Prior to July 1, 1895, a public highway could have been established either by public authorities, or by public use, for the period of limitation as to land, of the exact route claimed confined to the statutory width, or by dedication, or on partition, and on that date it was declared by Rev. Codes, § 1340, then first adopted, that no route used over lands of another should become a public highway except as provided by the statute, and so whether a road over public land claimed to have been offered by this section, and accepted by Rev. Codes, Mont. § 1337, was established in any manner before or since July 1, 1895, it must have been under some legal authority. Id. An offer by this section of a way by user over public land accepted under state law, must be shown to have been continued over the exact route claimed for the statutory period prior to enactment of the law accepting the same. Id. Under this section, and the act of the legislative assembly of Dakota Territory (Laws 1871, c. 33) declaring all section lines in the territory of Dakota to be public highways as far as prac ticable, public highways were located and established upon all section lines within the territory where it was practicable to construct highways. Huffman v. Board of Sup'rs of West Bay Tp. Benson County (N. D.) 182 N. W. 459. All section lines, under the grant of Congress in this section, having been accepted by Laws Dak. Ter. 1871, c. 33, became public highways from the time of the congressional grant. Hillsboro Nat. Bank v. Ackerman (N. D.) 189 N. W. 657. Effect of subsequent legislation.Highways established on section lines under this section, and under act of the Legislative Assembly of Dakota Territory (Laws 1871, c. 33) declaring all section lines to be highways as far as practicable, held not vacated nor the rights of the public surrendered therein by subsequent legislation. Huffman v. Board of Sup'rs of West Bay Tp. Benson County (N. D.) 182 N. W. 459. Cited without definite application, Robbins v. U. S. (C. C. A. Colo.) 284 F. 39. § 4920. (Act July 5, 1884, c. 214, § 6.) Roads across military reservations; ferry landings; bridges. Act Feb. 11, 1920, c. 70, 41 Stat. 466, grants to Salt Lake City a right of way over and upon the Fort Douglas Military Reservation for a conduit and pipe line to connect with the water-supply system of the city. Act March 3, 1921, c. 133, 41 Stat. 1354, authorizes the city of New Orleans to extend Dauphine street across the military reservation of Jackson Barracks. Act March 4, 1921, c. 165, 41 Stat. 1438, grants to the city and county of Honolulu, Territory of Hawaii, a right of way across the Fort De Russy Military Reservation in said Territory for a sewer system. Act June 6, 1922, c. 209, 42 Stat. 622, entitled "An act to authorize the Secretary of War to grant a perpetual easement for railroad right of way and a right of way for a public highway over and upon a portion of the military reservation of Fort Sheridan, in the State of Illinois," provides for the grant of a perpetual easement for railroad purposes to the Chicago, North Shore & Milwaukee Railroad over and upon the Ft. Sheridan military reservation; also for the location of a public highway to connect with the McKinley Road over and upon said reservation. The Secretary of War is authorized to grant a permit to erect and maintain a hotel upon the Fort Monroe Military Reservation in Virginia, by Res. Sept. 14, 1922, c. 310, 42 Stat. 843. Cited without definite application, 30 Op. Atty. Gen. 470. § 4920a. (Res. May 5, 1920, c. 167.) Licenses for removal of sand and gravel from Fort Douglas Military Reservation. The Secretary of War is hereby authorized to grant revocable. licenses for the removal of sand and gravel from the Fort Douglas Military Reservation, Utah, to persons and corporations within said State, to be used for industrial and manufacturing purposes, at such reasonable prices as may be fixed by the Secretary of War. (41) Stat. 588.) This section is a resolution entitled a "Joint resolution to authorize the Secretary of War to grant revocable licenses for the removal of sand and gravel from the Fort Douglas Military Reservation for industrial purposes," cited above. (1490) § 4921. (Act March 3, 1875, c. 152, § 1.) Right of way through of a railroad right of way through the public lands was present and absolute, and upon identification of the route took effect as of the date of the act, and all thereafter acquiring public lands took subject to such granted right. Id. public lands, granted to railroads. Railroad right of way-Acquisitions in general.