14 LAWS APPLICABLE TO THE NATIONAL FORESTS. 



Congress has power to set apart portions of the public domain and 

 establish them as forest reserves, and to prohibit the grazing of cattle 

 thereon, or permit it subject to rules and regulations. 



Fence laws may condone trespasses by straying cattle where the 

 laws have not been complied with, but they do not authorize wanton 

 or willful trespass, nor do they afford immunity to those willfully 

 turning cattle loose under circumstances showing that they were 

 intended to graze upon the lands of another. 



Where cattle are turned loose under circumstances showing that 

 the owner expects and intends that they shall go upon a reserve to 

 graze thereon, for which he has no permit and he declines to apply 

 for one, and threatens to resist efforts to have the cattle removed, and 

 contends that he has a right to have his cattle go on the reservation, 

 equity has jurisdiction, and such owner can be enjoined at the in- 

 stance of the Government, whether the land has been fenced or not. 



Qucere, and not decided, whether the United States is required to 

 fence property under laws of the State in which the property is 

 located. 



Status of mining 1 locations within forests. 



Mineral lands (at least if not located as such at the time of with- 

 drawal) become a part of the National Forest, and their subsequent 

 location does not (prior to patent) withdraw or exclude them there- 

 from. (United States v. Eizzinelli, 182 Fed., 675 ; see also U. S. v. 

 Lavenson, 206 Fed., 755.) 



Under a forestry proclamation declaring "that the withdrawal 

 made by this proclamation shall, as to all lands at this time legally 

 appropriated * * * be subject to and shall not interfere with or 

 defeat legal rights under such appropriation * * * so long as 

 such appropriation is maintained," a mining location existing at the 

 date of the proclamation becomes a part of the National Forest, sub- 

 ject only to the rights of the owner thereof, under the mineral laws. 

 (2 Sol. Op., 763; id., 865.) 



Status of lands covered by rights of way. 



Lands covered by railroad and ditch rights of way at the time of 

 withdrawal become part of the National Forests subject to such rights 

 of way. (2 Sol. Op., 790 ; id., 728.) 



Waters within National Forests. 



Waters flowing over the public domain in natural channels are not 

 the property of the United States or subject to its control or dispo- 

 sition. They are publici juris and are subject, under the Constitution, 

 to the jurisdiction and control of the States, except for purposes of 

 commerce and navigation. The Government can acquire a right to 

 their use for purposes other than navigation only by appropriating 

 them under the provisions of State laws. (1 Sol. Op., 590.) 



Where, however, the Government, by a treaty made prior to the 

 admission of the State into the Union, has reserved certain waters for 

 the use of an Indian tribe, there is no power in the State to divert 

 them from such uses. (Winters v. United States, 207 U. S., 564.) 



Nor can a State, even upon the nonnavigable portions of a stream, 

 authorize any uses which will impair the navigability of the navi- 



