tion duly setting forth a military offence, a court martial found an accused "guilty but without criminality," and the reviewing commander, in disapproving this contradictory finding, ordered that the words after "guilty" be treated as struck out of the record, held that, however objectionable the finding, the reviewing officer could not himself assume to correct it. If he desired it amended, he should have formally reconvened the court for the purpose. XII, 250, January, 1865. Nor has the War Department authority to correct the findings or sentence of a court martial. Card 1624, December, 1895.

2257. Where the court has been dissolved, or, by reason of any casualty or exigency of the service, cannot practically be reconvened, there can of course be no correction of its proceedings. XXXI, 108, December, 1870.

2258. The procedure here contemplated is of course quite distinct from the ordinary revision and correction of its proceedings by a court martial from day to day during a trial and before the record is completed. XXVII, 581, March, 1869.

RIGHT OF WAY.

2259. Where an act of Congress grants to an individual or corporation a right of way (or other franchise), no formal acceptance of the same is necessary. By simply acting under the grant, the grantee accepts the same with all its conditions. 59, 418, May, 1893.

2260. Where a grant of a right of way is made by the United States to a particular grantee over lands of the United States, but without. designating the precise strip of land in the entire body of land which is to be occupied, it is held by recent authority that if the grantee selects such way, and the grantor does not object to such selection but silently acquiesces therein, he substantially constitutes the grantee his agent for such selection, and himself joins, in law, in the selection, and the title to the tract selected passes to the grantee.' This ruling held applicable to the case of the right of way through the Fort Leavenworth military reservation, granted to the Kansas and Missouri Bridge Company, by the act of July 20, 1868, c. 179. 50, 395, December, 1891.

2261. The right of way granted to the Northern Pacific Railroad Company by sec. 2 of the act of July 2, 1864, c. 217, unlike the grant of lands by sec. 3, was subject to no exceptions or limitations. So, held that the fact that, subsequently to the date of the act, the President reserved land on the line of the railroad for military purposes, before the company had definitely fixed its line and filed its maps, did not affect the right of way as granted by the act, and that such

1

1 Railway Co. v. Alling, 99 U. S. 468; Onthank r. Railroad Co., 71 New York, 196.

way was not interrupted by such reservation.1 XLIX, 357, October, 1885.

2262. Where an enactment of Congress (the River and Harbor Appropriation Act of Sept. 10, 1890) required the Secretary of War to "acquire the title" to certain lands sufficient for a right of way for a canal, held that a contract of conveyance made with the owner of the land, a railroad company, by which a use was granted of such way jointly with the company, was not a compliance with the law, and that if no better title could be obtained by agreement, the Secretary should proceed to the alternative (authorized in the act) of causing the premises to be condemned. 51, 184, January, 1892.

2263. The act of September 10, 1888, c. 999, relating to rights of way of railroads through water-reserve lands in Wisconsin, confirms, as to that State, the rights of way given by the act of March 3, 1875, c. 152. 32, 223, May, 1889. But the act of 1888 leaves these rights still subject to the right of flowage, which, under the authority of the United States, may need to be resorted to in connection with the improvement of the Mississippi River, and subject also to the condition that no railroad company shall take material for construction from the water-reserve lands outside the right of way. 33, 489, July, 1889. Where the location of a railroad has been approved by the Secretary of the Interior, and its right of way perfected, under the act of 1875, it is not required that there should be a re-approval by the Secretary of War under the act of 1888. 31, 352, April, 1889; 33, 156, June, 1889. An approval by the Secretary of War, under the act of 1888, of the location of a right of way for a certain railroad, not recommended until the company file with their application a perfect profile and full and minute description of the proposed line. 29, 253, January, 1889. 2264. Questions of rights to the use of water in States and Territories, where the rainfall is not sufficient to supply the land with water for irrigation, are determined by rules not found in the common law. In England and generally in this country the right of one person to conduct water over the land of another is an interest in real estate which must be conveyed by deed. In districts where there is sufficient rain to fertilize the land there is no reason for distinguishing this interest from other easements in the soil. In regions where the fertility of the soil is dependent upon irrigation, a different principle arises. By it the right of a person, who cannot otherwise secure a necessary supply of water, to enter the land of another for such purpose, is recognized. The use of this right is secured and regulated

1See Railroad Co. v. Baldwin, 103 U. S. 426; 18 Opins. At. Gen. 357.

