243 U.S. 389

37 S.Ct. 387

61 L.Ed. 791


Nos. 202-207.

Argued October 11 and 12, 1916.

Decided March 19, 1917.

[Syllabus from pages 389-391 intentionally omitted]

Messrs. Graham Sumner and William V. Hodges for the Utah Power & Light Company.

[Argument of Counsel from pages 391-396 intentionally omitted]

Messrs. Clyde C. Dawson, Frank H. Short, H. R. Waldo, Frank J. Gustin, Charles A. Gillette, and Dean F. Brayton for the Beaver River Power Company.

Mr. Albert R. Barnes, Attorney General of Utah, Mr. Fred Farrar, Attorney General of Colorado, Mr. J. H. Peterson, Attorney General of Idaho, Mr. George B. Thacher, Attorney General of Nevada, Mr. Willis E. Reed. Attorney General of Nebraska, and Messrs. Frank H. Short, Clyde C. Dawson and S. A. Bailey heard on behalf of the state of Utah and other states.

[Argument of Counsel from pages 396-398 intentionally omitted]

Assistant Attorney General Knaebel for the United States.

[Argument of Counsel from pages 399-401 intentionally omitted]

Messrs. John R. Dixon and William B. Bosley as amici curiae

Mr. Justice Van Devanter delivered the opinion of the court:


We are concerned here with three suits by the United States to enjoin the continued occupancy and use, without its permission, of certain of its lands in forest reservations in Utah as sites for works employed in generating and distributing electric power, and to secure compensation for such occupancy and use in the past. The reservations were created by executive orders and proclamations with the express sanction of Congress. Almost all the lands therein belong to the United States, and before the reservations were created were public lands subject to disposal and acquisition under the general land laws. The works in question consist of diversion dams, reservoirs, pipe lines, power houses, transmission lines, and some subsidiary structures. In the aggregate these are used in collecting water from mountain streams, in conducting it for considerable distances to power house where the force arising from its descent through the pipe lines is transmuted into electric energy, and in transmitting that energy to places beyond the reservations, where it is sold to whoever has occasion to use it for power, lighting, or heating. In each case some part of the works is on private lands, but much the greater part is on lands of the United States. Part was constructed before and part after the reservation was created, but all after 1896 and nearly all after 1901. The entire works are conducted in each instance as a commercial enterprise, and not as an incident to or in aid of any other business in which the defendant is engaged.


In occupying and using the government lands as sites for these works the defendants have proceeded upon the assumption that they were entitled so to do without seeking or securing any grant or license from the Secretary of the Interior or the Secretary of Agriculture under the legislation of Congress, and, in truth, they have neither applied for nor received such a grant of license from either. But, notwithstanding this, they assert that they have acquired and are invested with rights to occupy and use permanently, for the purposes indicated, the government lands upon which the works are located.


The principal object of the suits, as is said in one of the briefs, is to test the validity of these asserted rights, and, if they be found invalid, to require the defendants to conform to the legislation of Congress, or, at their option, to remove from the government lands. The district court ruled against the defendants upon the main question, following a decision of the circuit court of appeals in another case (126 C. C. A. 376, 209 Fed. 554), but refused the government's prayer for pecuniary relief. Cross appeals were then taken directly to this court.


