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. (Id.)

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 high way 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. (CaliforniaNevada Canal Water & Power Co., 40 L. D., 380.)

"Under act of 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Interior, such approval is essential, and where it was refused as to a reservoir because the site had been previously withdrawn from sale or entry and reserved by the United States, the company acquired no right or easement by the filing of its maps."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.)

While the United States retains the fee to land crossed by a railroad right of way acquired under the provision of the act of March 3, 1875 (18 Stat., 482), it does not have the right to cross such right of way with a telephone line unless the railroad company consents thereto. (2 Sol. Op., 1090.)

A right of way for an irrigation project can not be acquired over a National Forest without the approval of the proper executive officers of the Government; nor can any right of occupancy or use thereof be acquired by private parties, save upon the exercise of a discretion by the proper department as to whether such use will interfere with the purpose of the reserve. (United States v. Henrylyn Irrigation Co. et al., 205 Fed., 970.)

The right to an injunction is not affected by the fact that the Secretary of the Interior may have improperly delayed or refused to act on an application made for a right of way through a reservation for canals and tunnels. (United States v. Henrylyn Irrigation Co. et al., 205 Fed., 970.)

Railroad rights of way.

Lands within a National Forest are not subject to appropriation by a railroad company for right of way and other railroad purposes under the provisions of the act of March 3, 1875 (18 Stat., 482), which by section 5 expressly excepts from its operation lands" specially reserved from sale." (United States v. Chicago, M. & St. P. Ry. Co., 207 Fed., 164; affirmed by C. C. A., 218 Fed., 288.)

Under the provisions of the act of March 3, 1875 (18 Stat., 482), which excepts from the operation of the act lands "specially reserved from sale," the rights of a railroad company seeking to acquire benefits thereunder are fixed by the status of the land at the time when the railroad company first seeks to give a practical effect to the grant by the definite location of its line, either by the filing of its map of final location or by the actual construction of its road, and not as of the time when it qualified itself as a grantee by filing articles of incorporation. (Id.)

The Secretary of the Interior may under the provisions of 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 damage 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. (Id.)

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 Ú. S., 142.)

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 of 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. (Id.)

The title to a railroad right of way acquired over public lands under a grant by Congress can not be acquired against the grantee by limitation; but the right to grant it may be lost by abandonment in case the land ceases to be used for the special purpose for which the grant was made. (Denver & Rio Grande Railway Co. v. Mills (C. C. A.), 222 Fed., 481.)

Whether a railroad company has abandoned a right of way acquired by it is to a great extent a question of intent, and the intent to abandon may be established by acts of the company clearly indicating its purpose not to use such right of way and by long nonuser thereof. (Id.)

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 United States may maintain a suit to enjoin the unauthorized construction of irrigation canals and tunnels within a National Forest reservation. (United States v. Henrylyn Irrigation Co. et al., 205 Fed., 970.)

Regulations of the Interior Department under the provisions of the act of March 3, 1891 (26 Stat., 1095), governing rights of way upon unsurveyed National Forest lands. (43 L. D., 448.)

Rights of way for pipe lines may be allowed under the provisions of the act of March 3, 1891 (26 Stat., 1095), as amended by the act of May 11, 1898 (30 Stat., 404), granting rights of way for reservoirs, canals, and laterals, where the rights sought are to be utilized for the main purpose of irrigation. (Fraser Sources Irrigation & Power Co., 43 L. D., 110.) Overrules Malone Land & Water Co., 41 L. D., 138.

The Secretary of Agriculture is not authorized to require the execution of stipulations which impose a condition upon, or limit, the rights to be acquired by one seeking to secure a grant of irrigation rights of way under the provisions of the act of March 3, 1891 (26) Stat., 1095). (Sol. Op. in case E. L. & C. L. Saffel, May 26, 1914.)

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 the 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 proceedings. (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; U. S. v. Utah Power & Light Co. (C. C. A.), 209 Fed., 554, contra.)

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.)

No rights are acquired in an easement over public lands, under the provisions of section 2339 of the Revised Statutes, until the claimant has completed the construction of the ditch or reservoir and put the same to the beneficial use intended. (2 Sol. Op., 1036; see also decision of the District Court of the State of Utah, United States v. Utah Light & Railway (Traction) Co., unreported.)

Under the Constitution of the United States, Article IV, section 3, which vests in Congress "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States," title or rights in the public lands can not be acquired by a private person or corporation in the exercise of a State sovereignty, but only by virtue of some act of Congress and in accordance with the procedure prescribed. (United States v. Utah Power & Light Co. (C. C. A.), 209 Fed., 554.)

By the provision of the enabling act and State constitution of Utah forever disclaiming on the part of the people of the State all right and title to the unappropriated public lands lying within the State, and providing that until the title thereto shall have been extinguished by the United States the same shall be and remain subject to the disposition of the United States, the Government's full right of control over such lands is expressly recognized. (Id.)

Act of May 14, 1896, chapter 179, section 2, 29 Stat., 120 (U. S. Comp. St., 1901, p. 1573), which specifically authorizes the Secretary of the Interior, under rules and regulations to be fixed by him, to grant right of way and the use of ground on the public lands or forest reservations to electric power companies, supersedes, or at least modifies and limits, as to such companies, the general provisions of the Revised Statutes, section 2339 (U. S. Comp. St., 1901, p. 1437), enacted in 1866, recognizing vested water rights and rights of way for ditches and canals acquired in accordance with local customs and laws, to the extent that since its passage rights in public lands can be acquired by such a company only by a grant from the Secretary. (Id.)