1199. Lands subject to pre-emp- 1208. Acquisitions of lands for tion. 1200. Lands not subject to pre emption. 1201. Military reservations. over public lands. 1203. Right of way for tramroads, public uses by condemna- 1209. Procedure in condemnation. ined by Attorney-General. 1214. Preference to homestead set 1205. Restriction on purchases of lands. 1206. Assent of States to purchases of lands. 1207. Power to obtain releases. tlers. 1215. Secretary of War may lease 1199. All lands belonging to the United States, to which the Indian title has been or may hereafter be extinguished, shall be subject to the right of pre-emption, under the conditions, restrictions, and stipulations provided by law. Lands subject to pre-emption. June 2, 1862, c. 94, 1, 12, 1413; Feb. 11, 1874, c. 25, v. 18, p. 18; Feb. 23, 1875, c. 99, v. 18, p. 334; Apr. 21, 1876, c. Sec. 2257, R. S. Lands acquired by the United States for public uses, by purchase with the con- 72, v. 19, p. 35. sent of the legislatures of the States, or acquired by an exercise of the right of emi- Shepley et al. v. nent domain, are not "public lands," that term applying only to such lands as are Cowen et al., 91 subject to sale or other disposition under general laws. Newhall v. Sanger, 92 U S., U. S.,330. 761; 5 Opin. Att. Gen., 578. Power over such lands is vested in Congress by the Constitution, without limitation, and is the foundation upon which the territorial governments rest. U. S. v. Gratiot, 14 Pet., 526. The power of Congress over the public land and the effect of its grants can not be interfered with by State legisla tion. Gibson v. Chouteau, 13 Wall., 92. MILITARY RESERVATIONS. No specific statutory authority exists empowering the President to reserve public lands; but the right to reserve such lands for public uses is recognized by the courts. 14 Dec. Int. Dep., 426, 607, 628; Wolsey v. Chapman, 101 U. S., 755, 768; Wolcott v. Des Moines Co, 5 Wall., 681. Such reservation may be effected by proclamation or by Executive .order. 13 Dec. Int. Dep., 426. A military reservation, being simply territory of the United States withdrawn Lands not subject to pre-emp. tion. 1200. The following classes of lands, unless otherwise specially provided for by law, shall not be subject to the 16. s. 10, v. 5. p. rights of pre-emption, to wit: Sept. 4, 1841, c. 455; Jan. 12, 1877, c. 18, v. 19, p. 221. First. Lands included in any reservation by any treaty, Wilcox v. Jack law, or proclamation of the President, for any purpose.1 son, 13 Pet., 498; Josephs v. U. S., 1 N. and H., 197; from sale, pre-emption, (a) etc. (7 Opin. Att. Gen.. 574, 757; 14 ibid., 775), the mere fact of Turner v. Amer. the establishing of such a reservation can not affect the power of the State or Ter ican Baptistritorial authorities (according as it may be located in a State or Territory), to serve Union, 5 Me. civil or criminal process therein, or to attach or levy upon personal property, except Lean, 344; U. S. in so far, of course, as such service may be specially precluded or restricted by law Railroad as to military persons in general. (b) Where indeed there has been a cession of Bridge Com exclusive jurisdiction over the land by the State to the United States, the question whether the State authorities may still serve process within the reservation on pany, McLean, 517; Russell account of liabilities incurred or crimes committed outside of its limits will depend Beebe, Hemps., upon the terms of the cession. (Dig. J. A. Gen., 510, par. 1.) v. 704. V. Land which has been set apart as a portion of an Indian reservation, under a Sec. 2258, R. S. treaty, can not be occupied as a military reservation; nor can even a military post be maintained thereon, in derogation of the terms of the treaty or against the consent of the Interior Department. (c) Ibid., 512, par. 3.) Held that the right to the "free and open exploration and purchase" of mineral Under this head fall military and Indian reservations, the Yellowstone National Park, and the forest reservations in California set apart by the President under the authority conferred by section 24 of the act of March 3, 1891. See the chapter entitled NATIONAL PARKS. a The Constitution (Art. IV, sec. 3, § 2) has vested in Congress the exclusive power "to dispose of and make all needful rules and regulations respecting the territory" (held in U. S. v. Gratiot (14 Peters, 537) to mean "lands) or other property belonging to the United States. As a consequence perhaps of the indefiniteness of this grant (see 7 Opin. Att. Gen., 574) no general enactment providing for the setting apart of land for military reservations has ever been made by Congress. In a few cases, indeed, a special authority to establish a military reserve has been conferred upon the President by statute, but the great majority of the military reservations heretofore located or now existing have been made by the President without