I i i! Ilr'"'"" BANCROFT LIBRARY THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA SUBJECT Appropriation of Water and Rights of Way for Reservoirs AND Canals on Public Lands and Reservations OF THE United States. IN THE Supreme Court of the United States OcTOBEB Term, 1915. The Beaver River Power Company, Appellant, vs. The United States, Appellee. The United States, Appellant, vs. The Beaver River Power Company, Appellee. No. 574. No. 575. Appeals from the District Court of the United States, for the District of Utah. BKIEF SUPPORTING APPEAL OF THE BEAVER RIVER POWER COMPANY William B. Bosley, Amicus Curiae. San Francisco, California 7-^ v^. e6> 7d,/or o < O O cc O < TABLE OF CONTENTS. 1. Table of statutes and regulations cited V 2. Table of cases and authorities cited VII 3. Synopsis of brief XI 4. Brief 1 to 76 5. Appendix containing statutes cited 3 to 25 Digitized by the Internet Archive in 2007 with funding from IVIicrosoft Corporation http://www.archive.org/details/beaverriverpowerOOboslrich V TABLE OF STATUTES AND REGULATIONS CITED. (Eacli act, or the part thereof here involved, is printed in the appendix at the page shown below in bold face type ; other references are to pages of the argument) . Act of July 26, 1866, 14 Stat, at L. 251. . 3, 7, 9, 16, 31 Act of July 9, 1870, 16 Stat, at L. 217. . 4, 7 Act of March 3, 1875, 18 Stat, at L. 482. .24, 11, 21 Act of March 3, 1877, 19 Stat, at L. 377. . 6, 6-7,15,22, 29, 39, 56,71 Act of March 3, 1891, 26 Stat, at L. 1095. 8, 6-7,10-19, 21, 22, 28, 31, 39, 40, 41, 43,57 Act of Jan. 21, 1895, 28 Stat, at L. 635. . .10, 16, 23, 27, 41 Act of May 14, 1896, 29 Stat, at L. 120. . .11, 27, 30, 41 Act of Feb. 26, 1897, 29 Stat, at L. 599. . .12, 16, 23 Act of June 4, 1897, 30 Stat, at L. 11. . . .13, 6-7,14-16, 19, 22, 23,24,29,39,42,56 Act of May 11, 1898, 30 Stat, at L. 404. . .17, 6-7,14,16, 17, 22, 27,28,31,39,41,57 Act of Feb. 15, 1901, 31 Stat, at L. 790. . .18, 25 to 76 Act of June 17, 1902, 32 Stat, at L. 388 . . .20, 29, 39 Act of Feb. 1, 1905, 33 Stat, at L. 628. . .21, 27, 70, 72, 75 Act of Feb. 6, 1905, 33 Stat, at L. 700. . .23 Constitution of U. S., Art. IV, Sec. 3. . . . 59 Regulations, departmental 29, 41, 42 Revised Statutes of the U. S., Sec. 2339. . 5, 6-7,15,16, 22, 29, 30, 31, 39, 56, 57 Revised Statutes of the U. S., See. 2340. . 5, 6-7,15,22, 29, 31, 39, 56, 57 VII TABLE OF CASES AND AUTHORITIES CITED. PAGE Allen V. Denver Power and Irrigation Co., 38 L. D. 207 . . 41 Assistant Attorney-General Campbell, opinion of, 32 L. D. 254 29 Assistant Attorney-General Campbell, opinion of, 33 L. D. 563 12 Atchison v. Peterson, 20 Wall. 507 39 Baltimore and Ohio S. W. Ry. Co. v. Voigt, 176 U. S. 498 68 Basey v. Gallagher, 20 Wall. 670 8 Bemier v. Bernier, 147 U. S. 242 50 Black's Pomeroy on Water Rights 8,39 Boise Artesian Hot and Cold Water Co. v. Boise City, 230 U. S. 84 47 Brent v. Bank of Washington, 10 Peters. 596 55 Broder v. Natoma Water and M. Co., 101 U. S. 274 8 Butte City Water Co. v. Baker, 196 U. S. 119 65 Buttfield V. Stranahan, 192 U. S. 470 65 Bybee v. Oregon and California R. R. Co., 139 U. S. 663.41 Cascade Town Co. v. Empire W. and P. Co., 181 Fed. 1011 8,9 Same ca»se on appeal, 205 Fed. 123 8 Chicago, Milwaukee and St. Paul Railroad Co. v. Wis- consin, 238 U. S. 491 48 Cope V. Cope, 137 U. S. 682 33 Cook V. Port of Portland, 20 Ore. 580, 27 Pac. 263, 13 L. R. A. 533 73 Cooley's Constitutional Limitations (7th ed.), page 163.60 Daniels v. Wagner, 237 U. S. 547 37 Delta, Town of, 32 L. D. 461 41 De Necochea v. Curtis, 80 Cal. 397 8 Denver Power and Irrigation Co. v. Denver & R. G. R. Co., 30 Colo. 204, 69 Pac. 568 16 De Weese v. Henry Investment Co., 39 L. D. 27 11 Ex Parte Kollock, 165 U. S. 526 65 VIII TABLE OF CASES CITED— Continued. PAGE Farley v. Spring Valley Mining and Irrigating Co., 58 Cal. 142 8 Farnham on Waters and Water Eights 8,39 Field V. Clark, 143 U. S. 649 62,64 Grafton County E. L. & P. Co. v. State, 77 N. H. 539, 94 Atl. 193 68 Greenhood on Public Policy in the Law of Contracts, Eule CXL, citing Pierce v. Randolph, 12 Tex. 290. .68 Greenwood Lake and Port Jervis E. E. Co. v. New York and Greenwood Lake E. E. Co, 134 N. Y. 435 48 Gutierres v. Albuquerque Land & Irr. Co., 188 U. S. 545 8,39,71 Harmon v. State, 66 Ohio St. 249, 58 L. E. A. 618 65 Hartford Fire Insurance Co. v. Chicago M. & St. P. Ey. Co., 175 U. S. 91 68 Hathorn v. Stinson, 10 Maine 224, 25 Am. Dec. 228 15 Hawaii v. Mankichi, 190 U. S. 197 50 Heath, in re, 144 U. S. 92 15,23 Hildreth v. Montecito Creek Water Co., 139 Cal. 22 18 Hudson County Water Company v. McCarter, 209 U. S. 349 70 Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194 64,65 Iowa V. Carr, 191 Fed. 257 .54 Jamestown and Northern Eailroad Co. v. Jones, 177 U. S. 125 11,21 Julien V. Model Building, L. & I. Assn., 116 Wis. 79, 61 L. E. A. 668 68 Kansas v. Colorado, 206 U. S. 46 39,70 Kilboum v. Thompson, 103 U. S. 168 61 Kimball v. Gearhart, 12 Cal. 27 39 Kohlsaat v. Murphy, 96 U. S. 153 23,32 Kollock, ex parte, 165 U. S. 526 65 Lambom v. Bell, 18 Colo. 346, 32 Pac. 989 16 Lewis ' Sutherland on Statutory Construction, Sec 405 . . 23 License Tax Cases, 5 Wall. 462 68 Light V, United States, 220 U. S. 523 65 IX TABLE OF CASES CITED— Continued. PAGE Lincoln County Water etc. Co. v. Big Sandy Reservoir Co., 32 L. D. 463 22,40 Lucas V. Ashland Light, M. & P. Co., 92 Neb. 550, 138 N. W. 761 16 Maeris v. Bicknell, 7 Cal..261 39 Miller v. Mayor etc. of New York, 109 U. S. 385 64 Monongahela Bridge Co. v. United States, 216 U. S. 177.64 Morrill v. Jones, 106 U. S. 466 24 Mt. Vemon-Woodberry C. D. Co. v. Alabama Interstate Power Co., 240 U. S. 30 17 Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230 64,65 New Mexico v. United States Trust Co., 172 U. S. 171. . .19 New York Electric Lines Co. v. Empire City Subway Co., 235 U. S. 179 47 Noble V. Union River Logging R. R. Co., 147 U. S. 165. .41 Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267. . . .19 O'Neil V. American Fire Ins. Co., 166 Penn. St 72, 26 L. R. A. 715 65 Owensboro v. Cumberland Telephone and Telegraph Co., 230 U. S. 58 47,48,53 Pine Tree Lumber Co. v. McKinley, 83 Minn. 419, 86 N. W. 414 15 Plimmer v. Wellington, L. R., 9 App. Cas. 699 48,55 Pomeroy on Water Rights, Black's Ed 8,39 Prescott V. White, 21 Pick. 341, 32 Am. Dec. 266 15 Red Rock, Town of, v. Henry, 106 U. S. 596 33,59 Rio Grande Western Ry. Co. v. Stringham, 239 U. S. 44.19 Rio Verde Canal Co., 27 L. D. 421 19 Riverside Water Co. v. Sargent, 112 Cal. 230 39 Russell V. Sebastian, 233 U. S. 195 47 St. Louis Mining and Milling Co. v. Montana Mining Co., 171 U. S. 650 68 Santa Fe Pac. R. R. Co., 29 L. D. 213 22,40 Schulenberg v. Harriman, 21 Wall. 44 41 South Platte Canal and Reservoir Co., 20 L. D. 154 41 Stalker v. Oregon Short Line R. Co., 225 U. S. 142 11 TABLE OF CASES CITED— Continued. PAGE State V. Burdge, 95 Wis. 390, 37 L. R. A. 157 65 Stoner v. Zucker, 148 Cal. 516 48 Sutherland on Statutory Construction, Lewis', Sec. 405.23 Thayer v. California Development Co., 164 Cal. 117 18 Thompson Co. v. Pennebaker, 173 Fed. 849 9 Town of Delta, 32 L. D. 461 41 Town of Red Rock v. Henry, 106 U. S. 596 33,59 Trustees of Southampton v. Jessup, 162 N. Y. 122 48 Union Bridge Co. v. United States, 204 U. S. 364 64 United States v. Delaware and Hudson Co., 213 U. S. 366 33 United States v. Denver and Rio Grande R. Co., 150 U. S. 1 47 United States v. Eaton, 144 U. S. 677 24,65 United States v. Grimaud, 220 U. S. 506 65 United States v. E. C. Knight Company, 156 U, S. 1. . . .70 United States v. Lee, 15 N. M. 382, 110 Pac. 607. . .12,21,28 United States v. Portneuf -Marsh etc. Co., 205 Fed. 416.28 Same case on appeal, 213 Fed. 601 28 United States v. Rio Grande Dam and Irrigation Com- pany, 174 U. S. 690 70 United States v. Stinson, 125 Fed. 907 54 Same case on appeal, 197 U. S. 200 54 United States v. Utah Power and Light Co., 208 Fed. 821 9 Same case on appeal, 209 Fed. 554 9,30 Utah N. & C. R. Co. v. Utah & C. Ry. Co., 110 Fed. 879. .41 Yidal et al. v. Girard's Executors, 2 How. 127 68 Walker v. Shasta Power Co., 160 Fed. 856 17 Walker v. United States, 139 Fed. 409 54 Same case on appeal, 148 Fed. 1022 54 Wayman v. Southard, 10 Wheat. 1 63,64 Werling v. Ingersoll, 181 U. S. 131 15 Williamson v. United States, 207 U. S. 425 24 Wilmot V. Mudge, 103 U. S. 217 33 Wood V. Etiwanda Water Co., 122 Cal. 152 8 XI SYNOPSIS. PAGE 1. Statement of the case 2 (a) Material facts stated 2 (b) Questions involved in defendant's appeal stated 3 2. Specification of errors 5 3. Argument 6 Proposition No. 1. The following Acts of Con- gress, viz: Sections 2339 and 2340 of the United States Revised Statutes; An Act entitled, ' ' An Act to Provide for the Sale of Desert Lands in Certain States and Ter- ritories," approved March 3, 1877 (19 U. S. Stat, at L. 377) ; Sections 18 to 21 of an Act entitled, ''An Act to Repeal Timber- Culture Laws, and for Other Purposes," approved March 3, 1891 (26 U. S. Stat, at L. 1095, 1101-3) ; An Act entitled, ' ' An Act Making Appropri- ations for Sundry Civil Expenses of the Gov- ernment for the Fiscal Year Ending June Thir- tieth, Eighteen Hundred and Ninety-eight, and for Other Purposes," approved June 4, 1897 (30 U. S. Stat, at L. 11, 34-36) ; Section 2 of an Act entitled, *'An Act to Amend an Act to Permit the Use of the Right of "Way Through Public Lands for Tramroads, Canals, and Reservoirs and for Other Pur- poses," approved May 11, 1898 (30 U. S. Stat. at L. 404) ; operate as a grant, to all qualified grantees who accept the same by complying with the terms and conditions therein prescribed, of a right of way over or a determinable fee in such public or forest XII PAGE reserve lands as are located, appropriated and ac- tually used for reservoirs, canals and other aque- ducts for impounding, storing, diverting and con- veying water to be used for the generation of elec- tric power 6 Proposition No. 2. Defendant's location and appropriation of the public or forest reserve lands involved in this suit, and its construction thereon of the reservoir, pipe lines and other water con- duits mentioned in the complaint, and its subse- quent use of such reservoir, pipe lines and water conduits for impounding, storing, and conveying the water of Beaver River to defendant's power house where it is used for the generation of elec- tric power, constituted an acceptance of the grant offered by the aforesaid Acts of Congress, and re- sulted in vesting in defendant good title to the right of way or determinable fee granted by said Acts of Congress 21 Proposition No. 3. The Act of Congress en- titled, ^'An Act Relating to Rights of Way Through Certain Parks, Reservations, and Other Public Lands," approved February 15, 1901 (31 U. S. Stat, at L. 790) is not to be construed as substantive legislation superseding and by im- plication repealing the aforesaid Acts of Con- gress 25 Proposition No. 4. The aforesaid Act of Feb- ruary 15, 1901 (assuming that it is substantive legislation superseding and by implication repeal- ing the other Acts of Congress already men- tioned) is unconstitutional as involving an unau- thorized delegation, to executive officers of the United States, by Congress, of power specifically and exclusively conferred by the Constitution upon the latter 59 XIII Proposition No. 5. The aforesaid Act of Con- gress of February 15, 1901 (assuming that it is substantive legislation superseding and by impli- cation repealing the other aforesaid Acts of Con- gress and is not unconstitutional) is itself super- seded and iiepealed, so far as it applies to rights of way for reservoirs and aqueducts appropriated for * * municipal, ' ' that is to say public or govern- mental, uses, by section 4 of an Act entitled, * ' An Act Providing for the Transfer of Forest Re- serves from the Department of the Interior to the Department of Agriculture, ' ' approved February 1, 1905 (33 U. S. Stat, at L. 628) 70 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1915. The Beaveb River Power Company, Appellant, vs. The United States, The United States. vs. Appellee. Appellant, The Beaver River Power Company, Appellee. No. 574. No. 575. Appeals from the District Court of the United States, for the District of Utah. BRIEF BY WILLIAM B. BOSLEY, AMICUS CURIAE, SUPPORTING APPEAL OF THE BEAVER RIVER POWER COMPANY. To Honorable Edward Douglass White, Chief Justice, and the Honorable Associate Justices of the Supreme Court of the United States: I respectfully ask leave, as amicus curiae, to file this brief for the reason that the decision to be rendered in this cause will undoubtedly be determinative of some of the issues involved in a suit now pending in the United States District Court in and for the Northern District of California wherein Pacific Gas and Electric Company, whose attorney of record I am, is plaintiff, and David F. Houston, Secretary of Agri- culture, et al., are defendants. STATEMENT OF THE CASE. The decree appealed from in this case was entered pursuant to an order sustaining plaintiff's motion to strike defendant's answer to the bill of complaint. The material facts admitted by plaintiff's motion to strike are, in substance, as follows, viz: (1) That defendant is in the exclusive possession of certain lands situate in the Fillmore National Forest in the State of Utah, and is maintaining and operating thereon a hydro-electric power plant consisting of a power house,, reservoir, certain pipe lines and conduits, and necessary adjuncts, by means whereof the water of Beaver River is appropriated and used for the generation of electric power; (2) That the lands occupied and used by defendant for the purposes aforesaid are, unless title thereto has been acquired by defendant by virtue of its location, appro- priation and use thereof under authority of certain Acts of Congress hereinafter mentioned, forest reserve lands of the United States : (3) That construction of defendant's said power plant was commenced as early as June, 1905, and completed in the year 1908, and thereupon said plant was put into operation ; (4) That the electricity generated at said power plant has been distributed and sold by defendant to the public in the State of Utah for light and power purposes ; (5) That no permit for the construction and operation of said power plant or for the occupancy and use of said lands for the purposes aforesaid has ever been granted or issued by the Secretary of the Interior or by the Secretary of Agriculture pursuant to the Act of Congress of February 15, 1901, hereinafter considered, or pursuant to any other Act of Congress; and (6) That defendant claims, by virtue of its location, appropriation, occupancy and use of the lands occupied by said reservoir, pipe lines and other conduits, power house and necessary adjuncts, and by virtue of certain Acts of Congress hereinafter considered, to be possessed of title to, or a permanent right of way for the occupancy and use of, the aforesaid lands for the maintenance and operation of its said power plant. The decree of the District Court establishes and quiets, as against all claims of defendant, plaintiff 's title to the aforesaid lands and enjoins and restrains defendant from maintaining and operating upon said lands its said power house, reservoir, pipe lines or conduits and necessary adjuncts. Defendant's appeal from said decree involves, and its assignment of errors copied in the transcript raises, among others, the following questions, viz: Question No. 1. — Do the following Acts of Congress, viz : (a) Sections 2339 and 2340 of the United States Eevised Statutes; (b) An Act entitled, "An Act to Provide for the Sale of Desert Lands in Certain States and Territories'*, approved March 3, 1877, (19 U. S. Stat, at L. 377) ; (c) Sections 18 to 21 of an Act entitled, "An Act to Repeal Timber-Culture Laws, and for Other Purposes", approved March 3, 1891, (26 U. S. Stat, at L., 1095, 1101-3) ; (d) An Act entitled, **An Act Making Appropriations for Sundry Civil Expenses of the Government for the Fiscal Year Ending June Thirtieth, Eighteen Hundred and Ninety-eight, and for Other Purposes '^ approved June 4, 1897, (30 U. S. Stat, at L., 11, 34-36) ; (e) Section 2 of an Act entitled, **An Act to Amend an Act to Permit the Use of the Eight of Way Through Public Lands for Tramroads, Canals, and Reservoirs, and for Other Purposes'', approved May 11, 1898, (30 U. S. Stat, at L., 404), operate as a grant, to all qualified grantees who accept the same by complying with the terms and conditions therein prescribed, of a right of way over or a determinable fee in such public or forest reserve lands as are located, appropriated and actually used for reservoirs, canals and other aqueducts for impounding, storing, diverting and conveying water to be used for the generation of electric power? Question No. 2. — Did defendant's location and appropria- tion of the public or forest reserve lands involved in this suit, and its construction thereon of the reservoir, pipe lines and other water conduits mentioned in the complaint, and its subsequent use of such reservoir, pipe lines and water conduits for impounding, storing and conveying the water of Beaver River to defendant's power house where it is used for the generation of electric power, constitute an acceptance of the grant offered by the aforesaid Acts of Congress, and result in vesting in defendant good title to the right of way or deter- minable fee granted by said Acts of Congress? Question No. 3. — Is the Act of Congress entitled, **An Act Relating to Rights of Way Through Certain Parks, Reserva- tions, and Other Public Lands", approved February 15, 1901, (31 U. S. Stat, at L., 790) to be construed as substantive legislation superseding and by implication repealing the afore- said Acts of Congress? Question No. 4. — Is the aforesaid Act of February 15, 1901, (assuming that it is substantive legislation superseding and by implication repealing the other Acts of Congress already mentioned) unconstitutional as involving an unauthorized delegation, to executive officers of the United States, by Congress, of power specifically and exclusively conferred by the Constitution upon the latter? Question No. 5. — Is the aforesaid Act of Congress of February 15, 1901, (assuming that it is substantive legislation superseding and by implication repealing the other aforesaid Acts of Congress and is not unconstitutional) itself super- seded and repealed, so far as it applies to rights of way for reservoirs and aqueducts appropriated for ''municipaV^ that is to say public or governmental, uses, by section 4 of an Act entitled, "An Act Providing for the Transfer of Forest Reserves from the Department of the Interior to the Depart- ment of Agriculture", approved February 1, 1905, (33 U. S. Stat, at L., 628) ? The pertinent parts of all of the aforesaid Acts of Congress and certain other Acts which will be referred to in the course of the argument will be found printed in chronological order in the appendix at the end of this brief. SPECIFICATION OF ERRORS. The decree appealed from is, I respectfully submit, erro- neous in the following particulars, viz : It involves a decision that the Acts of Congress men- tioned in question no. 1 do not operate as a grant of a right of way over, or a determinable fee in, public or forest reserve lands for the construction, maintenance and use of reservoirs and canals to be used for generating electric power; that the location, appropriation and use of public or forest reserve lands for a reservoir or for 6 canals for the generation of electric power, do not, by- virtue of the aforesaid Acts of Congress, result in the acquisition of a right of way over or a determinable fee in such lands; and, consequently, that questions nos. 1 and 2, supra, should be answered in the negative; or a decision that the aforesaid Act of February 15, 1901, is to be construed as substantive legislation superseding and by implication repealing the earlier Acts of Congress above mentioned, is not unconstitutional, and is not, so far as it relates to rights of way for reservoirs and canals appropriated and used for ''municipal'* purposes, super- seded or repealed by section 4 of the aforesaid Act of February 1, 1905, and, consequently, that question no. 3 should be answered in the affirmative, and questions no. 4 and no. 5 in the negative. AEGUMENT. This argument will be confined to a discussion of the specific questions already stated and the specific errors already speci- fied, and will be arranged under definite propositions which, in my opinion, set forth the true legal answers to the aforesaid questions and compel the conclusion that the decree appealed from is erroneous in the particulars specified and should, therefore, be reversed. PROPOSITION NO. 1. The following Acts of Congress, viz: (a) Sections 2339 and 2340 of the United States Re- vised Statutes; (h) An Act entitled ^^ An Act to Provide for the Sale of Desert Lands in Certain States and Territories," ap- proved March 3, 1877, (19 U. S. Stat, at L. 377) ; (c) Sections 18 to 21 of an Act entitled, ''An Act to Repeal Timber-Culture Laws, and for Other Pur- poses,'' approved March 3, 1891, (26 U. 8. Stat, at L. 1095, 1101-3) ; (d) An Act entitled, ''An Act Making Appropri- ations for Sundry Civil Expenses of the Government for the Fiscal Year Ending June Thirtieth, Eighteen Hun- dred and Ninety-eight, and for Other Purposes," ap- proved June 4, 1897, (30 U. S. Stat, at L. 11, 34-36) ; (e) Section 2 of an Act entitled, *'An