1901 (31 Stat. 790), and the regulations present or future thereunder and subject to the stipulation accompanying the record.

You also advise that this is one of more than 200 permits which were granted in this manner with an indorsement on the map granting the permission subject to the provisions of the act of February 15, 1901, and future regulations thereunder.

Copy of a stipulation executed May 11, 1911, by the Arizona Power Co. is submitted with your letter, whereby the company agrees to conform to any future laws and regulations with respect to power development on the public lands and consents to accept said right of way subject to the terms and conditions of the stipulation.

On August 24, 1912, and March 1, 1913, regulations concerning rights of way through public lands for power purposes under the act of 1901 were approved by the Department. These regulations, among other things, provide as follows:

(a) For the payment of compensation for the use of public lands by the permittee.

(b) For annual reports of operations under the permit to be submitted by the permittee to the Geological Survey.

(c) For inspection of the works of the permittee by the Geological Survey and for such reports to the secretary as may be necessary, and

(d) For termination of the permit within 50 years.

Subsequently, the Federal water power act of June 10, 1920 (41 Stat. 1063, U. S. Code, secs. 791-823), was passed creating a Federal Power Commission and providing for the development of water power, the use of public lands in relation thereto, and other purposes. You report that about 100 permits and grants were issued by the department subsequent to the regulations of August 24, 1912, and previous to the passage of the Federal water power act, and that all of these permits and grants require payment of compensation by the applicant for the use of Government lands and the submission of annual reports. Annual inspections of the projects are also made.

You request instructions as to whether regulations of March 1, 1913, and amendments thereto, which superseded the regulations of August 24, 1912, should apply to the permit issued to the Arizona Power Co. You also request general instructions as to whether these regulations should be applied to the 200 or more permits and grants of a similar character.

The act of 1901 expressly provides:

That any permission given by the Secretary of the Interior under the provisions of this act may be revoked by him or his successor in his discretion, and shall not be held to confer any right, or easement, or interest in, to, or over any public land, reservation, or park.

This clause was construed by the United States Supreme Court in the case Swendig v. Washington Water Power Co. (265 U. S. 322), in connection with a different question, but the court recognized the fact that it was the plain intention of Congress to confer upon the Secretary of the Interior broad powers of supervision and

The regulations of Mar. 1, 1913, p. 1340, superseded those of Aug. 24, 1912.

control over permits issued under this act. In that case the court said:

The purpose of the act is to grant to the Secretary power "to permit the use of rights of way" through the lands referred to. And, in order that control over them may be retained, it is provided that the Secretary, in his discretion, may revoke such permits.

The clause above quoted should be read to promote and advance, not to defeat. the legislative purpose to permit the use of rights of way through public lands for the industries and utilities mentioned. It is included from an abundance of caution to support and safeguard the Secretary's power of revocation. It means that the permissions given shall not be deemed to confer any right that may not be revoked by him in the exercise of his discretion. There is no other enactment providing for the termination of the use of the rights of way. The right to use continues until the permission given by the Secretary is revoked by him.

As the sole power of revocation was committed to his discretion, it was within the power of the Secretary to determine that final disposal of the lands would operate to revoke the permission; and it was also within his power. by the regulation of August 24, 1912, to declare that final disposal shall not be deemed to be a revocation, but shall be subject to the right of way until such permission shall have been specifically revoked.

From the nature of the right and the discretionary power granted the Secretary, it seems clear that the permits granted were subject to such regulations as the Secretary in the public interest might deem necessary. The only limitation upon such power seems to be that such action shall not be arbitrary or unreasonable or such as would destroy valuable interests established by the permittee under the authority of the permit. It can not be said that it would be arbitrary or unreasonable for the Secretary to require all who have secured the benefit of the use of public lands for power purposes to conform to a uniform system of regulations, or to change such regulations as he may deem proper, regardless of the time when the permission to use the land was granted. In fact, out of due precaution in many cases, as pointed out in your letter, the Secretary granted the permission subject to regulations, present or future, thereunder, and in the Arizona Power Co. case an express stipulation to that effect was

entered into.

