Opinion — Utah Power & Light Co. v. United States

UTAH POWER & LIGHT COMPANY v. UNITED

STATES.

UNITED STATES v. UTAH POWER & LIGHT COM-

PANY.

BEAVER RIVER POWER COMPANY v. UNITED

STATES.

UNITED STATES v. BEAVER RIVER POWER COM-

PANY.

NUNN ET AL. v. UNITED STATES.

UNITED STATES v. NUNN ET AL.

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF UTAH.

Nos. 202-207. Argued October 11, 12, 1916.—Decided March 19, 1917.

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 ac-

quired 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

EGA TFA BE YE ORE EE DE BRANES ENE HME Balt E HN 4) BE IES UTE ANS a OES IS Tee a i NT Log Oh RR RCA NT tt

390 OCTOBER TERM, 1916.

Syllabus. 243 U.S.

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 neces-

sary implication, superseded the provisions of Rev. Stats., §§ 2339

and 2340 (derived from the Acts of 1866 and 1870), in so far 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 power-houses, 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 irriga-

tion and call for the filing of maps, to be effective when approved

by the Secretary of the Interior; the Act of May 11, 1898, ec. 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 power-houses, 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 1, 1905, c. 288, 33 Stat. 628, makes no provision

for electric power-houses, 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 1, 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

Sa aS PLA a ala a ala »"

LR IRE LMT LE eee

UTAH POWER & LIGHT CO. v. UNITED STATES. 391

243 U.S. Argument for Utah Power & Light Co.

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, 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 Con-

gress, 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.

Mr. William V. Hodges and Mr. Graham Sumner, for

the Utah Power & Light Co.

Every State has the power of eminent domain as an

attribute of sovereignty. The essence of the power is

the right to take property for a public purpose. It depends

upon the jurisdiction of the sovereign over the property

Pree: reas ELIA RYE SE SEL REO NI EEF REN AA YM ET IRD TO be Ye A: 1 RD TR NE oe

392 OCTOBER TERM, 1916.

Argument for Utah Power & Light Co. 243 U.S.

and not its jurisdiction over the owner. Kohl v. United

States, 91 U. S. 367; Boom Co. v. Patterson, 98 U. S. 403;

Luzxton v. North River Bridge Co., 153 U. S. 525; Adiron-

dack Ry. Co. v. New York State, 176 U. S. 335, 346.

The rights and powers of the United States as the owner

of land within a State which is not used or needed for a

governmental purpose, are the same as those of other

owners of similar land within the same State. Section 3

of Article IV of the Federal Constitution does not create

or define the rights or powers of the United States as an

owner of land. It relates only to property owned by the

United States and confers upon Congress only such rights

and powers as are incidents of ownership. The nature and

scope of such rights and powers must be determined by

the general law of the State in which the land is located.

Const. Art. I, § 8, Par. 17; Art. IV, § 3; Broder v. Natoma

Water Co., 101 U. S. 274; Fort Leavenworth R. R. Co. v.

Lowe, 114 U. S. 525; Chicago, R. I. & P. Ry. Co. v. Mc-

Glinn, 114 U. 8. 542; Ward v. Race Horse, 163 U. 8. 504;

Camfield v. United States, 167 U. S. 518; Clark v. Clark,

178 U. S. 186; Butte City Water Co. v. Baker, 196 U. S.

119; Thompson v. Fairbanks, 196 U. S. 516; Kansas v.

Colorado, 206 U. S. 46, 87. The grant of a power to Con-

gress should not be held to impair the sovereign powers of

the States unless there is affirmative evidence that it was

so intended. The United States has no power to inter-

fere with the governmental operations of the States.

Houston v. Moore, 5 Wheat. 49; McCulloch v. Maryland,

4 Wheat. 316; Withers v. Buckley, 20 How. 84; Tezas v.

White, 7 Wall. 700; Collector v. Day, 11 Wall. 113; Pol-

lock v. Farmers’ Loan & Trust Co., 157 U. S. 429; South

Carolina v. United States, 199 U. S. 437.

Property of any State or municipality which is not used

or needed for a governmental purpose may be taxed by

the United States and may be taken and sold on execution.