any such specific authority whatever. But though no general authority has been directly given by Congress for the reserving of lands for military purposes, an authority for the purpose has been deemed to exist, and this authority is found in the usage of the Executive Department of the Government, as indirectly sanctioned by Congress in repeated preemption acts, acts relating to the survey of the public domain, appropriation acts, etc., in which lands reserved for military purposes by the President have been in general terms excepted from sale, exempted from entry, etc., or special provision has been made for the cost of improvements to be erected upon the same. In Grisar v. McDonald (6 Wallace, 381) the United States Supreme Court, by Field, J., observes: "From an early period in the history of the Government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses. Further, "The authority of the President in this respect is recognized in numerous acts of Congress." The court then cites several statutes as containing this recognition, including the preemption acts of May 29, 1830, and September 4, 1841, and adds: "The action of the President in the making the (military) reservations" (the title to which was at issue in the particu lar case) was indirectly approved by the legislation of Congress in appropriating moneys for the construction of fortifications and other public works upon them." And see 12 Opin. Att. Gen., 381; 14 ibid., 182; 17 ibid., 253; Wilcox v. Jackson, 13 Peters, 512; U.S. v. Hare, 4 Sawyer, 653; also U. S. v. R. R. Bridge Co., 6 McLean, 517. It is, moreover, to be noted that the provision of the act of 1841, referred to by the Supreme Court, has been incorporated as a general enactment in the Revised Statutes in the chapter (chapter 4 of title 32) on preemptions; section 2258 expressly excepting from the lands of the United States subject to the rights of pre-emption." "lands included in any reservation by any treaty, law, or proclamation of the Presi dent for any purpose. (And see section 2393, specifically excepting military reser vations from the operation of the laws authorizing the establishing of town sites) The "proclamation" of the President reserving lands for military purposes is usually in the form of a military general order, issued by the Secretary of War, whose act in this, as in other administrative proceedings pertaining to the military administration, is in legal contemplation the act of the President, whom he represents. But no head of a Department or executive official inferior to the President can of his own authority, make a reservation of public lands. The power is vested only in Congress and the President. United States v. Hare, 4 Sawyer, 653, 669. In this connection may be noted the ruling of Attorney-General Bates (10 Opins, 359) in opposition to that of Justice McLean, of the Supreme Court (in U. S. v. The Railroad Bridge Co., 6 McLean, 517), but apparently concurred in by AttorneyGeneral Williams (14 Opins., 246), to the effect that where a tract of land of the United States has once been legally reserved for military purposes the President is not empowered, in the absence of authority from Congress, to relinquish such reservation and restore the land reserved to the general body of the public lands. bAs by section 1237, Revised Statutes, exempting enlisted men from arrest for certain debts, or by the operation of the provisions of the fifty-ninth article of war as to the form to be observed in making criminal arrests of military persons. c By Article VI, section 2, of the Constitution, all treaties made under the authority of the United States" are declared to be "the supreme law of the land;" and Indian reservations "have generally been made through the exercise of the treaty-making power, and in fulfillment of treaty obligations." (14 Opin. Att. Gen., 182.) That land can not be reserved or occupied for military purposes to the prejudice of a title previously vested in an individual or a corporation, see, further, 9 Opin., 339; 13 ibid., 469. Second. Lands included within the limits of any incorporated town, or selected as the site of a city or town. Third. Lands actually settled and occupied for purposes of trade and business, and not for agriculture. lands, accorded to citizens, etc. by section 2319 Revised Statutes could not authorize an entry, for the purpose of prospecting for mines upon a military reservation once duly defined and established by the President; the mineral lands intended by the statute being clearly such as are included within the "public lands' of the United States. (Ibid., 513, par 5) Where certain persons had entered unlawfully upon a military reservation and had proceeded to cultivate the soil of the same for their personal benefit and to lead off water, needed for the use of the garrison, in order to irrigate the ground so cultivated-advised that the commandant be