The regulations in question have been in force for years and have been applied to many permits issued under the act of 1901. There seems to be no good reason why they should not be applied to all permittees alike. There is no right which the parties having the use of the lands prior to the promulgation of the regulations possessed at that time which would be abridged by the application of these regulations to them.

Section 23 of the Federal water power act provides in part:

That the provisions of this act shall not be construed as affecting any permit or valid existing right of way heretofore granted or as confirming or otherwise affecting any claim, or as affecting any authority heretofore given pursuant to law, but any person, association, corporation, State, or municipality, holding or possessing such permit, right of way, or authority may apply for a license hereunder, and upon such application the commission may issue to any such appli cant a license in accordance with provisions of this act and in such case the provisions of this act shall apply to such applicant as a licensee hereunder.

The Federal water power act provides a complete and detailed scheme for the development and operation under public control of all the water-power resources of the public domain, reserved and un

force and effect only laws governing "lieu selections and exchanges to satisfy losses.

It should be remembered that lands subject to or included in any valid application, claim, or right, initiated or held under any of the existing laws of the United States are excluded from the provisions of said act of 1927 and the State may in proper cases have indemnity therefor. Of such would be a valid mineral location on lands of the sections originally granted known to be mineral at the date the grant would have otherwise attached. This because to that extent the location represents a loss to the State for which it is entitled to indemnity. But mineral lands, the title to which passed to the State under any law, are not lost and no indemnity or lieu-land right remains to be satisfied. A contrary holding would permit the State to make selections in lieu of mineral lands granted to it by the act of 1927, which would reopen the whole question of the known mineral character of lands at date of that act and the attachment of rights thereunder.

Very truly yours,

E. C. FINNEY, First Assistant Secretary.

SOLDIERS' ADDITIONAL ENTRIES

[Reported, 1 L. D. 654, Rev. Ed.]

REVISED REGULATIONS RELATIVE TO SOLDIERS' AND SAILORS' ADDITIONAL HOMESTEAD ENTRIES

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

Washington, February 13, 1883.

Commissioner McFarland to Registers and Receivers:

Section 2306 of the Revised Statutes of the United States provides that any person entitled to make a homestead entry under section 2304 (providing for the benefit of soldiers and sailors of the late war), who had, prior to June 22, 1874, made a homestead entry of less than 160 acres, may enter an additional quantity of land sufficient to make, with the previous entry, 160 acres.

The right granted by this section, and extended by section 2305 to the widow, if unmarried, or otherwise to the minor orphan children by proper guardian, is a personal one and is not transferable, nor subject to assignment or lien, nor can it be exercised by another. It can lawfully be exercised only by the soldier or sailor, or by the widow or guardian, as the case may be, in his or her own proper person.

The practice which has hitherto prevailed of certifying the additional right as information from the records of this office and permitting the entry to be made by an agent or attorney is hereby discontinued.

The following regulations will hereafter be strictly observed:

1. The party desiring to make an additional entry, and being entitled thereto, must present himself at the land office of the district in which the land he wishes to enter is situated, and make his application in the same manner as in case of an original entry. (Form No. 4-008.)

2. In addition to the usual homestead affidavit the claimant must make a special affidavit showing

First. His identity as the soldier he represents himself to be, reciting his military service, and stating his present residence and postoffice address.

Second. The facts, in detail, respecting his right to make the additional entry, and that he has fully complied with the provisions of the homestead laws in the matter of residence upon and cultivation

For instructions relative to publication in connection with soldiers' additional entries, see Circulars of Feb. 21, 1908, p. 449, Mar. 26, 1908, p. 450, Nov. 3, 1909, p. 451, and Oct. 19, 1929, p. 1149.

These regulations are reproduced because of the directions given therein as to the discontinuance of the practice of certifying additional rights as information from the records. For later instructions with reference to soldier's additional entries, see Circular No. 1047, p. 1377.

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