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A hydroelectric power company is not authorized to maintain or operate any portion of its plant upon a National Forest without first complying with the rules and regulations of the Secretary of the Department of Agriculture relating to power permits where such power plant was constructed upon lands of the United States subsequent to their withdrawal for National Forest purposes. (Decision (unpublished) Judge Marshall, District of Utah, dated March 31, 1913, United States v. Beaver River Power Co.)
The authority of the Secretary of Agriculture to permit the use of National Forest lands is not sufficient to authorize the construction of dams across navigable streams within National Forests. (Sol. Op. in case Clarks Fork Power Co., Jan. 13, 1915.)
Section 4 of the act of February 1, 1905 (33 Stat., 628) does not vest the Secretary of the Interior with authority to grant rights of way for transmission lines within, through, or across the National Forests. (30 Op. Atty. Gen., 263.)
Applications for revocable permits under the act of February 15, 1901 (31 Stat., 790), should be filed with and passed upon by the Secretary of Agriculture when they relate to lands within the National Forests. (30 Op. Atty. Gen., 263.)
Section 4 of the act of February 1, 1905 (33 Stat., 628), authorizes the acquisition of rights of way over National Forest lands for hydroelectric development for municipal and mining purposes, and for the milling and reduction of ores. (Op. Atty. Gen., Apr. 21, 1915.) Transmission lines, etc.
The authority to grant 50-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 to be affected constitute portions of the National Forests. (29 Op. Atty. Gen., 303.)
A hydroelectric power company is not authorized by sections 2339 and 2340 of the Revised Statutes to maintain transmission lines, telephone lines, tramways, or buildings upon National Forest lands without first securing permission from the Secretary of Agriculture. (Decision (unpublished) of Judge Marshall, district of Utah, dated Mar. 31, 1913, in case of United States v. Utah Power & Light Co.) Telegraph lines.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). 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  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 was not sufficient to afford an allotment to each member thereof. All 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 purposes, then the Secretary of the Interior shall cause allotment to be made as herein provided.1
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.,
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 it liable to exploration, location, or entry under the mining laws. (Opinion of the Assistant Attorney General, 35 L. D., 262–268.) See decisions under “Operation,” page 29.
1 This section does not apply to the Minnesota National Forest. (Letter Secretary of the Interior to Secretary of Agriculture, Sept. 27, 1912.)
Permits for summer homes, hotels, stores, etc.
Act of March 4, 1915 (38 Stat., 1101). That hereafter the Secretary of Agriculture may, upon such terms as he may deem proper, for periods not exceeding thirty years, permit responsible persons or associations to use and occupy suitable spaces or portions of ground in the national forests for the construction of summer homes, hotels, stores, or other structures needed for recreation or public convenience, not exceeding five acres to any one person or association, but this shall not be construed to interfere with the right to enter homesteads upon agricultural lands in national forests as now provided by law.
Special-use permit for land adjacent to mineral springs.
Act of February 28, 1899 (30 Stat., 908). The Secretary of the Interior * * hereby is authorized, under such rules and regulations as he from time to time may make, to enter or lease to responsible persons or corporations applying therefor suitable spaces and portions of ground near, or adjacent to, mineral, medicinal, or other springs, within any forest reserves established within the United States, or hereafter to be established, and where the public is accustomed or desires to frequent, for health or pleasure, for the purpose of erecting upon such leased ground sanitariums or hotels, to be opened for the reception of the public. And he is further authorized to make such regulations, for the convenience of people visiting such springs, with reference to spaces and locations, for the erection of tents or temporary dwelling houses to be erected or constructed for the use of those visiting such springs for health or pleasure. And the Secretary of the Interior is authorized to prescribe the terms and duration and the compensation to be paid for the privileges granted under the provisions of this act.
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, Feb. 6, 1912.)
The waters of mineral, medicinal, and saline springs on the public domain are under the sole control of the United States, as a landowner, and are not subject to appropriation under State laws or to the riparian right to continued flow. (2 Sol. Op., 951.)
Authority to administer the act of 1899 as to springs and lands in the National Forests passed to the Secretary of Agriculture under the forest transfer act of February 1, 1905. (Id.)
The said act does not authorize a lease of the springs themselves or the granting of special privileges therein. Nor does it contemplate a lease of all the available hotel or sanitarium sites to one party. (Id.)
The mineral springs act of February 28, 1899, extends to National Forests in Alaska. (2 Sol. Op., 870.)
National Forest lands in Alaska surrounding hot or mineral springs, and which have been withdrawn by the President under the
act of June 25, 1910, can not be leased under the act of February 28, 1899, or their use permitted under the act of June 4, 1897, while the withdrawal remains in force. (2 Sol. Op., 870.)