instructed to give such person reasonable notice to quit with their property and if they did not comply, to remove them by military force beyond the limits of the reservation (a) (Ibid, par. 6.) Squatters and other trespassers and intruders may and should be expelled, by military force if necessary, from a military reservation (b). But such persons, when they have been suffered to own and occupy buildings on a reservation, should be allowed reasonable time to remove them. If not removed after due notice the same should be removed by the military Material abandoned on a reservation by a trespasser, on vacating, may lawfully be utilized by the commander for completing roads, walks, etc. Squatters on United States reservations may be forced there from by criminal proceedings had under section 5388, Revised Statutes, or ejected by civil action. (Ibid., 516 par. 13.) Where squatters have made any considerable improvements upon a reservation, and their value has been duly estimated-as by a board constituted by the depart ment commander and presenting in its report all the evidence on the subject-an award by the Secretary of War, acquiesced in by the claimant, may be sued upon in the Court of Claims, which (in the absence of evidence of fraud or mistake) will accept Buch award as conclusive (c). (Ibid., par. 14) The general principle of the authority to remove trespassers, their structures and property, from land of the United States embraced in a military reservation, held specially applicable where the intrusion was for an injurious purpose as where the object was to lay a sewer intended to discharge into a main sewer constructed by the United States upon and for the use of its own premises. In this instance, as the trespass was committed by the authorities of a municipality advised that reasonable notice be given them to remove their property before resorting to military force for the purpose, and meantime that precautions be taken to prevent a connection between the proposed sewer and the sewers under the control of the United States. (Ibid., p. 517, par. 16.) The cutting of timber on a military reservation is an offense against the United States, made punishable by section 5388. Revised Statutes, as amended by the acts of June 4, 1888, and of March 3, 1875, chapter 151. So, grass cut on a reservation and removed as hay would be personal property of which the asportation would be larceny under the act of March 3, 1875, chapter 144. And persons coming upon a military reservation for the purpose of cutting wood or grass, or to plow up the soil, or commit other trespass, may be removed as intruders, and the post commander should not hesitate to resort to military force if necessary for the purpose. And he may of course prevent such trespassers from carrying off with them any property of the United States. (Ibid., par. 15.) In the absence of any statute directly or by necessary implication extending the powers of the local government of the District of Columbia over the military reservation and post at the Arsenal in Washington, held (May, 1879) that the health officer appointed by the Commissioners (constituting such government), would not be empowered of his own authority, and without the consent of the military commander, to enter upon such reservation and remove or abate a nuisance deemed by him to exist thereon. The effect of the legislation in regard to the government of the District is to except therefrom the public buildings and grounds of the United States, which are left to the charge of certain specified officials. Even farther removed from such government is the reservation at the Arsenal, the same being a military post commanded by the President through a military subordinate, and governed by military orders and regulations (Ibid., p. 514, par. 7.) The President's power in the matter of military reservations is limited to the setting apart and declaring of the reservation; and, for the purpose of adding to and modifying the boundaries of, the original reserved tract, a reservation may be redeclared by the Executive. But the President can not unreserve duly reserved land, either by revoking the order of reservation or otherwise. After lands have once been reserved for military purposes, the President, in the absence of authority, from Congress, is not empowered to withdraw or restore them. By the authority indeed, of the act of July 5, 1884, he may abandon a useless military reservation and turn the lands over to the Interior Department for disposition and sale. Bu the can not rereserve lands once turned over, they being no longer a part of the public domain, but lands in regard to which Congress has expressed a different will. (Ibid., par. 8.) Land once duly reserved for a public purpose becomes separated from the mass of a As to the authority to remove trespassers from military reservations, see 3 Opin. Att. Gen., 268; 9 ibid., 106, 476; G. O. 74, Hdqrs. of Army, 1869. That this authority is not deemed to be affected by the provision of section 15 of the act of June 18, 1878, see chapter entitled EMPLOYMENT OF MILITARY FORCE. See, also, Dig. J. A. Gen., p. 162, par. 6; 165 ibid., par. 9. b See G. O. 62 of 1869. eMaddux v. U. S., 20 C. Cls. R., 193, 199. Military or other reservation, etc. Mar. 2, 1867, c. Fourth. Lands on which are situated any known salines or mines. 