Act to Amend an Act to permit the Use of the Bight of Way Through Public Lands for Tramroads, Canals, and Reservoirs and for Other Purposes,*' approved May 11, 1898, (30 U. S. Stat, at L. 404) ; operate as a grant, to all qualified grantees who accept the same by complying with the terms and conditions therein prescribed, of a right of way over or a determinable fee in such public or forest reserve lands as are located, appropri- ated and actually used for reservoirs, canals and other aque- ducts for impounding, storing, diverting and conveying water to be used for the genei^ation of electric power. The general legislation of Congress concerning the right to appropriate water and rights of way for reservoirs and aque- ducts consisted, prior to March 3, 1891, of section 9 of the Act approved July 26, 1866 (14 U. S. Stat, at L. 251) and section 17 of the Act approved July 9, 1870 (16 U. S. Stat, at L. 217) re-enacted as, and superseded by, sections 2339 and 2340 of the Revised Statutes, and the Act approved March 3, 1877 (19 U. S. Stat. atL. 377). By these Acts, the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable was declared to be free and open for appropriation, diversion and use wherever appropriation of water was recognized by the local customs, laws and decisions of the courts as a means of acquiring the right to use the water so appropriated for bene- 8 ficial uses; and by these Acts Congress made an unequivocal grant of rights of way for the construction, maintenance and use of reservoirs, ditches and canals as a means of enabling the appropriators of water to impound and store, and to dis- tribute and put to beneficial uses the water lawfully appropri- ated. This statement is sufficiently supported by the follow- ing cases, viz : Broder v. Natoma Water and M. Co., 101 U. S. 274; Farley v. Spring Valley Mining and Irrigating Com- pany, 58 Cal. 142 ; DeNecochea v. Curtis, 80 Cal. 397, 399, 405; "Wood V. Etiwanda Water Company, 122 Cal. 152, 157-8; and Gutierres v. Albuquerque Land and Irrigation Co., 188 U. S. 545. In construing these Acts of Congress adopted prior to March 3, 1891, no distinction has ever been made by the courts of any of the states or of the United States between appropriators in respect to the use to which they devote the water appro- priated by them, if only such u^e is a lawful beneficial use. In support of this statement I refer to the following authori- ties: Basey v. Gallagher, 20 Wall. 670 ; Cascade Town Co. v. Empire W. and P. Co., 181 Fed. 1011, 1016-8; Same case on appeal, 205 Fed. 123, 128-9; Black's Pomeroy on Water Rights, sec. 48 ; Farnham on Waters and Water Eights, sec. 668. Moreover, if the construction of these Acts of Congress had not already been settled by judicial decisions, there would be no reasonable ground for doubting that the right to appro- priate water **for mining, agricultural, manufacturing, and other purposes" includes the right to appropriate water to be used for the generation of electric power, as the electric 9 power generated by means of such water is itself used in mani- fold ways in mining, agricultural and manufacturing opera- tions. From time immemorial the use of water for manufac- turing purposes has consisted principally of its utilization in the generation of power for the operation of mills and machin- ery. The power of falling water has ever been received upon water-wheels, transmitted by means of shafts, belts, pulleys and cogwheels, which in turn have moved machinery, and thus used for manufacturing purposes. Falling water used by means of water-wheels operating dynamos for the generation of elec- tric power which is transmitted by means of wires to great distances and ultimately utilized for operating mills and machinery surely is used for manufacturing purposes just as much as falling water whose power is transmitted by the older methods. That the use of appropriated water for the generation of electric power is not only a beneficial use, but also a use for which water may lawfully be appropriated under the Acts of Congress hereinbefore mentioned and the laws, customs and judicial decisions of the states, is clearly established by the fol- lowing decisions, viz: United States v. Utah Power and Light Co., 208 Fed. 821; Same case on appeal, 209 Fed. 554, 561; Cascade Town Company v. Empire Water and Power Company, 181 Fed. 1011, 1016 ; Thompson Co. v. Pennebaker, 173 Fed. 849, 853-4. The decision of the United States Circuit Court of Appeals in the Eighth Circuit in United States v. Utah Power and Light Company, 209 Fed. 554, 561 (which reversed the decision of the District Court in the same case in 208 Fed. 821 upon another point) expressly declares that "the terms of the orig- inal statute (t. e., the Act of July 26, 1866) are broad enough to include the specific form of manufacture now under con- sideration*' (i. e., the generation of electric power). 10 The above mentioned Acts of Congress constituted the entire body of the general statutes of the United States upon the sub- ject of the appropriation of water and the acquisition of rights of way for reservoirs, canals and ditches by private citizens and corporations prior to the enactment of the Act of Congress entitled, ' * An Act to repeal timber culture laws and for other purposes,'' approved March 3, 1891 (26 U. S. Stat, at L. 1095). This Act of March 3, 1891, is important here because, in sec- tions 18 to 21, it supplements the earlier legislation granting rights of way for reservoirs and canals, and also because, in section 24, it confers upon the President of the United States the power to set apart and reserve the vast areas of land which are now called ''National Forests." The earlier Acts granting rights of way for reservoirs and aqueducts did not expressly mention reservations of the United States in con- nection with the grant of authority to appropriate water and rights of way for reservoirs and canals, or define the extent or limits of the rights of way thereby granted, or contain any provision for issuing to the appropriators any muniment or evidence of title or for making any public record of the rights of way located and acquired thereunder. Remedying these deficiencies in existing legislation, Congress, in sections 18 and 19 of said Act of March 3, 1891, granted a right of way of a definite width through public lands and reservations of the United States for reservoirs and canals to any canal or ditch company formed for the purpose of irrigation which should thereafter file with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organiza- tion under the same, and made provision for the filing and approving of maps showing the location of the rights of way thereby granted and for the noting of the location of such reservoirs and canals upon the plats of the surveys of public lands of the United States in the land office for the District wherein the land affected by the rights of way is situated. It should be noted in passing that it is expressly provided in section 18 of the Act of March 3, 1891, that "the privilege herein granted shall not be construed to interfere with the con- 11 trol of water for irrigation and other purposes under authority of the respective States or Territories." This declaration is a recognition by Congress of the right of the several states to regulate and control the appropriation and use of water for beneficial purposes and is substantially equivalent to the acknowledgment by Congress in the Act of July 26, 1866, of the legal force and effect of the local customs, laws and deci- sions of the courts of the several states concerning rights to the use of water. The language employed in sections 18 and 19 of the Act of March 3, 1891, to grant rights of way for reservoirs and canals and to define the terms and conditions upon which the grant is made, is substantially the same as the language employed in the Railroad Right of Way Act of March 3, 1875 (18 U. S. Stat, at L. 482), a copy of which is printed at the end of the appendix to this brief, and should, therefore, be construed in like manner. De Weese v. Henry Investment Co., 39 L. D. 27, 32-3. This Court, in the case of Jamestown and Northern Railroad Company v. Jones, 177 U. S. 125, held that the Railroad Right of Way Act of March 3, 1875, operates as a direct grant of a right of way over the public lands which may be accepted by actual construction of a rail- road without the filing of a map of location or having the same approved by the Secretary of the Interior. This Court, in Stalker v. Oregon S. L. R. Company, 225 U. S. 142, 146, said that ''the uniform construction of this Act {i. e., the Railroad Right of Way Act) has been that it is a grant *m praesenti of lands to be thereafter identified.' " Consequently, and for the same reasons, it should be held here that said Act of March 3, 1891, is a grant ''in praesenti of lands to be thereafter identified. ' ' The grant of rights of way for reservoirs and canals over public lands and reservations made by section 18 of the Act 12 of March 3, 1891, **to any canal or ditch company formed for the purpose of irrigation*' is, by section 20 of the same Act, extended to *' corporations, individuals or association of indi- viduals'' and made applicable "to all canals, ditches or reser- voirs heretofore or hereafter constructed." That the grantees entitled to claim the benefit of the rights and privileges granted by the Act of March 3, 1891, are not limited to "canal or ditch companies formed for the purpose of irrigation" has been expressly decided by the Supreme Court of the Territory of New Mexico in the case of the United States V. Lee, 110 Pac. 607 (see second paragraph of opinion on page 609), and is supported by the opinion of Assistant Attorney- General Campbell in 33 L. D. 563. That the grant of rights of way made by the Act of March 3, 1891, is not limited to eases where the reservoirs or canals are to be used either exclusively or chiefly for the purpose of irri- gation, but, on the contrary, extends to and includes rights of way for reservoirs and canals for storing and conveying water for any lawful beneficial use seems equally clear from the language of section 20. This construction of the Act of March 3, 1891, is entirely consistent with the spirit and purpose of all of the earlier Acts of Congress upon this subject which, as we have seen, freely grant the right to appropriate water and necessary rights of way without making any distinction between the vari- ous beneficial uses to which, under state laws, the water may be applied, and furthermore is the only construction consistent with the declaration contained in the last clause of section 18 to the effect that the privilege therein granted shall not be con- strued "to interfere with the control of water for irrigation and other purposes under authority of the respective states or territories." There is, however, a series of rulings by the Secretary of the Interior to the effect that rights of way for reservoirs and canals are granted by the Act of March 3, 1891, only for the purpose of irrigation and may not be acquired or used iinder 13 that Act for any other purpose. These rulings appear to be based upon the fact that, in the granting clause contained in section 18 of this Act, the grantee is described as ''any canal or ditch company formed for the purpose of irrigation." That these rulings are erroneous appears from the following considerations: (1) Nowhere in this Act is it expressly stated that the rights of way thereby granted are to be used for the purpose of irrigation to the exclusion of other beneficial uses ; (2) if the rights of way for reservoirs and canals granted by section 18 are to be used solely for the purpose of irrigation because the grantee is therein described as ' ' any canal or ditch company formed for the purpose of irrigation," then it must be that rights of way granted by section 18 as supplemented by section 20 may be used for any purpose for which water may be lawfully appropriated, distributed and sold or used, because section 20 enlarges the class of grantees so as to make it include ''corporations, individuals or association of indi- viduals" generally and without any qualification or limita- tion and makes the provisions of the Act applicable to "all canals, ditches or reservoirs," and because the corporations, natural persons and associations included in the enlarged class of grantees provided for in section 20 possess, imder the laws of the United States and the several states, the right to engage in and conduct the business of appropriating, storing, distributing and selling water to the public and the right to appropriate and use water for every purpose for which water may be beneficially used; (3) no reason has been suggested or occurs why Congress in 1891 should abandon the policy expressed in its previous legislation and grant rights of way for reservoirs and canals to be used for the sole purpose of irrigation upon any more favorable terms than for other lawful beneficial uses; (4) as the Act of March 3, 1891, neither expressly nor by implication, repeals the earlier Acts relating to the appropriation of water and the grant of rights of way for reservoirs and canals, and as under such earlier Acts any corporation or natural person had the right to appropriate 14 water and rights of way for reservoirs and canals upon the public lands of the United States for any and every beneficial use, and as sections 18 to 21 of the Act of March 3, 1891, are clearly remedial in their nature and intended to supply cer- tain defects in the earlier legislation upon the subject, section 20 as well as the other sections should be liberally construed so as to give effect to the intent of Congress and to enable all corporations and natural persons to avail themselves of the benefits and privileges granted by the provisions of this Act ; and (5) if the declaration contained in the first clause of sec- tion 20, ''that the provisions of this Act shall apply to all canals, ditches or reservoirs heretofore or hereafter construct- ed, whether constructed by corporations, individuals or associa- tion of individuals, ' ' is not to be construed as here indicated, it is difficult to conceive of any rational meaning to be attributed to it, and yet settled rules of construction require that effect shall, if possible, be given to every part of an Act of Congress. Moreover the intent of Congress in enacting sections 18 to 21 of the Act of March 3, 1891, is reflexively illustrated by the Acts of June 4, 1897 (30 U. S. Stat, at L. 34-36) and May 11, 1898 (30 U. S. Stat, at L. 404) which supplement and amend said Act of March 3, 1891, and make it clear that Congress did not intend the benefits of the former Act to be availed of by irrigation companies alone. The Act of June 4, 1897, which prescribes how and for what purposes public lands theretofore or thereafter set aside and reserved by the President under the authority conferred by section 24 of the Act of March 3, 1891, as public forest res- ervations, shall be controlled and administered, expressly pro- vides that nothing therein contained shall * ' prohibit any per- son from entering upon such forest reservations for all proper and lawful purposes, including that of prospecting, locating and developing the mineral resources thereof,'' and further that "all waters on such reservations may be used for domes- tic, mining, milling or irrigation purposes, under the laws of the state wherein such forest reservations are situated, or under 15 the laws of the United States and the rules and regulations established thereunder. * ' The express grant made by the Act of June 4, 1897, of the right to enter upon such reservations for all lawful purposes and to appropriate all waters thereon **for domestic, mining, milling or irrigation purposes*' includes, by necessary impli- cation, a grant of all rights of way for reservoirs and aque- ducts, which may be reasonably necessary and proper for the appropriation, distribution and use of such water. For the grant of water, timber or any other thing which is a part of the land, carries with it by implication as against the grantor such easements and servitudes affecting his land as are reason- ably necessary and proper to enable the grantee to obtain and use the thing granted. See Hathorn v. Stinson, 10 Maine 224, 25 Am. Dec. 228, 232; Prescott V. White, 21 Pick. 341, 32 Am. Dec. 266, 268 ; Pine Tree Lumber Co. v. McKinley et al., 83 Minn. 419, 86N. W. 414; Werling v. IngersoU, 181 U. S. 131, 141. But it is not necessary to rely upon such implication alone, because the clause of this Act of June 4, 1897, which grants the right to use, for domestic, mining, milling or irrigation purposes, all waters on forest reservations, expressly provides that such waters may be used ''under the laws of the United States and the rules and regulations established thereunder.'* The ' ' laws of the United States ' ' thus referred to and thereby (under the rule declared in re Heath, 144 U. S. 92) incorpor- ated in this Act must be sections 2339 and 2340 of the United States Revised Statutes, the aforesaid Act of March 3, 1877, and the aforesaid Act of March 3, 1891, because these were the only general laws of the United States then in force relating to the appropriation of water and the appropriation and acquisition of rights of way for reservoirs and canals upon 16 the public domain, except an Act approved January 21, 1895 (28 U. S. Stat, at L. 635) which, by its terms, was limited to citizens engaged in the business of mining, quarrying or lum- bering and to lands not within any park, forest, military or Indian reservation, and except an Act approved February 26, 1897, (29 U. S. Stat, at L. 599) which declares that reservoir sites reserved or to be reserved shall be open to use and occu- pation under said Act of March 3, 1891, and that any state may occupy such sites to the same extent as an individual or private corporation. This clause of the Act of June 4, 1897, construed as it must be in connection with 'Hhe laws of the United States" therein referred to, authorizes not only the appropriation of all non-navigable waters upon the forest reservations, but also the appropriation and use of all neces- sary rights of way for reservoirs and canals in accordance with the laws of the several states and the aforesaid laws of the United States then existing. In passing, I desire to call the Court's attention to the fact that the term *' milling" as used in the sentence quoted above from the Act of June 4, 1897, is undoubtedly the equivalent of the term ''manufacturing" used in section 9 of the Act of July 26, 1866, and section 2339 of the United States Revised Statutes, which, as I have already shown, includes the genera- tion or manufacture of electric power. That the terms ''mill- ing" and "manufacturing" are substantially equivalent and include the generation of electric power is supported by the following authorities : Lambom v. Bell, 18 Colo. 346, 32 Pac. 989, 990-1 ; Denver Power and Irrigation Co. v. Denver & R. G. R. Co., 30 Colo. 204, 69 Pac. 568, 569 ; Lucas V. Ashland Light, M. & P. Co., 92 Neb. 550, 138 N. W. 761, 763. The second section of the Act of Congress approved May 11, 1898, provides "that the rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the pro- 17 visions of sections eighteen, 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.'