Klein v. New Orleans, 99 U. 8. 149; Merryweather v. Gar-

I ee eI CRT Ie ONL COE OTR MIN FET FER OEE ONG _

UTAH POWER & LIGHT CO. v. UNITED STATES. 393

243 U.S. Argument for Utah Power & Light Co.

rett, 102 U.S. 472; New Orleans v. Morris, 105 U. S. 600;

New Orleans v. Louisiana &c. Co., 140 U. S. 654; Werlein

v. New Orleans, 177 U. 8. 390; South Carolina v. United

States, 199 U. S. 437.

The immunity of the United States or any other sov-

ereign from interference extends only to property which is

used or needed for a governmental purpose. The Davis,

10 Wall. 15; The Fidelity, 8 Fed. Cases, 1189, Case No.

4758; Long v. The Tampico, 16 Fed. Rep. 491; Rees v.

United States, 134 Fed. Rep. 146.

The mere holding of land not used or needed for a gov-

ernmental purpose is not a sovereign or governmental

function of the United States. The taking of such land

by a State in the exercise of its power of eminent domain

does not interfere with the governmental functions of the

United States. The purely proprietary interests of the

United States should yield to the sovereign powers and

public needs of the States.

The authorities sustain the power of eminent domain

of the States with respect to land of the United States

which is not used or needed for a governmental purpose.

United States v. City of Chicago, 7 How. 185; United States

v. Railroad Bridge Co., 6 McLean, 517; U. P. R. Co. v.

B. & M.R. Co.,3 Fed. Rep. 106; Illinois Central R. R. Co. v.

C.B.& N.R.R.Co., 26 Fed. Rep. 477,478; U. P.R. R.Co.

v. Leavenworth, N. & S. Ry. Co., 29 Fed. Rep. 728; Jones

v. F.C. & P. R. Co., 41 Fed. Rep. 70, 72; Camp v. Smith,

2 Minnesota, 131; State v. Bachelder, 5 Minnesota, 178,

180; Simonson v. Thompson, 25 Minnesota, 450, 453;

Burt v. Mechanics Ins. Co., 106 Massachusetts, 356, 360;

Lewis on Eminent Domain, 3d. ed., Vol. II, § 414.

The failure of Congress to provide for actions to con-

demn land of the United States does not affect the sub-

stantive rights or powers of the States. The United

States by bringing this suit has submitted to the juris-

diction of the court. When a public service corporation

—_— LEE ROLE IES CLE RIE LIES NE ELE LENE ALLIS TOOTS ELEN HATS POU Se A NEY SER SN EIEIO

394 OCTOBER TERM, 1916.

Argument for Utah Power & Light Co. 243 U.S.

constructs its plant upon the land of another without con-

demnation or agreement it will not be ousted at the suit

of the owner, but will merely be compelled to pay damages

measured by the reasonable value of the land. Roberts v.

Northern Pacific R. R. Co., 158 U. 8. 1; Northern Pacific

R. R. Co. v. Smith, 171 U. S. 260; Donohue v. R. R. Co.,

214 U.S. 499.

The land involved in this suit was vacant, unoccupied,

unappropriated land, open to entry and settlement under

the general land laws. These laws amounted to a declara-

tion by Congress that the land was not needed for any

governmental purpose. The reservation of this land later

as a national forest did not amount to a declaration that it

was needed for a governmental purpose.

The State of Utah has the power of eminent domain

for the purpose of developing hydro-electric power and

selling the same to the public and has authorized the de-

fendant to use the land involved in this action for that

purpose. Act of Territory of Utah, approved Feb. 20,

1880, § 15; Rev. Stat. of Utah, § 1288x21; Clark v. Nash,

198 U.S. 361; Strickley v. Highland &c. Co., 200 U.S. 527;

Ofield v. N. Y., N. H. & H.R. R. Co., 203 U. S. 372;

Mt. Vernon &c. Co. v. Alabama Inter-State Power Co.,

240 U. S. 30.

The various acts of Congress recognize that rights of

way on the public land for the storage and conveyance of

water can be acquired under the local customs, laws and

decisions of courts without the permission of the Secre-

tary of the Interior. Acts of July 26, 1866, 14 Stat. 251;

July 9, 1870, 16 Stat. 217; Rev. Stats., §§ 2339, 2340; Acts

of March 3, 1891, 26 Stat. 1101; Jan. 21, 1895, 28 Stat.

