abandoned and

useless military

reservations.

July 5, 1884, v.

23, p. 103-104.

1616. That whenever, in the opinion of the President of Sale, etc., of the United States, the lands, or any portion of them, included within the limits of any military reservation heretofore or hereafter declared, have become or shall become useless for military purposes, he shall cause the same, or so much thereof as he may designate, to be placed under the control of the Secretary of the Interior for disposition as

of time, can not ripen into title as against the United States. Fed. Rep., 212; Villey v. Jarbeau, 35 Louisiana Ann., 542.

Drew v. Valentine, 18

In the absence of such authority, the lands of the United States, whether held by original proprietorship, or acquired by purchase or gift, or by conquest, can not, even for a purely benevolent or religious purpose, be given away any more than they can be transferred for a valuable consideration. Nor, without such authority, can they be conveyed temporarily by lease, whether for a short or long period. (a) Dig. Opin. J. A. G., par. 2087. But for authority to lease lands not needed for the use of the War Department, see the act of July 28, 1892 (27 Stat. L., 321), par. 1620, post.

Nor, without authority from Congress, can an Executive Department or officer convey away any usufructuary interest in land of the United States. Thus it has been repeatedly held by the Judge-Advocate-General that the Secretary of War, or a military commander, was not empowered, of his own authority, to grant a right of way over a military reservation to a railroad company or other corporation, and in numerous statutory enactments such a right has been expressly given by Congress as the only authority competent for the purpose. Ibid., par. 2088.

So held that the Secretary of War would not be authorized to transfer a lot belonging to the United States in Washington to the Commissioners of the District of Columbia for the erection of a hospital. So held that neither the Secretary of War nor a department commander could grant to an individual or individuals the exclusive right to use for an indefinite period certain water power belonging to the United States, nor the exclusive right to mine the soil of a military reservation for a certain term of years, nor a similar right to make and maintain for an indefinite period ditches through a portion of such a reservation for the purpose of irrigating the lands of private parties, nor the right annually to enter upon and occupy a military reservation and cut and possess the hay crop growing thereon, (b) nor the right permanently or indefinitely to occupy and use a portion of a reservation for a burying ground. Ibid., par. 2088.

Disposition of buildings, etc.—The provision of the Constitution in regard to the disposition of public property applies to personalty equally as to realty. Thus no Executive Department or officer can be empowered, except by the authority of Congress, to dispose of personal property of the United States. (c) So held that, in the absence of such authority, a military commander could not legally dispose of temporary buildings-not "fixtures"-erected upon a military reservation. So held that the Secretary of War would not be authorized, in the absence of enabling legislation, to sell or negotiate the bonds or promissory notes made to the United States by certain railroad companies, in consideration of rolling stock, etc., sold and transferred to the same. And similarly held as to the authority of the Secretary to dispose of articles of

a See Friedman v. Goodwin, 1 McAllister, 148, where a lease made by the post commander at San Francisco, of a part of a "government reserve," though approved by the military governor of the then Territory, and also by the Secretary of the Interior, was held void because not authorized by Congress. The court declares the "utter impotency of any attempt by an officer of the Government to alien any land, the property of the United States, without the authority of an act of Congress;" adding that "the President, with the heads of the Departments combined," could not effect such an object. And see IV Opins. At. Gen.. 480; 9 id., 476; 13 id., 46; United States v. Hare, 4 Sawyer, 670–671. In the last case the court say: "The Secretary of the Treasury can not execute or approve of a lease of any property belonging to the United States without special authority of law."

b A fortiori in regard to growing timber. See Spencer v. United States, 10 Ct. Cls., 255. cThe leading case on this point is United States v. Nichols, 1 Paine, U. S. Circ. Ct. R., 646, in which it was held that a sale or loan, by the commandant of an arsenal, of a quantity of lead belonging to the United States, was illegal and invalid. The court say: "The Constitution declares that 'Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' No public property can therefore be disposed of without the authority of law, either by an express act of Congress for that purpose, or by giving the authority to some Department or subordinate agent. No law has been shown authorizing the sale of this lead; nor is any such authority to be inferred from the general power vested in any of the Departments of the Government. The power, if lodged anywhere, would seem most appropriately to belong to the War Department. But there is no such express or implied power in that Department to sell the public property put under its management." And see the same principle recognized in an opinion of the Attorney-General, in XVI Opins., 477, in which it is held that the Secretary of War was not empowered to sell arms to a State in the absence of authority from Congress.

Preference to homestead set

hereinafter provided, and shall cause to be filed with the Secretary of the Interior a notice thereof.' Act of July 5, 1884 (23 Stat. L., 103).