* By this section of the Act of May 11, 1898, Congress not only recognizes the existence of rights of way for reservoirs and canals acquired and to be acquired under the provisions of section 20 as well as under the provisions of section 18 of the Act of March 3, 1891, but also provides that rights of way granted under the provisions of sections 18, 19, 20 and 21 of the Act of March 3, 1891, ''may be used for purposes of a public nature" without any qualification or limitation, and also for certain other purposes including ''the development of power, as subsidiary to the main purpose of irrigation." If, therefore, the generation of electric power for distribu- tion and sale to the public is a public use so that rights of way and water rights used for that purpose are actually used for a purpose of a public nature, then section 2 of the Act of May 11, 1898, affords express authority for the use of rights of way for reservoirs and canals granted by the Act of March 3, 1891, for the generation of electric power for distribution and sale to the public. This is the purpose for which defend- ant is using the rights of way involved in this action. That the generation of electric power for distribution and sale to the public is a public use is a proposition fully sup- ported by the following cases : Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S., 30; Walker v. Shasta Power Company, 160 Fed., 856. If it is contended on behalf of the plaintiff that the reference in the second clause of section 2 of the Act of May 11, 1898, to the "development of power as subsidiary to the main pur- pose of irrigation ' ' should be deemed to exclude the generation 18 of electric power from the purposes of a public nature men- tioned in the first clause of this section, then the answer is that, while the use of rights of way for reservoirs and canals for the generation of electric power for distribution and sale to the public is a public use, the generation of electric power for the private or individual use of the owner thereof, whether for mining, manufacturing or other industrial purposes, is a private use; that the reference in this section to the ''devel- opment of power as subsidiary to the main purpose of irri- gation" contemplates the development of power for the private or individual use of the owner of the right of way as dis- tinguished from the development of electric power for dis- tribution and sale to the public; and that this construction gives full effect to both clauses of this section, while the plain- tiff's construction makes the second clause destructive in part of the authority granted by the first clause. The distinction here made between public and private uses of hydro-electric power plants and rights of way acquired for use in connection therewith has often been recognized in cases involving the appropriation, distribution and use of water. See: Hildreth v. Montecito Creek Water Co., 139 Cal., 22, 28-30; Thayer v. California D. Co., 164 Cal., 117, 125-131. It should be noted that the term ''right of way'' as used in the aforesaid Acts of Congress and particularly as used in said Act of March 3, 1891, signifies, not merely an easement in the land surveyed, located and appropriated as a reservoir site or right of way for a ditch or canal, but rather the land itself appropriated for such purposes; and that the grant made by these Acts is really of a limited or determinable estate in fee, that is to say, an estate in fee to be held and owned by the grantee, its successors and assigns, so long as such land shall be used for the purpose for which it was granted, subject to the implied condition that the same shall revert to the United States if and whenever the grantee thereof shall 19 cease to use the same for that purpose. This interpretation of the term ''right of way'* as used in these Acts and of the grant made by said Acts is supported by the decisions of this Court in the following cases, which involve the interpre- tation of grants of rights of way to corporations for railroad purposes : Northern Pacific Ky. Co. v. Townsend, 190 U. S., 267 ; New Mexico v. United States Trust Company, 172 U. S., 171; Rio Grande Western Ry. Co. v. Stringham, 239 U. S. 44. No condition precedent is attached to the grant of rights of way made by any of the aforesaid Acts except the condition prescribed by section 18 of the Act of March 3, 1891, ''that no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reser- vation.*' This condition has been correctly construed by the Secretary of the Interior, in the case of Rio Verde Canal Company, 27 L. D., 421, 423, as requiring that rights of way for reservoirs and canals granted by the Act of March 3, 1891, must be so located as not to interfere with the use of the reser- vations affected thereby for the purposes for which such reser- vations were created. The purposes for which forest reserva- tions may be lawfully established are, as declared in the Act of June 4, 1897, to improve and protect the forest within the reservations, to secure favorable conditions of water flow and to furnish a continuous supply of timber for the citizens of the United States. There is nothing in the record in this case that will support an inference that defendant's reservoir, pipe lines and water conduits have been located in such a way as to interfere with the proper occupation by the Government of the Fillmore National Forest; but, on the contrary, from the positive allegation contained in paragraph IV of plaintiff's complaint (transcript page 4) to the effect that defendant has been accorded the fullest opportunity to comply with the Acts of Congress and the regulations of the Secretary of Agriculture 20 and *' thereby to obtain from the plaintiff permission to main- tain and operate said power house, pipe lines or conduit, transmission lines, reservoir ' ' and the buildings and structures composing its hydro-electric works, the absence of any allega- tion charging that defendant's reservoir, pipe lines and water conduits interfere with the proper occupation by the Gov- ernment of said National Forest and the fact that plaintiff, in the prayer of its complaint (transcript page 6), instead of asking for an absolute injunction, prays that defendant *'be enjoined from further operating said works without the permission of the plaintiff," it is to be inferred that defend- ant's reservoir and aqueducts have in fact been so located as not to interfere with the proper occupation by the Govern- ment of said National Forest. To sum up this branch of the argument I submit that the following propositions have been fully established : (a) Congress has by the Acts already mentioned, clearly and unequivocally granted to defendant, and to all others in like situation, as against the United States in its capacity as riparian proprietor, the right to appropriate and take the water of all non-navigable lakes, rivers and streams upon public lands and forest reservations of the United States for agricultural, mining, manufacturing, domestic, municipal and other beneficial uses including the generation of electric power; and (b) Congress has also by said Acts granted to de- fendant, and to all others in like situation, the right to locate, appropriate and acquire rights of way for reservoirs, canals and ditches, through the public lands and reservations of the United States to be used for im- pounding, storing and conveying water for all beneficial uses including the generation of electric power, subject only to the condition provided for in said Act of March I 3, 1891, that such rights of way shall be so located as not to interfere with the proper occupation by the Gov- ernment of any such reservation. 21 PROPOSITION NO. 2. Defendant's location and appropriation of the public or forest reserve lands involved in this suit, and its construction thereon of the reservoir, pipe lines and other water conduits mentioned in the complaint, and its subsequent use of such reservoir, pipe lines and water conduits for impounding, stor- ing, and conveying the water of Beaver River to defendant's power house where it is used for the generation of el&ctric power, constituted an acceptance of the grant offered by the aforesaid Acts of Congress, and resulted in vesting in d&- fendant good title to the right of way or determinable fee granted by said Acts of Congress. As stated on page 11, supra, the language employed in sections 18 and 19 of the aforesaid Act of March 3, 1891, to grant rights of way for reservoirs and canals and to define the terms and conditions upon which such rights of way are granted, is substantially the same as the language employed in the Railroad Right of Way Act of March 3, 1875. Conse- quentlj^ the decision of this Court in Jamestown and Northern Railroad Company v. Jones, there cited, wherein it is held that the grant made by said Railroad Right of Way Act may be accepted by actual construction of a railroad without filing, or obtaining the Secretary of the Interior's approval of, a map of location, is sufficient authority to support Proposition No. 2, if that proposition depended solely upon said Act of March 3, 1891. This construction of the said Act of March 3, 1891, is also directly sustained by the decision of the Supreme Court of New Mexico, rendered August 10, 1910, in United States v. Lee, 15 N. M. 382, 110 Pac, 607, wherein it was held that the defendant, under the provisions of the Act of March 3, 1891, had the right to locate and construct, and thereby to acquire a right of way for, a canal over unsurveyed public lands of the United States to be used for the purpose of conveying water for irrigation, without filing a map of location and ob- taining the approval thereof by the Secretary of the Interior 22 or obtaining a permit under the aforesaid Act of February 15, 1901. Section 2 of the aforesaid Act of May 11, 1898, which expressly provides that rights of way for reservoirs and canals approved under the provisions of said Act of March 3, 1891, **may be used for purposes of a public nature," adds nothing to the requirements oisaid Act of March 3, 1891. Sections 2339 and 2340 of the United States Revised Stat- utes and the Desert Land Act of March 3, 1877, do not, either expressly or by implication, require any person desiring to avail himself of the grant thereby made of the right to appro- priate water from non-navigable streams on the public lands and rights of way for reservoirs and canals required to effect the appropriation of such water to file any application with any officer of the Government, or obtain any permit, patent or other evidence of such grant; but, on the contrary, under said Acts, water rights and rights of way for canals and res- ervoirs become vested and accrued by actual appropriation and use. .■. , • Lincoln County Water etc. Co. v. Big Sandy Reservoir Co., 32 L. D. 463; Santa Fe Pac. R. R. Co., 29 L. D. 213. The Act of June 4, 1897, after providing that ''no public forest reservation shall be established, except to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows and to fur- nish a continuous supply of timber for the use and necessities of citizens of the United States," confers upon the Secre- tary of the Interior the authority to make provision for the protection of the forest reservations from fire and depreda- tions and to make ''such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction." But the Act of June 4, 1897, also provides that nothing therein contained shall *' prohibit any person from entering 23 upon such forest reservations for all proper and lawful pur- poses," and that ''all waters on such reservations may be used for domestic, mining, milling or irrigation purposes, under the laws of the State wherein such forest reservations are situated, or under the laws of the United States and the rules and regulations established thereunder." The Act of June 4, 1897, does not, either expressly or by implication, repeal any part of any of the earlier Acts of Congress relating to water rights or rights of way for reser- voirs and canals, but, on the contrary, in the clause last quoted, expressly authorizes the use of water on the forest reservations, "under" (i- e., in accordance with) "the laws of the United States." That the "laws of the United States" thus referred to are the Acts of Congress hereinbefore con- sidered, is clear, because said Acts of Congress are the only general laws of the United States that were then in existence relating to the appropriation of water on the public lands and reservations except the Acts of January 21, 1895, and Feb- ruary 26, 1897, mentioned on page 16, supra. That such a reference in one statute to other statutes incorporates in the former the provisions of the latter is well settled. See: In re Heath, 144, U. S., 92; Lewis' Sutherland on Statutory Construction, 2nd ed., sec. 405. The Act of June 4, 1897, must, therefore, be so construed as to give full effect, not only to all of its own provisions, but also to all of the provisions of the aforesaid earlier Acts incor- porated therein by reference, in accordance with the rules of construction declared by this Court in the case of Kohlsaat v. Murphy, 96 U. S., 153 ; as follows, viz: "In the exposition of statutes, the established rule is that the intention of the law-maker is to be deduced from a view of the whole statute, and every material part of the same; and where there are several statutes relating to the same subject, they are all to be taken u together, and one part compared with another in the construction of any one of the material provisions, because, in the absence of contradictory or inconsistent provisions, they are supposed to have the same object and as pertaining to the same system. Resort may be had to every part of a statute, or, where there is more than one in pari materia, to the whole system, for the purpose of collecting the legislative intention, which is the important inquiry in all cases where provisions are ambiguous or inconsistent. ' ' It is settled by well considered decisions of this Court that the power granted to an executive officer of the Government to administer and execute an Act of Congress and to adopt regulations for the purpose of carrying the same into effect does not authorize him to make or enforce regulations incon- sistent with such Act of Congress or destructive of any right thereby granted. See: Morrill v. Jones, 106 U. S., 466 ; United States v. Eaton, 144 U. S., 677, 687 ; "Williamson v. United States, 207 U. S., 425, 462. Consequently the power granted to the Secretary of the Interior by the Act of June 4, 1897, to make and enforce regulations concerning the use and occupancy of forest reser- vations, does not authorize the adoption or enforcement of any regulation — (a) Prohibiting any person from appropriating and using for any lawful purpose the water of non-navigable lakes and streams within any forest reservation; (b) Prohibiting the location and construction of reser- voirs or canals in any such reservation, provided they be so located as not to interfere with the purpose for which such reservation is created; (c) Reserving to the Secretary of the Interior the right, in his discretion, to permit or to refuse to permit any person to survey, locate, appropriate and use such 25 reservoir and canal rights of way as may be either neces- sary or proper for the appropriation and use of water within any such forest reservation; (d) Requiring any person desiring to avail himself of the grants made by the aforesaid Acts of Congress to file a map of location of the desired right of way and obtain the Secretary's approval thereof before constructing his proposed reservoir or canal; or (e) Requiring any such person to enter into any stip- ulation or contract or to make any payment not required or authorized by said Acts. Hence it follows that defendant, having actually appro- priated and put to beneficial use of a public nature the waters of Beaver River, and having actually constructed and used, for the purpose of impounding, storing, and conveying such water, its reservoir, pipe lines and conduits, has acquired a right of way over, or determinable estate in fee in, the lands occupied by said reservoir and said pipe lines and conduits, unless the aforesaid Acts have been superseded or repealed by the aforesaid Act of February 15, 1901. PROPOSITION NO. 3. The Act of Congress entitled ''An Act Relating to Rights of Way Through Certain Parks, Reservations, and Other Public Lands,'' approved February 15, 1901, {31 U. 8. Stat, at L. 790) is not to be construed as substantive legislation supersed- ing and by implication repealing the aforesaid Acts of Con- gress. The Act of February 15, 1901 (31 U. S. Stat, at L., 790), provides as follows : ''That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of rights of way through the public lands, forest and other reservations 26 of the United States, and the Yosemite, Sequoia, and General Grant national parks, California, for electrical plants, poles, and lines for the generation and distribu- tion of electrical power, and for telephone and tele- graph purposes, and for canals, ditches, pipes and pipe lines, flumes, tunnels, or other water conduits, and for water plants, dams, and reservoirs used to promote irrigation or mining or quarrying, or the manufactur- ing 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 con- duits or water plants, or electrical or other works per- mitted hereunder, and not to exceed fifty feet on each side 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: Provided, That such permits shall be allowed within or through any of said parks or any forest, military, Indian, or other reservation only upon 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 same is not incompatible with the public interest: * * * And provided further, That any permission given by the Secretary of the Interior under the pro- visions of this Act may be revoked by him or his suc- cessor 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/' The authority to execute this Act of February 15, 1901, so far as it applies to forest reservations, was transferred from the Secretary of the Interior to the Secretary of Agriculture 27 by the first section of the aforesaid Act of February 1, 1905. This Act of February 15, 1901, does not expressly repeal the whole or any part of any earlier Act of Congress. The Act of February 15, 1901, embraces the entire subject matter of, and therefore plainly superseded and by implica- tion repealed, the following Acts, except so far as the same relate to tramroads, viz: 1. The Act of January 21, 1895 (28 U. S. Stat, at L., 635 — see Appendix, page 10), which authorizes the Secretary of the Interior, under general regulations to be fixed by him, to permit the use of rights of way through the public lands, not within any park, forest, military, or Indian reservation, for tramroads, canals or reservoirs by any citizen or association of citizens engaged in the business of mining, quarrying, or cut- ting timber and manufacturing lumber; 2. The Act of May 14, 1896 (29 U. S. Stat, at L., 120 — see Appendix, page 11), which expressly amends the aforesaid Act of January 21, 1895, by adding thereto a new section granting authority to the Secretary of the Interior, under general regulations to be fixed by him, to permit the use of rights of way and necessary ground upon the public lands and forest reservations by any citizen or association of citizens for generating and distributing electric power; and 3. The first section of the Act of May 11, 1898 (30 U. S. Stat, at L., 404 — see Appendix, page 17), which amends the aforesaid Act of January 21, 1895, by adding thereto a grant of authority to the Secretary of the Interior, under general regulations to be fixed by him, to permit the use of rights of way upon the public lands, not within any park, forest, military, or Indian reservation, for tramways, canals, and reservoirs, by any citizen or association of citizens for the purpose of furnishing water for domestic, public, and other beneficial uses. 28 Consequently these three Acts need not be further con- sidered, except incidentally and for the purpose of aiding in the construction and interpretation of the Act of February 15, 1901. That the Act of February 15, 1901, was not inconsistent with, and did not supersede or repeal, the Act of March 3, 1891, and consequently that an individual had the right to construct, maintain and use canals, ditches and pipe lines upon and across public lands of the United States for the purpose of conveying water for irrigation, without first ob- taining permission from the Secretary of the Interior, was directly decided in a well considered opinion by the Supreme Court of New Mexico in the case of United States v. Lee, 15 N. M. 382, 110 Pac. 607. That Congress did not intend that the Act of February 15, 1901, should operate to repeal the Act of March 3, 1891, is to be inferred from the fact that the operative language con- tained in the former Act is almost identical with the operative language contained in the first section of the Act of May 11, 1898, and the further fact that, by the second section of the Act of May 11, 1898, which declares that ** rights of way for ditches, canals or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, nineteen, twenty and twenty-one'* of the Act of March 3, 1891, "may be used for purposes of a public nature," Congress then unmistakably evi- denced its intention that the Act of March 3, 1891, should continue in force. That the first section of the Act of May 11, 1898, did not operate as a repeal pro tanto of the Act of March 3, 1891, was decided in the case of United States v. Portneuf-Marsh Valley Irrigation Com- pany, 205 Fed. 416; Same case on appeal, 213 Fed. 601. That the Secretary of the Interior, although he has erro- neously construed the Act of March 3, 1891, as applying only to rights of way for reservoirs and canals to be used for the 29 purpose of irrigation, as I have already shown on pages 12 to 14 of this brief, has uniformly construed the Act of February 15, 1901, as not repealing sections 18 to 21 of the Act of March 3, 1891, is clearly shown by the regulations relating to rights of way over public lands and reservations which are to be found printed in 31 L. D. 13, see paragraph 1; 34 L. D. 212, 228, see paragraph 46; 36 L. D. 567, 568, 580, see paragraphs 1-4, 37; 41 L. D. 532, 533, see paragraphs 1, 2 and 3. If the Act of February 15, 1901, does not operate to repeal the Act of March 3, 1891, there is no conceivable reason why it should be construed as repealing sections 2339 and 2340 of the United States Revised Statutes, the Act of March 3, 1877, or the Act of June 4, 1897, by which the United States, in its capacity as owner of public and reserved lands riparian to lakes, rivers and streams, has freely granted, as against itself and its successors in estate, the right to appropriate the waters of such lakes, rivers, and streams for beneficial uses, and without which the Acts of March 3, 1891, and February 15, 1901, would be applicable only in cases where the water to be impounded in reservoirs and conveyed in canals across public and reserved lands could be appropriated without vio- lation of such riparian rights, if any, as are possessed by the United States. That Congress thought that these laws con- tinued in force notwithstanding the Act of February 15, 1901, is fairly to be inferred from the provisions of section 8 of the Act of June 17, 1902, providing for Reclamation of