635; May 14, 1896, 29 Stat. 120; May 11, 1898, 30 Stat.

404; Feb. 15, 1901, 31 Stat. 790; Reclamation Act, 1902,

32 Stat. 390; Forest Reserve Act, 1905, 33 Stat. 628; Jen-

nison v. Kirk, 98 U.S. 453; Broder v. Natoma Water Co.,

101 U. S. 274; United States v. Rio Grande Irrigation Co.,

PRLTES SL LLL LL ALE EGE IE NPN AE —

UTAH POWER & LIGHT CO. », UNITED STATES. 395

243 U.S. Argument for Utah Power & Light Co.

174 U. S. 690, 704; Gutierres v. Albuquerque Land Co., 188

U.S. 545, 553.

Sections 2339 and 2340, Rev. Stats., were not repealed

or superseded by the subsequent acts of Congress. Ras-

mussen v. Blush, 83 Nebraska, 678; 85 Nebraska, 198;

United States v. Utah Power & Light Co., 209 Fed. Rep.

554; Cottonwood Ditch Co. v. Thom, 39 Montana, 115, 118;

Lynch v. Irrigation Co., 131 Pac. Rep. 829; Pecos &c. Co.,

15 L. D. 470 (1892); Cache County Canal Co., 16 L. D.

192 (1893); Kings River Power Co. v. Knight, 32 L. D. 144

(1903) ; Lincoln County Co. v. Big Sandy Co., 32 L. D. 463

(1904).

The Act of February 15, 1901, did not supersede or

repeal the Act of March 3, 1891. Lynch v. Irrigation Co.,

131 Pac. Rep. 829; United States v. Lee, 15 N. M. 382;

United States v. Port Neuf &c. Co., 213 Fed. Rep. 601;

Regulations under Act of 1901, 31 L. D. 13; Lincoin County

Co. v. Big Sandy Co., 32 L. D. 463; Regulations under Act

of 1905, 33 L. D. 451; 33 L. D. 564; Regulations under

Act of 1901, 34 L. D. 228; 35 L. D. 154; 36 L. D. 18; 37

L. D. 338; Sierra Ditch and Water Co., 38 L. D. 547;

DeWeese v. Henry Investment Co., 39 L. D. 27; California-

Nevada Canal Co., 40 L. D. 380; Instruction, 41 L. D. 10;

Malone Land & Water Co., 41 L. D. 138; H. H. Tompkins,

41 L. D. 516; Joseph Williams, 42 L. D. 111; Manti

Livestock Co., 42 L. D. 217; George B. McFadden, 42 L. D.

562; Boughner v. Magenheimer et al., 42 L. D. 595.

There is no obvious repugnancy between §§ 2339 and

2340, Rev. Stats., and the later acts of Congress.

The defendant has not violated any lawful regulations

of the Secretary of the Interior or the Secretary of Agri-

culture, and has the right under the Acts of 1901 and 1905

to maintain and operate its structures. ‘‘ Municipal pur-

poses”’ as used in the Act of 1905 includes all purposes for

which a municipality may use water, and is coextensive

with public purposes.

——— EGA AEN LAR ETN RLS SAN NS RRR SOREN HEL RP REA AR RRR AI. :

OCTOBER TERM, i9ié.

Argument for Beaver River Power Co. 243 U.S.

A sovereign is with respect to its property or proprietary

interests subject to the principles of equitable estoppel

in the same manner and under the same circumstances

as a private individual or corporation. Indiana v. Foulk,

11 Fed. Rep. 398; United States v. Willamette &c. Wagon-

Road Co., 54 Fed. Rep. 807; Michigan v. Railroad Co.,

69 Fed. Rep. 116; Walker v. United States, 139 Fed. Rep.

409; Mountain Copper Co. v. United States, 142 Fed. Rep.

625; Iowa v. Carr, 191 Fed. Rep. 257; Iowa v. Trust Co.,

191 Fed. Rep. 270; Hemmer v. United States, 204 Fed.

Rep. 898. It makes no difference in this connection

whether the defendant has or has not the power of eminent

domain. N. Y. City v. Pine, 185 U. 8. 93; West & Co. v.

Octoraro Water Co., 159 Fed. Rep. 528; McCann v. Chasm

Power Co., 211 N. Y. 301.

