1703. Held that the right to the "free and open exploration and purchase" of mineral lands, accorded to citizens, &c., by Sec. 2319, Rev. Sts., could not authorize an entry for the purpose of prospecting for mines upon a military reservation once duly defined and established by the President; the mineral lands intended by the statute being clearly such as are included within the "public lands" of the United States.1 XXXVIII, 596, May, 1877.

1704. Where certain persons had entered unlawfully upon a military reservation and had proceeded to cultivate the soil of the same for their personal benefit and to lead off water, needed for the use of the garrison, in order to irrigate the ground so cultivated,―advised that the commandant be instructed to give such persons reasonable notice to quit with their property, and if they did not comply, to remove them by military force beyond the limits of the reservation. XLII, 256, April, 1879.

1705. In the absence of any statute directly or by necessary implication extending the powers of the local government of the District of Columbia over the military reservation and post at the arsenal in Washington, held, that the health officer appointed by the Commissioners (constituting such government) would not be empowered of his own authority and without the consent of the military commander, to enter upon such reservation, and remove or abate a nuisance deemed by him to exist thereon. The effect of the legislation in regard to the government of the District is to except therefrom the public buildings and grounds of the United States, which are left to the charge of certain specified officials. Even farther removed from such government is the reservation at the arsenal, the same being a military post commanded by the President through a military subordinate, and governed by military orders and regulations. XLII, 270, May, 1879.

1706. The President's power in the matter of military reservations is limited to the setting apart and declaring of the reservation; and, for the purpose of adding to, and modifying the boundaries of, the original reserved tract, a reservation may be re-declared by the Executive. 39, 132, February, 1890; 50, 108, October, 1891. But the President cannot un-reserve duly reserved lands, either by revoking the order of reservation or otherwise. 50, 108, supra.

1707. After lands have once been reserved for military purposes, the President, in the absence of authority from Congress, is not empowered to withdraw or restore them. By the authority indeed of the act of July 5, 1884, he may abandon a useless military reservation

1 See authorities cited in note to § 1700, ante.

As to the authority to remove trespassers from military reservations, see 3 Opins. At. Gen., 268; 9 id., 106, 476; G. O. 74, Hdqrs. of Army, 1869.

and turn the lands over to the Interior Department for disposition and sale. But he cannot re-reserve lands once thus turned over, they being no longer a part of the public domain but lands in regard to which Congress has expressed a different will. Nor can he reserve public lands for use of a sovereignty other than the United States-as for the use of a State. 48, 10, June, 1891; Card 1839, November, 1895. 1708. Where it was proposed to turn over to the Interior Department, under the act of July 5, 1884, a military reservation as "useless for military purposes," but subject to the provisions of a contract permitting a contractor to take therefrom 2,000 cords of wood, for a military post, adrised that the transfer be deferred until the contract was performed, the reservation not being "useless for military purposes" during the existence of the contract, and furthermore such contract might interfere with the sale of the land by the Interior Department. Card 54, July, 1894.

1709. Land once duly reserved for a public purpose becomes separated from the mass of public lands. So held that a proclamation of the President, issued under an act of Congress, opening to settlement lands in Oklahoma Territory, could not embrace or affect land previously duly reserved as a military timber reservation for the use of the post of Fort Reno. 31, 327, April, 1889.

1710. The power of the President, under the provision of the act of March 3, 1893, to "withhold from sale, and to grant for public use to municipal corporations in which the same is situated, all or any portion of any abandoned military reservation not exceeding twenty acres in one place," extends only to such abandoned military reservations or parts of abandoned military reservations as have been turned over by the Secretary of War to the Secretary of the Interior under the act of July 5, 1884. 58, 471, 1pril, 1893.

1711. The ownership and jurisdiction of the soil between high and low water mark on navigable waters within or bordering upon a State are vested in the State, not in the United States. Tide-lands belong to the State only; the United States has no interest in the soil below high water mark other than such as may have been ceded by the State." XLVII, 596, February, 1886; 15, 452, March, 1887. So, where & military reservation, within a State, fronted upon navigable waters of the United States, at the mouth of the Columbia River, held that the military authorities could not, by the removal of fishing nets or fish traps placed below high water mark, or otherwise, legally prevent or interfere with the exercise of the right of fishery as to scale or shell fish

1Pollard's Lessees r. Hagan, 3 Howard, 212; Goodtitle r. Kibbe, 9 id., 477; Doe v. Beebe, 13 id., 25; 6 Opins. At. Gen., 172. But see NAVIGATION,

on the tide-lands; such right being common to all citizens except in so far as it may be abridged by the State.' LII, 137, March, 1887.

1712. In the case of a Territory, however, the sovereign right to the whole soil is exclusively in the United States. Thus the reservation of an island in the tide-waters of a Territory includes not only its soil down to high-water mark but all its tide-lands also. XLVII, 596, February, 1886. But in a Territory, in the absence of special regulation of the subject by Congress, no executive authority can lawfully restrict the common-law right of piscary of the inhabitants (including the taking of shell-fish) in the tide-waters of the Territory. So, the commander of a reserved military post, fronting upon navigable water of a Territory, is not empowered to remove from such tide-waters the seines or traps of fishermen; though, if the public interests require it, he may forbid or restrict the use of the shore above high-water mark for the hauling of seines or landing of fish. 15, 452, March, 1887.

