Opinion of the Court.

had been obtained, and its acceptance of ensuing benefits, amounted to an implied ratification of its agent's agreement, binding the company either to execute the required stipulation or to discontinue the construction and operation of its railroad within the reservation. A suit by the United States to enjoin a railroad company from constructing and operating its road through a national forest in default of the execution and filing by it of a stipulation required by the Secretary of the Interior, and to obtain damages for timber cut and destroyed and for injury done in the course of the construction and operation of such railroad, is cognizable in equity, and a bill praying such relief is not multifarious.

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The damages assessed against the appellant in this case are in part justified by the terms of the stipulation which it agreed to execute, and in other respects are sustained by the concurring decisions of the courts below.

In the absence of either cross-appeal by the Government or objection by the appellant company, the court will not decide whether the decree, instead of commanding unconditionally that the company execute the stipulation agreed upon, should not have provided, in the alternative, for ousting the company from the reservation if it did not execute such stipulation within a certain time. 218 Fed. Rep. 288, affirmed.

THE case is stated in the opinion.

Mr. F. M. Dudley and Mr. H. H. Field for appellant.

Mr. Assistant Attorney General Kearful, with whom Mr. W. W. Dyar was on the brief, for the United States.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

This is a suit by the United States to enjoin a railroad company from constructing or operating its railroad through a national forest reserve in Idaho unless it executes and files with the Secretary of the Interior a stipulation required by that officer, and to obtain damages for timber cut and destroyed and injury done in the course

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of the construction and operation of such railroad. In the District Court, 207 Fed. Rep. 164, and in the Circuit Court of Appeals, 218 Fed. Rep. 288, the Government prevailed. The railroad company prosecutes this appeal.

The forest reserve had its inception in an order by the Commissioner of the General Land Office, made March 21, 1905, temporarily withdrawing a large body of public lands from all disposal, save under the mineral land laws. The order was made by direction of the Secretary of the Interior with a view to the creation of a permanent forest reserve, under § 24 of the Act of March 3, 1891, c. 561, 26 Stat. 1095, if after further examination that should receive the President's approval. The permanent reserve was created November 6, 1906, by a proclamation of the President. Between the temporary withdrawal and the President's proclamation the railroad company was incorporated under the laws of Idaho and filed with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization. During the same period it also filed in the local land office a map or profile of its proposed railroad through the reserve, and after the President's proclamation it filed in that office a second and then a third map. The line of the proposed road shown upon the second map differed widely from that upon the first and the line shown upon the third differed materially from those upon the others. The first and second maps, neither of which had been approved, were returned to the company as superseded by the third. It was filed May 10, 1907. At that time, as also before any map was filed, the regulations governing applications for railroad rights of way in forest reserves required the applicant to enter into a stipulation respecting the use and enjoyment of the privilege, the prevention of forest fires, the compensation to be made for timber cut or destroyed and the duty of the company to pay for any injury otherwise done to the reserve. 32 L. D. 481; 34

Opinion of the Court.

L. D. 583. One provision in the regulations said: "No construction can be allowed on a reservation until an application for right of way has been regularly filed in accordance with the laws of the United States and has been approved by the Department, or has been considered by this office or the Department, and permission for such construction has been specifically given." After filing the third map the company sought permission from the Forest Office to proceed with the construction of its railroad in advance of the approval of its map, and to that end its authorized representative, Mr. George R. Peck, in its behalf, signed and filed in the Forest Office the following memorandum:

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"Whereas, the Chicago, Milwaukee & St. Paul Railway Company of Idaho desires immediate permission from the Forest Service to begin construction of the company's railroad in the Coeur d'Alene National Forest, Idaho, I hereby promise and agree on behalf of the company that it will execute and abide by stipulations and conditions to be prescribed by the Forester in respect to said railroad; such stipulation and conditions to be as nearly as practicable like those executed by the company on January 18, 1907, in respect to its railroad within the Helena National Forest, Montana."

The Forester wrote upon the memorandum, and signed, an endorsement, saying: "Approved and advance permission given to construct, subject to ratification hereof by the company." At the same time a telegram was sent to the supervisor of the reserve, saying: "Advance permission given today St. Paul Railroad Company to construct railroad through Coeur d'Alene, subject usual stipulations. Supervise clearing and piling and scale all timber cut."

There was no express ratification of the Peck memorandum, but shortly after it was made the company entered upon the reserve and actively proceeded with the construction of its road, which it would not have been per

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Not until the

mitted to do without the memorandum. work had proceeded for some months was there any indication that the memorandum was not satisfactory to the company. It then declined to execute the stipulation called for by the memorandum and assigned as a reason that Mr. Peck had acted upon the mistaken belief that the President's proclamation creating the permanent reserve preceded the filing of the first map, when in fact the map was filed before the proclamation was issued, and that the execution of such a stipulation as was called for by the memorandum was indispensable, when, as the company asserted, it was entitled, under the Act of March 3, 1875, infra, to a right of way through the reserve without entering into any stipulation or assenting to any conditions. But the officers of the Forest Service insisted, with the full sanction of the Secretary of the Interior and of the Secretary of Agriculture, that the stipulation be executed and that without it the company was not entitled to proceed. This resulted in a conference at which the company particularly requested that its construction work be not disturbed and assented to an arrangement for further negotiations or, if need be, a "friendly lawsuit." Further negotiations failed and the present suit followed. When it was begun the road through the reserve was nearly completed and was in operation, the construction being on the line shown on the third map. Approval had not been given to this map but had been withheld awaiting the company's execution of the prescribed stipulation.

The District Court, after concluding and announcing that the company was bound by the Peck memorandum and that the Government was entitled to a decree, gave the parties an opportunity to agree upon the form of stipulation called for by that memorandum and then postponed the assessment of damages as a matter which might be affected materially by the terms of the stipula

Opinion of the Court.

tion. Afterward the parties brought into court a form of stipulation, which they agreed was what was required by the Peck memorandum, and that form was adopted by the court, with the addition only of a paragraph declaring that the stipulation should be deemed to have been executed as of May 10, 1907, which was the date of the Peck memorandum, of the permission to proceed with the construction and of the filing of the map according to which the road was constructed.

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Rights of way for railroads over lands of the United States were granted only by special acts until March 3, 1875, when Congress enacted a general law upon the subject and confided its administration to the Land Department. Chap. 152, 18 Stat. 482. But that law, by its fifth section, was declared to be inapplicable to "any military, park, or Indian reservation, or other lands specially reserved from sale." Lands in a forest reserve not only are specially reserved from sale, but, like those in the reservations particularly named, are set apart for a public purpose. Act June 4, 1897, c. 2, 30 Stat. 34-36. That they come within the excepting provision of the fifth section, as do lands in other public reservations, is plain. Both Congress and the Land Department have so regarded them. House Report No. 1212, 54th Cong., 1st sess.; House Report No. 1790, 55th Cong., 3rd sess.; Brainard and Northern Minnesota Ry. Co., 29 L. D. 257. Thus the company neither did nor could acquire a right of way over these lands under the law of 1875. And this is true notwithstanding the preliminary steps taken, as before recited, in advance of the creation of the permanent reserve. The temporary withdrawal was made several months before any of those steps were takenindeed, before the company came into existence and remained in force until the permanent reserve was created. While the withdrawal was in force it was as much of an obstacle to the acquisition of a railroad right of way over

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