The United States may be deprived of rights or interests

in land under the principles of equitable estoppel. Jen-

mison v. Kirk, 98 U. 8. 453; Broder v. Natoma Water Co.,

101 U. 8. 274.

Mr. Clyde C. Dawson and Mr. Frank H. Short, with

whom Mr. Frank J. Gustin, Mr. Charles A. Gillette, Mr.

Dean F. Brayton and Mr. H. R. Waldo were on the

briefs, for the Beaver River Power Company and Nunn

et al.

The power to dispose of the territory or other property

belonging to the United States should not be so construed

as to interfere with the governmental powers of any

State. The admission of a new State into the Union,

tpso facto, conveys to that State such jurisdiction and in-

terest, over all the territory within its borders, as is es-

sential to the exercise of its proper functions, under the

Constitution, upon an equal footing with the original

States. Pollard’s Lessee v. Hagan, 3 How. 212, 218 et seq.;

Veazie v. Moor, 14 How. 568, 572, 573; Withers v. Buckley,

20 How. 84, 92, 93; Escanaba Company v. Chicago, 107

PRE, nO TEP OR PMO ee ———

S im ii hts Sl Ee I ie ay eS ° ? om

UTAH POWER & LIGHT CO. ». UNITED STATES. 397

243 U.S.

Argument for Beaver River Power Co.

U. S. 678, 687; Huse v. Glover, 119 U. S. 548, 548, 549;

Ward v. Race Horse, 163 U.S. 504, 514; Sands v. Manistee

River Improvement Co., 123 U.S. 258, 296.

The State has a right, directly or through its authorized

agencies, to establish rights of way or easements of a

local public nature over vacant federal lands. United

States v. Railroad Bridge Co., 6 McLean, 517, 27 Fed. Cas.

692, 693.

The title to lands of the United States under navigable

waters within its territories passes to the new State in

which such lands are situated.

The jurisdiction of the State is not prejudiced by reason

of the ownership by the federal government of lands situ-

ated within the borders of the State and not reserved for

any of the federal uses enumerated in the Constitution.

People v. Shearer, 60 California, 658; United States v.

Cornell, 2 Mason, 60; Woodruff v. North Bloomfield Co.,

18 Fed. Rep. 772; Mobile v. Eslava, 16 Pet. 234, 253;

Illinois R. R. Co. v. Illinois, 146 U. 8. 434; New Orleans v.

United States, 10 Pet. 662, 736; Coyle v. Smith, 221 U. S.

559, 566; South Carolina v. United States, 199 U. S. 437;

Fort Leavenworth R. R. Co. v. Lowe, 114 U.S. 525.

The laws of the State governing the appropriation and

use of water for all purposes, except interstate and foreign

commerce, are exclusive. They form part of the internal

police of the State and are paramount to any proprietary

interest or legislative power of the federal government.

Jennison v. Kirk, 98 U.S. 453, 458; Broder v. Water Com-

pany, 101 U. S. 274, 276; Gutierres v. Albuquerque, 188

U.S. 545; Kansas v. Colorado, 206 U.S. 46; Hudson County

Water Co. v. McCarter, 209 U.S. 349, 356; United States v.

Chandler-Dunbar Co., 229 U. S. 53, III Documentary

History of the Constitution, 306, 307, 308, 314; Federalist,

Nos. 78, 32, 39, 45; Illinois v. Economy Light & Power Co.,

234 U.S. 497; Utah Session Laws, 1880, 40; ib., 1896, 316;

ib., 1897, 223.

a LEI LEILA IE BBG LIE EPO SELENE ELLIE: GLEE LUIS, RYN i LS NS Rt: 25 AAA NERS EE

OCTOBER TERM, 1916.

Argument for Beaver River Power Co. 243 U. 8.

The use of water for beneficial purposes may be de-

clared by the laws of the State to be a public use.

General acts of Congress intended to aid and encourage

the development of the country should be liberally con-

strued so as to effectuate their purpose.

