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supply of water has been actually used on said lands in a manner to prove the beneficial results. (Id.)
Title to school sections does not pass until approval of the survey by the General Land Office and a withdrawal for National Forest purposes, between the date of actual survey in the field and the date of such approval, prevents the vesting of the State's title. (F. A. Hyde, 37 L. D., 164; Black Hills National Forest (S. Dak.), 37 L. D., 469; State of Montana, 38 L. D., 27; State of Oregon, 41 L. D., 259.)
This doctrine followed by the Federal courts in the cases of United States v. Cowlishaw, 202 Fed., 317; Cobban v. Hyde, 212 Fed., 480; Sawyer v. Osterhaus, 212 Fed., 765; dissenting opinion, Judge Gilbert, Morrison v. United States (C. C. A.), 212 Fed., 29, 37; contra Morrison v. United States (C. C. A.), 212 Fed., 29; decision of the Supreme Court of Washington in State v. Whitney, 120 Pac., 116; dictum of the Supreme Court of Idaho in Balderson v. Brady, 107 Pac., 493. (See also Heyden felt v. Daney, 93 U. S., 634; Minnesota v. Hitchcock, 185 U. S., 373; U. S. v. Bonners Ferry Lumber Co., 184 Fed., 187; U. S. v. Montana Lumber Co., 196 U. S., 573.)
While the trust created by a compact between the States and the United States that section 16 be used for school purposes is a sacred obligation imposed on the good faith of the State, the obligation is honorary and the power of the State, where legal title has been vested in it, is plenary and exclusive. (Alabama v. Schmidt, 232 U. S., 168.)
Funds received by the Territory of New Mexico for leases of sections 16 and 36 during the period from June 20, 1910, the date of the enabling act, to January 6, 1912, the date of statehood, belong to the United States subject to the proportionate share of the State. (2 Op. Sol., 1080.)
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.)
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.)
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.)
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 Foresis 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.)
Such application for survey and the withdrawal thereon do not constitute a "legal entry," a "lawful filing," or a " valid settlement " “
" in the meaning of the exceptions contained in a forestry proclamation. (Id., 605.)
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 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.)
The Government survey creates, and does not merely identify, selections of land, and a filing of selections of lieu lands by numbered sections before survey is wholly ineffective. (Sawyer et al. v. Gray et al., 205 Fed., 160; see also United States v. Montana Lumber Co., 196 U. S., 573.)
Filing of deeds of relinquishment to forest reserved land on selection papers for lieu lands under the act of June 4, 1897 (30 Stat., 34), held not to give the applicant any vested right in the land selected until the approval of the exchange by the General Land Office. (Daniel v. Wagner, 205 Fed., 235.)
No such right is acquired by a forest lieu, railroad or State selection, prior to approval thereof by the proper officer of the United States, as will except the land from withdrawal by the Government under the act of June 25, 1910. (Administrative ruling, 43 L. D., 293.)
Where an application to make forest lieu selection fails because of defective base, amendment thereof by the substitution of new base can not be allowed in the face of an intervening withdrawal for forestry purposes. . (Fred A. Kribs, 43 L. D., 146.)
Forest lieu selections of unsurveyed lands are not defeated by settlements made with full knowledge of such prior claims. (Ayres et al. v. Rose et al., 43 L. D., 331.)
EXCHANGE OF SCHOOL LANDS.
State of Montana.
Act of March 4, 1913 (37 Stat., 854). To enable the Secretary of Agriculture to effect an exchange of lands and indemnity rights with the State of Montana, $25,000, to be available until expended when the said State shall have appropriated a like amount to be used in cooperation with the Forest Service for the aforesaid purpose: Provided, That such exchanges shall be made on the basis of approximately equal area and value. State of Washington.
Act of March 4, 1915 (38 Stat., 1113). To enable the Secretary of Agriculture to carry out an agreement heretofore made by and between him and the State of Washington, through its proper officers, looking to the exchange of lands and indemnity rights with said State, $50,000, or so much thereof as may be necessary, to be available until expended when the said State shall have made available a like amount to be used for carrying out the aforesaid agreement: Provided, That such exchanges shall be made on the basis of approximately equal area and value.
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 to administer over them. (1 Sol. Op., 79; reversed 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. (Id.)
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 Generatarima. proper
A railroad company acquires no title to land included within an indemnity selection list prior to the approval thereof by the Secretary of the Interior. (Sol. Op., Apr. 19, 1913.)
A person holding a lease from a railroad company for lands embraced in an unapproved indemnity selection list, which lands are included within a National Forest, is liable for any damage sustained by the United States as a result of the occupancy under the lease, in the event the indemnity list is canceled. (Sol. Op., Apr. 19, 1913.)
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. (Id.)
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.)
Railroads and wagon roads.
Act of March 3, 1899 (30 Stat., 1214.) 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.
SEC. 2477. The right of way for the construction of highways over public lands not reserved for public uses is hereby granted. Grant of rights of way for railroads.
Act of March 3, 1875 (18 Stat., 482). 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 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, machine shops, side tracks, turn-outs, and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road.
Joint use of canyon, pass, or defile.
Sec. 2. That any railroad company whose right of way, or whose track or roadbed upon such right of way, passes through any canyon, 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. Condemnation proceedings.
SEC. 3. That the legislature of the proper Territory may provide for 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 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. Filing of map.
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. Act not applicable to reservations.
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.