The first position taken by the defendants is that their claims must be tested by the laws of the state in which the lands are situate rather than by the legislation of Congress, and in support of this position they say that lands of the United States within a state, when not used or needed for a fort or other governmental purpose of the United States, are subject to the jurisdiction, powers, and laws of the state in the same way and to the same extent as are similar lands of others. To this we cannot assent. Not only does the Constitution (art. 4, § 3, cl. 2) commit to Congress the power 'to dispose of and make all needful rules and regulations respecting' the lands of the United States, but the settled course of legislation, congressional and state, and repeated decisions of this court, have gone upon the theory that the power of Congress is exclusive, and that only through its exercise in some form can rights in lands belonging to the United States be acquired. True, for many purposes a state has civil and criminal jurisdiction over lands within its limits belonging to the United States, but this jurisdiction does not extend to any matter that is not consistent with full power in the United States to protect its lands, to control their use, and to prescribe in what manner others may require rights in them. Thus, while the state may punish public offenses, such as murder or larceny, committed on such lands, and may tax private property, such as live stock, located thereon, it may not tax the lands themselves, or invest others with any right whatever in them. United States v. McBratney, 104 U. S. 621, 624, 26 L. ed. 869, 870; Van Brocklin v. Tennessee (Van Brocklin v. Anderson) 117 U. S. 151, 168, 2. L. ed. 845, 851, 6 Sup. Ct. Rep. 670; Wisconsin C. R. Co. v. Price County, 133 U. S. 496, 504, 33 L. ed. 687, 690, 10 Sup. Ct. Rep. 341. From the earliest times Congress by its legislation, applicable alike in the states and territories, has regulated in many particulars the use by others of the lands of the United States, has prohibited and made punishable various acts calculated to be injurious to them or to prevent their use in the way intended, and has provided for and controlled the acquisition of rights of way over them for highways, railroads, canals, ditches, telegraph lines, and the like. The states and the public have almost uniformly accepted this legislation as controlling, and in the instances where it has been questioned in this court its validity has been upheld and its supremacy over state enactments sustained. Wilcox v. Jackson, 13 Pet. 498, 516, 10 L. ed. 264, 273; Jourdan v. Barrett, 4 How. 169, 185, 11 L. ed. 924, 931; Gibson v. Chouteau, 13 Wall. 92, 99, 20 L. ed. 534, 536; Camfield v. United States, 167 U. S. 518, 42 L. ed. 260, 17 Sup. Ct. Rep. 864; Light v. United States, 220 U. S. 523, 536, 537, 55 L. ed. 570, 574, 31 Sup. Ct. Rep. 485. And so we are of opinion that the inclusion within a state of lands of the United States does not take from Congress the power to control their occupancy and use, to protect them from trespass and injury, and to prescribe the conditions upon which others may obtain rights in them, even though this may involve the exercise in some measure of what commonly is known as the police power. 'A different rule,' as was said in Camfield v. United States, 167 U. S. 518, 42 L. ed. 260, 17 Sup. Ct. Rep. 864, 'would place the public domain of the United States completely at the mercy of state legislation.'


It results that state laws, including those relating to the exercise of the power of eminent domain, have no bearing upon a controversy such as is here presented, save as they may have been adopted or made applicable by Congress.


The next position taken by the defendants is that their claims are amply sustained by §§ 2339 and 2340 of the Revised Statutes, originally enacted in 1866 [14 Stat. at L. 253, chap. 262, § 9] and 1870 [16 Stat. at L. 218, chap. 235, § 17, Comp. Stat. 1913, §§ 4647, 4648]. By them the right of way over the public lands was granted for ditches, canals, and reservoirs used in diverting, storing, and carrying water for 'mining, agricultural, manufacturing, and other purposes.' The extent of the right of way in point of width or area was not stated, and the grant was noticeably free from conditions. No application to an administrative officer was contemplated, no consent or approval by such an officer was required, and no direction was given for noting the right of way upon any record. Obviously this legislation was primitive. At that time works for generating and distributing electric power were unknown, and so were not in the mind of Congress. Afterwards, when they came into use, it was found that this legislation was at best poorly adapted to their needs. It was limited to ditches, canals, and reservoirs, and did not cover power houses, transmission lines, or the necessary subsidiary structures. In that situation Congress passed the Act of May 14, 1896, chap. 179, 29 Stat. at L. 120, Comp. Stat. 1913, § 4944, which related exclusively to rights of way for electric power purposes, and read as follows:


'That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of right of way to the extent of twenty-five feet, together with the use of necessary ground, not exceeding forty acres, upon the public lands and forest reservations of the United States, by any citizen or association of citizens of the United States, for the purpose of generating, manufacturing, or distributing electric power.'


We regard it as plain that this act superseded §§ 2339 and 2340 in so far as they were applicable to such rights of way, It dealt specifically with that subject, covered it fully, embodied some new provisions, and evidently was designed to be complete in itself. That it contained no express mention of ditches, canals, and reservoirs is of no significance, for it was similarly silent respecting power houses, transmission lines, and subsidiary structures. What was done was to provide for all in a general way without naming any of them.


As the works in question were constructed after §§ 2339 and 2340 were thus superseded, the defendants' claims receive no support from those sections. No attempt was made to conform to the Act of 1896, and nothing is claimed under it.


