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tary reservation have not unfrequently been granted under proper regulations by the Secretary of War. As, for example, a license to occupy the land for target practice by a gun club (D, 91, January, 1893); for the landing of boats (A, 218, March, 1887; B, 343, March, 1889); for the landing of a submarine cable (A, 166, December, 1886; B, 172, March, 1888; 323, February, 1889); or for use as a bathing beach (C, 296, June, 1891); to occupy vacant buildings (B, 136, 198, January and April, 1888; C, 84, January, 1889; 173, June, 1890); or unused defences such as a Martello tower (B, 49, July, 1887; C, 427, April, 1892); to erect a temporary building for telephone office (A, 249, May, 1887; B, 231, June, 1888); for a store house (C, 123, 124, April, 1890); for refuge for fishermen (B, 354, April, 1889); for a church (B, 45, June, 1887; 416, June, 1889); for a schoolhouse (B, 45, June, 1889); for a keeper of a life-saving station (Card 817, January, 1895); to put up a stock yard or shipping pens for cattle to be transported by railway (A, 123, July, 1886); to carry a road across a part of the land as a convenient continuation of a town street (C, 6, October, 1889); to lay a track for a tramway or temporary railway (A, 99, July, 1886; B, 22, June, 1887; 355, April, 1889; C, 213, October, 1890; D, 131, February, 1893); to extend, maintain and operate an electric railway across a reservation (Card 1155, April, 1895); to

1Under date of Aug. 4, 1890 (19 Opins., 628), the Attorney General said:

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"It has been the practice for many years for the Secretary of War, and sometimes the President, to grant revocable licenses to individuals to enter upon military reservations and prosecute undertakings there which may be beneficial to the military branch of the public service as well as advantageous to the licensees.

"For many years a part of the tracks of the Baltimore and Ohio Railroad Company was laid by a revocable license on a part of the land at Harper's Ferry used by the United States for a manufactory of arms. Under a similar license a part of the land belonging to the fort at Old Point Comfort was allowed to be used as a site for a hotel, and in 1864 President Lincoln gave a license of this kind to a railroad company to use a part of the government land at Sandy Hook, and in 1869 another license was granted to said company to use part of the same land 'so long as it may be considered expedient and for the public interest by the Secretary of War, or other proper officer of the Government, in charge of the United States lands at Sandy Hook.' (See 16, Opin., 212.)

"In this case the license applied for [to construct an irrigating ditch] relates to a military reservation situated in an arid region, and therefore, in view of the advantage to Fort Selden of the use of this water, and in view of the frequent exercise of a similar power by granting such licenses as occasions have arisen through so many years, it seems clear that such license may be granted, the same to be under well considered restrictions and revocable at the will and pleasure of the Secretary of War." The practice above referred to appears to have since obtained, except in the class of cases covered by the later opinions of the Attorney General of May 19, and July 7, 1897 (21 Opins., 537, 565). For a published list of the revocable licenses granted by the Secretary of War between Jan. 1, 1893, and Jan. 1, 1897, and of revocable leases granted during the same period under the act of July 28, 1892, see public document (not numbered), described as follows: "Granting permits for the occupancy or use of military reservations for non-military purposes (H. Res. 250, 54th Congress, second session, in the House of Representatives, Feb. 8, 1897).”

Permission to land ferries and to erect bridges on military reservations and to drive cattle, sheep, or other stock animals across the same, is granted by the Secretary of War under sec. 6, of the act of Congress approved July 5, 1884.

a railway company to build spur tracks (Card 3221, May, 1897); to erect poles and carry a line of wire for telegraph or telephone comunication (A, 173, January, 1887; C, 350, October, 1891; D, 77, December, 1892); to carry an electric wire across a government bridge (A, 198, 201, March, 1887; B, 132, January, 1888; C, 89, February, 1890); to lay underground pipes for water, oil, or gas (A, 106, 118, July, 1886; 211, March, 1887; B, 430, June, 1889; C, 481, July, 1892; D, 213, June, 1893; Cards 155, 316, August and September, 1894); to construct an irrigating ditch (A, 94, 169, April and December, 1886; B, 76. August, 1887; 475, August, 1889; C, 26, November, 1889; 376, December, 1891).

