the Interior of a canal company's maps Kern River Co. (C. C. A. Cal.) 264 F. of location, filed as the basis of a right of way across public lands. U. S. v. 412. § 4936. (Act March 3, 1891, c. 561, § 20.) Application of act to existing and future canals; forfeiture of rights, etc. Enforcement of forfeiture.-In the absence of some legislative direction to the contrary, the Attorney General, under his general authority, in respect of the pleas of the United States and the litigation which is necessary to establish and enforce its rights, may institute and prosecute a suit to forfeit a grant of a right of way for breach of the implied condition that it should be used for irrigation purposes, though Congress has neither declared a forfeiture nor directed suit to be brought. Kern River Co. v. U. S., 42 S. Ct. 60, 257 U. S. 147, 66 L. Ed. 175, modifying decree (C. C. A. Cal.) U. S. v. Kern River Co., 264 F. 412. Act March 3, 1891 (Comp. St. § 4992), requiring suits to vacate and annul patents to be brought within six years, does not apply to a suit to forfeit a grant of a right of way under this act, for breach of a condition subsequent. Id. The District Court of the United States will entertain a suit by the United States to declare a right of way and easement for the storage of water, applied for under this act, for feited for failure to construct or complete the reservoir described in the application. Union Land & Stock Co. v. U. S. (C. C. A. Cal.) 257 F. 635. The Attorney General had authority to bring suit in the name of the United States to declare forfeiture of a right of way and easement for the storage of water, applied for pursuant to this act, the applicant having failed to construct the reservoir, as shown by his application as approved by the Secretary of the Interior. Id. In suit by the United States to declare forfeited a right of way and easement for the storage of water, applied for pursuant to Act March 3, 1891, for failure to construct the reservoir as shown by the application as approved by the Secretary of the Interior, to declare the forfeiture, it was not necessary to prove that a dam higher than the one constructed by defendant applicant could have been practically used, or that there was sufficient water to have filled a larger reservoir; the contrary being for applicant to show, if true. Id. § 4937a. (Act March 1, 1921, c. 93.) Right of way to canal and ditch companies for irrigation purposes; additional grants. In addition to the rights of way granted by sections 18, 19, 20, and 21 of the Act of Congress entitled "An Act to repeal timberculture laws, and for other purposes," approved March 3, 1891 (Twenty-sixth Statutes, page 1095), as amended by the Act of Congress entitled "An act to amend the Irrigation Act of March 3, 1891 (Twenty-sixth Statutes, page 1095, section 18), and to amend section 2 of the Act of May 11, 1898 (Thirtieth Statutes, page 404)," approved March 4, 1917 (Thirty-ninth Statutes, page 1197), and, subject to the conditions and restrictions therein contained, the Secretary of the Interior is authorized to grant permits. or easements for not to exceed five acres of ground adjoining the right of way at each of the locations, to be determined by the Secretary of the Interior, to be used for the erection thereon of dwellings or other buildings or corrals for the convenience of those engaged in the care and management of the works provided for by said Acts: Provided, That this Act shall not apply to lands. within national forests. (41 Stat. 1194.) This is an act entitled "An act to amend acts to permit the use of the right of way through the public lands for tramroads, canals, and reservoirs, and for other purposes," cited above. § 4938. (Act May 11, rights of way may be used for 1898, c. 292, § 2, as amended, Act March 4, 1917, c. 184, § 2.) Right of way for water transportation, domestic purposes, or development of power. Development of electric power.-Under this section, providing that rights of way for ditches, etc., under Act March 3, 1891, §§ 18-21 (Comp. St. §§ 4934-4937), "may be used for purposes of a public nature; and said the development of power, as subsidiary to the main purpose of irrigation," such a right of way can only be used for the transmission and sale of electric power when subsidiary to irriga tion, whether such use is a use for "purposes of a public nature" or for "development of power," especially in view of the legislative history of the act of 1898 and its construction by the Land Office. Kern River Co. v. U. S., 42 S. Ct. 60, 257 U. S. 147, 66 L. Ed. 175, modifying decree (C. C. A. Cal.) U. S. v. Kern River Co., 264 F. 412. Under Act March 3, 1891, § 18 § 4943. (Act Jan. 21, 1895, c. 37, 292, §1.) Right of way for Development of electric power.