The Secretary of Agriculture is authorized to grant permits for the occupancy of National Forest lands adjacent to mineral, medicinal, or other springs. See act of June 4, 1897 (30 Stat., 11); act of March 4, 1915 (39 Stat., 1101), and that of February 28, 1899 (30 Stat., 908), for such authority. (2 Sol. Op., 1067.) See also Sol. Op., November 1, 1915.
CANCELLATION OF PATENTS.
Act of March 3, 1891 (26 Stat., 1093). That section eight of an act entitled "An act to repeal timberculture laws, and for other purposes” approved March third, eighteen hundred and ninety-one, be, and the same is hereby amended so as to read as follows:
SEC. 8. That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents. And in the States of Colorado, Montana, Idaho, North Dakota, and South Dakota, Wyoming and the District of Alaska, and the gold and silver regions of Nevada and the Territory of Utah, in any criminal prosecution or civil action by the United States for a trespass on such public timber lands or to recover timber or lumber cut thereon, it shall be a defense if the defendant shall show that the said timber was so cut or removed from the timber lands for use in such State or Territory by a resident thereof for agricultural, mining, manufacturing, or domestic purposes under rules and regulations made and prescribed by the Secretary of the Interior, and has not been transported out of the same; but nothing herein contained shall operate to enlarge the rights of any railway company to cut timber on the public domains: Provided, , That the Secretary of the Interior may make suitable rules and regulations to carry out the provisions of this act and he may designate the sections or tracts of land where timber may be cut, and it shall not be lawful to cut or remove any timber except as may be
prescribed by such rules and regulations; but this act shall not operate to repeal the act of June third, eighteen hundred and seventy-eight, providing for cutting of timber on mineral lands.
The United States can only avoid the self-imposed limitation of the act of March 3, 1891 (26 Stat., 1099), which provides that suits by the United States to annul patents to public lands thereafter issued shall only be brought within six years after the date of the issuance of such patents by alleging specific facts showing that its failure to discover the cause of action within the statutory period was due to concealment by the adverse party or that the fraud was of a self-concealing nature and the failure to discover it was not due to negligence or want of diligence. (United States v. Puget Sound Traction, Light & Power Co., 215 Fed., 436; see also United States v.
Exploration Co., 203 Fed., 387; Linn & Lane Timber Co. v. United States, 196 Fed., 593; id., 203 Fed., 394; id., 236 U. S., 574.)
Suits must be based on a showing of fraud as distinguished from noncompliance with law, and the evidence of fraud must be clear, unequivocal, and convincing, and not a bare preponderance of evidence which leaves the issue in doubt. (United States v. Barber, 194 Fed., 24.)
Despite satisfactory proof of fraua in obtaining the patent, if the legal title has passed, bona fide purchase for value is a perfect defense; but it is an affirmative one which the grantee must establish in order to defeat the Government's right to cancel a patent which fraud alone is shown to have induced. (Wright-Blodgett Co. v. United States, 236 U. S., 397.)
Where the bills to set aside patents for fraud have been filed and subpænas issued and delivered for service before the statute has run, and reasonable diligence shown in getting service, the running of the statute is interrupted and the rights of the United States against the patents are saved. (Linn & Lane Timber Co. v. United States, 236 Ù. S., 574.)
Where a secret transfer of wrongfully held land is made through the medium of a corporation for the purpose of busying the United States with the wrong person until the statute has run, service on the man thus put forward is sufficient to avoid the statute. (Id.).
While courts of equity have the power to set aside, cancel, or correct patents or other evidences of title obtained from the United States by fraud or mistake, and to correct under proper circumstances such mistakes, this can only be done on specific averments of the mistake or_the fraud, supported by clear and satisfactory proof. (Maxwell Land-Grant case, 121 U. S., 325.)
In a suit by the United States to cancel a patent of public land the burden of producing the proof and establishing the fraud is on the Government, from which it is not relieved although the proposition which it is bound to establish may be of a negative nature. (Colorado Coal & Iron Co. v. United States, 123 U. S., 307.)
The presumption of the regularity of all proceedings prior to the issue of a patent for public lands, which is made against collateral attacks by certain parties, does not exist in proceedings where the United States assail the patent for fraud in their officers in its issue, and seek its cancellation. (Moffat v. United States, 112 U. S., 24.)
The United States does not guarantee the integrity of their officers, nor the validity of the acts of such, and are not bound by their misconduct or fraud. (Id.)
A land patent issued to a fictitious person conveys no title which can be transferred to a person subsequently purchasing in good faith from a supposed owner. (Id.)
OPENING TO ENTRY RESTORED LANDS.
Act of September 30, 1913 (38 Stat., 113). That hereafter when public lands are excluded from National Forests or released from withdrawals the President may, whenever in his judgment it is proper or necessary, provide for the opening of the lands by settlement in advance of entry, by drawing, or by