1612. If the United States acquires a military reservation subject to the public easement in a highway across the same and does not acquire exclusive jurisdiction over the reservation, the right to control and regulate the use of the public easement in such highway remains in the legislature of the State.1 Where, in such a case, the reservation was in the State of New York, it was held that the consent of the State highway authorities and of the United States as owner of the fee to the highway within the limits of the reservation would be necessary to authorize the construction of an electric railway or an electric light line on such highway, the railway and line being under the laws of New York a burden on the fee additional to the easement for a highway. If the fee to the highway were owned by a private individual, the railway and line could be located thereon without his consent on payment of just compensation; but as the highway was on a reservation held by the United States for military purposes, there was no power in the State to authorize the appropriation of any part of such reservation without the consent of the United States. In the absence of statutory authority the Secretary of War could not give the consent of the United States so as to enlarge the easement to the highway, or rather so as to impose a new easement on the fee, but he could permit the railway and line to be located on the highway under a license which would impose no new easement on the fee and would be revocable by him at any time: such license to be issued preferably after the parties applying for the same had obtained the necessary consent from the proper highway authorities of the State. Cards 1240, 1545, May and July, 1895; 2143, March, 1896.

1613. Where a joint resolution of Congress authorized the Secretary of War to grant an army and navy contractor at Fort Monroe "permission to rebuild" at that post a store house "upon such conditions and under such restrictions as the Secretary of War shall deem compatible with the interests of the Government," it was held that the reso

1See Faust v. Pass. Railway Co., 3 Phila., 164.

lution only authorized the Secretary of War to grant a license to build on and use lands of the United States and did not authorize him to grant an interest in the same. So the license thus granted not being assignable, advised that in lieu of the approval of a proposed transfer thereof a revocable license be issued to the transferee. Card 639, November, 1894.

1614. It is impracticable for Congress to provide by legislation for every case in which a license may be granted, because unforeseen necessities for permissions of various kinds, often needing immediate action, spring up, and these can only be met by an exercise of the power of the Executive. These permissions are not always granted by formal written licenses. They may not be reduced to writing at all, but may be entirely informal, oral permissions to do acts which would otherwise constitute trespasses. Such permissions are in effect and substance revocable licenses, just as much as those expressed in a written instrument. Indeed, the great mass of licenses to do acts of various kinds on military reservations are informal permissions of this character. Whether it be to enjoy some continuous privilege or to do a single act, makes no difference. All are in effect revocable licenses, emanating from the same authority. And the only advantage of the revocable license by written instrument is that it is the most convenient evidence of the permission. Many acts are, however, such that it would be absurd to resort to written instruments for the purpose of granting permission to do them. They are simply orally authorized or silently permitted, the authority being the authority of the President executed through the commanding officer of the post. At every large post there are, no doubt, a number of such acts done daily by the authority of these unwritten permissions, or unwritten revocable licenses. The power of the President probably does not extend to the granting of licenses for the doing of anything which would be an injury to the property, nor can he grant other than revocable permissions, but there appear to be no other restrictions. He can not grant licenses that are not revocable. The power is one to be exercised by the President at his discretion, subject only to the restrictions mentioned, and of course to such other restrictions as may be imposed by or be the result of acts of Congress. The act of July 28, 1892, authorizing the Secretary of War to grant leases, seems to have been intended as an extension, certainly not as a restriction, of his power. It is inapplicable to the purposes for which revocable licenses are used. And the 6th section of the act of July 5th, 1884, "to provide for the disposal of abandoned and useless military reservations," authorizing the Secretary of War to permit the extension of roads across military reservations, the landing of ferries.

