56 NATIONAL FOREST MANUAL LAWS. 



refused as to a reservoir because the site had been previously with- 

 drawn from sale or entry and reserved by the United States, the com- 

 pany acquired no right or easement by the filing of its maps. ' ' (United 

 States v. Rickey Land & Cattle Co. et al., 164 Fed., 496.) 



Under the act of March 3, 1891 (26 Stat., 1095), the approval of the 

 Secretary of the Interior is necessary to the acquisition of a right of way 

 over, on, or across a National Forest. (Pope, J., in United States v. 

 The Henry lyn Irrigation District, The Inter-Mountain Water Co., and 

 J. A. Mcllwee, decided Nov. 25, 1912, district court of the United 

 States for the District of Colorado.) 



Railroad rights of way. The Secretary of the Interior may, under the 

 act of March 3, 1899 (30 Stat., 1233), grant or refuse to grant railroad 

 rights of way through the forest reserves, ano\, as a condition of making 

 the grant, he may impose conditions, as by requiring the company to exe- 

 cute a bond with sureties binding itself and its successors to pay for any 

 and all damages to the public lands, the timber, natural curiosities, 

 and other public property thereon, from such occupation and use of 

 the reservation. (United States v. Bailey, 178 Fed., 302.) 



In such a case a receiver of the railroad is its "successor," and the 

 bondsmen will be liable with him in a suit on the bond. (Id.) 



On application for a railroad right of way over lands upon which are 

 possible power sites examination should be made to determine whether 

 the lands may be used to the best advantage for power sites or other 

 power purposes, and the question of approving the application will then 

 be determined by considerations of the greatest public good to result 

 from the one or the other use. If the decision is in favor of the power 

 use, the lands will then be withdrawn, unless the road can be so located 

 as not to interfere with future power uses. (Continental Tunnel Ry. 

 Co., 39 L. D., 86; see also Denver & Rio Grande R. R. Co., 39 L. D., 

 209, and Skagit Power Co., 39 L. D., 89.) 



Where a railroad company consents in writing to the location of a 

 store upon its right of way within a National Forest, thus waiving its right 

 to exclusive possession, the Forest Service may issue a permit for such 

 store, thus legalizing the occupancy so far as the Government is con- 

 cerned. (2 Sol. Op., 790.) 



Under the act of March 3, 1875 (18 Stat., 482), granting to railroads 

 the right of way through public lands, such grant took effect upon the 

 construction of the road. (Jamestown & Northern R. Co. v. Jones, ]77 

 U. S., 125; Minneapolis, etc. R. Co. v. Doughty, 208 U. S., 251; Stalker 

 et al. v. Oregon Short Line R. R. Co. ,225 U. S., 142.) 



A railroad company does not acquire a vested right under the act of 

 March 3, 1875 (18 Stat., 482), over unsurveyed land by filing a map of 

 the route in the local and General Land Offices. (1 Sol. Op., 459.) 



No rights are acquired as against the United States until the line has 

 been ascertained by actual construction or the application has been 

 approved by the Secretary of the Interior, and rights initiated sub- 

 sequent to temporary or permanent withdrawals are subject to such 

 withdrawals. (Same.) 



Irrigation rights of way. Prior to approval by the Secretary of the 

 Interior, the inchoate right acquired by an application for right of way 

 under the act of March 3, 1891, is subject to the power of Congress to 

 deny the right by making other disposition of the lands affected. 

 (Sierra Ditch Water Co., 38 L. D., 547.) 



The approval by the Secretary of Agriculture of an application for a 

 right of way under the acts of March 3, 1891, and May 11, 1898, for a 

 reservoir site within a National Forest does not vest an easement in 

 the applicant, but is merely advisory to the Secretary of the Interior 

 and subject to his paramount jurisdiction under his said acts. (Cali- 

 fornia-Nevada Canal, Water & Power Co., 40 L. D., 380.) 



Approval of applications for rights of way under the act of March 3, 

 1891, as amended by the act of May 11, 1898, for primary purposes of 

 irrigation, are subject to all valid existing rights and upon the express 

 condition that the right of way be used for the main purpose of irriga- 

 tion; that any electrical power or energy developed thereunder is to be 

 primarily used for the purpose of irrigation; and any abandonment or 

 violation of such use, or neglect to comply with the provisions of the 

 law. will work a forfeiture which will be enforced bv appropriate .m**- 