Arid Lands. In support of this inference I refer to the able opin- ion written by Assistant Attorney-General Frank L. Campbell, September 5, 1903, approved by Secretary of the Interior E. A. Hitchcock and reported in 32 L. D. 254, wherein the conclusion is exprassed that ''those Acts" {i. e., sections 2339 and 2340 of the United States Revised Statutes and the Act of March 3, 1877) ''are still in full force and effect, and 30 their operation cannot be limited or suspended by executive authority. ' ' The only judicial decision that I have been able to find supporting, even by inference, the conclusion that the Act of February 15, 1901, operates as a repeal of the aforesaid earlier Acts is the decision by the Circuit Court of Appeals for the Eighth Circuit in the case of United States v. Utah Power and Light Company, 209 Fed. 554, wherein it was held that the aforesaid Act of May 14, 1896, withdrew "from the operation of that section'' {i. e., section 2339 of the United States Revised Statutes) ''the subject of generating, manufacturing, or distributing electric power, the manner of acquiring rights of way over the public lands for those purposes, and the nature and extent of such rights" (p. 561). This decision, so far as it relates to this point, is supported by reasoning neither cogent nor convincing and by no authority save the Government 's brief ; and its unsound- ness is evident from the fact that the Act of May 14, 1896, does not, either expressly or by implication, in the provisions conferring authority upon the Secretary of the Interior, refer to rights of way for reservoirs, canals or ditches. Rights of way for reservoirs, canals and ditches to be used for impound- ing, storing, conveying and distributing water for every ben- eficial use, including, as was held by the Circuit Court of Appeals in this very case, the generation or manufacture of electric power, had already been granted by section 2339 of the United States Revised Statutes and the aforesaid Act of March 3, 1891. But, until the adoption of this Act of May 14, 1896, Congress had not granted or authorized the grant of rights of way for electric transmission lines or the use of lands required for the construction of electric generating plants. This Act of May 14, 1896, should, therefore, plainly have been construed as granting authority to issue permits for the con- struction of electric generating plants and electric transmis- sion lines and as having no reference whatsoever to rights of 31 way for reservoirs or canals used in storing water and con- veying the same to electric generating plants. In this connection it should be noted that the Act of Feb- ruary 15, 1901, whatever may be its true construction, applies expressly and in plain terms equally to all reservoirs and to all kinds of aqueducts, whether used to promote irrigation or mining, or the supplying of water for domestic, public, or any other beneficial use; and consequently that, if this Act superseded and repealed by implication section 2339 of the United States Revised Statutes in its application to rights of way used to promote the utilization of water for the genera- tion of electric power, then, by parity of reasoning, it is indubitable that it also superseded and repealed by implica- tion said section 9 of the Act of July 26, 1866, sections 2339 and 2340 of the United States Revised Statutes, and also sections 18 to 21 of the Act of March 3, 1891, as amended by section 2 of the Act of May 11, 1898, in their application to rights of way used to promote irrigation, mining, domestic, public, or any other beneficial use, that is to say, in their entirety. But, as the decree of the District Court in the case at bar cannot otherwise be sustained, I assume that it will be con- tended in this Court on plaintiff's behalf that the Act of February 15, 1901, is to be construed as substantive legisla- tion superseding and by implication repealing the aforesaid earlier Acts of Congress and granting to the Secretary of the Interior full power and authority to grant or refuse to grant, in his uncontrolled discretion, in accordance with his con- ception of what is required by the public interest, and upon such terms and conditions as he may prescribe by general regulations, permits to locate and use rights of way for reservoirs and canals for storing and conveying water for any or all of the purposes therein specified and also rights of way for plants for the generation. and transmission of electric power. If the Act of February 15, 1901, is to be construed as repealing by implication the earlier legislation whereby Con- 32 gress has itself established all needful rules and regulations respecting the appropriation of water and the appropriation and acquisition of rights of way for reservoirs and canals upon the public lands and reservations of the United States and further as delegating to the Secretary of the Interior the power to prescribe by general regulations, the terms and conditions upon which citizens, voluntary associations and corporations may appropriate water and acquire rights of way for reservoirs and canals upon the public lands and reservations of the United States in aid of irrigation, mining, domestic, public, or any other beneficial use, and further as conferring upon the Secretary of the Interior discretionary power, in accordance with his conception of what is or is not compatible with the public interest, to grant or to refuse to grant to any citizen or association of citizens or corporation a permit or license to use, upon the terms and conditions so prescribed by him, a right of way for any such purpose, and also power in his discretion to revoke any permit theretofore granted by him and terminate the rights initiated, possessed and exercised thereunder, then, as I shall presently show, this Act is repugnant to the Constitution and void as an attempted delegation by Congress to an executive officer of a part of the legislative power which the Constitution has conferred upon Congress alone. But, if the Act of February 15, 1901, is susceptible of a construction which, instead of making it operate as a repeal by implication of the earlier Acts of Congress relating to the same general subject, will harmonize it with such earlier Acts and render unnecessary a consideration and decision of the question of its constitutionality, such construction is required by the following rules, viz: 1. In the exposition of several statutes relating to the same subject, the intention of the lawmaker is to be deduced from a view of all of the statutes taken together, because, in the absence of contradictory or inconsistent provisions, they are supposed to have the same object. This rule is supported by the decision of this Court in Kohlsaat v. Murphy, 96 U. S. 153. 33 2. Repeals by implication are not favored and if, by any reasonable construction, two or more statutes, in pari materia, enacted at different dates can be har- monized so as to stand together, the construction which will accomplish that result should be adopted. This rule is supported by the decisions of this Court in Wilmot V. Mudge, 103 U. S. 217, 221 ; Cope V. Cope, 137 U. S. 682, 686. 3. ** Where a statute is susceptible of two construc- tions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." This rule is supported by the decision of this Court in United States v. Delaware and Hudson Company, 213 U. S. 366, 407-8. Furthermore it is well settled that, as declared by this Court in Town of Red Rock v. Henry, 106 U. S. 596, 601-2 : ''When an affirmative statute contains no expression of a purpose to repeal a prior law, it does not repeal it unless the two Acts are in irreconcilable conflict, or unless the later statute covers the whole ground occupied by the earlier and is clearly intended as a substitute for it, and the intention of the Legislature to repeal must be clear and manifest." To determine whether said Act of February 15, 1901, repeals by implication, or may be so construed a^ to har- monize with, the aforesaid earlier Acts of Congress, it is necessary to analyze and compare their respective provisions. The essential features of the aforesaid earlier Acts are : (a) A free grant, as against the United States in its capacity as owner of riparian lands, of the right to appro- priate, for any and every lawful beneficial use, the waters of lakes, rivers and streams on public lands and forest and other reservations; 34 (b) A free grant of all rights of way for reservoirs and canals reasonably required for the appropriation, storage, conveyance and use of such waters ; and (c) As an incident to the grant of rights of way, a free grant of the right to enter upon public and reserva- tion lands, and to survey, locate and appropriate such rights of way, subject only to the condition that, if the desired rights of way are within any reservation, they must be so located as not to interfere with the proper occupation of such reservation by the government. The Act of February 15, 1901, does not cover these essen- tial features of the earlier Acts because it does not expressly — (a) Grant to any person or corporation the right to appropriate the water of any lake, river, or stream upon any public land or reservation of the United States; (b) Deny to any person or corporation the right to appropriate the water of any lake, river or stream upon any public land or reservation of the United States; (c) Grant to any person or corporation any right of way for a reservoir, canal or other aqueduct; (d) Deny to any person or corporation the right to locate and appropriate any right of way for a reservoir, canal or other aqueduct; (e) Grant to any person or corporation the right to enter upon any public land or reservation for the purpose of surveying, locating or appropriating a right of way for any reservoir, canal or other aqueduct ; or (f) Deny to any person or corporation the right to enter upon any public land or reservation for the purpose of surveying, locating or appropriating a right of way for any reservoir, canal or other aqueduct. On the contrary, the Act of February 15, 1901, by expressly authorizing the Secretary of the Interior, ^' under general regulations to he fixed by him, to permit the use of rights of 35 tuay through the public lands, forest and other reservations'', for the purposes therein specified, assumes by necessary impli- cation the continued existence of the following rights recog- nized or granted by the aforesaid earlier Acts of Congress, viz : (a) The right to appropriate, for every beneficial use, the water of lakes, rivers and streams on the public lands and reservations of the United States; (b) The right to construct and maintain, on such lands and reservations, reservoirs, canals and other aqueducts as means to the appropriation and use of water; (c) The right to locate, appropriate and possess, on such lands and reservations, all necessary rights of way for such reservoirs, canals and aqueducts ; and (d) The right to use such rights of way for reservoirs and aqueducts for impounding, storing, conveying and distributing water for all lawful beneficial uses. The Act of February 15, 1901, does not expressly declare whether or not the ''general regulations to be fixed by" the Secretary of the Interior shall be consistent with the pro- visions of the aforesaid earlier Acts of Congress relating to the appropriation of water and making grants of rights of way for reservoirs and canals, and, therefore, as a conse- quence of the implied limitation upon the authority of execu- tive officers declared by this Court in Morrill v. Jones and other cases cited on page 24 of this brief, should be deemed to authorize the Secretary of the Interior to make only such general regulations as shall be consistent with such earlier Acts. The Act of February 15, 1901, does not expressly declare or define "the public i7iterest" (which, is plainly the equiva- lent of ''public policy"), incompatibility with which is the only ground expressly mentioned therein for not allowing "permits" "within or through any of said parks or any forest, military, Indian or other reservation", and, conse- quently, should be construed as requiring the Secretary of 36 the Interior to ascertain or determine in every ease what constitutes ''public interest" or ''public policy" by resorting, as courts of justice do, to the Constitution, to the statutes, and to judicial decisions declaring and interpreting the law of the land. As pointed out in the middle paragraph on page 19 of this brief, the only condition attached by any Act of Congress, prior to February 15, 1901, to the free grant of rights of way for reservoirs and canals thereby made is the condition speci- fied in section 18 of said Act of March 3, 1891, namely, "that no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reserva- tion, and all maps of location shall be subject to the 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 irriga- tion and other purposes under authority of the respective States or Territories." It follows, I submit, that the Act of February 15, 1901, if it be construed in connection with the earlier Acts of Congress relating to the same subject, does not confer upon the Sec- retary of the Interior discretionary authority to refuse to permit any citizen, association or corporation of the United States to acquire or use any right of way for a reservoir or canal upon public lands or within any forest or other reserva- tion of the United States except when, upon investigation, it is ascertained that such right of way has been so located as to interfere with the proper occupation by the Government of such forest or other reservation for the purposes for which the same was created. For, otherwise, the grant of authority made by the Act of February 15, 1901, "to permit the use of rights of way through the public lands, forest and other reservations of the United States" (such rights of way being granted by, and capable of being acquired under, the afore- said earlier Acts of Congress and not otherwise), would be a grant of discretionary authority to the Secretary of the Interior to make inoperative said earlier Acts and to deny to 37 any citizen, association or corporation the rights thereby granted; and this would involve the absurdity of holding (if I may paraphrase the language used in the opinion of this Court in Daniels v. Wagner, 237 U. S. 547, 557-9) that, although Congress possesses, and by the enactment of its aforesaid earlier Acts has actually exercised, the power to provide for the disposition or granting of rights of way over the public lands and reservations of the United States and to fix the terms and conditions upon which the people may enjoy the right to acquire such rights of way, nevertheless **it has not done so, since every command which it has expressed on this subject may be disregarded, and every right which it has conferred on the citizen may be taken away by an unlimited and undefined discretion which is vested by law" (i. e.j the Act of February 15, 1901) "in the adminis- trative officers appointed for the purpose of giving effect to the law". The operative language of the Act of February 15, 1901, viz, the entire first clause thereof, construed literally, merely confers upon the Secretary of the Interior authority "to permit", i. e., to allow, either tacitly or expressly, "the use of rights of way through the public lands, forest and other reservations of the United States," for certain designated purposes, is not expressly limited in its operation either to rights of way existing at the date of the Act or to rights of way thereafter to be acquired and is silent upon the subject of their acquisition. But rights of way over the public lands, forest and other reservations, whether acquired before or after the enactment of the Act of February 15, 1901, con- stitute property, the owners of which are entitled to the protection of the Constitution; and therefore Congress does not possess, and consequently cannot confer upon the Sec- retary of the Interior, the power to take any such right of way, except for public use and upon making just compensa- tion therefor, or the power to prohibit or prevent any citizen, association or corporation from possessing, or using for any 38 lawful purpose, any such right of way. It follows necessarily that the Act of February 15, 1901, if construed literally and without reference to other legislation upon the same subject, is without meaning, force or effect; and consequently, under accepted rules of construction, it is necessary to endeavor to ascertain the intent of Congress by considering the language of this Act as a whole in connection with the other Acts of Congress relating to the same subject matter existing at the date of its enactment. In any attempt to construe the Act of February 15, 1901, in connection with the aforesaid earlier Acts of Congress, two questions naturally arise, viz: 1. "What is the purpose of this Act? and 2, What is the legal nature and effect of the permits to be issued pursuant to its provisions and the general regulations to be adopted thereunder? The Act of February 15, 1901, does not contain an express and explicit answer to either of these questions, but rather leaves its purpose and the nature and effect of the permits whose issuance is thereby authorized to be inferred by pro- cesses of legal reasoning based upon a consideration of general principles of law recognized and enforced by the Courts of the United States. In endeavoring to ascertain the purpose of the Act of February 15, 1901, and the legal nature and effect of the permits to be issued thereunder, one should bear constantly in mind the following considerations: (a) The right to appropriate for beneficial uses the waters of lakes, rivers and streams on the public lands and reservations of the United States was, in February, 1901, and is now (either by virtue of the political sov- ereignty and authority possessed by each state of the Union or by virtue of grants made by the United States, in its capacity as proprietor of public lands and reserva- tions riparian to such sources of water supply, by sections 39 2339 and 2340 of the United States Revised Statutes, the Act of March 3, 1877, and the Act of June 4, 1897) gov- erned, regulated and controlled by state law. Gutierres et al. v. Albuquerque Land and Irrigation Co., 188 U. S. 545, 552-5; Kansas v. Colorado, 206 U. S. 46, 85-95. (b) Under the laws of all of the western states, the right to appropriate water becomes a vested and accrued right only by construction of the necessary works and actual use of the water appropriated. Black's Pomeroy on Water Rights, sections 49, 50, 51 and 54; Farnham on Waters and Water Rights, sections 662, 666, 66S; Maeris v. Bicknell, 7 Cal. 261 ; Kimball v. Gearhart, 12 Cal. 27, 49. (c) Under state laws, whether operating ex propria vigore or by virtue of the consent of Congress evidenced by the Acts of Congress mentioned in (a) supra and section 18 of the Act of March 3, 1891, as well as under section 8 of the Reclamation Act of June 17, 1902 (32 U. S. Stat, at L. 388), beneficial use is the basis, the measure and the limit of the right to water which may be acquired by appropriation. Black's Pomeroy on Water Rights, section 85; Atchison v. Peterson, 20 Wall. 507 ; Riverside Water Co. v. Sargent, 112 Cal. 230, 234. (d) By none of the general Acts of Congress in force in 1901 relating to the same subject matter, i. e., Sections 2339 and 2340 of the United States Revised Statutes, the Act of March 3, 1877, the Act of March 3, 1891, the Act of June 4, 1897, and the second section of the Act of May 11, 1898, was there expressly conferred upon the Secre- tary of the Interior any authority to adopt and enforce 40 regulations providing for the administration and execu- tion of such acts, except the authority conferred by said Act of June 4, 1897, to make rules and regulations con- cerning the occupancy and use of forest reservations de- signed to insure the objects for which such reservations were created, namely the preservation of the forests from destruction and securing favorable conditions of water flow, or any authority to supervise or control the location of rights of way for reservoirs and canals, except such authority as was granted by implication by the last clause of section 18 of the Act of March 3, 1891, which declares that no ''right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the Department of the Government having jurisdiction of such reservation.'' (e) In none of the general Acts of Congress in force in 1901 relating to this subject, except said Act of March 3, 1891, was there any provision for making a record of any right of way for a reservoir or canal located upon public lands or reservations of the United States; and the Act of March 3, 1891, did not authorize the approval of maps of rights of way located on unsurveyed lands. See: Santa Fe Pacific R. R. Co., 29 L. D. 213 ; Lincoln County Water Supply and Land Co. v. Big Sandy Reservoir Co., 32 L. D. 463. (f) Under the provisions of section 19 of the Act of March 3, 1891, approval by the Secretary of the Interior of a map showing the location of a reservoir or canal upon surveyed lands operated to vest title in the locator to the easement or determinable fee granted by that Act, subject to forfeiture if he failed to complete the con- struction of his reservoir or canal within five years; but such forfeiture could be accomplished only by a legislative