DECISIONS

RELATING TO

THE PUBLIC LANDS.

ALASKAN LANDS-ROADWAY RESERVATION-TIDE LANDS-TRAMWAY.

JESSE C. MARTIN.

Tide lands and the lands reserved as a public highway along the shore line of Alaska are not a part of the public domain, within the meaning of that term as used in section 6 of the act of May 14, 1898, and the Secretary of the Interior is without authority to approve an application for a right of way for a wagon road or tramway over such lands and the construction of a pier or wharf thereon.

Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) (F. W. C.)

January 10, 1903.

The Department has considered the appeal by Jesse C. Martin, from your office decision of June 27, last, rejecting his application, made under the act of May 14, 1898 (30 Stat., 409), for a right of way for a

wagon road or tramway, from a point on the southerly boundary of the original townsite of Valdez on Glacier Avenue or Broadway to the line of ordinary high water mark and to construct thereon and maintain the necessary piers and wharfs for connection with water transportation as described by metes and bounds in the annexed field notes of survey of said wagon road, tramway and wharf, with the right, subject to the supervision and the rates to be approved by the Secretary, to levy and collect toll or freight and passenger charges, on passengers, animals, freight or vehicles, passing over the same for a period not exceeding "twenty years," with the privilege to purchase upon completion of said road, a tract of public land not exceeding "twenty acres at each terminus at" one dollar twenty five cents per acre, such lands when located at or near tide water not to extend more than forty rods in width along the shore line of any navigable water and the title thereto to be upon such expressed conditions as in his judgment may be necessary to protect public interest, and all minerals, including coal, in such right of way or station grounds, to be reserved to the United States.

The map or plat attached to the application shows that the proposed wagon road or tramway extends southwesterly from a point on the south boundary of Valdez townsite, a distance of 2283 feet, to "ordinary high water mark," at which point a pier or wharf is to be constructed to "low water line," a distance of 1,200 feet from the point 23286 Vol. 32-03-1

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of beginning, and thence it is to be continued to deep water, a distance not stated. The location of the land proposed to be purchased is not described in the application. Your office decision calls attention to the fact that the application under consideration indicates that it is in front of a tract included within the Valdez townsite but that the records of your office fail to show any application for such a townsite.

The sixth section of the act of May 14, 1898, being the section under which the application under consideration is made, provides, among other things, as follows:

That the Secretary of the Interior is hereby authorized to issue a permit, by instrument in writing, in conformity with and subject to the restrictions herein contained, unto any responsible person, company, or corporation, for a right of way over the public domain in said District, not to exceed one hundred feet in width, and ground for station and other necessary purposes, not to exceed five acres for each station for each five miles of road, to construct wagon roads and wire rope, aerial, or other tramways, and the privilege of taking all necessary material from the public domain in said District for the construction of said wagon roads or tramways, together with the right, subject to supervision and at rates to be approved by said Secretary, to levy and collect toll or freight and passenger charges on passengers, animals, freight, or vehicles passing over the same for a period not exceeding twenty years, and said Secretary is also authorized to sell to the owner or owners of any such wagon road or tramway, upon the completion thereof, not to exceed twenty acres of public land at each terminus at one dollar and twenty-five cents per acre, such lands when located at or near tide water not to extend more than forty rods in width along the shore line and the title thereto to be upon such expressed conditions as in his judgment may be necessary to protect the public interest, and all minerals, including coal, in such right of way or station grounds shall be reserved to the United States: Provided, That such lands may be located concurrently with the line of such road or tramway, and the plat of preliminary survey and the map of definite location shall be filed as in the case of railroads and subject to the same conditions and limitations: Provided further, That such rights of way and privileges shall only be enjoyed by or granted to citizens of the United States or companies or corporations organized under the laws of a State or Territory; and such rights and privileges shall be held subject to the right of Congress to alter, amend, repeal, or grant equal rights to others on contiguous or parallel routes. And no right to construct a wagon road on which toll may be collected shall be granted unless it shall first be made to appear to the satisfaction of the Secretary of the Interior that the public convenience requires the construction of such proposed road, and that the expense of making the same available and convenient for public travel will not be less on an average than five hundred dollars per mile: Provided, That if the proposed line of road in any case shall be located over any road or trail in common use for public travel, the Secretary of the Interior shall decline to grant such right of way, if, in his opinion, the interests of the public would be injuriously affected thereby.

By the tenth section of that act "a roadway sixty feet in width, parallel to the shore line as near as practicable," of the public land abutting on navigable waters in the district of Alaska, is "reserved for the use of the public as a highway." The term "shore line," as used in said section, has been construed by the Department to mean "high water line" (27 L. D., 248, 263-4), and in the case of Nome Transportation Company (29 L. D., 447, 450), involving an applica

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tion for a permit for the use of a right of way under section 6 of the act of 1898, it was held that, in order, therefore, that this reservation of a highway for the benefit of the public may not be interfered with, it is necessary that the right of way in question should not, at any point, approach nearer the shore than the distance of sixty feet from the high water line thereof." See also Ex parte George N. Wright (29 L. D., 684).

In the application under consideration it is shown that the proposed wagon road or tramway will traverse the sixty-foot reservation bor dering upon the shore of Valdez bay, and while the applicant agrees to so construct the proposed road, tramway and wharf and to operate the same in such manner as not to interfere in any way with the public highway, there would, nevertheless, seem to be no authority for the granting of the permit, as the act of 1898 authorizes the issuance of a permit for a right of way only over the public domain, and the lands reserved as a public highway, and the tide lands over which it is proposed to construct a pier or wharf, are not a part of the public domain within the meaning of that term, as so used in said act. (Nome Transportation Company, supra, and cases therein cited.) Excluding the sixty-foot reservation along the shore of Valdez bay, and the tide lands, the application is reduced to a proposed road or tramway 1681 feet extending in a southwesterly direction from a point on the southern boundary of the Valdez townsite referred to therein.

In the opinion of this Department this proposed wagon road or tramway is not such a one as is contemplated by the sixth section of the act of 1898, and on account of the construction of which the Secretary of the Interior is authorized to issue a permit for a right of way. It seems rather to be a mere application for wharfage privileges in front of the townsite, and from a consideration of the entire matter the application is denied and herewith returned, with the accompanying. papers, for the files of your office.

CHIPPEWA LANDS-COMMUTATION-ACT OF JUNE 3, 1896.

JOHN PURCELL.

Lands in the Chippewa reservation in the State of Minnesota opened to settlement and entry by the act of January 14, 1889, are subject to homestead entry and commutation under the act of June 3, 1896.

Circular of September 17, 1897, 25 L. D., 258, in so far as it prohibits the commutation of entries under the act of June 3, 1896, upon Chippewa lands, overruled. Secretary Hitchcock to the Commissioner of the General Land Office, (W. V. D.) February 4, 1903. (V. B.)

On September 4, 1901, John Purcell, claiming the benefit of the provisions of the act of June 3, 1896 (29 Stat. 245), made homestead entry,