and the erection of bridges thereon, and to permit cattle to be driven across them, was apparently intended to confer power on him to grant more permanent privileges than revocable licenses give.. A license is 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. The Judge-Advocate General's Office has always held that the Secretary of War may, by revocable license permit a temporary use, terminable at his discretion, as the public interests may require, of United States 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. The word license, as applied to real property, imports an authority to do some act or series of acts upon the land of another. It passes no interest in the land itself and its only effect is to legalize an act which in the absence of the license would constitute a trespass. It may be created by parol, although a writing defining the exact nature and scope of the license is preferable.1 In 1891, the Secretary of War decided that military reservations and lands occupied by the War Department are held and occupied for military purposes only, and that no licenses for their use or occupation would be given without authority from Congress, unless such use or occupation would be of some benefit to the military service. (Circ. 12, A. G. O., 1891.) It will be noticed that this is merely the announcement of a policy, and not the denial of the existence of the power. And, as a matter of fact, the policy thus declared was not carried out. In practice it is fully recognized that the Secretary of War may thus license any act which would not be an injury to the property nor conflict with the purpose for which it is held. This is giving a reasonable application to the rule against the granting of usufructuary interests or permission to commit waste. So far as the "sectarian purpose' for which a license may be required, is concerned, it is evident that such purpose does not affect the power to grant the license but the policy of granting it only. In the absence of action by Congress, the exercise of the power rests in the discretion of the President, and the purpose can be no restriction on his discretion, except in so far that it must not be incompatible with, that is, an interference with or an obstruction to, the general use for which the land is held. Card 2961, February, 1897.

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1615. In an opinion dated May 19, 1897, the Attorney General held with reference to the license for the construction of a Roman Catholic chapel on the West Point reservation, that the Secretary of War had no authority to grant it. He also held in an opinion, dated July 7, 1897, that the Secretary of War had no authority to grant permission

1Rice on Real Property, p. 505.

for the erection of a Bethel reading room and library within the military reservation on Ship Island, Miss. By act of July 8, 1898 (30) Stat., 722), the Secretary of War was given authority to permit the erection of buildings for religious purposes on the West Point reservation, but no such authority has been given with reference to other military reservations. Advised that under the opinions of the Attorney General above cited, the Secretary of War was without authority to license the construction of a building for a Roman Catholic chapel on the Fort Hancock military reservation. Card 6960, August, 1899. Similarly advised with respect to an application for license to erect on the same reservation a building to be used exclusively for Union Protestant worship. Card 4974, September, 1898.

1616. Held that the Secretary of War is without authority to license the commission of waste upon military reservations, or under the act of July 28, 1892, to lease them for a purpose which would amount to waste; but the rule here stated has not been strictly observed in practice. Cards 2879, 2930, February, 1897; 3619, November, 1897; 4126, May, 1898; 7900, April, 1900.

LINE OF DUTY.

1617. The term employed in the Pension Laws-"in the line of duty" is much more comprehensive than the term "on duty", as used in the 38th Article of War. Its application is not limited to a status of actual present performance of some specific military duty, but it relates to a condition under which military duty may be regularly performed in contradistinction to a condition inconsistent with the performance of any ordinary duty-such as the condition of being on leave of absence or of being retired. These laws being beneficial in their character, the term is to be construed so as to advance the benefit rather than to restrict it. LI, 347, June, 1887. A soldier is not necessarily out of the line of duty when he is in confinement for a military offence, since it is a part of his military duty to submit to such punishment. If pending such confinement he receives an injury which was in fact a casualty of the service not incurred by his own fault or negligence, his claim for pension should not be prejudiced by the fact that he was in confinement under sentence of a court martial when the injury was received. XLI, 257, June, 1878.

1618. But the being "in the line of duty" is not inferable merely from the being in the service, but is an independent fact to be affirmatively proved. Thus where a soldier was killed by the accidental dis* See 1 Opins. At. Gen., 182; 7 id., 161.

121 Opins. At. Gen., 537, 565.

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