Executive order of April 17, 1926, and a nonwater hole and nonspring affidavit is not required. If you agree with this view and by the approval of this letter adjudge the lands in such States as not containing springs and water holes needed for public watering places, this office will in the future eliminate said States from the requirement of Circular No. 1066. Very respectfully, Approved February 8, 1929. WILLIAM SPRY, Commissioner. E. C. FINNEY, First Assistant Secretary. EXECUTIVE ORDER-PUBLIC WATER RESERVE NO. 107 Executive order of April 17, 1926, creating public water reserve No. 107, is hereby modified so as to exclude the Territory of Alaska from the operation thereof. THE WHITE HOUSE, HERBERT HOOVER. May 4, 1929. [No. 5106] SIRS: The honorable Secretary having held, in the case of Dunlap v. Shingle Springs and Placerville R. R. (23 L. D. 67) that "A railroad right of way under the act of March 3, 1875, is fully protected by the terms of the act as against subsequent adverse rights, and a reservation of such right of way, in final certificates and patents. issued for lands traversed thereby, is therefore not necessary and should not be inserted " (syllabus), and having on October 16, 1896, denied a motion for review of said decision, you will be governed. thereby. The language of the canal and reservoir right of way act of March 3, 1891 (26 Stat. 1095), in reference to this matter, being the same as of the act of 1875, the ruling applies to it as well. The effect of this decision is to revoke that part of the instructions at the bottom of page 6, circular of March 21, 1892, for railroads, and in paragraph 26, circular of February 20, 1894, for canals and reservoirs, relating to the notation to be made in red ink across the face of the certificate issued upon any entry apparently subject thereto, that the same is allowed, subject to the right of way of the road, or the canal or reservoir. The notations on township plats and tract books should be made as heretofore. It will be observed that the decisions above noted do not refer to cases where right of way has been granted under special acts. In the current annual report of this office will be found a list of approved rights of way in which are designated the cases where the grant has been made under special acts. See pages 266 and 267, Report of 1895. Very respectfully, Approved. S. W. LAMOREUX, Commissioner. DAVID R. FRANCIS, Secretary. 1The circular of Mar. 21, 1892, is reported in 14 L. D., p. 338; the circular of Feb. 20, 1894, in 18 L. D., p. 168. The reference to page 6 of the former circular is to that circular as issued in pamphlet form. For later instructions, see circular of May 21, 1909, p. 1324, and circular of June 6, 1908, p. 1304. 1303 [Reported, 36 L. D. 567] REGULATIONS FOR RIGHTS OF WAY OVER PUBLIC LANDS AND RESERVATIONS DEPARTMENT OF THE INTERIOR, CANALS, DITCHES, AND RESERVOIRS June 6, 1908. 1. General statement.-Sections 18, 19, 20, and 21 of the act of Congress approved March 3, 1891 (26 Stat. 1095), entitled "An act to repeal timber-culture laws, and for other purposes," grant the right of way through the public lands and reservations of the United States for the use of canals, ditches, or reservoirs heretofore or hereafter constructed by corporations, individuals, or associations of individuals. If the right of way is upon a reservation not within the jurisdiction of the Interior Department, the application must be filed in accordance with these regulations, and will be submitted to the department having jurisdiction. A map and field notes of the portion within any reservation, except in the case of a national forest, must be submitted in addition to the duplicates required herein. All maps and field notes must conform to the provisions of this circular. The sections above noted read as follows: SEC. 18. That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation, and duly organized under the laws of any State or Territory, which shall have filed or may hereafter file with the Secretary of the Interior a copy of its article of incorporation and due proofs of its organization under the same to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch: Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories. SEC. 19. That any canal or ditch company desiring to secure the benefits of this act shall, within twelve months after the location of ten miles of its canal if the same be upon surveyed lands, and if upon unsurveyed lands within twelve months after the survey thereof by the United States, file with the regis ter of the land office for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation in the construction of any canal, ditch, or reservoir injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. SEC. 20. That the provisions of this act shall apply to all canals, ditches, or reservoirs heretofore or hereafter constructed, whether constructed by corporations, individuals, or association of individuals, on the filing of the certificates and maps herein provided for. If such ditch, canal, or reservoir has been or shall be constructed by an individual or association of individuals, it shall be 2 Amended by Circulars Nos. 108, p. 1335; 194, p. 1335; 416, p. 1360; 479, p. 1360; 638, p. 1361; 1003, p. 1362; and 1076, p. 1363. sufficient for such individual or association of individuals to file with the Secretary of the Interior and with the register of the land office where said land is located a map of the line of such canal, ditch, or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association, if any there be. Plats heretofore filed shall have the benefits of this act from the date of their filing, as though filed under it: Provided, That if any section of said canal or ditch shall not be completed within five years after the location of said section the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture. SEC. 21. That nothing in this act shall authorize such canals or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance, and care of said canal or ditch. 2.3 Material on adjacent lands.-The word adjacent, as used in section 18 of the act, in connection with the right to take material for construction from the public lands, must be construed according to the conditions of each case (28 L. D. 439). The right extends only to construction, and no public timber or material may be taken or used for repair or improvements (14 L. D. 566). These decisions. were rendered under the railroad right-of-way act, and are applied to this act since the words are the same in both. Section 2 of the act approved May 11, 1898 (30 Stat. 404), entitled "An act to amend an act to permit the use of the right of way through public lands for tramroads, canals, and reservoirs, and for other purposes," authorizes the use of rights of way granted under the act of 1891 for purposes subsidiary to the main purpose of irrigation. The language of said section is as follows: SEC. 2. That rights of way for ditches, canals, or reservoirs heretofore or hereafter approved under the provisions of sections eighteen, nineteen, twenty, and twenty-one of the act entitled "An act to repeal timber-culture laws, and for other purposes," approved March third, eighteen hundred and ninety-one, may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation. 3. Control of water.-While these acts grant rights of way over the public lands necessary to the maintenance and use of ditches, canals, and reservoirs, the control of the flow and use of the water is, so far as this act is concerned, vested in the States or Territories, the jurisdiction of the Department of the Interior being limited to the approval of maps carrying the right of way over the public lands. If the right of way applied for under this act in any wise involves the appropriation of natural sources of water supply, the damming of rivers, or the use of lakes, the maps should be accompanied by proof that the plans and purposes of the projectors have been reguTarly submitted and approved in accordance with the local laws or customs governing the use of water in the State or Territory in which such right of way is located. No general rule can be adopted in regard to this matter. Each case must rest upon the showing filed. 4. Nature of grant.-The right granted is not in the nature of a grant of lands, but is a base or qualified fee. The possession and right of use of the lands are given for the purposes contemplated by law, but a reversionary interest remains in the United States, to be See addendum, p. 1363. 57720-30- -83 |