-It is within the jurisdiction of Congress to grant to a railroad company right of way through public lands of the United States in a state or territory, and the exercise of such power is not dependent on legislative action by state in which the company is incorporated or by the state or territory in which the land lies. City of Reno v. Southern Pac. Co. (C. C. A. Nev.) 268 F. 751, affirming decree (D. C.) Southern Pac. Co. v. City of Reno, 257 F. 450. Lands subject to grant of right of way.-Under the treaty of 1846 with the Pottawatomie Indians, by which the United States agreed to grant possession and title to specified land, and the treaty of 1861, providing for allotments in severalty to members of the tribe, where allotments had not been made until after 1862, such lands were "public lands" of the United States, within Act July 1, 1862, § 2, granting a right of way to a railroad where it passed over public lands. Nadeau v. Union Pac. R. Co., 40 S. Ct. 570, 253 U. S. 442, 64 L. Ed. 1002. A tract of land within the unsurveyed lands of the United States in the territory of Nevada held "public land," within the meaning of Act July 1, 1862, § 2, granting right of way through the public lands to the Central Pacific Railroad Company of California, although a part of such tract was then occupied by a settler, who afterward filed a preemption claim thereon. City of Reno v. Southern Pac. Co. (C. C. A. Nev.) 268 F. 751, affirming decree (D. C.) Southern Pac. Co. v. City of Reno, 257 F. 450. Within Act July 1, 1862, § 2, granting a railroad right of way over public lands, the term "public lands" means such lands belonging to the government as are subject to sale or other disposal under general laws. Southern Pac. Co. v. City of Reno (D. C. Nev.) 257 F. 450. Under Act Cong. July 1, 1862, granting a railroad a right of way across public lands, the land was public within the statute where the title remained in the government and the government had the ultimate right to dispose of it. Union Pac. R. Co. v. Weaver (Kan.) 204 P. 1011. Nature and purpose of grant.A grant of a right of way through the public lands to a railroad company stands upon a different footing from private grants, and is not to be regarded as bestowing a bounty on the railroad, and should receive a liberal construction. Nadeau v. Union Pac. R. Co., 40 S. Ct. 570, 253 U. S. 442, 64 L. Ed. 1002. The grant by Act July 1, 1862, § 2, Act July 1, 1862, held to have granted to the Central Pacific Railroad Company of California in præsenti right of way for its road through the territory of Nevada over all land which was then public land of the United States the title of the company to which attached on the definite location of its route as of the date of the act, and any rights acquired by others to the lands under the land laws subsequent to that date held subject to such grant. City of Reno v. Southern Pac. Co. (C. C. A. Nev.) 268 F. 751, affirming decree (D. C.) Southern Pac. Co. v. City of Reno, 257 F. 450. In Act July 1, 1862, granting to the Union Pacific Railroad Company and the Central Pacific Railroad Company of California right of way through the public lands and also subsidy lands, the conditions attached to the subsidy grant that the lands shall be free from homestead or other claims at the date of definite location are not contained in the grant of right of way, and do not apply thereto, but such grant applies to all lands the title to which was then in the United States and which were then subject to disposition by Congress. Id. Land granted by Act July 1, 1862, for a railroad right of way, was dedicated by the government to a use deemed essential to national prosperity and safety, and could not thereafter be alienated or dedicated for any other kind of use, public or private, without the consent of Congress. Southern Pac. Co. v. City of Reno (D. C. Nev.) 257 F. 450. The grant of lands for a railroad right of way by Act July 1, 1862, § 2, was a present grant, floating until the route was definitely fixed, but then sufficient to cut off all claims to lands thereby granted which were initiated subsequent to the date of the act. Id. Act July 2, 1864, § 16, authorizing the Central Pacific Railway Company to extend its line 150 miles east of the California line, and Act July 3, 1866, § 2, authorizing extension of line with approval of the Secretary of the Interior until it met the Union Pacific, were amendatory of Act July 1, 1862, passed under the power reserved by section 18 of the latter act, and were not intended to forfeit the rights of way granted by section 2 of the act of 1862, and the right of the railroad to the right of way over lands within the limits of construction by the act of 1864 dates from 1862, and not from 1866. Id. The railroad right of way granted by Act July 1, 1862, § 2, over public lands, was not impliedly subject to the exception in the grant of section 3 of that act of alternate sections, exempting from the grant lands to which