The Acts of 1866 and 1870, now §§ 2339 and 2340,

Rev. Stats., are to be construed as recognizing and con-

firming, and not as granting, rights of way over the

public land for the beneficial use of water. Such rights are

acquired by appropriation under the local laws. Jennison

v. Kirk, 98 U. 8. 453; Broder v. Water Co., 101 U.S. 274;

Kansas v. Colorado, 206 U. S. 46, 87; Hough v. Porter,

51 Oregon, 318; Boquillas Land & Water Co. v. Curtis,

213 U. S. 339, 344.

The Act of March 3, 1891, 26 Stat. 1095, does not repeal

§§ 2339 and 2340. All beneficial uses of water are covered

by said act; and rights of way under it may be reserved

by the filing and approval of maps, or may be acquired

by definite location and construction alone. In this re-

spect the act is like the general railroad right-of-way act

of 1875. Jamestown R. R. Co. v. Jones, 177 U. S. 125;

Stalker v. Oregon Short Line R. R. Co., 225 U. 8. 142;

Minidoka & S. W. Ry. Co. v. United States, 235 U.S. 211;

Cache Valley Canal Co., 16 L. D. 192; Lincoln County Co.

v. Big Sandy Co., 32 L. D. 27, 33.

Regulations of the departments which are inconsistent

with the acts of Congress, or which assume legislative

powers, are void.

The easements in question are permanent in nature,

are used in serving the public, and must be continued.

Upon principles of equitable estoppel a license cannot be

revoked after expenditures are made thereon by the li-

censee, when the use is in its nature permanent [citing

numerous cases].

The regulations of the Departments of the Interior and

of Agriculture, which are sought to be enforced, are un-

LTENT RRL A SEI ESM IRIN PEAT ELEN ELI —

UTAH POWER & LIGHT CO. ». UNITED STATES. 399

243 U.S. Argument of Amici Curia.

authorized by the Act of February 15, 1901, 31 Stat. 790,

or any other act of Congress, are attempts at the exercise

of legislative power, and are null and void.

The power of the United States by its own laws to pro-

tect its property from private waste or trespass does not

give it a general jurisdiction over vacant lands within a

State.

Section 2339, Rev. Stats., is not inconsistent with and

has not been repealed by any subsequent congressional

legislation, including the Acts of May 14, 1896, and Feb-

ruary 15, 1901. Repeals by implication are not favored.

The Act of 1901, considered as a substitute for other

laws and as providing the only method under which rights

of way could be obtained, acquired or used over the public

lands for the purposes indicated, would be unconstitu-

tional.

Mr. Assistant Attorney General Knaebel for the United

States.

By leave of court, a brief was filed by the Attorneys

General of the States of Utah, Colorado, Idaho, Nevada

and Nebraska, and Messrs. Frank H. Short, Clyde C.

Dawson and S$. A. Bailey, special counsel, as amici curiae:

The act of Congress admitting a State operates as a

grant of the title to federal lands submerged by navigable

waters, subject to the commercial power of the federal

government. Likewise the jurisdiction over its internal

affairs, transferred to the new State by virtue of the act of

admission, carries with it the right to establish, control

and regulate local public uses and facilities over the vacant

public lands not subjected to federal jurisdiction for the

purposes enumerated or implied in the Constitution. Even

the grant of a privilege carries with it the rights to which

the privilege is attached and without which its exercise

would be impossible,

400 OCTOBER TERM, 1916.

Argument of Amici Curie. 243 U.S. *

The power of the United States to protect its property

by its own legislation from private trespass and waste does

not, and cannot, imply a general police power over the

vacant public lands within a State.

The section in the Constitution relating to the admission

of new States, and the concomitant disposition of the

public lands, excludes, by its express terms, any construc-

tion by which the United States may claim any additional

governmental or police powers within the States in which

such public land is situated.

The existence of easements of a public nature over

vacant federal lands does not interfere with the disposal

of such lands by the federal government, but is in aid

thereof; and the claim made by the States of the right to

control the creation and continuance of such easements,

within their respective territorial jurisdictions, does not

conflict with the power of Congress ‘to dispose of and

make all needful rules and regulations respecting the

territory or other property belonging to the United

States.” Idaho-Iowa Lateral & Reservoir Co. v. Fisher,

27 Idaho, 695; Homer E. Brayton, 31 L. D. 364, 365;

Crane Falls Co. v. Snake River Co., 24 Idaho, 77.

The ninth section of the Act of July 26, 1866 (Rev.

