Swendig v. Washington Water Power Company/Opinion of the Court
Appellee is a corporation engaged in the generation and distribution of electrical energy in Washington and Idaho. It has a high tension power transmission line extending from Spokane, Washington, to Burke, Idaho, in the Coeur d'Alene Mining District. The line was constructed in 1902 and 1903. A portion of it was located across certain lands then unsurveyed and constituting a part of the Coeur d'Alene Indian Reservation. Telephone wires were strung on the poles carrying the power line for use in connection with the operation and maintenance of that line. And there was constructed a patrol road necessary for the maintenance of the power line. Ever since its construction, the power line has been used to furnish electrical energy in that district.

July 7, 1902, the Secretary of the Interior under authority of the Act of February 15, 1901, c. 372, 31 Stat. 790 (Comp. St. § 4946), granted appellee a permit for the use of a right of way upon which to construct and maintain the power line through the reservation; and about the same time, he granted appellee a right of way for the construction and operation of a telephone line through the reservation, under authority of the Act of March 3, 1901, c. 832, 31 Stat. 1083, § 3 (Comp. St. § 4191).

An Act of Congress of June 21, 1906, c. 3504, 34 Stat. 335, provided for the allotment of lands within the reservation to members of the Coeur d'Alene Tribe, and authorized the opening to settlement and entry of the lands remaining undisposed of. Pursuant to the President's proclamation, this was done in May, 1910. Appellants respectively made homestead entries of certain of those lands across which the power line had been constructed, and later received patents therefor.  The patents are absolute in form and contain no exception or reservation in respect of the power line or privileges granted appellee. The appellants, denying the right of appellee after patents to operate and maintain the power line across the lands described in their patents, interfered with and threatened to prevent its use. Appellee brought a suit in the United States District Court for Idaho against each of the appellants to enjoin such interference, and to have it decreed that the patents did not revoke or affect the permits, and that they are in full force and effect. Jurisdiction was invoked on the ground that the suits arose under the laws of the United States above referred to. The four cases were tried together. The District Court granted appellee the relief prayed. Its decree was affirmed by the Circuit Court of Appeals. 281 Fed. 900. The case is here on appeal under section 241 of the Judicial Code (Comp. St. § 1218).

The question to be decided is whether, as to the lands described therein, the patents issued to appellants revoked or canceled the permits theretofore granted to appellee by the Secretary.

The Act of March 3, 1901, 31 Stat. 1083, relating to rights of way for the construction of telephone lines does not apply. The telephone wires are used only in connection with the operation and maintenance of the power line. Appellee's rights are to be determined under the Act of February 15, 1901. Its material provisions are:

'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 rights of way through the      public lands, forest and other reservations of the United      States, and the Yosemite, Sequoia, and General Grant National      Parks, California, for electrical plants, poles, and lines      for the generation and distribution of electrical power, and      for telephone and telegraph purposes, and for canals,      ditches, pipes and pipe lines, flumes, tunnels, or other      water conduits, and for water plants, dams, and reservoirs      used to promote irrigation or mining or quarrying, or the      manufacturing or cutting of timber or lumber, or the      supplying of water for domestic, public, or any other      beneficial uses to the extent of the ground occupied by such      canals, ditches, flumes, tunnels, reservoirs, or other water      conduits or water plants, or electrical or other works permitted hereunder, and not to exceed fifty      feet on each side of the marginal limits thereof, or not to      exceed fifty feet on each side of the center line of such      pipes and pipe lines, electrical, telegraph, and telephone      lines and poles, by any citizen, association, or corporation      of the United States, where it is intended by such to      exercise the use permitted hereunder or [for] any one or more      of the purposes herein named: * * * And provided further,      that any permission given by the Secretary of the Interior      under the provisions of this act may be revoked by him or his      successor in his discretion, and shall not be held to confer      any right, or easement, or interest in, to, or over any      public land, reservation, or park.'

When the homestead entries were made by appellants, the regulation of July 8, 1901, was in force. Paragraph 11 (31 L. D. 17) contains the following:

'The final disposal by the United States of any tract      traversed by the permitted right of way is of itself, without      further act on the part of the department, a revocation of      the permission so far as it affects that tract, and any      permission granted hereunder is also subject to such further      and future regulations as may be adopted by the department.'

August 24, 1912, before the patents were issued, this provision was superseded by the following regulation (41 L. D. 152, par. 9):

'The final disposal by the United States of any tract      traversed by a right of way permitted under this act shall      not be construed to be a revocation of such permission in      whole or in part, but such final disposal shall be deemed and      taken to be subject to such right of way until such      permission shall have been specifically revoked in accordance      with the provisions of said act.'

At the same time, the Secretary by regulation required that all patents issued have on their face a notation of prior permits. 