-Under Act March 3, 1891, § 18 (Comp. St. § 4934), granting a right of way through the public lands to any canal company formed for the purpose of irrigation, and this act, a right of way for a canal for the development of power can only (Comp. St. § 4934), granting a right of way through the public lands to any canal company formed for the purpose of irrigation, and this act, a right of way for a canal for the development of power can only be obtained when such development is subsidiary to the main purpose of irrigation. U. S. v. Kern River Co. (C. C. A. Cal.) 264 F. 412. as amended, Act May 11, 1898, c. tramroads, canals, or reservoirs. be obtained when such development is subsidiary to the main purpose of irrigation. U. S. v. Kern River Co. (C. C. A. Cal.) 264 F. 412. § 4944. (Act May 14, 1896, c. 179, power companies. Cited without definite application, Kern River Co. v. U. S., 42 S. Ct. 60, 257 U. S. 147, 66 L. Ed. 175; U. S. v. Kern River Co. (C. C. A. Cal.) 264 F. 412; 32 Op. Atty. Gen. 374. § 4946. (Act Feb. 15, 1901, c. 372.) Rights of way for electrical plants. Licenses and permits to use land and charges therefor.-Permits granted by the Secretary of the Interior to a power company to construct and maintain an electric power transmission line across a certain Indian reservation, under this section, and to construct telephone lines across the reservation, under Act March 3, 1901, § 3 (Comp. St. §§ 4191, 4240), under which the company had constructed and had for many years maintained a costly plant were not terminated by the issuance of patents to persons who had made homestead filings on land within the reservation, across which the power and telephone lines had been constructed with notice of the existence of such transmission and telephone lines, in the absence of revocation of permits by the Secretary of the Interior. Swendig v. Washington Water Power Co. (C. C. A. Idaho) 281 F. 900. In view of Comp. St. §§ 3530, 3522, revocable licenses under the act of February 15, 1901 (31 Stat. 790), or easements under the act of March 4, 1911 (36 Stat. 1253), may be granted for the development and transmission of electric power upon public lands situate in Alaska, 30 Op. Atty. Gen. 387. Under Comp. St. §§ 5126, 4947, 4948, and this section, the Crescent Mining Co., a corporation organized and existing under the laws of Canada, is not entitled to a water power permit within the Okanogan National Forest in the State of Washington. 30 Op. Atty. Gen. 581. Assignments.-On the passage of the Federal Water Power Act of June 10, 1920 (41 Stat. 1063), the authority of the Secretary of Agriculture to approve transfers or assignments of water power permits issued under this section, ceased and determined, and a like authority was immediately vested in the Federal Power Commission. 32 Op. Atty. Gen. 525. Cited without definite application, U. S. v. Kern River Co. (C. C. A. Cal.) 264 F. 412; 32 Op. Atty. Gen. 374. § 4947. (Act Feb. 1, 1905, c. 288, § 4.) Rights of way for dams, etc., for municipal, mining, and milling purposes. See Langdon v. City of Walla Walla (Wash.) 193 P. 1. Water permit.-Under Comp. St. §§ 5126, 4946, 4948, and this section, the Crescent Mining Co., a corporation organized and existing under the laws of Canada, is not entitled to a water power permit within the Okanogan National Forest in the State of Washington. 30 Op. Atty. Gen. 581. Grant of right of way where intermediate purpose is the generation and use of electricity.-Under this section, a right of way may be granted through the national forests when the objective is to employ the right of way in a process of "milling and reduction of ores," and it is unobjectionable that the intermediate purpose is to generate and use electricity. 30 Op. Atty. Gen. 358. § 4948. (Act March 4, 1911, c. 238.) Rights of way for electrical poles and lines, etc. Licenses or easements for development of electrical power.