86 LAWS APPLICABLE TO THE NATIONAL FORESTS. 



The Secretary of Agriculture is authorized to acquire, by purchase 

 or condemnation, rights of way for roads needed as outlets for 

 National Forest timber. Such rights of way are not additions to 

 Xational Forests within the meaning of the prohibition contained in 

 the act of March 4, 1907. (Id.) 



Construction of Forest Service telephone lines over unreserved 

 public lands need not be protected by prior reservation of a right 

 of way by the Interior Department, but as a matter of policy a 

 reservation should be requested. (1 Sol. Op., 276.) 



The construction and maintenance of roads and trails by the Forest 

 Service upon unsurveyed vacant public lands, although such lands 

 are outside the Xational Forests, is authorized and such construction 

 and maintenance operates as a reservation of right of way which 

 will not be affected bv subsequent sale or disposition of the lands. 

 (1 Sol. Op., 482.) 



The consent of the landowner must be secured for the construction 

 of a Forest Service telephone line along a public high way passing 

 over patented land. (1 Sol. Op., 295.) 



Powers and discretion of Secretary. 



The exercise of the jurisdiction of the Secretary of the Interior 

 over applications for rights of way within reservations under these 

 acts involves more than a mere legal discretion and he should look 

 beyond the mere technical sufficiency of the application and in a 

 broad view subserve the interests of the whole people. ( Calif ornia- 

 Xevada Canal "Water & Power Co., 40 L. D.. 380.) 



"Under act of March 3, 1891, c. 561, §§18. 19. 26. Stat, 1101, 1102 

 (U. S. Comp. St., 1901, pp. 1570, 1571), granting right of way for 

 irrigating canals, ditches, and reservoirs over the public lands to 

 irrigation companies, upon the filing of a map thereof and its ap- 

 proval by the Secretary of the Interior, such approval is essential, 

 and where it was refused as to a reservoir because the site had been 

 previously withdrawn from sale or entry and reserved by the United 

 States, the company acquired no right or easement by the filing of its 

 maps." (United States v. Kickev Land & Cattle Co~. et al., 164 Fed., 

 496.) 



"While the United States retains the fee to land crossed by a rail- 

 road right of way acquired under the provision of the act of March 

 3, 1875 (18 Stat., 482), it does not have the right to cross such right 

 of way with a telephone line unless the railroad company consents 

 thereto. (2 Sol. Op., 1090.) 



A right of way for an irrigation project can not be acquired over 

 a Xational Forest without the approval of the proper executive 

 officers of the Government; nor can any right of occupancy or use 

 thereof be acquired by private parties, save upon the exercise of a 

 discretion by the proper department as to whether such use will inter- 

 fere with the purpose of the reserve. (United States v. Henrylyn 

 Irrigation Co. et al., 205 Fed., 970.) 



The right to an injunction is not affected by the fact that the Secre- 

 tary of the Interior may have improperly delayed or refused to act 

 on an application made for a right of way through a reservation for 

 canals and tunnels. (United States v. Henrvlvn Irrigation Co. et al., 

 205 Fed., 970.) 