1201. The provisions of this chapter shall not apply to military or other reservations heretofore made by the 177. v. 14, p. 541; United States, nor to reservations for light-houses, customhouses, mints, or such other public purposes as the interests of the United States may require, whether held under reservations through the Land Office by title derived from the Crown of Spain, or otherwise. Feb. 28, 1877,c.74, Right of way for highways over lands. RIGHTS OF WAY. 1202. The right of way for the construction of highways public over public lands, not reserved for public uses, is hereby granted.2 July 26, 1866, c. 262, s. 8, v. 14, p. 253. Sec. 2477, R. S. Right of way for tramroads, voirs. 1203. That the Secretary of the Interior be, and hereby canals, and reser- is, authorized and empowered, under general regulations be fixed by him, to permit the use of the right of way through the public lands of the United States, not within the limits of any park, forest, military or Indian Jan. 21, 1895, v. to 28, p. 635. public lands. So held that a proclamation of the President, issued under an act of Congress, opening to settlement lands in Oklahoma Territory, could not embrace or affect land previously duly reserved as a military timber reservation for the use of the post of Fort Reno. (Ibid., par. 10.) In the absence of express statutes limiting his authority, as in the case of military reservations, the President has the same authority to restore lands to the public domain that he had to reserve them for public uses. (14 Dec. Int. Dep., 209, 212.) The ownership and jurisdiction of the soil between high and low water mark on navigable waters within or bordering upon a State are vested in the State, not in the United States. Tide lands belong to the State only; the United States has no interest in the soil below high-water mark other than such as may have been ceded by the State. (a) So where a military reservation, within a State, fronted upon navigable waters of the United States, at the mouth of the Columbia River, held that the military authorities could not, by the removal of fishing nets or fish traps placed below high-water mark, or otherwise, legally prevent or interfere with the exercise of the right of fishery as to scale or shell fish on the tide lands, such right being common to all citizens except in so far as it may be abridged by the State. (b) The Secretary of War is without authority to grant an exclusive right to use the shores of a military reservation for fishing purposes. (Dig. Opin. J. A. Gen., 515, par. 11.) As between the United States and a State, the soil of the bed of navigable waters and of the shores of tide waters below high-water mark, or, on rivers not reached by the tide, the soil of the shores below the ordinary water line, as not affected by freshet or unusual drought, belongs to the State. But natural accretions to land owned by private inidviduals belong to the owners of the land. Thus, held that the accretions to Hog Island, in the mouth of the Missouri River, belonged, not to the United States or to the State of Missouri, but to the owner of the island. (Ibid., 465, par. 2.) Where land proposed to be conveyed by a State to the United States for the pur pose of fortifications was described in the proffered deed as extending to the sea and in a line along the sea, held that such a deed would convey only land extending to and bounded by high-water mark, and advised that the grant should be so expressed as specifically to include the shore to low-water mark, and should also embrace such Chapter 8, Revised Statutes, relating to the reservation and survey of town sites on the public lands. See also the chapter entitled NATIONAL PARKS. 2 Held, that an act of Congress granting a railroad company a right of way through the public lands" of the United States did not authorize it to enter and construct a track upon the soil of a military reservation, the same being no part of "the public lands,"(c) and that such entry was therefore a trespass. (Dig. J. A. Gen., 512, par. 2.) But see section 6, par. 1211, post. The right of way through several inilitary reservations has been granted to various railroads, or other corporate bodies, by express legislation in each case. a Pollard's Lessees v. Hogan, 3 Howard, 212; Goodtitle v. Kibbe, 11 Howard, 477; Doe v. Bebee, 13 Howard, 25; 6 Opin. Att. Gen., 172. b Washburn, Easements and Servitudes, 410; Martin v. Waddell, 16 Peters, 367; Smith v. Maryland, 18 Howard. 