1617. That the provisions of the act approved August Feb. 15, 1895, v. twenty-third, eighteen hundred and ninety-four,

tlers.

28, p. 664.

* *

*

are hereby extended to all abandoned military reservations which were placed under the control of the Secretary of the Interior under any law in force prior to the act of July fifth, eighteen hundred and eighty-four. That the preference right of entry given to actual settlers by the terms of the act to which this is an amendment shall, so far as the lands to which the provisions of said act are extended, take effect and continue for six months from the date of this amendatory act. Act of February 15, 1895 (28 Stat. L.,664.)

inferior value, not impliedly authorized to be sold by section 1316, Revised Statutes. And held that the fact that certain valuable public property was perishable and liable to waste was not legally sufficient to justify the sale in the absence of statutory authority. (a) Ibid., par. 2090.

The principle that buildings erected on the land of another without his consent become his property does not apply to buildings erected by the United States on land occupied jure belli by the Army in an enemy's country; but that, on subsequently surrendering the land to the owner, the military authorities might legally remove and retain or dispose of the buildings. Ibid., par. 2097.

Temporary buildings only erected by military orders on land of the United States at a military post, to serve a temporary purpose, are in general personal property of the United States, which may be removed by the direction or authority of the Secretary of War. (b) But if the same be permanent structures and real estate, the authority of Congress is necessary to their removal. Ibid., par. 2098.

The United States being tenant of land leased for military purposes at Fort Davis, Tex., erected buildings thereon for the purposes of a military post. In view of the fact that the relation was that of landlord and tenant, that the buildings were erected for a purpose analogous to that of trade, and for a public use, and that in their erection there could certainly have been no intention to benefit the inheritance or add to the freehold-held that such buildings were to be regarded not as fixtures but as personal property, and removable by the tenant at any time before the expiration of his lease. Should the Government sell the buildings standing, the purchaser would have the same right of disposition as the United States and no more. would therefore be obliged to remove them before the termination of the lease, unless otherwise permitted by the owner of the premises. And held similarly of like buildings erected at Fort Union, N. Mex., where the United States was tenant at will, the buildings not being intended as improvements, but merely for the use of the troops. Ibid., par. 2099.

He

Where a post commander, without authority, took possession of land of the United States for the purpose of erecting thereon a building for his personal use, and having erected it assumed to hold and dispose of it as his own property, held that his act was unauthorized and illegal, and that he acquired no legal estate in the building. And similarly held where, without authority, he permitted an enlisted man of his command to use land of the United States for the erection thereon of a dwelling and to hold and dispose of such dwelling as his own property. Ibid., par. 2100.

Wood growing on a military reservation is the property of the United States. So held that a contractor who cut such wood to fill a contract made by him with the United States to furnish wood to a military post could not legally be allowed to remove or dispose of the same as his own property, and advised that he be paid merely for the cutting. Ibid., par. 2101.

'See note to section 1615, p. 618.

a Held that the "Cavalry Tactics," a work prepared under the orders of the Secretary of War by a board of officers, was the property of the United States, and therefore could not, without the authority of Congress, be disposed of to a bookseller with a view to its publication and sale by him on his private account. Ibid.

b But such buildings can not be sold without the authority of Congress. Lear v. U. S., 50 Fed., 65.

1618. The president is hereby authorized by proclamation to withhold from sale and grant for public use to the municipal corporation in which the same is situated all or any portion of any abandoned military reservation not exceeding twenty acres in one place. Act of March 3, 1893 (27 Stat. L. 593).

1619. The right of way for the construction of highways over public lands is hereby granted.'

July 26, 1866, s.

Rights of way.

8, v, 14, p. 253. Sec. 2477, R.S.

secretary of

certain privileges;

of bridges, ex

etc.

1620. The Secretary of War shall have authority, in his discretion, to permit the extension of State, county, and fere erection Territorial roads across military reservations; to permit tension of roads, the landing of ferries, the erection of bridges thereon; and July 5, 1884, s. permit cattle, sheep or other stock animals to be driven 6, v. 23, p. 103. across such reservation, whenever in his judgment the same can be done without injury to the reservation or inconvenience to the military forces stationed thereon. 6, act of July 5, 1884 (23 Stat. L., 103).

Sec.

LEASES OF PUBLIC PROPERTY NOT REQUIRED FOR PUBLIC USE.

Secretary of

not required for

July 28, 1892, v.

1620. Authority is hereby given to the Secretary of War, wat may leave when in his discretion it will be for the public good, to public property lease, for a period not exceeding five years and revocable use. at any time, such property of the United States under his 27, p. 321. control as may not for the time be required for public use and for the leasing of which there is no authority under existing law, and such leases shall be reported annually to Congress: Provided, That nothing in this act contained, Mineral, etc., shall be held to apply to mineral or phosphate lands. Act of July 28, 1892 (27 Stat. L., 321).

lands excepted.