-In view of Comp. St. §§ 3530, 3522, revocable licenses under the act of February 15, 1901 (U. S. Comp. St. 1916, § 4946) or easements under this section, may be granted for the development and transmission of electric power upon public lands situate in Alaska. 30 Op. Atty. Gen, 387. Water permit to Canadian corporation.-Under Comp. St. §§ 5126, 4946, 4947, and this section, the Crescent Mining Co., a corporation organized and existing under the laws of Canada, is not entitled to a water power permit within the Okanogan National Forest in the State of Washington. 30 Op. Atty. Gen. 581. CHAPTER TEN D-GRANTS OF SWAMP AND OVERFLOWED LANDS Sec. 4958. Grant of swamp and overflowed lands to certain States to aid in construction of levees, etc. 4959. Lists and plats of lands for governors of States. 4960. Legal subdivisions mostly wet and unfit for cultivation. 4962. Patents to issue for swamp lands to purchasers and locators, prior to issuing of patents to States, etc. Sec. 4969a. Sale of erroneously designated water-covered areas in Arkansas. 4969b. Same; preference right to purchase; application; time for and proofs accompanying. 4969c. Same; appraisal. 4969d. Same; payment of appraisal price; issue of patent; disposition of proceeds. 4969e. Same; rules and regulations. § 4958. (R. S. § 2479.) Grant of swamp and overflowed lands to certain States to aid in construction of levees, etc. See Tuesburg Land Co. v. State (Ind. App.) 131 N. E. 530. 1. Purpose and policy of government. -While the Congress of the United States in admitting Louisiana into the Union retained title to all waste lands then existing and the state accepted the reservation as a condition of its admission, the federal government did not and could not retain title to lands not existing as such at the time, lands since formed by river silt and sand. State ex rel. Board of Com'rs of Atchafalaya Basin Levee Dist v. Capdeville (La.) 83 So. 421, certiorari denied Atchafalaya Land Co. v. Same, 40 S. Ct. 346, 252 U. S. 581, 64 L. Ed. 727. 2. Nature of grant.—Where, through mistake in the Land Department, lands which were claimed by the state of Or egon as swamp lands under this act, and Act March 12, 1860, were erroneously patented as place lands under the grant made to Northern Pacific Railroad by Act July 2, 1864, such patents carried the legal title, but the United States was entitled to a reconveyance, and in equity remained the true owner. Northern Pac. Ry. Co. v. McComas, 39 S. Ct. 546, 250 U. S. 387, 63 L. Ed. 1049, reversing judgments (Or.) McComas v. Northern Pac. Ry. Co., 162 P. 862 and 161 P. 562. Under this act, when land was identified and a patent issued to the state by the United States in 1895, the title so transferred to the state related back to the year 1850, and inured to the benefit of the state and its successors in interest for all purposes as if the legal title to the land finally identified had passed at the date of such act. San Joaquin & Kings River Canal & Irrigation Co. v. Worswick (Cal.) 203 P. 999, certiorari denied 42 S. Ct. 382, 258 U. S. 625, 66 L. Ed. 797. Under Laws 1855, c. 610, and amendments, Acts 1905, c. 5377, and amendments, and Acts 1913, c. 6456 (Comp. Laws 1914, §§ 635s-635z), and amendments the five state officers acting as trustees of the internal improvement fund are charged with the administration of the state trust fund, consisting of the swamp and overflowed lands, and other lands granted to the state by Congress, the trustees having power to dispose of the land and to apply the proceeds thereof or lands in kind to drainage and other expressed purposes, subject to such limitations and regulation as may be prescribed by law for the execution of the statutory trust which is state-wide in extent. Everglades Sugar & Land Co. v. Bryan (Fla.) 87 So. 68. The obligation of the state to use the proceeds of the swamp and overflowed lands for drainage purposes is to the United States, and not to those who purchase the lands from state agencies. Id. The Legislature and the state officers having charge of the internal improve Even if purchasers of swamp and overflowed lands have justiciable rights in the administration of the internal improvement fund, because of the purchase of lands from the trustees of the fund, such rights cannot stay the exercise by the state of its sovereign governmental powers to assess the lands for special purposes that are beneficial to the lands and conserve the general welfare. Id. Purchasers of swamp and overflowed land take with notice that there