The power to regulate the use of the lands of the United States,
and to prescribe the conditions upon which rights in them may be
acquired by others, is vested exclusively in Congress.
The inclusion of such lands within a state does not diminish
this power, or subject the lands or interests in them to
disposition by the state
Page 243 U. S. 390
power, and therefore such lands, within a state, or ways across
them, are not subject to be occupied or used for private or
quasi-public purposes, under state laws, save such laws as
have been adopted or made applicable by Congress.
The Act of May 14, 1896, c. 179, 29 Stat. 120, relating
exclusively to rights of way and the use of land for electric power
purposes, covering the subject fully and specifically and
containing new provisions, was evidently designed to be complete in
itself, and therefore, by necessary implication, superseded the
provisions of Rev.Stats., §§ 2339 and 2340 (derived from the Acts
of 1866 and 1870), insofar as they were applicable to such rights
of way.
The legislation embodied in Rev.Stats., §§ 2339 and 2340,
granted rights of way for ditches, canals, and reservoirs only, and
did not cover powerhouses, transmission lines, or subsidiary
structures.
Sections 18-21 of the Act of March 3, 1891, c. 561, 26 Stat.
1095, relate to rights for ditches, canals, and reservoirs for the
purpose of irrigation and call for the filing of maps, to be
effective when approved by the Secretary of the Interior; the Act
of May 11, 1898, c. 292, 30 Stat. 404, permits the rights so
approved under the Act of 1891 to be used for certain purposes,
including power development, as subsidiary to the main purpose of
irrigation; but neither act applies where no maps have been filed
or approved, where the rights claimed include powerhouses,
subsidiary buildings, and transmission lines, and where irrigation
is neither the sole nor the main purpose of the use.
Whether or not the Act of February 15, 1901, c. 372, 31 Stat.
790, superseded other earlier right of way provisions, it obviously
took the place of the Act of May 14, 1896,
supra.
The Act of February l, 1905, c. 288, 33 Stat. 628, makes no
provision for electric powerhouses, transmission lines or
structures subsidiary thereto, the rights of way granted being only
for ditches, canals, and reservoirs for diverting, storing, and
carrying water.
The purposes for which rights of way may be obtained under the
Act of February l, 1905,
supra, viz., municipal or mining
purposes and for milling and reduction of ores, do not include the
generating of electricity for general commercial disposition, even
though some part of the current is sold in adjacent or distant
towns for power, lighting, and heating, or to persons engaged in
mining, milling, or reducing ores.
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. So
held
Page 243 U. S. 391
in regard to an alleged agreement for the use of federal lands
by a power company.
As a general rule, laches or neglect of duty on the part of
government officers is no defense to a suit to enforce a public
right or protect a public interest.
If this rule has exceptions, they in turn are limited by the
principle which places on different planes an ordinary private suit
over title and a suit maintained by the United States to enforce
its policy respecting land held in trust for all the people.
Causey v. United States, 240 U. S. 399,
240 U. S. 402.
The discretion of Congress to control the use of federal lands
through administrative regulations is not narrowly confined.
Where such regulations exceed the power of or authorization by
Congress, they may be disregarded as void, but not so where they
are merely illiberal, inequitable, or unwise.
Parties whose occupancy and use of federal lands can be
legitimated only by complying with the Act of February 15, 1901,
supra, may not be heard to complain of the regulations
adopted in its execution until they seek a license or permit under
the act and conform, or appropriately offer to conform, to all of
the regulations which are lawful.
The acts of Congress providing or recognizing that rights to the
use of water in streams running through public lands and
reservations may be acquired in accordance with local laws do not
authorize the appropriation of rights of way through lands of the
United States.
In a suit by the United States to enjoin unlawful occupancy and
use of its reserved lands, compensation measured by the reasonable
value of the occupancy and use, considering its extent and
duration, should be included in the decree.
The compensation should not be measured by the charges
prescribed for like uses by governmental regulations when the
regulations have not been accepted or assented to by the
defendants.
The case is stated in the opinion.
Page 243 U. S. 402
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, pipelines, powerhouses, 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 powerhouse, where the force arising
from its descent through the pipelines is transmuted into electric
energy, and in transmitting that energy to places beyond the
reservations, where it is sold
Page 243 U. S. 403
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, 209 F. 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
Page 243 U. S. 404
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. IV, § 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 livestock, 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,
104 U. S. 624;
Van Brocklin v. Tennessee, 117 U.
S. 151,
117 U. S. 168;
Wisconsin Central R. Co. v. Price County, 133 U.
S. 496,
133 U. S. 504.
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
Page 243 U. S. 405
its supremacy over state enactments sustained.
Wilcox v.
Jackson, 13 Pet. 498,
38 U. S. 516;
Jourdan v.
Barrett, 4 How. 169,
45 U. S. 185;
Gibson v.
Chouteau, 13 Wall. 92,
80 U. S. 99;
Camfield v. United States, 167 U.
S. 518;
Light v. United States, 220 U.
S. 523,
220 U. S.
536-537. 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, supra, "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 and 1870. 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
Page 243 U. S. 406
to their needs. It was limited to ditches, canals, and
reservoirs, and did not cover powerhouses, transmission lines, or
the necessary subsidiary structures. In that situation, Congress
passed the Act of May 14, 1896, c. 179, 29 Stat. 120, 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
insofar 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 powerhouses, 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, c. 561, 26 Stat. 1095, and the Act of May 11, 1898, c. 292,
30 Stat. 404. 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
Page 243 U. S. 407
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, c. 372, 31 Stat. 790. On
the part of the government, it is insisted that the comprehensive
terms of the act and its legislative history [
Footnote 1] 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, [
Footnote 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
Page 243 U. S. 408
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, c. 288, 33 Stat. 628. 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 powerhouses, 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 electrical 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.A.G. 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
Page 243 U. S. 409
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;
Filor v. United
States, 9 Wall. 45,
76 U. S. 49;
Hart v. United States, 95 U. S. 316;
Pine River Logging Co. v. United States, 186 U.
S. 279,
186 U. S.
291.
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,
22 U. S. 735;
Steele v. United States, 113 U. S. 128,
113 U. S. 134;
United States v. Beebe, 127 U. S. 338,
127 U. S. 334;
United States v. Insley, 130 U. S. 263,
130 U. S.
265-266;
United States v. Dalles Military Road
Co., 140 U. S. 599,
140 U. S. 632;
United States v. Michigan, 190 U.
S. 379,
190 U. S. 405;
State ex Rel. Lott v. Brewer, 64 Ala. 287, 298;
People
v. Brown, 67 Ill. 435, 438;
Den v. Lunsford, 20 N.C.
542;
Humphrey v. Queen, 2 Can.Exch. 386, 390;
Queen 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,
240 U. S.
402.
By their answers, the defendants assert that some of the
Page 243 U. S. 410
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, and
Light v. United States, 220 U. S. 523. 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
Page 243 U. S. 411
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., 181 F. 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.
[
Footnote 1]
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.
[
Footnote 2]
The forest reserves were measurably placed under the control of
the Secretary of Agriculture by the Act of February 1, 1905, c.
288, 33 Stat. 628.