It was competent for Congress to make subsequent homestead entries subject to the Act of February 15, 1901, and to the regulations fixed by the Secretary. And undoubtedly the power and authority of the Secretary under the act may be so exercised as to affect the rights and limit the title of subsequent homestead entrymen. Within the scope of the authorization, he may make, and from time to time change, regulations for the administration of the act. The rights of appellants as entrymen were subject to the proper exercise of that power. The regulation in effect when appellants settled on the land expressly provided that permissions granted were subject to further and future regulation. At that time, the right of way was occupied and used for the operation of the power line. When the patents issued, that regulation had been superseded by the one of August 24, 1912.

Appellants contend that appellee acquired a mere license temporarily to use the right of way through the lands in question, and that the patents without more revoked the license and deprived appellee of its right of way over the lands therein described. In support of this contention, they stress the concluding clause of the act, stating that the permission given 'shall not be held to confer any right or easement or interest in, to, or over any public land, reservation, or park.' The purpose of the act is to grant to the Secretary power 'to permit the use of rights of way' through the lands referred to. And, in order that control over them may be retained, it is provided that the Secretary in his discretion may revoke such permits. The enterprises mentioned in the act involve expensive and permanent construction. The use of land necessary for the undertakings specified is to be distinguished from mere licenses to travel over, graze cattle on, or otherwise use or occupy land without investment for construction or improvements. Plainly, the piecemeal revocation of the right of way, whenever a patent is issued to a settler along the line, would increase the financial burden and add elements of risk to the investments, and so be inconsistent with the purpose of the act. The clause above quoted should be read to promote and advance, not to defeat, the legislative purpose to permit the use of rights of way through public lands for the industries and utilities mentioned. It is included from an abundance of caution to support and safeguard the Secretary's power of revocation. It means that the permissions given shall not be deemed to confer any right that may not be revoked by him in the exercise of his discretion. There is no other enactment providing for the termination of the use of the rights of way. The right to use continues until the permission given by the Secretary is revoked by him.

As the sole power of revocation was committed to his discretion, it was within the power of the Secretary to determine that final disposal of the lands would operate to revoke the permission; and it was also within his power, by the regulation of August 24, 1912, to declare that final disposal shall not be deemed to be a revocation, but shall be subject to the right of way until such permission shall have been specifically revoked. Upon elaborate consideration, in 1912, the Secretary held that the provision of the regulation first above quoted was directly contrary to the purpose of the statute. He said:

'It discouraged development by making the title of the      permittee subject to that of the final patentee of the land      occupied under the permit. * * * To effectuate the purpose of      the statute it is necessary that a permit once given should      be superior to the rights of the subsequent patentee of the      land until such time as the permit is duly revoked by the      Secretary of the Interior in the exercise of the express      authority given by the statute. * * * The regulations      hereinbefore made [41 L. D., supra] will protect permittees      from any demands that might otherwise be made upon them by subsequent claimants of the      lands over which the permits give a right of way.' Letter of      August 23, 1912, from the Secretary of the Interior to the      Commissioner of the General Land Office.

The regulation is still in effect. The construction and application of the act so made and provided for have been followed since that time. If the meaning of the act were not otherwise plain, this interpretation would be a useful guide to the ascertainment of the legislative intention. It is a 'settled rule that the practical interpretation of an ambiguous or uncertain statute by the executive department charged with its administration is entitled to the highest respect, and, if acted upon for a number of years, will not be disturbed except for very cogent reasons.' Logan v. Davis, 233 U.S. 613, 627, 34 Sup. Ct. 685, 690 (58 L. Ed. 1121).

Appellants contend, and it is true as a general rule, that when, conformably to the laws, entry is made and certificate given, the land covered ceased to be a part of the public lands (Witherspoon v. Duncan, 4 Wall. 210, 219, 18 L. Ed. 339), and that, when a patent issues in accordance with governing statutes, all title and control of the land passes from the United States (United States v. Schurz, 102 U.S. 378, 396, 26 L. Ed. 167). But we hold that, under the act and the regulation made pursuant to it and in force when the patents issued, these rules do not operate to strike down rights, subject to which, under the law, the lands are patented. Under the permission of the Secretary, the power line had been constructed and was maintained on the right of way over the lands in question for a long time before the reservation was opened for settlement. The entries were made subject to the regulations then in force, and were affected by the provision 'that any permission granted hereunder is also subject to such further and future regulations as may be adopted by the department.' The fact that the patents did not have thereon a notation of the prior permit is not controlling. Under the regulation then in force, final disposal did not revoke the permit, but was made subject to the use of the right of way for the power line. It was intended that the patent should not extinguish the earlier permission given by the Secretary. The issuing of the patents without a reservation did not convey what the law reserved. They are to be given effect according to the laws and regulations under which they were issued. See Stoddard v. Chambers, 2 How. 284, 318, 11 L. Ed. 269; Jamestown & Northern Rd. Co. v. Jones, 177 U.S. 125, 20 Sup. Ct. 568, 44 L. Ed. 698; Smith v. Townsend, 148 U.S. 490, 13 Sup. Ct. 634, 37 L. Ed. 533.

Decree affirmed. 

Notes