is no provision of law for paying taxes on state school lands, and that 25 per cent. of the sales of public lands constitute a part of the inviolable state school fund. Id. In the purchase of swamp and overflowed lands that have not been conveyed, the vendees take them with knowledge or notice that the lands described are to be located by an authorized survey, and with notice that all property in the state is acquired and held subject to the due exercise by the state of its police power. Id. This act in itself passed to the state only an inchoate title, and not until the lands are listed and patent under the act can the title become perfect. South Florida Farms Co. v. Goodno (Fla.) 94 So. 672. 3. Subsequent disposal of lands by government. The pendency of a claim by the state of Oregon under the swamp land grant made by this act, and Act March 12, 1860, to lands which would otherwise pass to the Northern Pacific Railroad as parts of odd-numbered sections within the place limits of land grant made by Act July 2, 1864, prevented such lands from passing under the grant as place lands, regardless of whether the swamp land claim was well grounded. Northern Pac. Ry. Co. v. McComas, 39 S. Ct. 546, 250 U. S. 387, 63 L. Ed. 1049, reversing judgments (Or.) McComas V. Northern Pac. Ry. Co., 162 P. 862 and 161 P. 562. 6. Lands subject to grant.-Swamp and overflowed lands within statute.Where the state of Mississippi under took to sell lands under this act, which were not covered by that act, and the land continued to be a part of the public domain, the government, by the subsequent McLaurin Act, relinquished all title or interest in the land so sold, and the purchasers acquired title. U. S. v. Riviera Realty Co. (C. C. A. Miss.) 279 F. 409. Where lands lying between the meander line of uplands granted by the United States and the edge of a lake at low-water mark were not swamp and overflowed land within this act, they could not be granted by the state under California act of March 24, 1893, known as the Lake Location Act, and a purported grant by the state was not validated by Pol. Code, § 3493s, but such land passed to the patentee of the uplands. Maginnis v. Hurlbutt (Cal. App.) 193 P. 606. Under this section, granting "swamp and overflowed lands made unfit thereby for cultivation," a determination by the Secretary of the Interior that certain land is swamp and overflowed land is conclusive. De Proft v. Heydecker (Ill.) 131 N. E. 114. Where title to land is claimed under a county's deed to swamp and overflowed lands granted to the state by this section, and no determination by the Secretary of the Interior that the land is in fact swamp and overflowed land has been made, complainant must show such fact as against those claiming adversely to him. Id. No lands composing the beds of navigable streams, lakes, etc., or those within the tidewaters of the sea, ever came under the federal swamp land grants by Act Cong. March 2, 1849 and this act, since the federal government never had title to such lands. State ex rel. Board of Com'rs of Atchafalaya Basin Levee Dist. v. Capdeville (La.) 83 So. 421, certiorari denied Atchafalaya Land Co. v. Same, 40 S. Ct. 346, 252 U. S. 581, 64 L. Ed. 727. Cited without definite application, Atchafalaya Land Co. v. F. B. Williams Cypress Co., 42 S. Ct. 284, 258 U. S. 190, 66 L. Ed. 559; McGrew v. Byrd (C. C. A. Mo.) 255 F. 759; Gratz v. McKee (C. C. A. Mo.) 258 F. 335; Douglass v. Rhodes (D. C. Ark.) 280 F. 230; Sugg v. Wisconsin Lumber Co. (D. C. Mo.) 283 F. 290. § 4959. (R. S. § 2480.) Lists and plats of lands for governors of States. II. PATENTS 7. Necessity for patent.-The perfect title of the state to swamp and overflowed lands under this act, does not vest in the state until the patent covering the lands is issued. Byrne Realty Co. v. South Florida Farms Co. (Fla.) 89 So. 318. III. DISPOSAL OF LANDS AND PROCEEDS 10. Nature of grant as affecting disposal of lands and proceeds by state.The Legislature had authority, under Const. art. 15, to convey submerged lands to the city of Los Angeles, as it did by act approved May 1, 1911 (St. 1911, p. 1256), for purposes in harmony with the trust upon which the state had been invested with title by the general government. City of Los Angeles v. Pacific Coast S. S. Co. (Cal. App.) 187 P. 739. The city of Los Angeles, under St. 1911, p. 1256, derived title to submerged lands which it