2

1713. Squatters and other trespassers and intruders may and should be expelled, by military force if necessary, from a military reservation. XLIX, 208, July, 1885; L, 314, May, 1886. But such persons when they have been suffered to own and occupy buildings on a reservation should be allowed reasonable time to remove them. If not removed after due notice the same should be removed by the military. Material abandoned on a reservation by a trespasser, on vacating, may lawfully be utilized by the commander for completing roads, walks, &c. L, 273, 378, May and June, 1886. Squatters on U. S. reservations (timbered) may also be forced therefrom by criminal proceedings had under Sec. 5388, Rev. Sts., or ejected by civil action. Card 138, September, 1894.

1714. Where squatters have made any considerable improvements upon a reservation, and their value has been duly estimated-as by a board constituted by the department commander and presenting in its report all the evidence on the subject, an award by the Secretary of War, acquiesced in by the claimant, may be sued upon in the Court of Claims, which (in the absence of evidence of fraud or mistake) will accept such award as conclusive." 17, 265, June, 1887.

1715. The cutting of timber on a military reservation is an offence against the United States, made punishable by Sec. 5388, Rev. Sts. (amended by the act of June 4, 1888), and by the act of March 3, 1875, c. 151. So, grass cut on a reservation and removed as hay would be

1 Washburn, Easements and Servitudes, 410; Martin e. Waddell, 16 Peters, 367; Smith v. Maryland, 18 Howard, 71; McCready r. Virginia, 94 U. S., 391; Lay v. King, 5 Day, 72; Arnold . Mundy, 1 Halst., 1; Parker v. Cutler, &c., Co., 20 Maine, 353; Moulton v. Libbey, 37 id., 472; Weston v. Sampson, 8 Cush., 347.

2 See G. O. 62 of 1869.

3 Maddux v. U. S., 20 Ct. Cls., 193, 199.

personal property of which the asportation would be larceny under the act of March 3, 1875, c. 144. And persons coming upon a military reservation for the purpose of cutting wood or grass or to plough up the soil, or commit other trespass, may be removed as intruders, and the post commander should not hesitate to resort to military force if necessary for the purpose. And he may of course prevent such trespassers from carrying off with them any property of the United States. 64, 270, 303, March and April, 1894; Card 3315, June, 1897.

1716. There is no statute which would authorize the sale of timber on military reservations, and in the absence of such a statute the Secretary of War cannot authorize such sale. Card 8141, May, 1900.

1717. The general principle of the authority to remove trespassers, their structures and property, from land of the United States embraced in a military reservation, held specially applicable where the intrusion was for an injurious purpose, as where the object was to lay a sewer intended to discharge into a main sewer constructed by the United States upon and for the use of its own premises. In this instance, as the trespass was committed by the authorities of a municipality, advised that reasonable notice be given them to remove their property before resorting to military force for the purpose, and meantime that precautions be taken to prevent a connection between the proposed sewer and the sewers under the control of the United States. 65, 6, May, 1894.

1718. Held that a butcher who was under contract with the United States to supply beef to the post of Fort Brown, Texas, should not be permitted to sell beef on the reservation to citizens of the town, to the prejudice of the butchers doing business there. Such a party is not a post-trader, and Congress, in providing specifically for post-traders, would seem to have considered legislation necessary to authorize an individual to engage in trade or traffic at a military post. 30, 475, March, 1889.

1719. The State of Kansas having surrendered to the United States its jurisdiction over the military reservations of Forts Leavenworth and Riley by an act of its legislature of February 23, 1872, which was earlier in date than the prohibition laws of the State (having their origin in the Constitution adopted November 2, 1880),-held that such laws did not extend over and could not be applied to those reservations. 39, 17, February, 1890.

1720. To legalize the use of a public road (State, county, or Territorial) across a corner of a military reservation, held as follows: (1.) The Secretary of War may, under the act of July 5, 1884, s. 6, permit the extension of such a road across a military reservation "whenever, in his judgment, the same can be done without injury to the

reservation or inconvenience to the military forces stationed thereon." (2.) Or he can abandon to the Secretary of the Interior, under the same act, the strip of the reservation to be traversed by the road, and the latter official can then authorize the road under Sec. 2477, Rev. Sts., by which "rights of way for the construction of highways are granted over public lands not reserved for public uses. 43, 415, November, 1890.

1721. Where the United States purchased land for a military reservation, through which there was a public highway, and exclusive jurisdiction over the reservation was duly ceded to the United States, it was held that the title was subject to the easement of the public to the use of the highway; that the right to regulate and dispose of this easement was in the United States to be exercised by Congress; and that it could not be legally exercised by the military authorities. Card 3565, October, 1897.

1722. In locating Fort Missoula, Montana, an error of survey was made by which the post became established upon a section which had been granted to the State by the enabling act as school land, instead of upon the contiguous section which had been reserved for military purposes. Recommended, as the preferable mode of rectifying the error, that legislation of Congress be obtained granting to the State for school land the section omitted to be occupied, and, upon its acceptance by the State, that the legislature then cede to the United States exclusive jurisdiction over the section actually occupied by the post. 36, 402, November, 1889; 44, 299, December, 1890.

MILITIA.

1723. The manner of the calling out of the militia by the President under the act of 1795 (Sec. 1642, Rev. Sts.), is indicated by the Supreme Court in the leading case of Houston . Moore,' where it is observed that, "the President's orders may be given to the chief executive magistrate of the State, or to any militia officer he may think proper." The call would ordinarily be addressed to the gov ernor, who, in most of the States, is made commander-in-chief of the active militia of the State. A further form indeed of calling out the militia, viz., by a conscription, was authorized during the civil war by the act of July 17, 1862. 51, 325, January, 1892.

1724. The President has no original authority over the militia by right of his office. He can only call them out when Congress provides for his doing so as the agent of the United States for such purpose.

15 Wheaton, 15 (1820).