Stats., § 2339), was an express recognition of the right of

the States to regulate the appropriation and use of water

for all purposes except navigation, and of the subordina-

tion of the proprietary interest of the United States in its

vacant public lands to that right. Broder v. Water Com-

pany, 101 U. 8. 274, 275; Butte City Water Co. v. Baker,

196 U.S. 119; Stowell v. Johnson, 7 Utah, 215.

Subsequent acts of Congress on the subject not only

can, but should, be construed consistently with this right

of the States so recognized by the Act of July 26, 1866. As

an act intended to encourage the development of the

country, it should be liberally construed.

The Act of March 3, 1891, 26 Stat, 1095, and acts

UTAH POWER & LIGHT CO. v. UNITED STATES. 401

243 U.S. Argument of Amici Curie.

supplemental thereto, were intended to encourage the

appropriation of water for beneficial purposes by provid-

ing for the reservation of rights of way over the public

land in advance of construction and use, and were not

intended to limit or modify the authority and operation

of the local laws in respect thereof.

The Acts of May 14, 1896, 29 Stat. 120, February 26,

1897, 29 Stat. 599; May 11, 1898, 30 Stat. 404; February 15,

1901, 31 Stat. 790, and § 4 of the Act of February 1, 1905,

33 Stat. 628, were intended to correct erroneous rulings

by the Land Department under the Act of March 3, 1891,

supra, and not to supersede, modify or repeal the ninth

section of the Act of July 26, 1866, nor to interfere with

the operation of the local laws on the subject of the bene-

ficial use of water.

The rights of way mentioned in the Act of February 15,

1901, supra, are all permanent in their nature; and from

the body of the act it is plain that the only one which is

subject to purchase and termination after construction is

the right of way for telephone and telegraph lines, and that

this can only be terminated by paying the valuation to be

fixed in accordance with the prior statute referred to in

the act. The administration of the Act of February 15,

1901, remains, therefore, in the hands of the Secretary

of the Interior and was not transferred to the Secretary of

Agriculture in forest reservations by the Act of February 1,

1905.

The regulations of the Departments of the Interior and

of Agriculture, assuming entire control over the appropria-

tion and use of water on the public domain, sought to be

enforced in this and similar cases, are unauthorized by

any Act of Congress, and are unconstitutional and void.

The laws and policy of a State may be framed and shaped

to suit its conditions of climate and soil. The State has

the police power to provide for its internal development

and to this end to declare what uses are public within its

402 OCTOBER TERM, 1916.

Opinion of the Court. 243 U.S.

territorial jurisdiction and to regulate the same. Clark

v. Nash, 198 U.S. 361; Offeld v.N. Y.,N.H. & H.R. Co.,

203 U. S. 372, 377; Strickley v. Highland Boy Gold Min.

Co., 200 U. S. 527; Bacon v. Walker, 204 U. S. 311, 315.

The claims of the federal government, in this and similar

cases, are devoid of equity. Woodruff v. Trapnall, 10

How. 190, 207; Indiana v. Milk, 11 Fed. Rep. 389, 397.

Mr. John R. Dizon, by leave of court, filed a brief as

amicus curie.

Mr. William B. Bosley, by leave of court, filed a brief

as amicus curie.

Mk. 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, with-

out its permission, of certain of its lands in forest reser-

vations in Utah as sites for works employed in generating

and distributing electric power, and to secure compensa-

tion for such occupancy and use in the past. The reserva-

tions 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 houses 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

z EP OSL IELTS IIE SE RE OE INTE CY aaa sr Tae SIS AES Core Sac RD TRS PI Rn uct Sy LER eR Ais

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UTAH POWER & LIGHT CO. ». UNITED STATES. 403

243 U.S. Opinion of the Court.

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 inci-

dent to or in aid of any other business in which the de-

fendant 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 seek-

ing 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 or license from either.

But, notwithstanding this, they assert that they have ac-

quired 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 con-

form 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 Fed. Rep. 554, but refused the Govern-

ment’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

SOROS ARAM RIN NY ety AE 72 EL FERRE REO I LO NHR SANSA BRET LAU ARS AEM ET ATE ONG TINS ee ee

404 OCTOBER TERM, 1916.

Opinion of the Court. 243 U. &.