holds in its governmental capacity, and not merely in its private or proprietary capacity, being invested with the full title to such lands for the purpose of administering the trusts for which the general government turned the lands over to the state, and it possesses all of the power which the state formerly held in relation to such lands, including the right of possession, and can maintain an action to quiet title against one holding a public franchise for the possession and use thereof for the purpose of maintaining a wharf under Pol. Code, §§ 2906-2920. Id. One entering on tract owned by state under this act, and who makes improvements thereon, builds a house, and lives in it, and plants trees and cultivates the soil, but makes no effort to purchase from state and waits to purchase from any one who buys from state, cannot assert against such purchaser the settlement upon and improvement of land as the basis of an estoppel from asserting title. Colorado Florida Land Co. v. Roebuck (Fla.) 83 So. 502. One entering a tract owned by state under this act, making improvements thereon, building a house, and living in it, and planting trees and cultivating soil, but who makes no effort to purchase from state, but waits to purchase from any one who buys from state, must rely on a contract in writing for conveyance of land, or base his right to retain possession on estoppel growing out of such conduct on part of purchaser as induced him to take a position or pursue a course detrimental to him, that he would not otherwise have taken or pursued. Id. The title of one who had entered on swamp lands which had been transferred to the state of Missouri by the United States, and by the state to the county, was an equitable one. Missouri State Life Ins. Co. v. Russ (Mo.) 214 S. W. 860. CITED WITHOUT DEFINITE AP. PLICATION Atchafalaya Land Co. v. F. B. Williams Cypress Co., 42 S. Ct. 284, 258 U. S. 190, 66 L. Ed. 559; McGrew v. Byrd (C. C. A. Mo.) 255 F. 759; Gratz v. McKee (C. C. A. Mo.) 258 F. 335; Douglass v. Rhodes (D. C. Ark.) 280 F. 230; Sugg v. Wisconsin Lumber Co. (D. C. Mo.) 283 F. 290. § 4960. (R. S. § 2481.) Legal subdivisions mostly wet and unfit for cultivation. Act Sept. 22, 1922, c. 403, 42 Stat. 1017, reads as follows: "That all the unsurveyed sections sixteen within the exterior limits of the area patented to the State of Florida April 23, 1903, under the provisions of the Act of September 28, 1850, Ninth Statutes at Large, page 519, embracing the so-called Everglades not mineral in character, and not occupied on May 27, 1922, by bona fide settlers under the homestead law, be, and the same are hereby, reserved, granted and confirmed to the State of Florida for the benefit of public schools as though the official surveys had been extended over such lands." Notes of Decisions Character of lands.-Evidence held insufficient to show as a matter of law that land was not swamp and overflowed land. Reynolds v. Churchill Co. (Cal.) 202 P. 865. Cited without definite application, Atchafalaya Land Co. v. F. B. Wil liams Cypress Co., 42 S. Ct. 284, 258 U. S. 190, 66 L. Ed. 559; Gratz v. McKee (C. C. A. Mo.) 258 F. 335; Douglass v. Rhodes (D. C. Ark.) 280 F. 230; Sugg v. Wisconsin Lumber Co. (D. C. Mo.) 283 F. 290. § 4962. (R. S. § 2483.) Patents to issue for swamp lands to purchasers and locators, prior to issuing of patents to States, etc. Patents. Where a patent covered the whole of fractional section 28 in a stated township and range according to the official plats of survey, issued under the Swamp Land Act of September 28, 1850 (U. S. Comp. St. §§ 4958-4960), which show that the fractional section contains 27.50 acres, and the plats of survey show that the meander line was run with reference to marshy lands, and not with reference to a permanent body of water, the patent covers only the 27.50 acres and not the entire unsurveyed section, even though there is a navigable stream running through another portion of the unsurveyed section. South Florida Farms Co. V. Goodno (Fla.) 94 So. 672. Where swamp lands conveyed to state by Act Cong. March 2, 1849, c. 87, and Act Sept. 28, 1850, c. 84 (U. S. Comp. St. §§ 4958-4960), and which are within limits of Caddo levee district, were granted to board of commissioners of district by Act No. 74 of 1892, § 9 (amended and re-enacted by Act No. 160 of 1900, § 2), but before board requested conveyance defendant obtained |