a preemption or homestead claim had attached at the time the road was definitely located. Id. By granting a right of way of 200 feet in width to a railroad, Congress must have determined that a strip of that width was necessary for the proper construction, operation, and improvement, and future necessities of the road, and the general public has no right to conjecture that any portion of the right of way is not necessary for railroad purposes. Etheredge v. Chicago, B. & Q. R. Co. (Neb.) 181 N. W. 928. Loss or extinguishment of right. -A patent, for a pre-emption, following proceedings in the Land Office, in which the claim was filed subsequent to the grant of a right of way to a railroad ,company, held to convey title subject to such right of way. City of Reno v. Southern Pac. Co. (C. C. A. Nev.) 268 F. 751, affirming decree (D. C.) Southern Pac. Co. v. City of Reno, 257 F. 450. A pre-emption entry, made in the Land Office two years after the adoption of Act July 1, 1862, § 2, granting a railroad right of way over public lands, could not in itself have a retroactive effect sufficient to overcome the grant of the right of way. Southern Pac. Co. v. City of Reno (D. C. Nev.) 257 F. 450. Where settlement was claimed on two contiguous quarter sections of unsurveyed land, on one of which the settler was residing and had placed all his improvements, his claim to a subdivision in the other quarter section, on which he had made no improvements, on which he had posted no notice that it was claimed by him and as to which he had given no actual notice of his claim prior to his pre-emption entry in the land office in 1864, must yield to the right of way granted by the act of July 1, 1862, to the Central Pacific Railroad Company, even though the actual settlement antedated the act and the subdivision was patented to the settler in 1865. Id. Where railroad, granted a right of way by Act Cong. July 1, 1862, constructed road along new right of way granted by Act Cong. July 2, 1864, amending the previous statute so as to permit a change of route at the election of the railroad, the railroad's rights in such right of way were superior to those of claimants whose title originated in settlements under homestead and pre-emption laws after the passage of the second statute, but before the road was constructed or any map showing the new route was filed, though railroad filed map showing its general route along the line first authorized after the passage of the second act and before the settlements were made. Union Pac. R. Co. v. Heger (Kan.) 204 P. 1008. The construction of a public highway parallel to railroad track within boundaries of right of way granted railroad by Act Cong. July 2, 1864, did not extinguish the railroad's right to the strip within the right of way on other side of highway. Id. A railway company which purchases at judicial sale the property of another, including a 400-foot right of way granted by Congress, takes such right of way subject to the same disability as its predecessor to alienate any part of it, notwithstanding the United States was a party, and the decree contained a clause cutting off its interest in the property conveyed. Id. Where entries had been made upon lands prior to enactment of Act Cong. July 1, 1862, granting a railroad a right of way across the lands, but nothing resulted therefrom and the entries were canceled, the railroad's right was superior to titles resting upon patents resulting from entries on the lands subsequent to enactment of the statute. Union Pac. R. Co. v. Weaver (Kan.) 204 P. 1011. Taking materials from adjacent lands -Timber.-An official of the General Land Office has no authority to enlarge the rights of a railroad company under this act, to necessary timber from public lands for construction of road, so as to give right to cut and sell timber from the remaining slashings. Caldwell v. U. S., 39 S. Ct. 397, 250 U. S. 14, 63 L. Ed. 816, affirming judgment 53 Ct. Cl. 33. This act, granting "timber" necessary for construction of road, must be construed strictly, and so gives no right to slashings for commercial use remaining from trees cut for ties. Id. That only a portion of the right of way granted to a railroad has ever been occupied for railroad purposes held immaterial in a suit to enjoin the railroad company from cutting trees on such right of way. Etheredge v. Chicago, B. & Q. R. Co. (Neb.) 181 N. W. 928. Grounds for stations-Rights of ocOcupant under patent.