71; McCready v. Virginia, 94 U. S., 391; Lay v. King, 5 Day, 72; Arnold v. Mundy, 1 Halst., 1; Parker v. Cutler, etc., Co., 20 Maine, 353; Moulton v. Libbey, 37 ibid., 472; Weston v. Sampson, 8 Cush., 347. c Wilcox v. Jackson, 13 Pet., 499, 513; 5 Opin. Att. Gen., 578; 6 ibid., 670; 7 ibid., 574. reservation, for tramroads, canals or reservoirs to the extent of the ground occupied by the water of the canals and reservoirs and fifty feet on each side of the marginal limits thereof; or fifty feet on each side of the center line of the tramroad, by any citizen or any association of citizens of the United States engaged in the business of mining or quarrying or of cutting timber and manufacturing lumber. Act of January 21, 1895 (28 Stat. L., 635). ACQUISITION OF LANDS BY THE UNITED STATES. to be examined General. 468. 1204. No public money shall be expended upon any site Title to land or land purchased by the United States for the purposes of by Attorneyerecting thereon any armory, arsenal, fort, fortification, Sept. 11, 1841, navy-yard, custom-house, light-house, or other public build-Res. No. 6, v. 5, p. ing, of any kind whatever, until the written opinion of the Sec. 355, R. S. Attorney-General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land or site may be, to such purchase, has been given. The district attorneys of the United water-covered lands as would be sufficient to prevent the erection by the authority of the State of structures that might interfere with the proper use of the land for purposes of fortifications. (Ibid., par. 3) In the case of a Territory, however, the sovereign right to the whole soil is exclusively in the United States. Thus the reservation of an island in the tide waters of a Territory includes not only its soil down to high-water mark but all its tide lands also. But in a Territory, in the absence of special regulation of the subject by Congress, no executive authority can lawfully restrict the common-law right of piscary of the inhabitants (including the taking of shellfish) in the tide waters of the Territory. So the commander of a reserved military post, fronting upon navigable water of a Territory, is not empowered to remove from such tide waters the scines or traps of fishermen, though, if the public interests require it, he may forbid or restrict the use of the shore above high-water mark for the hauling of seines or landing of fish. (Ibid., par. 12.) The State of Kansas, having surrendered to the United States its jurisdiction over the military reservations of Forts Leavenworth and Riley, by an act of its legisla ture of February 23, 1872, which was earlier in date than the prohibition laws of the State (having their origin in the constitution adopted November 2, 1880), held that such laws did not extend over and could not be applied to those reservations. (Ibid., p. 517. par. 18.) To legalize the use of a public road (State county, or Territorial) across a corner of a military reservation held as follows: (1) The Secretary of War may, under the act of July 5, 1884, section 6, permit the extension of such a road across a military reservation "whenever, in his judgment, the same can be done without injury to the reservation or inconvenience to the military forces stationed thereon;" (2) or he can abandon to the Secretary of the Interior, under the same act, the strip of the reservation to be traversed by the road, and the latter official can then authorize the road under section 2477, Revised Statutes, by which "rights of way for the con struction of highways are granted over public lands not reserved for public uses.' (Ibid., par 19.) See section 6, par. 1211, post. " The occupation of land, by permission of the military authorities, does not constitute a settlement that is within the protection accorded bona fide settlers by the act of July 5, 1884. (15 Dec. Int. Dept., 487.) The occupation and improvement of land, with a view to preemption, does not except it from a subsequent reservation for military purposes. (15 Dec. Int. Dept., 487.) Land reserved for military purposes is not subject to homestead entry (13 Dec. Int. Dep., 617; Grisar v. McDowell, 6 Wall, 363, 381) or to entry under the public land laws. (13 Dec. Int. Dep., 628.) In the administration of the public lands the decisions of the land department upon questions of fact are conclusive, and only questions of law can be reviewed in the courts. (Catholic Bishop of Nesqually v. Gibbon, 158 U. S., 155.) SUPERVISION OF RESERVATIONS. Department commanders will supervise all military reservations within the limits of their commands, and if necessary, will use force to remove trespassers. No license or permission to any civilian to use or occupy any part of a reservation will be given, except by the Secretary of War, unless he be in the employ of the Government, or in the family or service of persons there employed. (Par. 210, A. R., 895.) |