mining or milling works, and (2) whether none other than a municipality can be granted right of way, when said right of way is for the purpose of furnishing water for municipal purposes."

Section 4 of that act authorizes the granting of rights of way for the construction of dams, reservoirs, water conduits, water plants, etc., within forest reserves, "to citizens and corporations of the United States for municipal or mining purposes, and for the purpose of milling and reduction of ores." There is nothing in the wording of this statute which expressly confines the privileges it grants to the exclusive individual and personal use of the particular citizen or corporation by which they are acquired for the purposes of mining or the milling and reduction of ores; and that statute, in so far as it relates to the first question submitted, is closely kindred to other acts granting similar rights of way under which the right has not been confined by construction to the individual and personal use of the grantees or beneficiaries thereunder. The acts of March 3, 1891 (26 Stat., 1095, 1101), and May 11, 1898 (30 Stat., 404), grant rights of way to "any canal or ditch company formed for the purposes of irrigation;" and the act of February 15, 1901 (31 Stat., 790), permits rights of way to "any citizen or corporation of the United States for beneficial uses." These statutes, like the act under consideration, are silent as to whether the rights they give are merely personal inalienable rights, or rights under which leases or sales of water or power to others could be made; yet it is well recognized that persons by whom they are acquired may either devote them to their own personal use, or they may, in whole or in part, dispose of them to be used by others for the purposes for which they were granted.

Again, there is nothing connected with the history of the enactment of this statute which indicates that Congress intended to limit the right conferred under it to the personal use of the individual by whom it should be acquired from the Government.

In reporting section 4 of the act (the law under consideration) to the Senate, the committee by which that section was drafted as an amendment to the original bill as it passed the House of Representatives, said: "The amendment proposed by the Committee protects mining interests, if any, within forest reserve;" and Mr. Lacy, who was then chairman of the House Committee on Public Lands, in reporting the result of the consideration by a conference committee, said:

The Senate made provision that rights of way for mining purposes should be in the nature of an easement instead of, as at present, a mere license, referring, evidently, to the act of February 15, 1901 (31 Stat., 790), which authorized mere revocable permits for rights of way. In so

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far as the Congressional Record shows, the only purpose of the amendment submitted by the Senate Committee was the protection of mining rights by authorizing easements which would abide during "the period of their beneficial use"-a more permanent right than could theretofore be acquired within national forests. As the privileges acquired under the act of 1901 are not limited to mere personal use, it does not seem likely that Congress intended such a limitation in the act of 1905. That act was intended to enlarge the rights theretofore existing, and can not, for that reason, be considered as in any sense limiting their enjoyment to the persons to whom they were granted. These considerations lead to the conclusion that an applicant, under the act of 1905, should not be required to show that he intends to use the rights applied for in connection with his or its own mining or milling works, and you are, accordingly, so instructed. In connection with the second question asked by your office it may also be here said that there is nothing in the language of the statute which expressly limits the privileges of that act to municipal corporations when the right of way is desired to furnish water for municipal uses.

The statute authorizes the granting of rights of way "for municipal purposes" to "citizens or corporations." The words "municipal purposes" as used in this act must be held to include the supplying of water and electricity generated by water power to the individual inhabitants of cities and towns for all the purposes for which they are usually so used, and can not be limited to only the purposes for which a municipality would use them in its governmental capacity. This act must be construed as far as possible in harmony with kindred laws existing at the time of its passage. As we have already seen, it was said that it was only intended by this act to make more permanent the tenure under which rights of way could be held than were the temporary rights of way granted by the act of 1901, supra. That act authorized temporary rights of way for the purpose, among others, of "supplying water for domestic, public or any other beneficial use," and, in the absence of expressions to the contrary, it is reasonable to hold that the words "municipal purposes" were used in the act of 1905 to signify these uses.

Mr. Lacy, in reporting the result of the conference mentioned above, further said:

The Conference Committee recommended that section [Sec. 4 here under consideration] be amended by granting the same privilege to municipalities as is given to mining companies, because there are some towns which get their water power for electric lighting from ditches from forest reserves.

If this general use was intended, is there any good reason for saying that the water or electricity should be supplied by the municipal government only and not by individual or other corporate effort?

The law authorizes the granting of rights of way to "citizens and corporations." There is nothing in that language which excludes citizens or private corporations from the benefits of the act, and confines the right to municipal corporations; and there seems to be no sound reason why they should be so excluded.

You are, therefore, informed that, in the judgment of this Department, citizens, or private corporations, others than a municipality, can be granted a right of way under the act of 1905 for the purpose of furnishing water for municipal purposes.

The conclusions here reached find further support in the fact that a contrary construction of the act of 1905 would most likely defeat, at least in part, the very purposes of its enactment. It is reasonable to assume that there are many small mines within, and small municipalities near, national forests, which could not receive the benefits of that act if left dependent on their own efforts, because the owners of the mines, or the municipalities, would not of themselves be able to provide the money needed in the construction of water-works necessary to that end, while under the application of the statute as here construed they could, by becoming joint owners with others, or by renting or purchasing, easily secure water or electricity to amply and more economically supply their needs.

Again, to hold that citizens or private corporations may not obtain a right of way for municipal purposes, and that that right can be acquired by municipalities only, would be to impute to Congress the intent to establish and enforce municipal ownership and prohibit private ownership of public utilities in a State where the local laws make no such provision, and have, on the contrary, authorized private ownership of such utilities and made provision for controlling the service they give to the public. In the absence of language clearly manifesting such an intent, it should not, in the judgment of this Department, be so imputed.