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) com-

mit 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, con-

gressional 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 belong-

ing 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 _

acquire 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; Van Brocklin v.

Tennessee, 117 U.S. 151, 168; Wisconsin Central R. R. Co.

v. Price Co., 133 U. S. 496, 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 pro-

hibited and made punishable various acts calculated to

be injurious to them or to prevent their use in the way in-

tended, and has provided for and controlled the acquisi-

tion 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 legis-

lation as controlling, and in the instances where it has been

questioned in this court its validity has been upheld and

UTAH POWER & LIGHT CO. ». UNITED STATES. 405

243 U.S. Opinion of the Court.

its supremacy over state enactments sustained. Wilcox

v. Jackson, 13 Pet. 498, 516; Jourdan v. Barrett, 4 How.

168, 185; Gibson v. Chouteau, 13 Wall. 92, 99; Camfield

v. United States, 167 U. S. 518; Light v. United States,

220 U. S. 523, 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 in-

volve 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 appli-

cation 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

406 OCTOBER TERM, 1916.

Opinion of the Court. 243:'U. 8.

to their needs. It was limited to ditches, canals and reser-

voirs, and did not cover power houses, 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 purposes 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 deait 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, c. 561, 26 Stat. 1095, and the Act of May 11,

1898, c. 292, 30 Stat. 404. The first relate to rights of

way for ditches, canals and reservoirs for the purpose of

irrigation, and, differing from §§ 2339 and 2340, call for

the filing of maps of location which are to be effective

GEOL ELLER IGN PLONE LAR ET

Pe eS Pee ot

UTAH POWER & LIGHT CO. ». UNITED STATES. 407

243 U.S. Opinion of the Court.

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 ! conclusively show that it was adopted as a com-

plete 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,? etc., for any one or more

of several purposes, including the generation and dis-

tribution 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

1 Report Secretary of the Interior, 1899, pp. 6-7; House Report,

1850, 56th Cong., Ist Sess.; Cong. Rec., 56th Cong., Ist Sess., 6762;

ibid., 56th Cong., 2d Sess., 2075.

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.

a PELL LUE LER EEE GST I EON MILES PEE HBS LAS i 8 RA

408 OCTOBER TERM, 1916.

Opinion of the Court. 243 U.S.

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 power houses, transmission lines or subsidi-

ary 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 dis-

tant 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, com-

pleted 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

G

4 |

Pisce serves me OP NOOR Ran) LISS ORLA STN FRE HRT STSRON TB RS NAN RESEARCH SATII A OO EU A —

UTAH POWER & LIGHT CO. ». UNITED STATES. 409

243 U.S. . Opinion of the Court.

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, 49; Hart v. United States, 95 U. 8. 316; Pine River

Logging Cu. v. United States, 186 U.S. 279, 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, 735;

Steele v. United States, 113 U. S. 128, 134; United States

v. Beebe, 127 U. S. 338, 344; United States v. Insley, 130

U. S. 263, 265-266; United States v. Dalles Military Road

Co., 140 U. S. 599, 682; United States v. Michigan, 190

U. S. 379, 405; State ex rel. Lott v. Brewer, 64 Alabama,

287, 298; State v. Brown, 67 Illinois, 435, 438; Den v.

Lunsford, 20 N. Car. 407; 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 en-

force 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 re-

move a cloud from it. Causey v. United States, 240 U.S.

399, 402.

By their answers the defendants assert that some of the

410 OCTOBER TERM, 1916.

Opinion of the Court. 243 U. 8.

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. 8S. 506, and Light v. United

States, ibid, 523. If any of the regulations go beyond

what Congress can authorize or beyond what it has au-

thorized, those regulations are void and may be disre-

garded; 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 in-

valid, and this was conceded in argument. The defend-

ants 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 situa-

tion. In this they have been mistaken, and so are occupy-

ing 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 ap-

plicable 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

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az REALS PINE LIARS RIE MIE AY ete NR TNE HL AR OR

UTAH POWER & LIGHT CO.v. UNITED STATES. 411

243 U.S. Opinion of the Court.

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 Fed. Rep. 62, 69.

As the defendants have been occupying and using re-

served 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 as-

sented 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 compen-

sation for the occupancy and use in the past, and in that

respect they must be reversed.

It is so ordered.