1590. Under the act of Congress approved July 28, 1892 (27 Stats. 321), the Secretary of War has authority, when in his discretion it will be for the public good, to lease for a period not exceeding five years and revocable at any time such property of the United States under his control as may not for the time be required for public use, and for the leasing of which there is no authority under existing law, provided that nothing in the act should be held to apply to mineral or phosphate lands. Under this act revocable leases have been granted in a number of instances. Cards 851, January and April, 1895; 1790, November, 1895; 2102, March and October, 1896; 4100, May, 1898. In practice the leases or assignments thereof are required to be in duplicate. Cards 178, 179, August, 1894; 414, October, 1894. Under the express terms of the act the Secretary of War has no authority to lease mineral or phosphate lands. Cards 3619, November, 1897; 6389, 6721, May and July, 1899. In a certain class of cases, to wit, where the parties applied for permission to construct certain buildings upon reservations and to build docks in a government harbor, revocable leases were granted in lieu of licenses. Cards 3350, 3356, 3378, July, 1897. 1591. As there is no law requiring the Secretary of War to call for bids in leasing property under the act of July 28, 1892, the amount for which it shall be leased rests in his discretion. Card 273, September, 1894. 1592. The Secretary of War leased a part of a military reservation, the rent to be paid monthly during the continuance of the lease. The lease provided that the term should be three years from the twelfth day of July, 1894, but it was not in fact executed by the Secretary until Sept. 12, 1894. The lessee entered upon the reservation about the latter date and vacated the same on July 12, 1897, the date of the termination of the lease. Held that in point of computation the three years term dated from July 12, 1894, but that in point of interest the lease took effect only from the delivery of the instrument, and that therefore rent could be collected for only about two years and ten months. Card 273, July and October, 1897. LEAVE OF ABSENCE. 1593. The provision of the act of July 29, 1876, to the effect that officers shall enjoy the extended leaves of absence accorded by the act, "without deduction of pay or allowance," held to entitle such officers to receive their allowance for quarters, as well as their full pay for and 'See Opins. Atty. Gen. of May 19, and July 7, 1897, 21 Opins., 537, 565. "See Taylor's Landlord and Tenant, eighth ed., § 70. 16906-01- -28 during the period of absence. The word "allowance" must mean something must mean some pecuniary emolument distinct from pay; and the only allowance or pecuniary emolument allowed to officers, at the date of the act or since, is the allowance for quarters. XLIII, 277, April, 1880. 1 1594. Held, in estimating the period of the leave of absence to which a certain officer would be entitled under the provisions of Sec. 1265, Rev. Sts., and the act of July 29, 1876, without incurring a deduction from his pay, that a period during which he was permitted to be absent from his post, while under a sentence of suspension from rank, was not properly to be taken into account; such absence not being an absence of an "officer on duty" in the sense of the act of 1876, but an absence pending the execution of a sentence which, during its term, separated the officer from all duty. XLII, 306, May, 1879. 1595. Where an officer was granted by his department commander a specific leave of absence from his station, and was thereupon furnished with an order to proceed on a special detail to Washington, with authority to date his leave from his arrival at Washington; held that he was not thereby authorized to consider his leave as terminating at Washington, or his case as excepted from the general rule of par. 176 of the Army Regulations, which requires that the expiration of an officer's leave "must find him at his station;" and therefore that, on his return to Washington at the end of his leave, he did not revert to the status of being on duty, and was not entitled to an order (drawing mileage) to return to his station, but was in a status of being absent. without leave, and was subject to a consequent loss of pay till he duly reported at his station. XLIII, 281, April, 1880. 2 1596. Held that G. O. 77 of 1886, and par. 1460, A. R. (1317 of 1895; 1468 of 1901), constituted a correct interpretation of the act of July 29, 1876, and a rule of application now to be observed in all cases of officers availing themselves of the privilege of cumulative leave of absence. 44, 271, December, 1890. 1597. Held that the Chief of Engineers was not a "department commander" within the meaning of A. R. 46 (see 56 of 1901) and was therefore without authority to grant leaves of absence to officers stationed at Willets Point, N. Y. Card 15, July, 1894. 1598. Held that to allow such student officers on duty at Fort Leavenworth, Kansas, as have made satisfactory records to absent themselves during the vacation after the June examinations at the end of 1A counter opinion of the Solicitor-General, in 16 Opins. At. Gen., 619, was not adopted by the Secretary of War. See par. 1337, A. R. of 1895 (1491 of 1901). 2 Compare opinion Court of Claims in Andrews . United States, 15 Ct. Cls., 264. As to the right to mileage of an officer whose leave of absence is terminated by an order requiring him to return to his station, &c., see §§ 1669-1671, post. the first year without having such absences counted as regular leaves, would be inconsistent with the legislation of Congress on the subject of full pay leaves of absence and would amount to a substantial evasion of the law in any case where the granting of such a privilege would have the effect of allowing full pay absence in excess of what the law authorizes. Card 2307, May, 1896. 2 LICENSE. 1599. A license is defined as a bare authority to do a certain act or series of acts upon the land of the licensor without possessing or acquiring any estate therein.' L, 619, August, 1886. The Secretary of War may, by revocable license, permit a temporary use, terminable at his discretion, as the public interests may require, of U. S. lands under his control, provided such license conveys no usufructuary interest in the land, and such use does not conflict with the purpose for which the land is held. XLIX, 490, November, 1885; Cards 285, September, 1894; 2961, February, 1897. The Secretary of War may grant to a civilian, not a government employee, a revocable license to reside and do business on a military reservation. Cards 304, 315, September, 1894. A formal acceptance of a license is not in general necessary: the grantee, by acting under it, sufficiently indicates its acceptance. 