EIGHTS OF WAY DECISIONS. 87 



Uailroad rights of way. 



Lands within a National Forest are not subject to appropriation 

 by a railroad company for right of way and other railroad purposes 

 under the provisions of the act of March 3, 1875 (18 Stat., 482), 

 which by section 5 expressly excepts from its operation lands " spe- 

 cially reserved from sale." (United States v. Chicago, M. & St. P. 

 Ey. Co., 207 Fed., 164; affirmed by C. C. A., 218 Fed., 288.) 



Under the provisions of the act of March 3, 1875 (18 Stat., 482), 

 which excepts from the operation of the act lands " specially reserved 

 from sale," the rights of a railroad company seeking to acquire bene- 

 fits thereunder are fixed by the status of the land at the time when 

 the railroad company first seeks to give a practical effect to the grant 

 by the definite location of its line, either by the filing of its map of 

 final location or by the actual construction of its road, and not as of 

 the time when it qualified itself as a grantee by filing articles of 

 incorporation. ( Id. ) 



The Secretary of the Interior may under the provisions of the act 

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

 rights of way through the forest reserves, and as a condition of mak- 

 ing the grant, he may impose conditions, as by requiring the company 

 to execute a bond with sureties binding itself and its successors to 

 pay for any and all damage 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 applica- 

 tion 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 favor of the power use, the lands will then be withdrawn, unless the 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 per- 

 mit for such store, thus legalizing the occupancy so far as the Gov- 

 ernment is concerned. (2 Sol. Op., 790.) 



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

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

 upon the construction of the road. (Jamestown & Northern R. Co. 

 v. Jones, 177 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 