Some reliance is placed upon §§ 18-21 of the Act of March 3, 1891, chap. 561, 26 Stat. at L. 1095, Comp. Stat. 1913, §§ 4934-4937, and the Act of May 11, 1898, chap. 292, 30 Stat. at L. 404, Comp. Stat. 1913, § 4943. The first relates to rights of way for ditches, canals, and reservoirs for the purpose of irrigation, and, differing from §§ 2339 and 2340, calls for the filing of maps of location which are to be effective and noted upon the public records when approved by the Secretary of the Interior. The second permits rights of way 'approved' under the first to be used for certain additional purposes, including the development of power, 'as subsidiary to the main purpose of irrigation.' But here no maps of location have been filed or approved, the rights of way are not claimed merely for ditches, canals, or reservoirs, and irrigation is neither the sole nor the main purpose for which any part of the asserted rights of way is used. So it is apparent that the reliance upon these acts is ill-founded.


In the oral and written arguments counsel have given much attention to the Act of February 15, 1901, chap. 372, 31 Stat. at L. 790, Comp. Stat. 1913, § 4946. On the part of the government it is insisted that the comprehensive terms of the act and its legislative history1 conclusively show that it was adopted as a complete revision of the confused and fragmentary right-of-way provisions found in several earlier enactments, including those already noticed, but this need not be considered or decided now beyond observing that the act obviously superseded and took the place of the law of May 14, 1896, supra. The act empowers the Secretary of the Interior, 'under general regulations to be fixed by him,' to permit the use of rights of way through the public lands, forest reservations,2 etc., for any one or more of several purposes, including the generation and distribution of electric power, carefully defines the extent of such rights of way, and embodies provisions not found in any of the earlier enactments. But the defendants can claim nothing under the act. They have not conformed to its requirements and have not received any permission or license under it.


Another statute upon which the defendants rely is the Act of February 1, 1905, chap. 288, 33 Stat. at L. 628, Comp. Stat. 1913, § 823. But we think it does not help them. While providing for rights of way in forest reserves for ditches, canals, reservoirs and the like 'for municipal or mining purposes, and for the purposes of the milling and reduction of ores,' it makes no provision for power houses, transmission lines, or subsidiary structures such as the defendants have. And, in our opinion, the purposes named do not include those for which the works in question are used. It is not enough that some of the electric energy is sold in adjacent or distant towns, or to those who are engaged in mining or in milling or reducing ores. In an opinion rendered June 4, 1914, the Attorney General said of this act: 'The rights granted are described with particularity. The right of way for transmitting and distributing electrial power is not included expressly, nor is it so intimately related to any of the rights enumerated that a grant of the one must needs be implied as essential to the enjoyment of the other.' 30 Ops. Atty. Gen. 263. We regard this as the correct view.


In their answers some of the defendants assert that when the forest reservations were created an understanding and agreement was had between the defendants, or their predecessors, and some unmentioned officers or agents of the United States, to the effect that the reservations would not be an obstacle to the construction or operation of the works in question; that all rights essential thereto would be allowed and granted under the act of 1905; that, consistently with this understanding and agreement, and relying thereon, the defendants, or their predecessors, completed the works and proceeded with the generation and distribution of electric energy, and that, in consequence, the United States is estopped to question the right of the defendants to maintain and operate the works. Of this it is enough to say that the United States is neither bound nor estopped by acts of its officers or agents in entering into an arrangement or agreement to do or cause to be done what the law does not sanction or permit. Lee v. Munroe, 7 Cranch, 366, 3 L. ed. 373; Filor v. United States, 9 Wall. 45, 49, 19 L. ed. 549, 551; Hart v. United States, 95 U. S. 316, 24 L. ed. 479; Pine River Logging Co. v. United States, 186 U. S. 279, 291, 46 L. ed. 1164, 1170, 22 Sup. Ct. Rep. 920.


