USE BY TELEGRAPH AND RAILROAD COMPANIES 277 



176. The Free Use of Timber by Telegraph and 

 Railroad Companies. An act of July 24, 1866 (14 Stat. 

 L., 221), U. S. Revised Statutes, Sec. 5264, granting a 

 right of way over public lands to telegraph companies duly 

 incorporated under the laws of any state or territory also 

 granted the use of so much timber from those lands as 

 should be needed for construction purposes. It has been 

 held by the Interior Department that the use of timber for 

 the construction of telephone lines was not authorized by 

 this act. l 



A similar grant of timber on lands adjacent to their line 

 of track was made to railroads under an Act of March 3, 

 1875 (18 Stat. L., 482), giving duly incorporated railroads 

 the right of way over public lands. The use of timber under 

 this act and of various other special land grants to railroads 

 was confined to original construction purposes - except in 

 the case of the grant of June S, 1872 (17 Stat. L., 339) to 

 the Denver and Rio Grande Railroad, wherein use for re- 

 pairs was also granted. But timber adjacent to the main 

 line could be used in the original construction of branch 

 lines subsequent to the completion of the said main hue. 3 



It has been held that the privilege of taking timber" ad- 

 jacent to line of said road," as granted in the act of March 3, 

 1875 (18 Stat. L., 482), could not be construed to authorize 

 the taking of timber by the railroad from lands situated 

 fifty miles distant from the right of way, even though there 

 be no available timber at a nearer point on the public 

 lands. 4 On the other hand a court has held that a grant of 

 similar character to the Northern Pacific Railroad under 

 section two of an act of July 2, 1864 (13 Stat. L. 365) author- 

 ized the cutting of timber from lands not directly contigu- 

 ous to the right of way, and that timber taken from lands ad- 

 jacent (the term being used in a sense of nearness) to the 

 line of the road might be used for construction purposes 



1. 29 L. D. 1, July 1, 1899. Right of way over public lands, not reserved for public. 



uses, was granted by act of July 26, I860 (14 Stat. L, 253.) 



2. Denver etc. R. Co. v. U. S., 34 Fed. 838 (Aff'd in 150 U. S. 1, 14 S. C't. 11. 37 L. 



Ed. 975.) 



3. U. S. v. Price Trading Co., 109 Fed. 239, 48 C. C. A. 331. 



4. Stone v. U.S., 167 U.S. 178, 17 S. Ct, 778, 42 L. Ed. 127 (AfTmg 64 Fed. 667, 12 



C. C. A. 451.) 