-Where a railway company claimed to have selected land as station grounds, under this act, and it appeared defendants occupied and claimed title to certain portions of the strip under deeds from the holder of a United States patent purporting to con vey the whole strip claimed by the railroad company, held that defendants were the owners of the respective parcels to which they asserted title. Great Northern Ry. Co. v. Steinke (N. D.) 183 N. W. 1013, certiorari granted 42 S. Ct. 92, 257 U. S. 629, 66 L. Ed. 405. Cited without definite application, 30 Op. Atty. Gen. 387. § 4924. (Act March 3, 1875, c. 152, § 4.) Map of road to be filed; forfeiture of rights. I. FILING AND APPROVAL OF PROFILE OR MAP OF ROAD 1. Compliance with statute essential. -The failure of the railroad company to file the map of its located route, as required by Act July 1, 1862, § 7, to supply information on which lands could be withdrawn upon entry, does not affect the title of the railroad to the right of way granted by section 2 of the act. Southern Pac. Co. v. City of Reno (D. C. Nev.) 257 F. 450. II. ABANDONMENT OR FORFEI- 15. Forfeiture.-Where railroad company has been granted by Congress a right of way, and by reason of public interest it cannot convey away any part thereof, it cannot be divested of its right thereto by abandonment or equitable estoppel. Union Pac. R. Co. v. Thedan (Kan.) 178 P. 441. Act Cong. June 24, 1912, providing that parts of railroad's right of way which have been abandoned should become property of the abutting owner, has prospective operation only in view of interpretation by the Supreme Court of the United States of a similar provision of the same act as to the effect of adverse possession under the statute of limitations. Id. § 4933. (Act Aug. 30, 1890, c. 837, § 1.) Reservation in patents of right of way for ditches or canals. Right of way for ditches.-This section did not limit the reserved right to ditches constructed when the patent was issued, but authorized a reservation in the patent for ditches thereafter to be constructed. U. S. v. Ide (C. C. A. Wyo.) 277 F. 373. A patentee of lands from the state, who knowingly took his patent subject to a reservation, pursuant to Comp. St. Wyo. 1920, § 4954, of a right of way for ditches constructed by the United States, cannot contend as against the United States, that the statute authorizing the reservation only applied to land while owned by the state. Id. The right of way reserved in a patent to lands for ditches constructed under the authority of the United States authorizes the construction of such ditches only in the exercise of due care, and the landowner can recover any damages resulting from negligent construction. Id. Settlers on lands within a reclamation project could not be required as a condition of obtaining water to make a floating grant in perpetuity, not only to the government but to its successors in control of the project, of rights of way for the construction, maintenance, and operation of ditches, canals, flumes, etc., even though the patents for the lands were issued prior to Act August 30, 1890, requiring patents to reserve a right of way for the ditches or canals constructed by the United States. Payette-Boise Water Users' Ass'n v. Cole (D. C. Idaho) 263 F. 734. Where water brought into a locality through government reclamation project canals and after percolation has been recovered by means of its drainage ditches, the Reclamation, Service has the first right to conserve and use it even to provide irrigation to privately owned lands. Griffiths v. Cole (D. C. Idaho) 264 F. 369. So long as the Reclamation Service can apply surplus water appropriated for a project to a beneficial use, although on lands outside the project, and thus lessen the cost to lands within the project, it is within the scope of its authority and may acquire rights of way under Act Aug. 30, 1890, c. 837., Id. § 4934. (Act March 3, 1891, c. 561, § 18, as amended, Act March 4, 1917, c. 184, § 1.) Right of way for irrigation and drainage purposes. Purpose and effect of statute.-As to rights of way granted to ditch companies for the storage of water, this section does not confer a right inde-, pendently of the following section, providing how any canal or ditch company may secure the benefits of the act, as the two sections are to be construed together. Union Land & Stock Co. v. U. S. (C. C. A. Cal.) 257 F. 635. Development of power as subsidiary to irrigation.