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mitted to do without the memorandum. Not until the work had proceeded for some months was there any indication that the memorandum was not satisfactory to the company. It then declined to execute the stipulation called for by the memorandum and assigned as a reason that Mr. Peck had acted upon the mistaken belief that the President's proclamation creating the permanent reserve preceded the filing of the first map, when in fact the map was filed before the proclamation was issued, and that the execution of such a stipulation as was called for by the memorandum was indispensable, when, as the company asserted, it was entitled, under the Act of March 3, 1875, infra, to a right of way through the reserve without entering into any stipulation or assenting to any conditions. But the officers of the Forest Service insisted, with the full sanction of the Secretary of the Interior and of the Secretary of Agriculture, that the stipulation be executed and that without it the company was not entitled to proceed. This resulted in a conference at which the company particularly requested that its construction work be not disturbed and assented to an arrangement for further negotiations or, if need be, a “friendly lawsuit.” Further negotiations failed and the present suit followed. When it was begun the road through the reserve was nearly completed and was in operation, the construction being on the line shown on the third map. Approval had not been given to this map but had been withheld awaiting the company's execution of the prescribed stipulation.
The District Court, after concluding and announcing that the company was bound by the Peck memorandum and that the Government was entitled to a decree, gave the parties an opportunity to agree upon the form of stipulation called for by that memorandum and then postponed the assessment of damages as a matter which might be affected materially by the terms of the stipula
tion. Afterward the parties brought into court a form of stipulation, which they agreed was what was required by the Peck memorandum, and that form was adopted by the court, with the addition only of a paragraph declaring that the stipulation should be deemed to have been executed as of May 10, 1907, which was the date of the Peck memorandum, of the permission to proceed with the construction and of the filing of the map according to which the road was constructed.
Rights of way for railroads over lands of the United States were granted only by special acts until March 3, 1875, when Congress enacted a general law upon the subject and confided its administration to the Land Department. Chap. 152, 18 Stat. 482. But that law, by its fifth section, was declared to be inapplicable to “any military, park, or Indian reservation, or other lands specially reserved from sale.” Lands in a forest reserve not only are specially reserved from sale, but, like those in the reservations particularly named, are set apart for a public purpose. Act June 4, 1897, c. 2, 30 Stat. 34-36. That they come within the excepting provision of the fifth section, as do lands in other public reservations, is plain. Both Congress and the Land Department have so regarded them. House Report No. 1212, 54th Cong., 1st sess.; House Report No. 1790, 55th Cong., 3rd sess.; Brainard and Northern Minnesota Ry. Co., 29 L. D. 257. Thus the company neither did nor could acquire a right of way over these lands under the law of 1875. And this is true notwithstanding the preliminary steps taken, as before recited, in advance of the creation of the permanent reserve. The temporary withdrawal was made several months before any of those steps were taken -indeed, before the company came into existence-and remained in force until the permanent reserve was created. While the withdrawal was in force it was as much of an obstacle to the acquisition of a railroad right of way over
these lands as was the permanent reserve thereafter. The power to establish the reserve included the power to make the temporary withdrawal, and the act of the Secretary of the Interior in directing the latter was in legal contemplation the act of the President. United States v. Morrison, 240 U. S. 192, 212; Wilcox v. Jackson, 13 Pet. 498, 512-513; Wolsey v. Chapman, 101 U. S. 755, 769-770.
We come then to the provision in the Appropriation Act of March 3, 1899, c. 427, 30 Stat. 1233, which says:
“That in the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby.”
Doubtless if this provision were separately considered, its purpose would seem obscure, but it must be considered in connection with the law of 1875 and the rulings thereunder, and when this is done its purpose seems reasonably plain. That law, by its first section, provides in general terms for rights of way for railroads over public lands. By its fourth section it deals with the identification of the desired right of way by a survey and plat and provides for filing the plat and securing its approval by the Secretary of the Interior. By its fifth section, as has been seen, it excepts forest and other reservations from its operation. Because of this exception the Secretary of the Interior was ruling properly so, as we think-that his authority did not extend to receiving and approving surveys and plats of rights of way in forest reserves. And so, to obtain such a right of way it was necessary to go to Congress.' The requests for special acts came to be frequent, especially as the reserves were increasing in number. In this situation Congress passed the provision last quoted. It is a general and continuing provision, and says, in substance, that rights of way for railroads
through forest reserves may be secured when, and only when, the public interests will not be injuriously affected, and it commits the solution of that question to the Secretary of the Interior. If "in his judgment” the public interests will not be jeopardized, he “may file and approve" surveys and plats of any such right of way. In short, he is invested with a large measure of discretion to be exercised for the conservation of the public interests, and only through his approval can the right of way be acquired without further action by Congress.
Here the Secretary made it manifest, through the regulations before noticed and otherwise, that in his judgment due regard for the public interests required that a stipulation, such as was described in the Peck memorandum, be exacted of the company as a condition to the approval of the survey and map, that is, to securing the right of way. Rightly understanding that this was so, Mr. Peck, the company's representative, promised on its behalf that it would comply with that condition. The promise was given for the purpose of securing permission to proceed at once with the construction of the road, and on the faith of the promise the permission was given. While this was said to be subject to the company's ratification, it must be held upon this record that there was an implied ratification. The company promptly availed itself of the permission and proceeded with the work of construction. The circumstances were such that it must have known how the permission was obtained. It was largely benefited thereby and to these benefits it ever since has held fast. True, after some months had elapsed, it manifested a purpose to disaffirm Mr. Peck's promise, but that was after the implied ratification and after the construction had proceeded so far that restoration of the original situation was not possible.
It follows that the company not only is bound by the Peck memorandum but is in a position where it must
execute the required stipulation or discontinue the construction and operation of its railroad in the reserve.
It is objected that the case is not one which is cognizable in a court of equity and that the bill is multifarious. Both branches of the objection are without merit, so plainly so that a discussion of them would serve no purpose.
The assessment of the damages is called in question, but without any good reason. The stipulation agreed upon as conforming to the Peck memorandum was rightly regarded as decisive of several of the questions bearing upon the assessment and no reason is perceived for disturbing the concurring decisions below upon the others.
The decree unconditionally commands the execution and filing of the prescribed stipulation without awarding an alternative injunction, and counsel for the Government suggest that it should have enjoined the company from the further occupation of the reserve unless within a prescribed time the stipulation be executed and filed. The criticism is not without merit and doubtless is prompted by a careful study of the bill. But as the Government has not appealed and the company is not complaining of the failure to put the matter in the alternative, the point may be passed without further notice.
MR. JUSTICE McREYNOLDS took no part in the consideration or decision of this case.