act or by judicial proceedings. See: 41 Noble V. Union River Logging R. R. Co., 147 U. S. 165, 172-6; Bybee v. Oregon and California R. R. Co., 139 U. S. 663; Schulenberg v. Harriman, 21 Wall. 44 ; Utah, N. & C. R. Co. v. Utah & C. Ry. Co., 110 Fed. 879, 890; Allen et al. v. Denver Power and Irrigation Co., 38 L. D. 207, 211. (g) The Secretary of the Interior had, by an almost uniform line of decisions, refused, however erroneously, to accept and approve maps filed pursuant to the provi- sions of section 19 of the Act of March 3, 1891, and the amendment thereof contained in section 2 of the Act of May 11, 1898, unless the applicant certified that the right of way delineated upon such map was desired either exclusively for irrigation or for the main purpose of irrigation. See : South Platte Canal and Reservoir Co., 20 L. D. 154; Town of Delta, 32 L. D. 461 ; Regulations, paragraph 23, 34 L. D. 212, 221-2 ; Regulations, paragraph 21, 36 L. D. 567, 574. (h) Under the special Acts of January 21, 1895, May 14, 1896, and the first section of the Act of May 11, 1898, referred to on page 27 of this brief, which authorized the Secretary of the Interior to '* permit the use of right of way" under general regulations to be fixed by him, the Secretary of the Interior had adopted regulations pro- viding that any applicant for a permit might file a map and field notes showing the location of the desired right of way accompanied by evidence showing that the appli- cant was entitled to avail himself of the privileges granted by the Act, and that the Secretary of the Interior, if the application were found satisfactory, would issue the de- sired permit and thereupon send a copy of the original 42 map to the local officers who were directed to mark the line of the right of way upon the township plats and note opposite each tract of public land affected that such permit had been issued. These regulations are printed in 20 L. D. 165, 23 L. D. 519 and 27 L. D. 495. In section 9 of the regulations printed in 20 L.D. and section 10 of the regulations printed in 23 L. D. and 27 L. D. it is stated that permission may be given under these Acts for rights of way on unsurveyed land. Such being the condition of the law when the Act of Feb- ruary 15, 1901, was adopted, the most reasonable and natural inference to be made from its provisions is that the purposes sought to be accomplished by its enactment were as follows : (a) To enlarge and extend the right granted by the Act of June 4, 1897, to the Secretary of the Interior to make regulations designed to aid in the administration and execution of that Act, by authorizing him to adopt and enforce general regulations designed to aid in the administration and execution of all Acts of Congress granting, and authorizing the use of, rights of way for reservoirs, canals, plants for the generation and distribu- tion of electric power, and telegraph and telephone sys- tems, whether on public lands, forest or other reserva- tions of the United States; (b) To enable the Secretary of the Interior, under general regulations, to permit any person desirous of acquiring a right of way for the purposes therein speci- fied, whether on surveyed or unsurveyed public lands and reservations, to file in the land office maps and field notes showing the location thereof prior to construction ; (c) To enable the Secretary of the Interior to provide for making a record in the United States Land Office of rights of way located on public lands, forest or other reservations, whether surveyed or unsurveyed ; and (d) To enable the Secretary of the Interior to estab- 43 lish a procedure whereby any person desirous of obtain- ing a right of way for a reservoir or canal or other authorized work may obtain a determination, in advance of construction, whether his proposed right of way, if located within the boundaries of a forest or other reserva- tion, is so located as not to interfere with the proper occupation of such reservation by the Government, if the lands upon which such right of way is located are unsur- veyed or if it is impracticable or inconvenient for any other reason to comply fully with the provisions of section 19 of the Act of March 3, 1891. In endeavoring to ascertain the legal nature and effect of the permits the issuance of which is authorized by the Act of February 15, 1901, one should take into consideration the following propositions, which, I submit, can hardly be deemed disputable, viz: (a) That nothing in the Act of February 15, 1901, negatives or denies the right which, as I have already shown or pages 21 to 25 of this brief, existed under earlier Acts of Congress to locate definitely, and acquire title to, rights of way for reservoirs or canals by actual construction of such reservoirs or canals; (b) That there is no necessary inconsistency between the provisions of section 19 of the Act of March 3, 1891, under which maps of location may be filed with and approved by the Secretary of the Interior when the pro- posed right of w^ay is located upon surveyed public lands within or without a reservation and the provisions of the Act of February 15, 1901, under which the Secretary of the Interior is authorized to issue permits for the location and use of rights of way for reservoirs and canals on public lands and reservations, whether surveyed or unsurveyed and whether the applicant finds it imprac- ticable, or for any reason does not desire, to fully comply with the requirements of section 19 of said Act of March 3, 1891; and, consequently, 44 (c) That said act of February 15, 1901, does not indi- dicate an intention on the part of Congress either to make the obtaining of a permit under its provisions a condition precedent to the appropriation and acquisition of rights of way for reservoirs and canals by any person who fully complies with all of the requirements and conditions of the aforesaid earlier Acts of Congress or to prohibit any person who has obtained a permit pursuant to its provisions from subsequently complying with all of the provisions of said earlier Acts and thereby acquir- ing all and singular the rights thereby granted. It follows: (1) that the permit, which the Act of February 15, 1901, authorizes to be issued and expressly declares to be revocable by the Secretary of the Interior in his dis- cretion, is designed to protect the permittee, during the pre- liminary stages of his enterprise, by making a public record and giving public notice of his proposed appropriation of right of way, and involves an official determination that such right of way has been properly located; and (2) that such permit, although revocable at any time without judicial pro- ceedings in the event of the permittee's failing or neglecting to commence and prosecute to completion within a reasonable time the construction of the works contemplated by his per- mit, becomes functus officio when the permittee, by his com- pliance with the aforesaid earlier Acts of Congress and the construction of his proposed reservoir, canal, plant for the generation and distribution of electric power, or telephone and telegraph system, becomes entitled to claim and assert ownership of vested and accrued rights of way for the main- tenance and operation of the works constructed by him. The conclusion from the foregoing considerations is that the true intent and meaning of the Act of February 15, 1901, is simply to grant to the Secretary of the Interior authority : (1) To adopt and enforce general regulations consis- tent with, and designed to aid in administering and carry- ing into effect, the laws of the United States relating 45 to rights of way, for the purposes therein specified, over the public lands, forest and other reservations of the United States; and (2) Under and pursuant to such regulations, upon application therefor being made, and upon a determina- tion that the applicant has properly located a right of of way for his proposed works and is a citizen, association or corporation of the United States, to issue a permit under which the applicant may safely proceed to con- struct and use a reservoir, canal, plant for the generation and distribution of electric power or telephone and tele- graph system, and thereby acquire a vested right of way under and by virtue of the aforesaid earlier Acts of Congress. So construed, the Act of February 15, 1901, is in no respect inconsistent, or in conflict, with the aforesaid earlier Acts of Congress. Furthermore, if the Act of February 15, 1901, stood alone, and if no aid in its interpretation and construction were afforded by the aforesaid earlier Acts of Congress, I submit that, under general principles of law recognized and declared in recent decisions of this Court, it should be held that, when any citizen, association or corporation enters upon pub- lic lands, forest or other reservations of the United States under the authority of a permit issued pursuant to the pro- visions of said Act of February 15, 1901, and at great expense constructs reservoirs, canals, plants for the generation and distribution of electric power, telephone and telegraph systems, whether devoted to public or private uses, such citizen, asso- ciation or corporation acquires a vested interest in the right of way appropriated and occupied, and that the permit originally revocable at will becomes irrevocable. Such a con- clusion seems absolutely necessary when the right of way and works constructed thereon are devoted to public use, because in every such case, as a matter of practical necessity 46 and also as a matter of legal obligation enforced through the agency of public utility commissions and courts of justice, the owner of property devoted to the service of the public, whether for supplying water, light, power or telegraph or telephone service, is not at liberty to suspend or abandon the service of the public by means of such property so long as communities requiring such service exist and are ready, able and willing to receive, and to pay adequate compensation for, the same, and because the occupation and use of rights of way upon the public lands and forest reservations and the construction and operation thereon of public utility plants of the kinds therein specified naturally result in building up communities dependent, for their comfort, prosperity and even existence, upon the service rendered by means of such plants, and because the possession and exercise by an executive officer of the United States of the right and power to revoke, in his discretion, the permits issued by him or his predeces- sor in office and thereby to terminate the right of occupancy and use of such right of way, after the construction of such plants, would deprive the owner of the public utility of the power to discharge his duty to the public and either deprive the public of its accustomed service or compel the public to obtain the necessary authority and to serve its own uses by means of public ownership and operation of such utility. The general principles of law to which reference is made at the beginning of the last paragraph, and the decisions of this Court recognizing and applying the same, are as follows : 1. Where a grant of rights of way, franchises or other rights and privileges is made by a general law designed to further public objects, to promote the general welfare, or to aid in the general development of the country by inducing individuals or corporations to undertake and accomplish great and expensive enterprises or works of a public or quasi-public character, such general law, instead of being construed strictly in favor of the Govern- ment and against the grantee, should be given ''a prac- 47 tical, common-sense construction" in order that its objects may be accomplished. Kussell V. Sebastian, 233 U. S. 195, 205-210; United States v. Denver and Rio Grande R. Co., 150 U. S. 1, 8-15. 2. Whenever, by or under authority of a constitution or a general law enacted by the legislature, authority or consent is given by government to any individual or corporation to exercise a franchise or public easement or similar right, as a means of inducing, or in contemplation of, the investment of a large amount of capital in the con- struction of works of a permanent nature to be used in permanent service of the public, such authority or consent should be deemed to be, not a grant of a mere revocable license, but rather a grant of a franchise, easement or right in perpetuity, unless a shorter time is clearly spe- cified. Boise Artesian H. & C. Water Co. v. Boise City, 230 U. S. 84, 87-92; Russell V. Sebastian, 233 U. S. 195, 202-4; New York Electric Lines Co. v. Empire City Subway Co., 235 U. S. 179, 185-193; Owensboro v. Cumberland Telephone and Telegraph Co., 230 U. S. 58, 64-66. 3. A grant of a franchise, public easement or other right, whether granted in perpetuity or for a limited term, is subject, of course, to revocation or forfeiture when the grantee fails to comply with the conditions of the grant or to render the public service constituting the consider- ation therefor. New York Electric Lines Co. v. Empire City Subway Co., 235 U. S. 179, 194-196. 4. But, when a person has accepted a grant of a fran- chise, public easement or other right, has proceeded with 48 reasonable diligence and in good faith to comply with the terms of the grant, has at large expense constructed the necessary works, and is rendering the public service which constitutes the real consideration for the grant, he has acquired vested and accrued property rights of which he may not be deprived arbitrarily or without due process of law, even though the law, or ordinance by which the grant was made is expressly declared to be subject to be altered, amended or repealed. Owensboro v. Cumberland Telephone and Telegraph Co., 230 U. S. 58, 71-75; Chicago, Milwaukee and St. Paul Railroad Co. v. Wis- consin, 238 U. S. 491, 501-2. 5. Even a license, although originally a mere personal, revocable and non-assignable privilege, becomes irrevoc- able, when the licensee, with the acquiescence of the licensor, and acting under the authority given by the license, erects upon the licensor's lands, at his own ex- pense, works or structures of a permanent character, the construction of which was contemplated by the licensor when the license was given. Owensboro v. Cumberland Telephone and Telegraph Company, 230 U. S. 58, 64. On this point see also : Greenwood Lake and Port Jervis R. R. Co. v. New York and Greenwood Lake R. R. Co., 134 N. Y. 435, 440; Trustees of Southampton v. Jessup, 162 N. Y. 122, 126 ; Stoner v. Zucker, 148 Cal. 516 ; Plimmer v. Wellington, L. R. 9 App. Cas. 699. 49 The Act of February 15, 1901, considered by itself alone, should be deemed a grant of authority to the Secretary of the Interior to issue, in conformity with general regulations to be adopted by him, permits giving leave or license to the permittees, not merely to use rights of way, but to enter upon public lands, forest and other reservations of the United States and there to construct canals, reservoirs, works for generating and lines for transmitting electric power, and telephone and telegraph lines, all of which are works of a permanent char- acter involving the expenditure or investment of large amounts of capital and designed to promote the general welfare and to aid in the development of the resources and industries of the country. Permits issued pursuant to the authority con- ferred by this Act would, under the five general principles of law which I have just stated and the authorities cited in sup- port thereof, be deemed to operate, not as mere revocable licenses, but rather as grants of easements or rights of way in perpetuity, if it were not for the proviso at the end of the statute ''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"; and this proviso may well be deemed to be simply a declaration of intention on the part of Congress that no permit issued by the Secretary of the Interior under the authority of this act shall, of itself and prior to the construction of the contemplated works, confer anything more than a license revocable by the Sec- retary of the Interior without legislative action or judicial proceedings, and not a declaration of intention that any permittee, who, pursuant to the authority given to him, shall have constructed permanent works at large expense, shall thereafter hold such works and the rights of way whereon they are constructed at the will of the Secretary of the Interior. For it is apparent that the principal purpose of this act is to authorize the granting of permission to use rights of way 50 as a means of inducing the investment of capital in the con- struction of works of a permanent nature to be used largely in permanent service of the public ; and a construction of the final proviso in this Act as a reservation of the right to revoke licenses or permits issued under its provisions after the con- struction of the contemplated works would inevitably defeat its principal purpose, as no prudent person would risk the investment of his capital upon such terms. This would be directly in conflict with the settled rule of construction that a statute must be construed, if possible, so as to effectuate the evident object of the legislature in its enactment, and "so as to avoid an unjust or an absurd conclusion, ' ' even if, in order to do so, it is necessary to limit the application of general terms and to indulge the presumption ''that the legislature intended exceptions to its language, which would avoid results of this character." Hawaii v. Mankichi, 190 U. S. 197, 212-218; Bernier v. Bernier, 147 U. S. 242, 246. For the purpose of illustrating, and indicating the scope of, the rule of construction which I have just stated I quote the following from the opinion of this Court in Hawaii v. Mankichi, supra: ''But there is another question underlying this and all other rules for the interpretation of statutes, and that is, "What was the intention of the legislative body ? With- out going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail, even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne, in Smythe v. Fiske, 23 Wall. 374, 380, 23 L. ed. 47, 49: 'A thing may be within the letter of a statute and not within its mean- ing, and within ite meaning, though not within its letter. The intention of the lawmaker is the law.' A parallel expression is found in the opinion of Mr. Chief Justice 51 Thompson of the supreme court of the state of New York (subsequently Mr. Justice Thompson of this Court), in People v. Utica Ins. Co. 15 Johns. 358, 381, 8 Am. Dec. 243 : * A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.' ** Without going farther, numerous illustrations of this maxim are found in the reports of our own court. No- where is the doctrine more broadly stated than in United States V. Kirby, 7 Wall. 482, 19 L. ed. 278, in which an act of Congress, providing that if ' any person shall know- ingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier,' was held not to apply to a state officer who held a warrant of arrest against a carrier for murder, the court observing that no officer of the United States was placed by his position above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention when accused of felony. 