-Under Act May 11, 1898, § 2 (Comp. St. § 4938), providing that rights of way for ditches, etc., under this act, "may be used for purposes of a public nature; and said rights of way may be used for * the development of power as subsidiary to the main purpose of irrigation," such a right of way can only be used for the transmission and sale of electric power when subsidiary to irrigation, whether such use is a use for "purposes of a public nature" or for "development of power," especially in view of the legislative history of the act of 1898 and its construction by the Land Office. Kern River Co. v. U. S., 42 S. Ct. 60, 257 U. S. 147, 66 L. Ed. 175, modifying decree (C. C. A. Cal.) U. S. v. Kern River Co., 264 F. 412. Under this section, granting a right of way through the public lands to any canal company formed for the purpose of irrigation, and Act May 11, 1898 (Comp. St. §§ 4943, 4938), providing that such rights of way may be used for purposes of a public nature and for certain other purposes, including the development of power as subsidiary to the main purpose of irrigation, a right of way for a canal for the development of power can only be obtained when such development is subsidiary_to_the main purpose of irrigation. U. S. v. Kern River Co. (C. C. A. Cal.) 264 F. 412. Forfeiture and extinguishment.Where a right of way for a canal through the public forest reserve granted under this act, has not been used for irrigation purposes, and such use has become impossible, the United States is entitled to assert and enforce a forfeiture of the grant. Kern River Co. v. U. S., 42 S. Ct. 60, 257 U. S. 147, 66 L. Ed. 175, modifying decree (C. C. A. Cal.) U. S. v. Kern River Co., 264' F. 412. A right of way for a canal through the public forest reserve under this act, was subject to an implied condition that it should revert to the United States if the grantee ceased to use or retain it for purposes of irrigation, and where it had never been used for such purpose, and such use was effectually and permanently precluded by reason of an agreement and a judicial decree to which the grantee consented, the condition of the grant was broken. Id. A patentee of land over which a right of way for a reservoir has been granted, pursuant to this act, or his successors in interest, is invested with the right to institute proceedings to obtain a declaration of forfeiture for breach of condition subsequent, and to quiet title in case of abandonment. Hurst v. Idaho-Iowa Lateral & Reservoir Co. (Idaho) 202 P. 1068. A grant of right of way under this section and section 20, is in præsenti and is subject to forfeiture for failure to complete the works within five years after the location of the same. Carns v. Idaho-Iowa Lateral & Reservoir Co. (Idaho) 202 P. 1071. The statutory provision for forfeiture of right of way granted under this section and section 20 (U. S. Comp. St. § 4936) either for failure to complete the works within five years after the location of the same, or for failure to make use of the right of way for the purposes for which granted, is one for breach of condition subsequent, and failure to comply with such conditions does not operate ipso facto to divest grantee's title. Id. The title to a right of way granted under this section and section 20, does not become void upon breach of condition subsequent, but must be terminated by an action brought to have forfeiture declared or by a re-entry by one invested with the right of re-entry. Id. Sale of land subject to right of way.Where rights of way for reservoirs and canals have been granted over public lands by the United States, under this act, and such lands are thereafter disposed of, in accordance with the provisions of the act subject to such right of way, such disposition carries with it all interest of the United States in the land, including the reversion in case of breach of condition subsequent or of abandonment, in view of C. S. § 5582. Hurst v. Idaho-Iowa Lateral & Reservoir Co. (Idaho) 202 P. 1068. Cited without definite application, State of Wyoming v. State of Colorado, 42 S. Ct. 552, 259 U. S. 419, 66 L. Ed. 999; 30 Op. Atty. Gen. 398. Map to be filed; ap a suit to set aside such approval and restrain the use of the right of way. U. S. v. Kern River Co. (C. C. A. Cal.) 264 F. 412. § 4935. (Act March 3, 1891, c. 561, § 19.) Approval of map of location.-If the approval by the Secretary of the Interior of a canal company's maps of location of its right of way through a forest reserve was given with full knowledge of the facts that the canal was to be constructed for power purposes, and that the company had not complied with the statute relative to rights of way for such purposes, he exceeded his authority, and the validity of his approval might be challenged in The approval by the Secretary of the Interior of a canal company's maps of location, filed as the basis of a right of way through a forest reserve, was obtained by fraud, where, at the time of its original and amended applications, its attention was called to two statutes, one granting a right of way for irrigation purposes and the other for power purposes, but falsely certified that the right of way was desired solely for the purposes prescribed in the acts relating to rights of way for irrigation purposes. Id. Suit to set aside approval.—A suit may be maintained by the government to set aside, for fraud and mistake, the approval by the Secretary of |