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. (Same.) 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.) RIGHT OF WAY LAWS. Deficiency appropriation act of March 3, 1899 (30 Stat., 1214). [1233] 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 AND RAILROADS. UNITED STATES REVISED STATUTES. SEC. 2477. The right of way for the construction of highways over public lands not reserved for public uses is hereby granted. Right of way for railroads granted through public lands. Act of March 3, 1875 (18 Stat., 482), granting rights of way for railroads. 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 ings, etc. in amount twenty acres for each station, to the extent of one station for each ten miles of its road. Width of right of way. Station build canyon, pass, or SEC. 2. That any railroad company whose right of way, or whose Joint use of track or roadbed upon such right of way, passes through any canyon, defile. 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 Equitable diviany number of railroad companies occupying and using the same canyon, pass, or defile. 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 sion of expense. Condemnation over private lands and possessory claims. Filing of map. unsurveyed lands. 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. SEC. 4. That any railroad company desiring to secure the benefits Surveyed and 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. Approval. Forfeiture. Not to apply to reservations. Amendment and repeal. Ditches and canals constructed by authority of Government. Water and rights of way for same. Patents subject 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. SEC. 6. That Congress hereby reserves the right at any time to alter, amend, or repeal this act, or any part thereof. (This act is made applicable, at least conditionally, to National Forest lands by the act of March 3, 1899, ante, p. 51.) Sundry civil appropriation act of August 30, 1890 (26 Stat., 371, on p. 391.). * In all patents for lands hereafter taken up under any of the land laws of the United States * * west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described, a right of way thereon for ditches or canals constructed by the authority of the United States. RIGHTS OF WAY FOR WATER FOR IRRIGATION AND POWER DEVELOPMENT. UNITED STATES REVISED STATUTES. SEC. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. SEC. 2340. All patents granted, or preemption or homesteads alto vested rights. lowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section. Irrigation rights of way. Act of March 3, 1891 (26 Stat., 1095), to repeal the timber-culture laws, and for other purposes. SEC. 18. That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory, which shall have filed, or may hereafter file, 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 the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction Not to interfere of such canal or ditch: Provided, That no such right of way shall be so with Govern- located as to interfere with the proper occupation by the Government of reserves. of any such reservation, and all maps of location shall be subject to the ment occupation approval of the Department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories. SEC. 19. That any canal or ditch company desiring to secure the benefits of this act shall, within twelve months after the location of ten miles of its canal, 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 map of its canal or ditch and reservoir; and upon the 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 rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Maps to be filed and approved. Compensation vate rights. for injury to pri Individuals and associations. SEC. 20. That the provisions of this act shall apply to all canals, ditches, or reservoirs, heretofore or hereafter constructed, whether constructed by corporations, individuals, or association of individuals, on the filing of the certificates and maps herein provided for. If such ditch, canal, or reservoir, has been or shall be constructed by an individual or association of individuals, it shall be sufficient for such individual or association of individuals to file with the Secretary of the Interior, and with the register of the land office where said land is located, a map of the line of such canal, ditch, or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association, if any there be. Plats heretofore filed shall have the benefits of this act from the date of their filing, as though filed under it: Provided, That if any section of said canal or ditch shall not Rights forfeited be completed within five years after the location of said section, the tion of works. rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture. SEC. 21. That nothing in this act shall authorize such canal or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance, and care of said canal or ditch. [See provision next below.] Act May 11, 1898 (30 Stat., 404). by noncomple Limitation of use. Additional and SEC. 2. That the rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, subsidiary uses. nineteen, twenty, and twenty-one of the Act entitled "An Act to repeal timber-culture laws, and for other purposes," approved March third, eighteen hundred and ninety-one, may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation. Act of May 14, 1896 (29 Stat., 120). Electric power. SEC. 2. That the Secretary of the Interior be, and hereby is, author- Permissive ized and empowered, under general regulations to be fixed by him, to rights of way. permit the use of right of way to the extent of twenty-five feet, together with the use of necessary ground, not exceeding forty acres, upon the public lands and the forest reservations of the United States, by any citizen or association of citizens of the United States for the purposes of generating, manufacturing, or distributing electric power. Act of February 15, 1901 (31 Stat., 790), relating to rights of way through certain parks, reservations, and other public lands. * * is authorized and em Permissive The Secretary of the Interior * powered, under general regulations to be fixed by him, to permit the rights of way. use of rights of way through the public lands, forest and other reservations of the United States and the Yosemite, Sequoia, and General Grant 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 telephones. 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 compatible with said parks or any forest, military, Indian, or other reservation only upon 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 suball 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. granted when in 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 obtain hereunder. any That any citizen, association, or corporation of the United States to rights whom there has heretofore been issued a permit for 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. Santa Fe & Act of June 27, 1898 (30 Stat., 493), granting right of way through the Pikes Peak 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. Ry. Co. Act of February 25, 1903 (32 Stat., 907), granting the Central Arizona Railway Co. a 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 |