'All laws,' said the court, 'should re- ceive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended ex- ceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter.' A case was cited from Plowden, holding that a statute which punished a prisoner as a felon who broke prison did not extend to a prisoner who broke out when the prison was on fire, 'for he is not to be hanged because he would not stay to be burned.' Similar language to that in Kirby 's Case was used in Carlisle v. United States, 16 Wall. 147, 153, 21 L. ed. 426, 429. "In Atkins v. Fibre Disintegrating Co. 18 Wall. 272, 21 L. ed. 841, it was held that a suit in personam in 52 admiralty was not a 'civil suit' within the 11th section of the judiciary act, though clearly a civil suit in the general sense of that phrase, and as used in other sec- tions of the same act. See also Re Louisville Underwriters, 134 U. S. 488, 33 L. ed. 991, 10 Sup. Ct. Rep. 587. So in Heydenfeldt v. Daney Gold & Silver Min. Co. 93 U. S. 634, 638, 23 L. ed. 995, 996, it was said hy Mr. Justice Davis: 'If a literal interpretation of any part of it (a statute) would operate unjustly, or lead to absurd results, or be contrary to the evident meaning of the act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it are rendered ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment.' To the same effect are the Church of Holy Trinity v. United States, 143 U. S. 457, 36 L. ed. 226, 12 Sup. Ct. Rep. 511, in which many cases are cited and reviewed, and Lau Ow Bew v. United States, 144 U. S. 47, 59, 36 L. ed. 340, 345, 12 Sup. Ct. Rep. 517. In this latter case it was held that a statute requiring the permission of the Chinese government, and the identification of 'every Chinese person other than a laborer, who may be entitled by said treaty or this act (of Congress) to come within the United States,' did not apply to 'Chinese merchants al- ready domiciled in the United States, who, having left the country for temporary purposes, animo revertendi, seek to re-enter it on their return to their business and their homes.' Said the Chief Justice: 'Nothing is better settled than that statutes should receive a sensible con- struction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion. ' "Two recent English cases are instructive in this con- nection : In Plumstead Dist. Bd. of Works v. Spackman, L. R. 13 Q. B. Div. 878, 887, it was said by the Master 53 of Rolls, afterwards Lord Esher: 'If there are no means of avoiding such an interpretation of the statute' (as will amount to a great hardship), 'a judge must come to the conclusion that the legislature by inadvertence has committed an act of legislative injustice ; but, to my mind, a judge ought to struggle with all the intellect that he has, and with all the vigor of mind that he has, against such an interpretation of an act of Parliament; and, unless he is forced to come to a contrary conclusion, he ought to assume that it is impossible that the legislature could have so intended. ' See also Ex parte Walton, L. R. 17 Ch, Div. 746/' Plainly there is as much reason for holding that the declara- tion at the end of the Act of February 15, 1901, that the Sec- retary of the Interior may, in his discretion, revoke any per- mission given by him or his successor, does not authorize him to forfeit or in any manner recover possession of a right of way upon which permanent works have been constructed or to take, destroy or compel the removal of permanent works constructed pursuant to such permission, as there was for holding, as this Court did in Owensboro v. Cumberland Tele- phone and Telegraph Company, supra, that the charter power of a municipality to amend and repeal its ordinances did not include the right to forfeit or terminate a franchise or public easement granted by an ordinance under which a telephone system had been constructed and was being operated. Plainly also the declaration at the end of the Act of Feb- ruary 15, 1901, that ''any permission given by the Secretary of the Interior under the provisions of this Act * * * shall not be held to confer any right, or easement, or interest in, to, or over any public land, reservation, or park" does no more than to make clear the intent of Congress that the permits to be issued under the authority of this Act are to be deemed licenses rather than grants of easements; — this declaration does not go so far as to say that the general principles of law 54 and equity, under which even parol licenses granted without pecuniary consideration become irrevocable when the licensee, with the acquiescence of the licensor and acting under the authority given by the license, erects, at his own expense, upon the licensor's land, works or structures of a public character the construction of which was contemplated by the licensor when the license was given, shall not apply and protect the permittees from arbitrary forfeiture or spoliation of such works and structures and the rights of way whereon they have been constructed. That the doctrine of estoppel, which prevents a licensor from revoking his license when such action on his part would be inequitable and manifestly contrary to justice, applies to the Government of the United States as well as to private persons is established by the following authorities : (1) United States v. Stinson, 125 Fed. 907, 910; wherein it is said by the Circuit Court of Appeals of the Seventh Circuit that "the substantial considerations underlying the doctrine of estoppel apply to government as well as to indi- viduals. ' * (2) United States v. Stinson, 197 U. S. 200; wherein this Court affirmed the decision reported in 125 Fed. 907, and in its opinion recognized and applied the principle declared by the Circuit Court of Appeals. (3) Walker v. United States, 139 Fed. 409, 413; affirmed in 148 Fed. 1022; wherein the Circuit Court, in an opinion affirmed by the Circuit Court of Appeals of the Fifth Cir- cuit, says : * ' The acts or omissions of its officers, if they be author- ized to bind the United States or to shape its course of conduct as to a particular transaction, and they have acted within the purview of their authority, may in a proper case work an estoppel against the Government.'* (4) Iowa V. Carr, 191 Fed. 257, 266-270; wherein the Cir- 55 cuit Court of Appeals of the Eighth Circuit held, (I quote from the 9th paragraph of the syllabus) ; *'In a controversy between the rights of a state or nation and those of a citizen, while the state or nation is not barred by mere delay, its rights are measured and adjudicated by the doctrine of estoppel and the other principles and rules of law and equity applicable to the like rights of a citizen under similar circumstances.'* (5) Brent v. Bank of Washington, 10 Peters 596, 614; wherein this Court says: *'Thus compelled to come into equity for a remedy to enforce a legal right, the United States must come as other suitors, seeking, in the administration of the law of equity, relief; to give which, courts of law are wholly incom- petent, on account of the legal bar interposed by the bank. This court, in The United States v. Mitchell (9 Peters, 743), have recognized the principle in the common law that though the law gives the king a better or more con- venient remedy, he has no better right in court than the subject through whom the property claimed comes to his hands. (2 Co. Inst., 573; 2 Ves.,- Sen., 296, 297; Hard., 60, 460.) This principle is also carried into all the stat- utes, by which the appropriate courts are authorized to decide, and under which they do decide on the rights of a subject in a controversy with the king, according to equity and good conscience between subject and subject. (7 Co., 19; 6 Hard. 27, 170, 230, 502; 4 Co. Inst, 190.) '' (6) Plimmer v. Wellington, L. R., 9 App. Cas. 699 ; wherein the Privy Council held that Plimmer, who, with permission of the Government, had constructed, on land covered by tide water the title to which was vested in the Government of New Zealand, a jetty and warehouse and had reclaimed from the sea certain land whereon his improvements were con- structed, thereby acquired an interest or estate in such lands, although he had originally taken possession of said lands under 56 a revocable license for the special purpose of a wharfinger, his license having become irrevocable by his construction of said improvements with the consent and in part at the request of the Government. From the foregoing analysis of the Act of February 15, 1901, construed as if it stood alone and unaided by the earlier Acts of Congress relating to rights of way, it is evident that the Act of February 15, 1901, is not inconsistent or in conflict with the earlier Acts, whose construction and operation have been considered under Propositions No. 1 and No, 2, for the following reasons: 1. The Act of February 15, 1901, (by expressly author- izing the issuance of permits granting authority to the permittees to construct, upon the public lands, forest and other reservations of the United States, reservoirs and canals, while it is silent upon the subject of the right to appropriate water for beneficial uses) assumes by neces- sary implication the right to appropriate, store, convey and use water for every beneficial use, either under the law^s of the United States or the laws of the several states, and, therefore, is clearly consistent with sections 2339 and 2340 of the United States Revised Statutes, the Act of March 3, 1877, and the Act of June 4, 1897, in so far as they grant, as against the United States in its capacity as riparian proprietor, the right to appropriate and take the water of non-navigable lakes, rivers and streams upon the public lands and forest reservations of the United States ; 2. The result obviously intended by the Act of Feb- ruary 15, 1901, and actually accomplished whenever any citizen, association or corporation of the United States, acting under the authority of a permit issued pursuant to its provisions, constructs and puts to use a reservoir or canal, namely, the acquisition of a vested and accrued right of way for such reservoir or canal, is exactly the same as the result accomplished by the construction and 57 beneficial use of a reservoir or canal under the provisions of sections 2339 and 2340 of the United States Revised Statutes, the Act of March 3, 1891, and the amendment thereto contained in the second section of the Act of May 11, 1898; and, therefore, said Act of February 15, 1901, is consistent with the earlier Acts of Congress last mentioned in respect to the ultimate purpose or object sought to be accomplished by them; and 3. The only difference between the Act of February 15, 1901, and sections 2339 and 2340 of the United States Revised Statutes and the Act of March 3, 1891, and the amendment thereto contained in the Act of May 11, 1898, so far as the latter relate to rights of way for reservoirs and canals, lies in the procedure prescribed for the accom- plishment of their ultimate purposes or objects, viz, the vesting and accruing of rights of way and the appro- priation and utilization of the waters of non-navigable lakes, rivers and streams upon the public lands and forest reservations of the United States; and the Act of Feb- ruary 15, 1901, contains no provision expressing the pur- pose or intent of Congress to make the procedure thereby provided for exclusive of the procedure contemplated and provided for in its earlier Acts last mentioned ; and, there- fore, the Act of February 15, 1901, merely adds to the procedure authorized by the aforesaid earlier Acts a new permissive procedure and, consequently, is consistent with the continued existence of said earlier Acts. This branch of the argument may be summed up as follows : 1. The Act of February 15, 1901, does not expressly repeal the Acts of Congress considered under Propositions No. 1 and No. 2. 2, The weight of authority and the practice of the Depart- ment of the Interior support the position that the Act of Feb- ruary 15, 1901, does not repeal by implication the earlier Acts considered under Propositions No. 1 and No. 2. 58 3. A construction of the Act of February 15, 1901, in harmony with the earlier Acts considered under Propositions No. 1 and No. 2, if such construction be possible, is required by the law as declared by this Court. 4. The Act of February 15, 1901, does not cover any of the essential features of the earlier Acts considered under Propo- sitions No. 1 and No. 2, but, on the contrary, assumes the continued existence of the substantive rights which are recog- nized or granted by said earlier Acts. 5. The Act of February 15, 1901, considered and construed in connection with the earlier Acts of Congress relating to the same subject is in no respect in conflict with any of the Acts dealt with under Propositions No. 1 and No. 2, but, on the contrary, supplements them by conferring additional admin- istrative authority upon the Secretary of the Interior and authorizing the latter to adopt a procedure whereby a person desirous of acquiring a right of way may give public notice of his location and obtain a determination in advance of con- struction that such right of way has been properly located, whether the lands upon which such right of way is located are surveyed or unsurveyed, or it is impracticable or incon- venient for any other reason to meet the conditions prescribed by section 19 of the Act of March 3, 1891. 6. The Act of February 15, 1901, construed as if it stood alone and unaided by the earlier Acts considered under Propo- sitions No. 1 and No. 2, but in the light of the general prin- ciples of law to which reference has been made, is not in con- flict with the latter because it assumes the continued existence of the right to appropriate water for beneficial uses under the laws of the United States or of the several states, plainly in- tends the accomplishment of the same ultimate purpose or object, namely, the acquisition and use of vested and accrued rights of way, and merely adds a new procedure, permissive in its nature, for the accomplishment of such ultimate purpose or object without expressing any intention to make such pro- cedure exclusive of the procedure provided for in earlier Acts. 59 The Act of February 15, 1901, containing no expression of a purpose to repeal amy of the Acts considered under Propo- sitions No. 1 and No. 2, and neither covering any of their essential features nor being in conHict with any of their pro- visions, and, instead of being intended as a substitute for them, assuming their continued existence and supplementing their administrative provisions, plainly, under the rule de- clared by this Court in Town of Red Rock v. Henry, supra, is not to be construed as substantive legislation superseding or by implication repealing any of the Acts of Congress con- sidered under Propositions No. 1 and No. 2. PROPOSITION NO. 4. The aforesaid Act of February 15, 1901 {assuming that it is substantive legislation superseding and by implicatiom. repealing the other Acts of Congress already mentioned) is unconstitutional as involving an unauthorized delegation, to executive officers of the United States, by Congress, of power specifically and exclusively conferred by the Constitution upon the latter. ''The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States ; and nothing in this Constitution shall be so con- strued as to Prejudice any Claims of the United States, or of any particular State.'' Constitution, article IV, section 3, clause 2. The power to dispose of the public lands, whether specially reserved or not, which includes of course the power to relinquish riparian rights incident to the ownership of such lands and to grant rights of way and other easements and servitudes affecting the same, and the power to make rules and regulations respecting such lands are, by this provision 60 of the Constitution, specifically conferred upon Congress. No such power is conferred on the President or the courts of the United States. These powers, although in some sense proprietary rather than governmental, are, nevertheless, by general consensus of opinion as evidenced by the uniform practice of the govern- ment of the United States and the governments of the several states, deemed to be legislative in their nature. But, whether these powers be deemed strictly or only quasi legislative, hav- ing been delegated to Congress exclusively, they are equally within the reason and subject to the operation of the rule that, ' * The power to whose judgment, wisdom, and patriot- ism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." Cooley's Constitutional Limitations (7th ed.), page 163. To those of us who believe in a government of law made, executed, construed and enforced by the chosen representatives of a free, honorable and self-respecting people, a^ the best means of establishing justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare and securing the blessings of liberty to ourselves and our posterity, the most vital principle, the chief merit, and the most essential safeguard of the liberty of the citizen embodied in our system of Constitutional government is the division of all the powers of government into the three great classes, the legislative, the executive and the judicial, and the vesting of each one of these three classes of powers in a sep- arate and distinct branch of the government. Without this feature all of the express limitations upon the powers of gov- ernment contained in the Constitution would be ineffective checks upon the exercise of arbitrary and despotic power. 61 The importance of the division of the powers of govern- ment between its legislative, executive and judicial branches has been recognized and declared by this Court in many well-considered opinions. In Kilboum v. Thompson, 103 U. S. 168, 190-192, this Court, in its opinion delivered by Mr. Justice Miller, said : "It is believed to be one of the chief merits of the American system of written constitutional law, that all the powers entrusted to governments, whether state or national, are divided into the three grand departments of the executive, the legislative and the judicial. That the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these depart- ments shall be broadly and clearly defined. It is also essential to the successful working of this system, that the persons entrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. To these general propositions there are in the Constitu- tion of the United States some important exceptions. Oine of these is, that the President is so far made a part of the legislative power, that his assent is required to the enactment of all statutes and resolutions of Congress. ''This, however, is so only to a limited extent, for a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds of each House of the Legislature. * ' So, also, the Senate is made a partaker in the func- tions of appointing officers and making treaties, which are supposed to be properly executive, by requiring its consent to the appointment of such officers and the ratification of treaties. The Senate also exercises the 62 judicial power of trying impeachments, and the House of preferring articles of impeachment. ''In the main, however, that instrument, the model on which are constructed the fundamental laws of the States, has blocked out with singular precision, and in bold lines, in its three primary Articles, the allotment of power to the executive, the legislative, and judicial de- partments of the government. It also remains true, as a general rule, that the powers confided by the Constitu- tion to one of these departments cannot be exercised by another. "It may be said that these are truisms which need no repetition here to give them force. But while the experi- ence of almost a century has in general shown a wise and commendable forbearance in each of these branches from encroachments upon the others, it is not to be denied that such attempts have been made, and it is believed not always without success. The increase in the number of States, in their population and wealth, and in the amount of power, if not in its nature to be exercised by the Federal Government, presents powerful and growing temptations to those to whom that exercise is intrusted, to overstep the just boundaries of their own department, and enter upon the domain of one of the others, or to assume powers not intrusted to either of them." In Field v. Clark, 143 U. S. 649, 692, this Court said : **That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." In the dissenting opinion in this case, written by Mr. Justice Lamar with whom concurred Mr. Chief Justice Fuller, it is said (page 697) : 63 ' * The Chief Justice and myself concur in the judgment just announced. But the proposition maintained in the opinion, that the third section, known as the reciprocity provision, is valid and constitutional legislation, does not command our assent, and we desire to state very briefly the ground of our dissent from it. We think that this particular provision is repugnant to the first section of the first article of the Constitution of the United States, which provides that ' all legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives.' That no part of this legislative power can be delegated by Congress to any other department of the government, executive or judicial, is an axiom in constitutional law, and is universally recognized as a principle essential to the integrity and maintenance of the system of govern- ment ordained by the Constitution. The legislative power must remain in the organ where it is lodged by that instrument. We think that the section in question does delegate legislative power to the executive department, and also commits to that department matters belonging to the treaty-making power, in violation of paragraph two of the second section of article two of the Constitution.'* The principle that Congress cannot delegate to the courts, or to any other tribunal, body or officer, powers which are strictly and exclusively legislative, which was declared by Chief Justice Marshall in, Wayman v. Southard, 10 Wheat. 1, 42, has never been questioned by this Court. But many questions of great difficulty and delicacy have arisen concerning the precise boundaries between the legislative, the executive and the judicial powers, because the Legislature, in the exercise of the power conferred upon it, must, as a matter of practical necessity, commit something to the discretion of the executive and judicial branches. 64 Because of the great delicacy and difficulty of the question whether or not the Act of February 15, 1901, is an unconsti- tutional delegation to executive officers of power which is legislative in its nature and exclusively conferred by the Constitution upon Congress, it is of the highest importance that there be presented here such rules as have been estab- lished by this Court in determining the boundary between legislative and executive power. These rules are as follows : 1. The legislature alone can make law ; and the power to make law cannot be delegated. "Wayman v. Southard, supra. Union Bridge Co. v. United States, 204 U. S. 364, 378-388. 2. ''The legislature must declare the policy of the law and fix the legal principles which are to control in given cases". Mutual Film Corporation v. Industrial Commission of Ohio, 236 U. S. 230, 245. Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194, 214. 3. The legislature, having enacted a law, may delegate to an executive or administrative board, commission or officer ' ' a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend". Union Bridge Co. v. United States, supra. Monongahela Bridge Co. v. United States, 216 U. S. 177, 192-3. Field V. Clark, supra. Miller v. Mayor etc. of New York, 109 U. S. 385, 394. 