The power to establish forest reservations, bestowed upon the
President by acts of Congress, includes the power to withdraw lands
temporarily from disposition under the public land law in order
that they may be examined, and, if found suitable, may be
permanently reserved as forests.
An act of the Secretary of the Interior in directing the making
of a temporary withdrawal for forest reserve purposes is in legal
contemplation the act of the President.
Lands reserved for forest purposes, whether by temporary
withdrawal or permanent reservation, are "specially reserved from
sale" within the meaning of § 5 of the general railroad right of
way act of March 3, 1875, c. 152, 18 Stat. 482, and also, like the
military, park, and Indian reservations therein mentioned, are set
apart for a public purpose, and are not subject to the provisions
of that act.
Under the provision relating to the subject in the Act of March
3, 1899, c. 427, 30 Stat. 1233, a railroad right of way may be
obtained over a temporary or permanent forest reservation only if,
in the judgment of the Secretary of the Interior, the public
interests will not be injuriously affected thereby, and, in
exercising his broad discretion under this provision, the Secretary
may condition his approval of an application upon the prior filing
of a stipulation, binding upon the applicant, respecting the use
and enjoyment of the privilege granted, the prevention of forest
fires, and compensation for timber cut or destroyed or for other
injuries done to the reservation.
Where, for the purpose of securing a right of way under the Act
of 1899,
supra, with immediate permission to proceed with
construction work, a railroad company's agent agreed in writing
that it would later execute and abide by a stipulation touching its
rights and conduct in the reservation, but the agreement was made
subject to ratification by the company,
held that the
company's action in availing itself of the permission and
proceeding with the construction work with knowledge of the manner
in which the permission
Page 244 U. S. 352
had been obtained, and its acceptance of ensuing benefits,
amounted to an implied ratification of its agent's agreement,
binding the company either to execute the required stipulation or
to discontinue the construction and operation of its railroad
within the reservation.
A suit by the United States to enjoin a railroad company from
constructing and operating its road through a national forest in
default of the execution and filing by it of a stipulation required
by the Secretary of the Interior, and to obtain damages for timber
cut and destroyed and for injury done in the course of the
construction and operation of such railroad, is cognizable in
equity, and a bill praying such relief is not multifarious.
The damages assessed against the appellant in this case are in
part justified by the terms of the stipulation which it agreed to
execute, and in other respects are sustained by the concurring
decisions of the courts below.
In the absence of either cross-appeal by the government or
objection by the appellant company, the Court will not decide
whether the decree, instead of commanding unconditionally that the
company execute the stipulation agreed upon, should not have
provided, in the alternative, for ousting the company from the
reservation if it did not execute such stipulation within a certain
time.
218 F. 288 affirmed.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the court:
This is a suit by the United States to enjoin a railroad company
from constructing or operating its railroad through a national
forest reserve in Idaho unless it executes and files with the
Secretary of the Interior a stipulation required by that officer,
and to obtain damages for timber cut and destroyed and injury done
in the course
Page 244 U. S. 353
of the construction and operation of such railroad. In the
district court, 207 F. 164, and in the circuit court of appeals,
218 F. 288, the government prevailed. The railroad company
prosecutes this appeal.
The forest reserve had its inception in an order by the
Commissioner of the General Land Office, made March 21, 1905,
temporarily withdrawing a large body of public lands from all
disposal save under the mineral land laws. The order was made by
direction of the Secretary of the Interior with a view to the
creation of a permanent forest reserve, under § 24 of the Act of
March 3, 1891, c. 561, 26 Stat. 1095, if, after further
examination, that should receive the President's approval. The
permanent reserve was created November 6, 1906, by a proclamation
of the President. Between the temporary withdrawal and the
President's proclamation, the railroad company was incorporated
under the laws of Idaho and filed with the Secretary of the
Interior a copy of its articles of incorporation and due proofs of
its organization. During the same period, it also filed in the
local land office a map or profile of its proposed railroad through
the reserve, and after the President's proclamation, it filed in
that office a second and then a third map. The line of the proposed
road shown upon the second map differed widely from that upon the
first, and the line shown upon the third differed materially from
those upon the others. The first and second maps, neither of which
had been approved, were returned to the company as superseded by
the third. It was filed May 10, 1907. At that time, as also before
any map was filed, the regulations governing applications for
railroad rights of way in forest reserves required the applicant to
enter into a stipulation respecting the use and enjoyment of the
privilege, the prevention of forest fires, the compensation to be
made for timber cut or destroyed, and the duty of the company to
pay for any injury otherwise done to the reserve. 32 L.D. 481;
34
Page 244 U. S. 354
L.D. 583. One provision in the regulations said:
"No construction can be allowed on a reservation until an
application for right of way has been regularly filed in accordance
with the laws of the United States and has been approved by the
Department, or has been considered by this office or the Department
and permission for such construction has been specifically
given."
After filing the third map, the company sought permission from
the Forest Office to proceed with the construction of its railroad
in advance of the approval of its map, and, to that end, its
authorized representative, Mr. George R. Peck, in its behalf,
signed and filed in the Forest Office the following memorandum:
"Whereas, the Chicago, Milwaukee, & St. Paul Railway Company
of Idaho desires immediate permission from the Forest Service to
begin construction of the company's railroad in the Coeur d'Alene
National Forest, Idaho, I hereby promise and agree on behalf of the
company that it will execute and abide by stipulation and
conditions to be prescribed by the Forester in respect to said
railroad, such stipulation and conditions to be as nearly as
practicable like those executed by the company on January 18, 1907,
in respect to its railroad within the Helena National Forest,
Montana."
The Forester wrote upon the memorandum, and signed, an
indorsement, saying: "Approved and advance permission given to
construct, subject to ratification hereof by the company." At the
same time, a telegram was sent to the supervisor of the reserve,
saying:
"Advance permission given today St. Paul Railroad Company to
construct railroad through Coeur d'Alene, subject usual
stipulations. Supervise clearing and piling and scale all timber
cut."
There was no express ratification of the Peck memorandum, but
shortly after it was made, the company entered upon the reserve and
actively proceeded with the construction of its road, which it
would not have been permitted
Page 244 U. S. 355
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 stipulation.
Page 244 U. S. 356
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. C. 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.3d Sess.; Brainard
& 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
Page 244 U. S. 357
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,
240 U. S. 212;
Wilcox v.
Jackson, 13 Pet. 498,
38 U. S.
512-513;
Wolsey v. Chapman, 101 U.
S. 755,
101 U. S.
769-770.
We come, then, to the provision in the Appropriation Act of
March 3, 1899, chap. 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 1st
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
Page 244 U. S. 358
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
Page 244 U. S. 359
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.
Decree affirmed.
MR. JUSTICE McREYNOLDS took no part in the consideration or
decision of this case.