1 For other statutes authorizing the Secretary of the Interior to grant rights of way over the public lands of the United States, not included within military, Indian, or other reservations, see the acts of March 3, 1875, 18 Stat. L., 482; March 3, 1891, 26 ibid., 1101; January 21, 1895, 28 ibid., 635; May 14, 1898, 29 ibid., 120; May 11, 1898, 30 ibid., 404, and February 15, 1901, 31 ibid., 790. This last enactment confers authority upon the Secretary of the Interior to grant rights of way over lands included in certain national parks and forest reservations, but with the condition that such grants shall be made through military and Indian reservations with the approval of the chief officer of the department under whom the supervision of the reservation falls, and upon a finding by him that the same is not incompatible with the public interest.

2 A license is an authority, revocable at pleasure, to do a particular act or series of acts upon the land of another without possessing an estate therein. Morgan v. U. S., 14 Ct. Cls., 319.

The Constitution (Art. IV, sec. 3, par. 2) provides that "The Congress shall have power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States." The scope of this provision is most comprehensive, the authority conferred thereby upon the legislative branch of the Government being held to extend from the formation of a Territorial government to the matter of the sale of a small amount of personalty. That neither land nor any interest in land of the United States can be sold or otherwise disposed

Par.

1621. Permanent barracks.

1622. Title papers.

MILITARY POSTS.

1623. Contracts not to exceed appropria

tions.

1624. Expenditures for repairs, limita

tion.

1625. Barracks for seacoast artillery, restriction.

Permanent

barracks.

Par.

1626. Post traders.

1627. Post schools.

1628. The same, bakeries.
1629. Post exchanges.
1630. Sales of liquor, etc.

1621. Permanent barracks or quarters and buildings and Sec. 1136, R.S. structures of a permanent nature shall not be constructed unless detailed estimates shall have been previously submitted to Congress, and approved by a special appropria

of by the head of an Executive Department or other executive official, or by a military officer, without the authority of Congress is settled law. (a)

In the absence of such authority, the lands of the United States, whether held by original proprietorship or acquired by purchase or gift, or by conquest, can not, even for a purely benevolent or religious purpose, be given away, any more than they can be transferred for a valuable consideration. Nor without such authority can they be conveyed temporarily by lease, whether for a short or long term. (b) Dig. Opin. J. A. G., par. 2087.

Nor, without authority from Congress, can an Executive Department or officer convey away any usufructuary interest in land of the United States. Thus it has been repeatedly held by the Judge-Advocate-General that the Secretary of War (or a military commander) was not empowered, of his own authority, to grant a right of way over a military reservation to a railroad company or other corporation, and in numerous statutory enactments such a right has been expressly given by Congress as the only authority competent for the purpose.

And such rights when given can be exercised only within the terms of the grant. Thus, where by an act of Congress there was granted to a railroad company a limited and defined right of way across a military reservation (occupied by a military post), held that the company was authorized simply to construct a track or roadway, and was not empowered to put up depots, stock yards, cattle pens, or other erections upon the land, or to appropriate land otherwise than for the roadway. (c)

So held that the Secretary of War could not, of his own authority, grant, in consideration of the payment of toll to the United States, a right of way over a bridge belonging to the United States. So held that the Secretary could not legally grant to a company or individul the right to erect and maintain for an indefinite period a hotel on the military reservation at Sandy Hook. (d) So held that the Secretary would not be authorized to transfer a lot belonging to the United States at Washington to the Commissioners of the District of Columbia for the erection of a hospital. So held that neither the Secretary of War nor a department commander could grant to an individual or individuals the exclusive right to use for an indefinite period cer

a This fundamental rule of our public law is expressed by Attorney-General Hoar, XIII Opins., 46, as follows: "I am clearly of opinion that the Secretary of War can not convey to any person any interest in land belonging to the United States, except in pursuance of an act of Congress expressly or impliedly authorizing him to do so." And see United States v. Nichols, 1 Paine, 646 (cited post); Seabury v. Field, McAllister, 1; United States v. Hare, 4 Sawyer, 653, 669.

b See Friedman v. Goodwin, 1 McAllister, 148, where a lease made by the post commander at San Francisco of a part of a "Government reserve," though approved by the military governor of the then Territory, and also by the Secretary of the Interior, was held void because not authorized by Congress. The court declares the "utter impotency of any attempt by an officer of the Government to alien any land, the property of the United States, without the authority of an act of Congress;" adding that "the President with the heads of the Departments combined" could not effect such an object. And see IV Opins. Att. Gen., 480; 9 ibid., 476; 13 ibid., 46; United States v. Hare, 4 Sawyer, 670-671. In the last case the court say: "The Secretary of the Treasury can not execute or approve of a lease of any property belonging to the United States without special authority of law."