4. The legislature, having declared the policy of the law and prescribed the legal principles which are to control in given cases, may delegate to executive and 65 administrative officers and bodies power to ascertain the facts and conditions to which such policy and principles apply. Mutual Film Corporation v. Industrial Commission of Ohio, supra. Buttfield V. Stranahan, 192 U. S. 470, 496. Interstate Commerce Commission v. Goodrich Transit Co., supra. 5. The legislature, having enacted a statute declaring the policy and prescribing the principles of law to govern a particular subject matter, may delegate to executive and administrative officers or bodies the power to adopt reasonable regulations appropriate for effectuating such policy and principles and not in conflict with the law itself. Ex Parte Kollock, 165 U. S. 526, 533. Butte City Water Co. v. Baker, 196 U. S. 119, 125-7. United States v. Grimaud, 220 U. S. 506. Light V. United States, 220 U. S. 523. 6. The legislature, however, cannot delegate to an executive or administrative officer or body authority to make, alter or amend a law or to make or enforce regula- tions in conflict with the law. United States v. Eaton, 144 U. S. 677. United States v. Grimaud, supra. Harmon v. State, 66 Ohio St. 249, 58 L. R. A. 618. State V. Burdge, 95 Wis. 390, 37 L. R. A. 157. O'Neil V. American Fire Ins. Co., 166 Penn. St. 72, 26 L. R. A. 715. Mutual Film Corporation v. Industrial Commission of Ohio, supra. The Act of February 15, 1901, if it be construed to be in conflict with the others Acts of Congress considered under 66 Propositions No. 1 and No. 2, or as having been intended as a substitute for such Acts, repeals all of the earlier general laws of Congress whereby Congress had itself established' all needful rules and regulations respecting the appropriation of water and the appropriation and acquisition of rights of way for reservoirs and canals upon the public lands and reser- vations of the United States and, consequently, must be con- strued without any aid derived from such Acts. So construed the Act of February 15, 1901, is a naked delegation of au- thority to the Secretary of the Interior to adopt general regulations and, in accordance therewith, to permit the use of rights of way through the public lands, forest and other reservations of the United States for the purposes therein specified, without any other limitation than that contained in the first proviso, namely, ''that such permits shall be allowed within or through any of said parks or any forest, military, Indian, or other reservation only upon 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 same is not incompatible with the public interest". This Act neither declares any policy of law nor fixes any legal principle to control the Secretary of the Interior in adopt- ing or enforcing general regulations or in granting or refus- ing to grant a permit for the use of any right of way. This Act, instead of expressing the will of Congress that the use of rights of way shall be permitted upon certain terms or con- ditions and delegating to the Secretary of the Interior the power to determine the facts or state of things upon which its action is to depend, leaves it to the discretion of the Secretary of the Interior to grant or refuse to grant permis- sion to use a right of way without reference to the facts upon which application is made. The general regulations to be fixed by the Secretary of the Interior under this Act are not expressly required to be in harmony with its provisions or to be such as are appropriate for effectuating any policy or 67 principle of law expressed therein, and resort to implication is in vain for the reason already mentioned that neither policy of law nor legal principle is declared in the Act, unless it be construed as declaring the intention of Congress that the use of rights of way for the purposes specified therein shall be permitted in every instance except when such use is incom- patible with the public interest. This Act, at the time of its adoption and in the absence of general regulations fixed by the Secretary of the Interior, was (if we assume that it super- seded and repealed the earlier legislation and did not impose upon the Secretary of the Interior the duty of permitting the use of rights of way in every instance except when such use was incompatible with the public interest) wholly devoid of every essential attribute of a law as it contained no rule of conduct, nor declaration of legal policy or principle nor any rule or regulation governing the disposal or use of the territory or other property belonging to the United States. Even if the Act of February 15, 1901, should be con- strued as imposing upon the Secretary of the Interior the duty of permitting the use of rights of way through the public lands, forest and other reservations of the United States upon the application of any citizen, association or corporation in every instance when such use ''is not incom- patible with the public interest'', it would still involve a delegation to the Secretary of the Interior of the right and power to determine what the ''public interest" requires, because it neither contains a declaration of any legal policy or principle in accordance with which the Secretary of the Interior may be guided in determining what is or is not compatible with the public interest nor is capable of being aided in this respect by any other legislation upon the subject. "Public interest" as used in this statute obviously means "public policy". What "public policy" is can only be determined by reference to the law of the land embodied in the Constitution, statutes enacted by the legislature, and the rules of the common law and general principles of juris- 68 prudence declared in judicial decisions. It is the province of the legislature to determine what ''public policy" shall be and what the ''public interest" requires. These propo- sitions are, I submit, fully supported by the following authorities : Vidal et al. v. Girard's Executors, 2 How. 127, 197-8; License Tax Cases, 5 Wall. 462; St. Louis Mining and Milling Co. v. Montana Mining Co., 171 U. S. 650, 655-6; Hartford Fire Insurance Co. v. Chicago, M. & St. P. Ey. Co., 175 U. S. 91, 100; Baltimore and Ohio S. W. Ry. Co. v. Voigt, 176 U. S. 498, 505; Grafton County E. L. & P. Co. v. State, 77 N. H. 539, 94 Atl. 193, 194; Julien V. Model Building, L. & I. Assn., 116 Wis. 79 ; 61 L. R. A. 668, 672; Greenhood on Public Policy in the Law of Contracts, Rule CXL, citing Pierce v. Randolph, 12 Tex. 290. From the foregoing analysis of the Act of February 15, 1901, considered in connection with its construction set forth on pages 45 to 57, supra, it plainly appears that the powers delegated thereby to the Secretary of the Interior are legis- lative in character and that Congress (assuming that it in- tended this Act to operate as a repeal of its aforesaid earlier Acts) attempted thereby to make a delegation to the Secre- tary of the Interior of the entire power conferred upon it by the second clause of section 3 of article IV of the Constitu- tion, so far as that clause applies to the subject matter of this Act, namely, rights of way over public lands and reservations of the United States for the purposes therein specified. Furthermore, an exercise of the power attempted by said Act of February 15, 1901, to be delegated to the Secretary of the Interior (namely, the power to permit or refuse to permit, in his discretion, and to regulate, the occupancy and use of rights of way for reservoirs and canals through the 69 public lands and reservations of the United States) involves an exercise of a discretionary power to permit or prevent the use of the waters of lakes, rivers and streams on the vast areas of the public lands and reservations of the United States for any public or private use in the public land states and thus to control, interfere with, or prevent, the exercise by the several states, wherein are situate public lands and reservations, of their undoubted constitutional right and power to provide for such vital public services as the fur- nishing of water, light and powei^ for their inhabitants. Surely the power granted to Congress 'Uo dispose of and make all needful rules and regulations respecting the ter- ritory or other property belonging to the United States" — a power which is primarily proprietary rather than govern- mental — could not have been intended to include the power to prevent the states from exercising any of the necessary governmental powers reserved to them by the tenth amend- ment to the Constitution. Consequently this Act of February 15, 1901, constitutes, not only an attempt on the part of Congress to delegate powers vested in it exclusively by the Constitution, but also an attempt on the part of Congress to authorize the Secretary of the Interior to usurp powers which under the Constitution are not delegated to the United States, but, on the contrary, are reserved to the states. That the Secretary of the Interior and the Secretary of Agriculture have not been slow to act upon the supposed authority of this Act of February 15, 1901, and to usurp, under the color of authority thereby conferred, vast powers of regulation of subjects concerning which Con- gress itself has no power to legislate is disclosed by the reg- ulations printed in the transcript, pages 32 to 134, and dis- cussed at length in the brief of appellant, The Beaver River Power Company. As authorities for the proposition that Congress does not possess the power to regulate or to interfere with the appro- priation or use of any waters within the boundaries of any state, except so far as it may be necessary to prevent inter- 70 ference with or obstruction of navigable waters capable of being used as a means of interstate or foreign commerce, or to prevent interference with or destruction of the rights of the United States as owner of riparian lands, I rely upon the following cases, viz: United States v. Rio Grande Dam and Irrigation Com- pany, 174 U. S. 690; Kansas v. Colorado, 206 U. S. 46, 85-96, 117; Hudson County Water Company v. McCarter, 209 U. S. 349; United States v. E. C. Knight Company, 156 U. S. 1. PROPOSITION NO. 5. The aforesaid Act of Congress of February 15, 1901, (assum- ing that it is substantive legislation superseding and by impli- cation repealing the other aforesaid Acts of Congress and is not unconstitutional) is itself superseded and repealed, so far as it applies to rights of way for reservoirs and aqueducts appropriated for '' municipal' ' , that is to say public or govern- mental uses, by section 4 of an Act entitled, "An Act Pro- viding for the Transfer of Forest Reserves from the Depart- ment of the Interior to the Department of Agriculture", approved February 1, 1905, (33 U. S. Stat, at L., 628). The Act of February 1, 1905, (33 U. S. Stat, at L., 628— see Appendix page 21) provides, in section 4, ''that rights of way for the construction and maintenance of 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 71 laws of the State or Territory in which said reserves are respectively situated.'' That the grant of rights of way made by this section may be accepted and availed of, not only by municipal corporations and miners, but also by any citizen or any corporation of the United States who chooses to engage in the business of appro- priating, storing, conveying, distributing and selling water ' ' for municipal or mining purposes ' ' seems too plain to require argument or citation of authorities. But, as plaintiff appears to have contended in the District Court that this Act is not to be so construed, I refer this Court to the case of Gutierres v. Albuquerque Land and Irrigation Co., 188 U. S. 545, 555-6, wherein a similar contention concerning the aforesaid Act of March 3, 1877, was rejected by this Court in the following paragraph which I quote from its opinion : '*We perceive no merit in the contention that the proviso in the desert land act of March 3, 1877, declar- ing that surplus water on the public domain shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufac- turing purposes, subject to existing rights, is an expression of the will of Congress that all public waters within its control or the control of a legislative body of its creation, must be directly appropriated by the owners of land upon which a beneficial use of water is to be made, and that in consequence a terri- torial legislature cannot lawfully empower a corpora- tion, such as the appellee, to become an intermediary for furnishing water to irrigate the lands of third parties. As all owners of land within the service capacity of appellee's canal will possess the right to use the water which may be diverted into such canal, the use is clearly public (Fallbrook Irrig. Dist. v. 72 Bradley, 164 U. S. 163, 41 L. ed. 390, 17 Sup. Ct. Rep. 56), and appellee is therefore a public agency, whose right to divert water and whose continued existence is dependent upon the application by it within a rea- sonable time of such diverted water to a beneficial use. Irrigation corporations generally are recognized in the legislation of Congress, and the rights conferred are not limited to such corporations as are mere com- binations of owners of irrigable land." If the Act of February 15, 1901, repealed by implication the aforesaid earlier Acts of Congress, authorized the Sec- retary of the Interior to grant permits or licenses, revocable in his discretion, for the occupancy and use of rights of way for reservoirs and canals to be used for the purposes therein specified, and is not unconstitutional, then plainly this Act of February 1, 1905, which makes a direct grant of rights of way for reservoirs, canals and other aqueducts for the purposes therein specified ''during the period of their beneficial use" supersedes and by implication repeals said Act of February 15, 1901, so far as the latter act originally applied to rights of way for reservoirs and aqueducts "within and across the forest reserves of the United States * * * for municipal or mining purposes, and for the purposes of milling and reduc- tion of ores", because the provisions of section 4 of this Act of February 1, 1905, are utterly and completely inconsistent, to the extent which I have just indicated, with the provisions of said Act of February 15, 1901. To determine the extent to which section 4 of said Act of February 1, 1905, operates as a repeal by implication of said Act of February 15, 1901, it is necessary to consider the denotation of the term ^'municipal'' used in describing the purposes for which rights of way are granted by said section 4. The denotation of the term "municipal is not limited to things pertaining to an incorporated city or town, but includes all matters and things ''pertaining to the internal affairs of a state, kingdom or nation and its citizens." See sub. nom, municipal — 73 Century Dictionary; Bouvier's Law Dictionary; Cyc, volume 28, page 53; and Words and Phrases. Nowhere have I found a better discussion of the meaning of the word ^^ municipal" than in the following quotation from the opinion of the Supreme Court of Oregon in Cook V. Port of Portland, 20 Or. 580, 583, 27 Pac. 263, 13 L. R. A. 533 : ' * The whole question, therefore, turns upon the mean- ing of the phrase 'municipal purposes,' as used in the Constitution. The word 'municipal' is defined by the lexicographers as belonging to a city, town, or place; having the right of local government; belonging to or affecting a particular State or separate community; local; particular; independent. It is usually applied to what belongs to a city, but has a more extensive meaning, and is in legal effect the same as public or governmental, as distinguished from private. Burrill, Diet, title Municipal. Thus we call municipal law not the law of a city only, but the law of the State. 1 Bl. Com. 44. Municipal is used in contradistinction to international. Thus we say an offense against the law of nations is an international offense, but one com- mitted against a particular State or separate commu- nity is a municipal offense. And so are municipal affairs public affairs, and municipal purposes are pub- lic or governmental purposes, as contradistinguished from private purposes. A corporation, therefore, cre- ated for municipal purposes is a corporation created for public or governmental purposes with political powers to be exercised for the public good in the admin- istration of civil government, whose members are citi- zens, not stockholders; an instrument of the govern- ment, with certain delegated powers, subject to the control of the Legislature, and its members, officers, or 74 agents of the government for the administration or discharge of public duties. A city, or purely municipal corporation, is perhaps the highest type of a corporation created for municipal purposes, because it is a miniature government, having legislative, execu- tive, and judicial powers ; but there is another class of corporations, such as counties, school districts, road districts, etc., which, though varying in application and peculiar features are but so many agencies or instru- mentalities of the State to promote the convenience of the public at large and are, in the broadest use of the term, for municipal purposes. It would be a narrow and unwarranted construction of the language to say that 'municipal purposes' means only city, town, or village purposes. The Constitution of this State evi- dently contemplates the creation of counties under the direct supervision of and by special Act of the Legis- lature, yet no direct power is given to create them, and the section under consideration contains a direct prohibition against doing so, unless the word 'munici- pal' covers this class of corporations. We thus per- ceive that the word 'municipal' not only applies to cities, towns, and villages, but has a broader and more general signification relating to the State or nation. And therefore the words 'municipal corporations', as applied to incorporated cities or towns, and 'municipal purposes', are not synonymous. The latter embrace, by the common speech of men before and since the days of Blacl^tone, state or national purposes. And there- fore, while cities, towns, and villages are for municipal purposes, there are also other corporations for munici- pal purposes that are not of that class. It was in the broader and more general sense of the term that the words 'municipal purposes' were used in the Consti- tution of this State. This is evident from section 9 of the same article of the Constitution, wherein it is provided that no county, city, town, or other municipal 75 corporation, by a vote of its citizens or otherwise, shall become a stockholder in any joint stock company, corporation, etc. Here is a direct interpretation from the Constitution itself. A municipal corporation is not necessarily a county, city, or town. Were it so, the added words, 'or other municipal corporation', would be without meaning. Clearly a corporation for mu- nicipal purposes is one composed of citizens, as distin- guished from stockholders; a public, as distinguished from a private, corporation." In view of the facts that the use of water is as essential to the inhabitants of the country as to the inhabitants of incor- porated cities and towns and that, in many parts of the states wherein are situated public lands and forest reservations of the United States, the chief sources of water supply for all public purposes, whether in city or in country, are the non- navigable lakes and streams on such public lands and reserva- tions, it seems reasonable to suppose that Congress (assuming that body to be aware of the narrow and unconstitutional construction placed by the Department of the Interior and Department of Agriculture on said Act of February 15, 1901) intended, in enacting said Act of February 1, 1905, to remedy the intolerable conditions then existing, and, to that end, granted, by section 4 of the last mentioned Act, all rights of way for reservoirs and aqueducts required for all public purposes, whether served directly by the states or their municipal corporations or political subdivisions, or indirectly through the agency of natural persons or private corporations. Under this interpretation of the term ''municipal", as employed in section 4 of said Act of February 1, 1905, the grant made by said section is broad enough to include, and I submit that it should be construed as including, a grant of rights of way for reservoirs and canals for impounding, storing, and conveying water to be used for the generation of electric power by any corporation which distributes and sells 76 such electric power to a state or any of its municipalities or subdivisions and the inhabitants thereof in the same manner as other public uses are served. Consequently the decree of the District Court in this case should be reversed by reason of the provisions of this Act alone, whatever may be decided concerning the construction or constitutionality of the Act of February 15, 1901. KespectfuUy submitted, Wm. B. Bosley, Amicus Cunae. San Francisco, California, May 29, 1916. APPENDIX CONTAINING Extracts from the Statutes of the United States RELATING TO WATER RIGHTS AND RIGHTS OF WAY FOR RESERVOIRS AND CANALS UPON THE PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES EXTRACTS FROM THE STATUTES OF THE UNITED STATES RELATING TO WATER RIGHTS AND RIGHTS OF WAY FOR RESERVOIRS AND CANALS UPON THE PUBLIC LANDS AND RESERVATIONS OF THE UNITED STATES. Chap. CCLXII. An Act Granting the Right of Way to Ditch and Canal Owners Over the Public Lands, and FOR Other Purposes. Approved July 26, 1866. 