EIGHTS OF WAY — DECISIONS. 89 



by appropriate proceedings. (Instructions, case of Pamma Power 

 & Irrigation Co., 39 L. D., 309 ; see also Kern River Co., 38 L. D., 

 302.) 



Applications for rights of way under the provisions of the act of 

 March 3, 1891, and section 2 of the act of May 11, 1898, will not be 

 allowed except upon a satisfactory showing that the right of way is 

 desired for the primary purpose of irrigation. (Inyo Consolidated 

 Water Co., 37 L. D., 79.) 



Whenever in his judgment the granting of a right of way under the 

 act of March 3, 1891, over a national park would interfere with 

 proper occupation of the reservation by the Government, the Secre- 

 tary of the Interior may withhold his approval therefrom. (Sierra 

 Ditch & Water Co., 38 L. D., 547.) 



There is no authority under the irrigation right of way act of 

 March 3, 1891, to require the applicant to keep the reservoir or lake 

 open to the public for fishing purposes. (1 Sol. Op., 174.) 



Electric-power rights of way. 



A company organized chiefly for the purpose of generating and 

 distributing power is not within the purview of the act of March 3, 

 1891 ; and where an application by such a company for right of way 

 under that act has been approved, for lands now within a National 

 Forest, the company may be permitted to relinquish all rights under 

 such approval and amend its application to bring it within the act 

 of February 15, 1901, failing to do which, action should be taken by 

 the Land Department with a view to revocation of such approval. 

 (The Kern River Co., 38 L. D., 302.) 



A right of way for the development of electric power could not be 

 acquired under the act of 1866 (Rev. Stat., 2339). Congress did not, 

 in that act, contemplate power companies, because none were then in 

 existence. (The Kern River Co., 38 L. D., 302, 309; U. S. v. Utah 

 Power & Light Co. (C. C. A.), 209 Fed., 554, contra.) 



Under the act of February 15, 1901, the Secretary of the Interior 

 may, in his discretion, refuse to approve an application until the 

 applicant files a stipulation to comply with " all laws or regulations 

 now in force or which may hereafter be passed or promulgated." 

 (Decision of Secretary of the Interior of Sept. 16, 1912 (unpub- 

 lished), in case of Central Colorado Power Co.) 



The rights of way granted by section 4 of the Forest Transfer Act 

 are limited to municipal and mining purposes, including the milling 

 and reducing of ores, and an application under it should not be 

 allowed where it appears that the chief purpose for which the right 

 is desired is the generation of power for commercial use and that its 

 utilization for mining operations is merely incidental to such purpose. 

 (Northern California Power Co., 37 L. D., 80.) 



A right of way for a ditch for mining purposes, acquired under 

 the act of July 26, 1866, prior to the creation of a National Forest, 

 can not legally be used to convey water for the exclusive purpose of 

 generating hvdroelectric power for commercial sale. (2 Sol. Op., 

 728.) m 



A right of way for a mining ditch acquired under the act of 1866, 

 prior to the creation of a National Forest is a mere easement, and 

 the lands affected become part of a subsequently created National 



