchase, the timber may be sold, without further advertisement, at private sale, in the discretion of the Secretary of the Interior, at not less than the appraised valuation, in quantities to suit purchasers: And provided further, That the provisions of this act shall not apply to existing forest reservations in the State of California, or to reservations that may be hereafter created within said State].3

1 Modified by agricultural appropriation, act of Mar. 4, 1907 (34 Stat., 1270), printed next following.

2 The matter in brackets is taken bodily from the act of June 6, 1900 (31 Stat., 661), which amends the original act by substituting this language.

3 This proviso is repealed by a provision in the agricultural appropriation act of June 30, 1906 (34 Stat., 669, 684), post p. 60.

Private sale

moval.

*

*

* Such timber before being sold shall be marked and desigCutting and re-nated, and shall be cut and removed under the supervision of some person appointed for that purpose by the Secretary of the Interior not interested in the purchase or removal of such timber nor in the employment of the purchaser thereof. Such supervisor shall make report in writing of his doings in the premises.

Free use of timber, etc., by settlers, etc.

*

*

*

The Secretary of the Interior may permit, under regulations to be prescribed by him, the use of timber and stone found upon such reservations, free of charge, by bona fide settlers, miners, residents, and prospectors for minerals, for firewood, fencing, buildings, mining, prospecting, and other domestic purposes, as may be needed by such persons for such purposes; such timber to be used within the State or Territory, respectively, where such reservations may be located.1

Agricultural appropriation act of March 4, 1907 (34 Stat., 1256).

Forest products [1270] And the Secretary of Agriculture may, in his discretion, may be exported from State or Ter-permit timber and other forest products cut or removed from the ritory. national forests of the United States, except the Black Hills National Forest in South Dakota,2 to be exported from the State, Territory, or the district of Alaska, in which said forests are respectively situated: Restrictions as Provided, That the exportation of dead and insect-infected timber only from said Black Hills National Forest shall be allowed until such time as the Forester shall certify that the ravages of the destructive insects in said forest are practically checked, but in no case after July first, nineteen hundred and eight.

to

Black Hills National Forest.

Timber sales in California.

Minnesota National Forest.

Sales to settlers and farmers at cost.

This proviso was repeated in the agricultural appropriation acts of May 23, 1908, March 4, 1909, May 26, 1910, and March 4, 1911, except that the time limit fixed in the last line was extended, first to July 1, 1910, and then to July 1, 1912. The old Black Hills National Forest having been divided into the Black Hills and Harney National Forests, the agricultural appropriation act of August 10, 1912 (37 Stat., 269) applies this provision to both, and further extends the time limit to July 1, 1914.

Agricultural appropriation act of June 30, 1906 (34 Stat., 669).

[684] Hereafter sales of timber on forest reserves in the State of California shall in every respect conform to the law governing such sales in other States, as set forth in the act of June sixth, nineteen hundred (Thirty-first Statutes at Large, page six hundred and sixty-one). NOTE. For timber sale provisions relating especially to the Minnesota National Forest (see sec. 2 of the act of May 23, 1908, 35 Stat., 268).

Agricultural appropriation act of August 10, 1912 (37 Stat., 269).

That the Secretary of Agriculture, under such rules and regulations as he shall establish, is hereby authorized and directed to sell at actual cost, to homestead settlers and farmers, for their domestic use, the mature, dead and down timber in national forests, but it is not the intent of this provision to restrict the authority of the Secretary of Agriculture to permit the free use of timber as provided in the Act of June fourth, eighteen hundred and ninety seven.

The act of June 3, 1878 (20 Stat., 88) authorizing the citizens of Colorado, Nevada, New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, and Montana and "all other mineral districts of the United States" to fell and remove timber on the public domain for mining and domestic purposes, is printed on page 64, post, under "Trespass.

Forest transfer act of February, 1905 (33 Stat., 628).

Fulp wood and SEC. 2. That pulp wood or wood pulp manufactured from timber in wood pulp may the district of Alaska may be exported therefrom. be exported from Alaska.

1 Modified by agricultural appropriation act of Mar. 4, 1907 (34 Stat., 1270), printed next following.

2 This does not prevent the Secretary of Agriculture from causing tree seeds to be collected in the Black Hills Nationa Forest for the use of the Forest Service in seeding and planting in other States. The prohibition does not apply to governmental uses. (1 Sol. Op., 424.)

Tariff act of June 29, 1909, free list, paragraph 652 (36 Stat., 11, on p. 78).

trees.

652. Plants, trees, shrubs, roots, seed cane, and seeds imported by Plants, the Department of Agriculture or the United States Botanic Garden. etc., imported

Agricultural appropriation act of August 10, 1912. 37 Stat., 269 (Nebraska National

Forest.)

free.

tional Forest.

Provided, That from the nurseries on said forest the Secretary of Nebraska Agriculture, under such rules and regulations as he may prescribe, may furnish young trees free, so far as they may be spared, to residents of the territory covered by "An Act increasing the area of homesteads in a portion of Nebraska," approved April twenty-eighth, nineteen hundred and four.

DECISIONS APPLICABLE TO TIMBER SALE CONTRACTS.

The general rule is that when one enters into a contract with the Government, his obligation thereunder becomes fixed beyond the power of any Government official to modify its terms so as to relieve him of any of the burdens imposed upon him. (2 Sol. Op., 744, and cases there cited.)

It seems, however, that the proper Government officials may, by acquiescence, waive the time limit in a contract by allowing the contractor to continue the work. In such cases all the other requirements of the contract govern the relations of the parties. (Same.)

It seems also that the head of a department can waive penalties or forfeitures provided for in a contract in case of nonperformance within the time limit, when the Government suffers no damage by the delay; or if it suffers some damage less than the amount of the penalty or forfeiture, he may remit all above the actual damage which the Government has suffered. (Same.)

It seems further that in cases where the interests of the Government clearly so require, the head of a department may modify or abrogate a contract with or without the consent of the contractor. If done without the consent of the contractor and he suffers damage or loss thereby, he probably has a claim against the United States for the amount thereof. The officer modifying or abrogating a contract may or may not have power to settle the claim, depending upon the circumstances and the terms of the statute under which he is acting. (Same.)

The Comptroller of the Treasury applies the foregoing general rules to timber sale contracts in the same manner and to the same extent as to other contracts with the Government. (See Comptroller's decision of Dec. 27, 1911, unpublished.)

Where a railroad right of way stipulation provides for payment for "merchantable" timber cut from the right of way, and expressly declares that "All timber down to the diameter of 4 inches shall be considered merchantable," the Secretary of Agriculture has no authority to modify the contract so as to require payment only for timber down to 6 inches in diameter. (2 Sol. Op., 744.)

Where, before expiration of a timber sale contract, the purchasers notify the forestry officials that they have sold their saw mill and equipment, because the contract is unprofitable, and it appears that they have done no work under it for several months, the Government may treat the contract as abandoned, and sell the remaining timber to other parties; but there is no authority to cancel the old contract so as to relieve the purchasers thereunder from liability for damages thereunder in case any shall have been found to have been sustained by the United States. If, in such case, the Government sells the remaining timber to others and receives from them the full price fixed in the original contract, then it could not collect such price from the original contractors. (2 Sol. Op., 758.)

Upon certificate of the proper forest officer that no damage has been sustained by the Government through the abandonment of a timber sale contract, a refund may be made to the purchaser of any amounts paid by him and remaining in the hands of the Government, over and above what is due for timber actually taken and for such expenses as the Government may have incurred (Solicitor to his Assistant at Albuquerque, Oct. 3, 1912.)

Na