As presenting another ground of estoppel it is said that the agents in the forestry service and other officers and employees of the government, with knowledge of what the defendants were doing, not only did not object thereto, but impliedly acquiesced therein until after the works were completed and put in operation. This ground also must fail. As a general rule, laches or neglect of duty on the part of officers of the government is no defense to a suit by it to enforce a public right or protect a public interest. United States v. Kirkpatrick, 9 Wheat. 720, 735, 6 L. ed. 199, 203; Steele v. United States, 113 U. S. 128, 134, 28 L. ed. 952, 954, 5 Sup. Ct. Rep. 396; United States v. Beebe, 127 U. S. 338, 334, 32 L. ed. 121, 124, 8 Sup. Ct. Rep. 1083; United States v. Insley, 130 U. S. 263, 265, 266, 32 L. ed. 968, 969, 9 Sup. Ct. Rep. 485; United States v. Dalles Military Road Co. 140 U. S. 599, 632, 35 L. ed. 560, 571, 11 Sup. Ct. Rep. 988; United States v. Michigan, 190 U. S. 379, 405, 47 L. ed. 1103, 1112, 23 Sup. Ct. Rep. 742; State ex rel. Lott v. Brewer, 64 Ala. 287, 298; People v. Brown, 67 Ill. 435, 438; Den ex dem. Candler v. Lunsford, 20 N. C. 542 (4 Dev. & B. L. 407); Humphrey v. Reg. 2 Can. Exch. 386, 390; Reg. v. Black, 6 Can. Exch. 236, 253. And, if it be assumed that the rule is subject to exceptions, we find nothing in the cases in hand which fairly can be said to take them out of it, as heretofore understood and applied in this court. A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it. Causey v. United States, 240 U. S. 399, 402, 60 L. ed. 711, 713, 36 Sup. Ct. Rep. 365.


By their answers the defendants assert that some of the administrative regulations promulgated under the act of February 15, 1901, go beyond what is appropriate for the protection of the interest of the United States and are unconstitutional, unauthorized, and unreasonable. The regulations occupy many printed pages and the answers do not adequately show which regulations are assailed, or the grounds upon which the invalidity of particular ones is asserted. That Congress intends there shall be some administrative regulations on the subject is plainly shown in the act, and that its discretion in the matter is not narrowly confined is shown by our decisions in United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480, and Light v. United States, 220 U. S. 523, 55 L. ed. 570, 31 Sup. Ct. Rep. 485. If any of the regulations go beyond what Congress can authorize, or beyond what it has authorized, those regulations are void and may be disregarded; but not so of such as are thought merely to be illiberal, inequitable, or not conducive to the best results. In the nature of things it hardly can be that all are invalid, and this was conceded in argument. The defendants have not complied with any, or really offered to do so, but have proceeded upon the theory that the act and all the regulations are without application to their situation. In this they have been mistaken, and so are occupying and using reserved lands of the United States without its permission and contrary to its laws. Not until they seek a license or permit under the act and conform, or appropriately offer to conform, to all lawful regulations thereunder, will they be in a position to complain that some of the regulations are invalid. As we interpret the decrees below, they enjoin the defendants from occupying and using the lands of the United States until, and only until, they acquire rights to do so by complying with some applicable statute and the lawful regulations. Of course, we do not imply that any of the regulations are invalid, but leave that question entirely open.


Much is said in the briefs about several congressional enactments providing or recognizing that rights to the use of water in streams running through the public lands and forest reservations may be acquired in accordance with local laws, but these enactments do not require particular mention, for this is not a controversy over water rights, but over rights of way through lands of the United States, which is a different matter, and is so treated in the right-of-way acts before mentioned. See Snyder v. Colorado Gold Dredging Co. 104 C. C. A. 136, 181 Fed. 62, 69.


As the defendants have been occupying and using reserved lands of the United States without its permission and contrary to its laws, we think it is entitled to have appropriate compensation therefor included in the decree. The compensation should be measured by the reasonable value of the occupancy and use, considering its extent and duration, and not by the scale of charges named in the regulations, as prayed in the bill. However much this scale of charges may bind one whose occupancy and use are under a license or permit granted under the statute, it cannot be taken as controlling what may be recovered from an occupant and user who has not accepted or assented to the regulations in any way.


It follows that the decrees are right and must be affirmed, save as they deny the government's right to compensation for the occupancy and use in the past, and in that respect they must be reversed.


It is so ordered.


Report Secretary of the Interior, 1899, pp. 6-7; House Report, 1850, 56th Cong., 1st Sess.; Cong. Rec. 56th Cong., 1st Sess., 6762; id., 56th Cong. 2d Sess., 2075.


The forest reserves were measureably placed under the control of the Secretary of Agriculture by the Act of February 1, 1905, chap. 288, 33 Stat. at L. 628, Comp. Stat. 1913, § 823.

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