eSee this opinion affirmed by the Attorney-General in XIV Opins., 135.

d See confirmatory opinion of the Attorney-General in XVI Opins., 205. In this case there was the further objection that the State of New Jersey, in ceding to the United States jurisdiction over the premises, by deed of March 10, 1846, had expressly declared that the grant was "for military purposes," adding "and the said United States shall retain such jurisdiction so long as the said tract shall be applied to the military or public purposes of the said United States, and no longer."

tion for the same, except when constructed by the troops; and no such structures, the cost of which shall exceed twenty thousand dollars, shall be erected unless by special authority of Congress.

Sec. 1136, R.S.

1622. It shall be the duty of all officers of the United Title papers. States having any of the title papers (property purchased,

tain water power belonging to the United States, nor the exclusive right to mine the soil of a military reservation for a certain term of years, nor a similar right to make and maintain for an indefinite period ditches through a portion of such a reservation for the purpose of irrigating the lands of private parties, nor the right annually to enter upon and occupy a military reservation and cut and possess the hay crop growing thereon, (a) nor the right permanently or indefinitely to occupy and use a portion of a reservation for a burying ground. Ibid., 2088.

Held, however, that a distinction was to be observed between a grant of a usufructuary interest in land and a revocable license not involving a transfer of such an interest. (b) Thus held that the Secretary of War would be authorized to permit a telegraph company to erect posts upon a military reservation and attach to the same telegraph wires, subject to their being removed at the will of the Government, if found to interfere with the purposes for which the reservation was established. So held that a municipal corporation might legally be permitted by the Secretary of War to lay water pipes in the soil of the arsenal grounds at Springfield, Mass., the same being equally for the benefit of the military authorities and the citizens, and subject to removal at the will of the Government. And held that a post trader might legally be licensed by the Secretary of War to erect the buildings necessary for his business upon the land of the post for which he was appointed. (c) But held that the Secretary of War was not empowered to accede to the application of an individual to establish a ferry across a river within the limits of a military reservation, where what was asked was not a mere license revocable at the will of the Secretary, but a permanent franchise and grant of an exclusive usufructuary interest in the premises, including even the right to charge tolls to the United States. And similary held in a case of an application to be permitted to erect and maintain a permanent bridge across a river forming a boundary of a military reservation, one end of which was to be built upon the soil of the reservation, the application contemplating not a mere license revocable at the will of the Government, but a permanent right of property in the bridge, involving an easement in the land. Ibid., 2089.

The act of July 28, 1882, authorizes the Secretary of War, in his discretion, to "lease for a period not exceeding five years, and revocable at any time, such property of the United States under his control as may not for the time be required for public use," such leases to be "reported annually to Congress;" but does not prescribe as to the disposition of the moneys received as rents. Sec. 3621, Revised Statutes, provides for the disposition of public moneys coming into the possession of any person, and par. 698, Army Regulations of 1895, directs that "the face of the certificate or receipt" shall "show to what appropriation" the funds belong. Advised that it would be sufficient for any post quartermaster or other disbursing officer into whose hands such rents should come to note the character of the payment upon his certificate, leaving it to the War Department to report the same in the aggregate to Congress at the end of each year. Ibid., par. 2084.

From the act of July 5, 1884 (23 Stat. L., 103), it may be regarded as certain that it was the view of Congress that an explicit authority was necessary for even a transient occupation of a military reservation for other than its special purpose. The act of July 28, 1892, authorizing the Secretary of War to lease such property of the United States under his control as may not for the time be required for public use, forbids an occupation which contemplates permanency, or duration longer than five years. The Secretary of War has no power to accept a donation of property for the Government for use in perpetuity by Roman Catholics. A revocable license, without limitation as to time, by the Secretary of War to a Roman Catholic archbishop, to erect and maintain a chapel on the military reservation at West Point, transcends the statute. XXI Opin. Att. Gen., 537; ibid., 473; ibid., 47; XIX ibid., 28.

a A fortiori in regard to growing timber. See Spencer v. United States, 10 Ct. Cls., 255.

b See this distinction recognized in opinions of the Attorney-General of October 1 and November 22, 1878 (XVI Opins., 152, 205), in the former of which it was held that the Secretary of the Navy was not empowered to authorize the city of Chelsea, Mass., to continue one of its main sewers through the grounds of the United States Naval Hospital.

c See XIV Opin. Att. Gen., 125.