14 U. S. Stats, at L., 251. Sec. 9. And he it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agri- cultural, 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 pos- sessors 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 afore- said is hereby acknowledged and confirmed: Provided, how- ever. That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage 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. Chap. CCXXXV. An Act to Amend ''An Act Granting THE Right of Way to Ditch and Canal Owners Over the Public Lands and for Other Purposes/^ Approved July 9, 1870. 16 TJ. 8. Stats, at L., 217. Sec. 17. And he it further enacted, That none of the rights conferred by Sections five, eight, and nine of the act to which this act is amendatory shall be abrogated by this act, and the same are hereby extended to all public lands affected by this act; and all patents granted, or pre-emption or homesteads allowed, 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 ninth section of the act of which this act is amendatory. But nothing in this act shall be construed to repeal, impair, or in any way affect the provisions of the "Act granting to A. Sutro the right of way and other priv- ileges to aid in the construction of a draining and exploring tunnel to the Comstock lode, in the State of Nevada," ap- proved July twenty-fifth, eighteen hundred and sixty-six. Revised Statutes of the United States. 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 aclmowledged 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 con- firmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any set- tler 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 pre-emption or home- steads allowed, shall be subject to any vested and accrued water-rights, or rights to ditches and reservoirs used in con- nection with such water-rights, as may have been acquired under or recognized by the preceding section. 6 Chap. 107. An Act to Provide for the Sale of Desert Lands in Certain States and Territories. Approved March 3, 1877. 19 U. 8. Stats, at L., 377. Be it enacted hy the Senate and House of Bepresentatives of the United States of America in Congress assemhled, That it shall be lawful for any citizen of the United States, or any person of requisite age ''who may be entitled to become a citizen, and who has filed his declaration to become such'' and upon payment of twenty-five cents per acre — to file a declara- tion under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter, provided however that the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation: and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclama- tion : and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclama- tion of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of one dollar per acre for a tract of land not exceeding six hundred and forty acres to any one person, a patent for the same shall be issued to him. Provided, That no person shall be permitted to enter more than one tract of land and not to exceed six hundred and forty acres which shall be in compact form. Sec. 2. That all lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agri- cultural crop, shall be deemed desert lands, within the mean- ing of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said tract of land may be situated — Sec. 3. That this act shall only apply to and take effect in the States of California, Oregon and Nevada, and the Ter- ritories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico and Dakota, and the determination of what may be considered desert land shall be subject to the decision and regulation of the Commissioner of the General Land Office. 8 Chap. 561. An Act to Repeal Timber-Culture Laws, and FOR Other Purposes. Approved March 3, 1891. 26 U. S. Stats., at L., 1095, 1101-3. * « * » • 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 of such canal or ditch: Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the 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, 9 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. Sec. 20. That the provisions of this act shall apply to all canals, ditches, or reservoirs, heretofore or hereafter con- structed, 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 sufiicient 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 be completed within five years after the location of said section, the 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. Sec. 24. That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof. 10 Chap. 37. An Act to Permit the Use of the Right op Way Through the Public Lands for Tramroads, Canals, and Reservoirs, and for Other Purposes. Approved January 21, 1895. 28 U. S. Stats, at L., 635. Be it enacted ty the Senate and House of Representatives of the United States of America in Congress Assembled, That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of the right of way through the public lands of the United States, not within the limits of any park, forest, military or Indian reservation, for tramroads, canals or reservoirs to the extent of the ground occupied by the water of the canals and reservoirs and fifty feet on each side of the marginal limits thereof ; or fifty feet on each side of the center line of the tramroad, by any citizen or any association of citizens of the United States engaged in the business of mining or quarrying or of cutting timber and manufacturing lumber. 11 Chap. 179. An Act to Amend the Act Approved March Third, Eighteen Hundred and Ninety-One, Granting the Right of Way Upon the Public Lands for Reser- voir AND Canal Purposes. Approved May 14, 1896. 29 U. S. stats, at L., 120. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress Assembled, That the Act entitled ''An.Act to permit the use of the right of way through the public lands for tramroads, canals, and reservoirs, and for other purposes, ' ' approved January twenty- first, eighteen hundred and ninety-five, be, and the same is hereby, amended by adding thereto the following : ' ' Sec. 2. That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to 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 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. '* 12 Chap. 335. An Act to Provide for the Use and Occupation OP Reservoir Sites Reserved. Approved February 26, 1897. 29 U. S. Stats, at L., 599, Be it enacted hy the Senate and House of Representatives of the United States of America in Congress AssemUed, That all reservoir sites reserved or to be reserved shall be open to use and occupation under the right-of-way Act of March third, eighteen hundred and ninety-one. And any State is hereby authorized to improve and occupy such reservoir sites to the same extent as an individual or private corporation, under such rules and regulations as the Secretary of the Interior may prescribe : Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate. 13 Chap. 2. An Act Making Appropriations for Sundry Civil Expenses of the Government for the Fiscal Year Ending June Thirtieth, Eighteen Hundred and Nine- ty-Eight, AND FOR Other Purposes. Approved June 4, 1897. 30 U. S. Stats, at L., 11, 34-36. « * « « « All public lands heretofore designated and reserved by the President of the United States under the provisions of the Act approved March third, eighteen hundred and ninety-one, the orders for which shall be and remain in full force and effect, unsuspended and unrevoked, and all public lands that may hereafter be set aside and reserved as public forest reserves under said Act, shall be as far as practicable controlled and administered in accordance with the following provisions : No public forest reservation shall be established, except to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of the Act providing for such reservations, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes. The Secretary of the Interior shall make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations which may have been set aside or which may be hereafter set aside under the said Act of March third, eighteen hundred and ninety-one, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occu- pancy and use and to preserve the forests thereon from destruction; and any violation of the provisions of this Act or such rules and regulations shall be punished as is provided for in the Act of June fourth, eighteen hundred and eighty- eight, amending section fifty-three hundred and eighty-eight of the Revised Statutes of the United States. 14 For the purpose of preserving the living and growing timber and promoting the younger growth on forest reservations, the Secretary of the Interior, under such rules and regulations as he shall prescribe, may cause to be designated and appraised so much of the dead, matured, or large growth of trees found upon such forest reservations as may be compatible with the utilization of the forests thereon, and may sell the same for not less than the appraised value in such quantities to each purchaser as he shall prescribe, to be used in the State or Territory in which such timber reservation may be situated, respectively, but not for export therefrom. Before such sale shall take place, notice thereof shall be given by the Commis- sioner of the General Land Office, for not less than sixty days, by publication in a newspaper of general circulation, published in the county in which the timber is situated, if any is therein published, and if not, then in a newspaper of general circu- lation published nearest to the reservation, and also in a newspaper of general circulation published at the capital of the State or Territory where such reservation exists ; payments for such timber to be made to the receiver of the local land office of the district wherein said timber may be sold, under such rules and regulations as the Secretary of the Interior may prescribe; and the moneys arising therefrom shall be accounted for by the receiver of such land office to the Com- missioner of the General Land Office, in a separate account, and shall be covered into the Treasury. Such timber, before being sold, shall be marked and designated, and shall be cut and removed under the supervision of some person appointed for that purpose by the Secretary of the Interior, not interested in the purchase or removal of such timber nor in the employ- ment of the purchaser thereof. Such supervisor shall make report in writing to the Commissioner of the General Land Office and to the receiver in the land office in which such reservation shall be located of his doings in the premises. The Secretary of the Interior may permit, under regulations to be prescribed by him, the use of timber and stone found upon such reservations, free of charge, by bona fide settlers, 15 miners, residents, and prospectors for minerals, for firewood, fencing, buildings, mining, prospecting, and other domestic purposes, as may be needed by such persons for such purposes ; such timber to be used within the State or Territory, respectively, where such reservations may be located. Nothing herein shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of such reservations, or from crossing the same to and from their property or homes ; and such wagon roads and other improve- ments may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of the Interior. Nor shall anything herein prohibit any person from entering upon such forest reservations for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof: Provided, That such persons comply with the rules and regulations covering such forest reservations. That in cases in which a tract covered by an unperfected bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the Govern- ment, and may select in lieu thereof a tract of vacant land open to settlement not exceeding in area the tract covered by his claim or patent ; and no charge shall be made in such cases for making the entry of record or issuing the patent to cover the tract selected : Provided further, That in cases of unper- fected claims the requirements of the laws respecting settle- ment, residence, improvements, and so forth, are complied with on the new claims, credit being allowed for the time spent on the relinquished claims. The settlers residing within the exterior boundaries of such forest reservations, or in the vicinity thereof, may maintain schools and churches within such reservation, and for that purpose may occupy any part of the said forest reservation, not exceeding two acres for each schoolhouse and one acre for a church. 16 The jurisdiction, both civil and criminal, over persons within such reservations shall not be affected or changed by- reason of the existence of such reservations, except so far as the punishment of offenses against the United States therein is concerned; the intent and meaning of this provision being that the State wherein any such reservation is situated shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the State. All waters on such reservations may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such forest reservations are situated, or under the laws of the United States and the rules and regulations established thereunder. Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days' notice thereof, published in two papers of general circulation in the State or Territory wherein any forest reservation is situated, and near the said reservation, any public lands embraced within the limits of any forest reservation which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any forest reservation which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereo, shall continue to be subject to such location and entry, notwith- standing any provisions herein contained. The President is hereby authorized at any time to modify any Executive order that has been or may hereafter be made establishing any forest reserve, and by such modification may reduce the area or change the boundary lines of such reserve, or may vacate altogether any order creating such reserve. 17 Chap. 292. An Act to Amend an Act to Permit the Use OP the Eight op Way Through Public Lands for Tramroads, Canals, and Reservoirs, and for Other Purposes. Approved May 11, 1898. 30 U. S. Stats, at L., 404. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress Assembled, That the Act entitled ''An Act to permit the use of the right of way through the public lands for tramroads, canals, and res- ervoirs, and for other purposes," approved January twenty- first, eighteen hundred and ninety.-five, be, and the same is hereby, amended by adding thereto the following : *'That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of right of way upon the public lands of the United States, not within limits of any park, forest, military, or Indian reservations, for tramways, canals, or reservoirs, to the extent of the ground occupied by the water of the canals and reservoirs, and fifty feet on each side of the marginal limits thereof, or fifty feet on each side of the center line of the tramroad, by any citizen or association of citizens of the United States, for the purposes of furnishing water for domestic, public, and other beneficial uses. **Sec. 2. That the rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the pro- visions of Sections eighteen, 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." 18 Chap. 372. An Act Relating to Rights of Way Through Certain Parks, Reservations, and Other Public Lands. Approved February 15, 1901. 31 V. S. Stats, at L., 790. Be it eimcted hy the Senate and House of Representatives of the United States of America in Congress Assembled, That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of rights of way through the public lands, forest and other reservations of the United States, and the Yosemite, Sequoia, and General Grrant national parks, Cali- fornia, for electrical plants, poles, and lines for the generation and distribution of electrical power, and for telephone and telegraph purposes, and for canals, ditches, pipes and pipe lines, flumes, tunnels, or other water conduits, and for water plants, dams, 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 works permitted hereunder, and not to exceed fifty feet on each side 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 : Provided, That such permits shall be allowed within or through any of said parks or any forest, military, Indian, or other reserva- tion only upon the approval of the chief officer of the Depart- ment under whose supervision such park or reservation falls and upon a finding by him that the same is not incompatible with the public interest: Provided further, That all permits given hereunder for telegraph and telephone purposes shall 19 be subject to the provision of title sixty-five of the Revised Statutes of the United States, and amendments thereto, regu- lating rights of way 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. 20 Chap. 1093. An Act Appropriating the Receipts From the Sale and Disposal op Public Lands in Certain States AND Territories to the Construction of Irrigation Works for the Reclamation of Arid Lands. Approved June 17, 1902. 32 U. S. Stat at L., 388. * * « « « Sec. 8. That nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any land owner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof : Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right. 21 Chap. 288. An Act Providing for the Transfer of Forest Reserves From the Department of the Interior to THE Department of Agriculture. Approved February 1, 1905. 33 U. 8. Stats, at L., 628. Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That the Secretary of the Department of Agriculture shall, from and after the passage of this Act, execute or cause to be executed all laws affecting public lands heretofore or hereafter reserved under the provisions of section twenty-four of the Act entitled "An Act to repeal the timber-culture laws, and for other purposes, ' ' approved March third, eighteen hundred and ninety-one, and Acts supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as affect the surveying, prospecting, locating, appro- priating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands. Sec. 2. That pulp wood or wood pulp manufactured from timber in the district of Alaska may be exported therefrom. Sec. 3. That forest supervisors and rangers shall be se- lected, when practicable, from qualified citizens of the States or Territories in which the said reserves, respectively, are situated. Sec. 4. That rights of way for the construction and main- tenance of 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 cor- porations 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. Sec, 5. That all money received from the sale of any 22 products or the use of any land or resources of said forest reserves shall be covered into the Treasury of the United States and for a period of five years from the passage of this Act shall constitute a special fund available, until expended, as the Secretary of Agriculture may direct, for the protection, administration, improvement, and extension of Federal forest reserves. 23 Chap. 456. An Act for the Protection of the Public Forest Reserves and National Parks of the United States. Approved February 6, 1905. 33 U. 8. Stats, at L., 700. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress Assemhled, That all persons employed in the forest reserve and national park service of the United States shall have authority to make arrests for the violation of the laws and regulations relating to the forest reserves and national parks, and any person so arrested shall be taken before the nearest United States com- missioner, within whose jurisdiction the reservation or national park is located, for trial ; and upon sworn information by any competent person any United States commissioner in the proper jurisdiction shall issue process for the arrest of any person charged with the violation of said laws and regulations ; but nothing herein contained shall be construed as preventing the arrest by any officer of the United States, without process, of any person taken in the act of violating said laws and regulations. 24 Chap. 152. An Act Granting to Railroads the Eight of Way Through the Public Lands op the United States. Approved March 3, 1875. 18 U. 8. stats., at L., 482. Be it enacted hy the Senate and House of Representatives of the United States of America in Congress Assembled, That 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 con- struction 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. Sec. 2. That any railroad company whose right of way, or whose track or road-bed 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 the 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 rail- road through any canyon, pass, or defile, said railroad com- pany shall before entering upon the ground occupied by such 25 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. 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 con- demned; 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 aid in the construction of a railroad and telegraph line from the Missouri Eiver 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. 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. 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.