It is not here intended to express any opinion as to the sufficiency of the pending application mentioned above.

If in your judgment it is necessary to amend existing regulations or to issue new regulations for the purpose of effectuating the conclusions here announced, you will direct their amendment or preparation and submit them for Departmental approval.

ERNEST MULLER.

Decided November 27, 1917.

ADDITIONAL ENTRY, ENLARGED HOMESTEAD ACT-RULE OF APPROXIMATION. In applying the rule of approximation to additional homestead entries, an excess area contained in a perfected original entry should be eliminated from consideration, except in computing the total acreage applied for.

EXCESS AREA ON ORIGINAL AND ADDITIONAL ENTRY-PAYMENT REQUIRED. Although payment was made for an excess area in the original entry, upon making an additional entry the applicant must pay for any excess over the approximate area he was qualified to enter.

PRIOR DECISION DISTINGUISHED.

Louis G. Triebel (41 L. D., 391), distinguished. VOGELSANG, First Assistant Secretary:

An appeal has been filed on behalf of Ernest Muller from a decision of the Commissioner of the General Land Office, dated June 23. 1917, holding for cancellation, as to lot 2 of section 30, his additional entry, made August 10, 1916, under section 3 of the Enlarged Homestead act, for the SE. SW. 4, Sec. 19; lot 2 (38.56 acres) and the E. NW. 1, Sec. 30, T. 58 N., R. 82 W., 6th P. M., Buffalo, Wyoming, land district.

Muller's original entry embraced lot 1 (29.58 acres), lot 2 (30.12 acres), the SW. † NE. 1, SE. † NW. †, and the NE. SW. 4, said Sec. 19 (a total of 179.70 acres), and was perfected in November, 1906.

The decision appealed from held that the additional entry violated the rule of approximation, the total area of the two entries being 338.26 acres, because, if the smallest legal subdivision (lot 1) embraced in the original entry were eliminated, the deficiency would be but 11.32 acres, while the excess is 18.26 acres. Further, that as the original entry had been patented, said lot 1 could not be considered for elimination purposes, and since lot 2 of Sec. 30 is the only subdivision which can be eliminated without breaking the contiguity of the tract, the additional entry was held for cancellation to that extent, citing the case of Louis G. Triebel (41 L. D., 391), wherein it was held (syllabus):

One who made homestead entry for less than 160 acres can not by making additional entry and invoking the rule of approximation be permitted to secure a greater area of land in the aggregate than he might have embraced in his original entry.

In the case cited, Triebel made an entry in May, 1910, for 138.85 acres, and in April, 1911, made an additional entry for 40 acres, under the act of April 28, 1904 (33 Stat., 527). The original entry had not been perfected, and the Department required him to consent to the elimination of the smallest legal subdivision thereof or suffer the cancellation of the additional entry. The Department is of opinion that the rule there announced is not applicable to a case like the present, where the original entry has been perfected and the entryman is unable to relinquish any portion thereof. The correct rule under such a state of facts is that the additional entry must approximate the area which the applicant is qualified to enter.

When Congress, by the act of March 3, 1915 (38 Stat., 956), amended sections 3 and 4 of the Enlarged Homestead act, Muller

became qualified to enter 140.30 acres of land contiguous to his original entry of 179.70 acres. He applied for and was allowed to enter 158.56 acres-18.26 acres in excess of the area he was qualified to enter. But if the smallest legal subdivision (38.56 acres) should be eliminated, the deficiency would be 20.30 acres.

The entry involved does not violate the rule of approximation, and will be allowed to stand as made, provided the entryman shall pay the purchase price of the excess area (18.26 acres). The fact that he paid for an excess of 19.70 acres when he made the original entry does not excuse him from paying for the excess area later entered. The decision is modified to agree with the foregoing.

PERMITS AUTHORIZING EXPLORATION OF PUBLIC LANDS FOR POTASSIUM.

DEPARTMENT OF THE INTERIOR, Washington, D. C., December 1, 1917.

THE COMMISSIONER OF THE GENERAL LAND OFFICE:

The Act of Congress approved October 2, 1917, entitled "An Act to authorize exploration for and disposition of potassium" (Public No. 49), authorizes the Secretary of the Interior under such rules and regulations as he may prescribe, to issue prospecting permits for a period not to exceed two years, for the exploration of the land described therein for potash in any of the forms named in said act, and under authority thereof the following rules and regulations will govern the issuance of such permits:

1. Permits may be issued to (a) citizens of the United States, (b) an association of such citizens, (c) or a corporation organized under the laws of any State or Territory thereof.

2. The permit thus issued may include not more than 2560 acres of public lands of the United States in reasonably compact form, or a similar area of lands that may have been disposed of under laws reserving to the United States the potassium deposits therein. In the latter case full compliance shall be made with the laws making such reservation.

3. The permit will confer upon the recipient the exclusive right to prospect for chlorides, sulphates, carbonates, borates, silicates, nitrates and salts of potassium on the lands embraced therein. In the exercise of this right the permittee shall be authorized to remove from the premises only such material as may be necessary to experimental work, and the demonstration of the existence of such deposits or any of them in commercial quantities.

4. If the permittee, within the two years specified, shall discover valuable deposits of one or more of the forms of potassium, as de