59, 418, May, 1893; Cards 155, December, 1894; 639, March, 1895. 1600. An instrument termed a revocable license, but which in effect is a grant of an interest, is in excess of executive authority and inoperative. Thus an executive permit to erect upon U. S. land a building amounting to a permanent improvement to be used and occupied, or disposed of, by the licensee at his discretion as his property, is not a legitimate revocable license; is in fact (or, if valid, would be) irrevocable as conveying a usufructuary interest. 38, 49, January, 1890; 56, 366, November, 1892. So, a so-called revocable license to reside upon and cultivate certain land of the United States at a fixed rental named, held really a lease at will, conveying a usufructuary interest and not legal in the absence of authority from Congress. 54, 212, June, 1892. 1601. A license to go upon land of the United States will not authorize the licensee to take public property therefrom. Held that the Secretary of War was not empowered to grant a revocable license allowing the licensee to gather the fruit from trees growing upon 1Angell on Watercourses, 457. "A license confers "no interest whatever in the land itself." 16 Opins. At. Ger:, 212. See also 19 id., 628. government land; such fruit being public property disposable only by Congress. 56, 134, October, 1892. 1602. The Secretary of War is not empowered to grant a revocable license to use, any more than to lease, premises not belonging to the United States or under his control. 60, 350, July, 1893. Thus where the United States did not own certain land upon which had been erected, under appropriation by Congress, certain structures for the improvement of navigation, as cribs and pile work-held that as it had no interest in the soil but only a right of conservation of such structures, it could not, through the Secretary of War, grant a revocable license to use the land for any purpose which would interfere with the owner's rights, without his concurrence. 40, 42, 232, March and April, 1890. 1603. Where, under an appropriation for the improvement of the Hudson River, there had been constructed a dyke connecting the shore with an island-the United States having no property in the soil covered by the dyke, but only a right of maintenance and conservation of the work-held that a revocable license to build a dock across a part of the dyke could legally be granted to a party owning the land on which the dock was to be built; it fully appearing that such structure would not cause any injury to the dyke or interfere with the rights of any other person or with the navigation of the river. LI, 609, March, 1887. 1604. Congress has no power to grant or to provide for granting a license to establish and operate a ferry across navigable waters of the United States at a point within a State, or to prohibit the operation of a ferry at such point. This is a matter which comes within the police power of a State, and it has uniformly been held by the courts that the States did not surrender that power by the adoption of the Constitution or otherwise. But the Secretary of War may give a revocable license for the landing of a ferry (duly licensed by the proper local authority) at a pier of the United States, providing such landing may be made without injury to the pier and so as not to involve an exclusive use of any part of it. 58, 450, March, 1893. 1605. Upon an application by the City of Boston to the Secretary of War for a license to construct and maintain siphons for water pipes at Warren Bridge in the waters of Charles River, held that under the authority given him by the River and Harbor Act of 1888 to require the removal of obstructions to free navigation at bridges, the Secretary might properly grant such a license, as a form of assent to the construction as not likely to interfere with navigation. 29, 343, January, 1889. 1606. The City of Miles City, Montana, applied to the Secretary of War for permission to enter upon the Fort Keogh military reserva tion and make cuts for the purpose of straightening the channel of Tongue River, forming the boundary of the reservation, so as to prevent its encroaching upon the city. The proposed work would probably throw 175 acres of the reservation to the opposite side of the new channel, thus resulting in a permanent change and perhaps in permanent damage to the reservation. Held that the Secretary of War would not be empowered to grant a license in such a case, and that Congress alone could authorize the use of the land and operations designed. D, 3, August, 1892. 1607. A revocable license to go upon a military reservation and use the land for a purpose not affecting the interests or convenience of the military authorities, is an assurance to the person that he will not be molested as a trespasser while his license remains unrevoked. When revoked, he may be required to remove his property without unreasonable delay. 50, 420, December, 1891. Where certain cattle-men were permitted to erect a temporary fence on a military reservation and later the permission was withdrawn, held that they should be allowed to remove the materials. XLIX, 615, December, 1885. 1608. Licenses to enter upon and use lands of the United States have generally been guarded with such conditions as to prevent any permanent injury to government property. Held that a revocable license might be given to a farmer to use for irrigation the water flowing on a reservation and not needed for the purposes of the command, provided its use by him involved no material damage to the land or other public property. XLVI, 5, January, 1882; D, 3, August, 1892. 1609. Where the track of a railroad company was located upon a military reservation by license or sufferance, the company having no right of way granted it by Congress, held that the company could be ejected by judicial proceedings and its property moved off the reservation; but advised that a new location be designated, to better accommodate the requirements of the command, and that the company be given notice to move its tracks to the designated location, for the occupation of which a revocable license may be given it by the Secretary of War. 42, 324, August, 1890; Card 169, August, 1894. 1610. A license does not justify any use of the property other than as specified in the grant. It is therefore not assignable. LV, 603, June, 1888; Cards 639, November, 1894; 1155, December, 1895. fer of it avoids the license. 42, 456, September, 1890. an assignment to another, by the holder of a license to erect a hotel on the military reservation of Fort Monroe, was legally inoperative and an avoidance of the license. 44, 225, December, 1890. And a trans Thus held that 1611. Revocable licenses (other than those instanced in the foregoing paragraphs) for the temporary use or occupation of the soil of a mili |