2 Yunker . Nichols, 1 Col., 551. But, it seems, that in the absence of statute the person would have no right to construct a ditch on the lands of another without the owner's consent. Gould on Waters, 3d edition, § 233.

by statute in the western States, and is further recognized by Congress in the act of March 3, 1891, c. 561, s. 18-20, which extends to individuals and associations the right to enter the public lands and reservations of the United States, and have a right of way upon the same for the construction of irrigating ditches.' So held that where an individual had constructed such a ditch over the soil of a military reservation in Wyoming, after filing the map of the line of the same required by s. 20, of the act, his use of the water could not be controlled or interrupted by the military authorities so long as he did not, by the location of his right of way "interfere with the proper occupation" of the reservation by the Government (sec. 18 of the act). XLIX, 97, May, 1885; 55, 268, September, 1892.

2265. By sections 18 and 20 of the act of March 3, 1891 (26 Stats. 1110-2), the right of way is granted across the public lands and reservations of the United States for the construction of irrigating ditches, subject to the approval of the location of right of way across a reservation by the department of the Government having jurisdiction of such reservation. Where the Secretary of War, under this statute, approved the location of a right of way across a military reservation, but subject to certain conditions for the benefit of a third party, held that the Secretary of War was without authority to compel the grantee of the right of way to comply with the conditions, or to deprive him or his assigns of such right of way on account of his or their failure to comply with the conditions. Card 1063, May, 1896.

2266. The vesting of a right of way in the United States does not merely authorize the Government to send its agents and employees on the land for purposes of construction, &c., but endows it with such right and control as to enable it to keep the way open and ensure its continued use for the purposes designed. But where it was proposed to cede to the United States a right of way from a city, by one of its laid-out streets, to an adjacent national cemetery, held that the municipality, in the absence of specific authority conferred by the legislature, was not empowered to convey such a right, but that the legislature alone could do so, just as the legislature alone could vacate or discontinue a street. 30, 45, January, 1889.

2

2267. So, held that an appropriation made by Congress for constructing a road from a city, through one of its streets, to a national cemetery, could not legally be expended upon a right of way granted by a city ordnance, the legislature not having delegated such jurisdiction over its streets to the municipality, which could not therefore transfer

As to the operation of the act of July 26, 1866, and other prior enactments relating to this subject, see Broder v. Water Company, 101 U. S. 274; Sturr . Beck, 133 id. 541. See, also, Gould on Waters, 3d edition, § 240, and authorities cited. Dillon on Municipal Corporations, 647, 652, 665; Kreigh v. Chicago, 86 Ills. 407.

to a third party & permanent property therein. 54, 423, July, 1892. Held that where such a municipality had not been empowered to convey a right of way outside its corporate limits, the conveyance should be made directly to the United States from the individual owners of the land, and that for the latter to convey, mediately, to the city would be an unnecessary proceeding. 29, 68, 69, December, 1888.

2268. Without express authority from Congress, the Secretary of War cannot grant to railway companies rights of way over the lands of the United States under his control, but he has frequently by revocable license granted permission to lay and maintain railway tracks upon such government lands. Cards 241, August, 1894; 6539, June, 1899.

RIVER COMMISSIONS.

2269. Held that the maps prepared by the Mississippi commission, under appropriations by Congress, may legally be disposed of at the discretion of the commission; it being evidently intended by Congress that the information therein contained should be made public. and circulated for the public use and benefit. 33, 326, July, 1889.

2270. Held that the Mississippi River Commission derived no authority from the statutes relating to its functions to make allotments of the money's appropriated by Congress for the improvements proposed. Its province is to indicate to Congress what improvements are needed and how much should be appropriated therefor. It has no authority to disburse money appropriated. An allotment made by it is to be treated by the Secretary of War as a recommendation only. The Secretary may adopt the recommendation, but in the disbursement should not omit any of the works specially designated by Congress in the appropriation act. 43, 187, October, 1890.

2271. Held that the allowances for the traveling expenses of the civilian members of the Mississippi and Missouri river commissions were not regulated by any order of the War Department regulating the allowances of civil employees of the military establishment, but were such as are fixed by statute. They are not thus necessarily four dollars per diem, since the statute law provides for the reimbursement of their actual necessary outlay, which may be more or less than this allowance. 44, 477, January, 1891.

2272. The duties, under the law, of the Missouri River Commission, composed partly of civilians, relate exclusively to certain work quite other than the establishing of harbor lines. It is therefore not, as a body, subject to the directions of the Secretary of War in the matter of establishing harbor lines, nor are the civilian members subject individually to his orders. Thus, while they may consent to establish such lines, it is preferable for the Secretary to cause such work to be done through engineer officers of the army. 56, 218, October, 1892.

S.

SALE, &c., OF ARMS, &c., BY SOLDIERS.

2273. Held that the provisions of s. 23, c. 75, act of March 3, 1863, prohibiting the sale, &c., of their arms, &c., by soldiers, and declaring that no right of property or possession should be acquired thereby, &c., were not limited in their operation to the period of the civil war, but were still in force,' and that an officer of the army would therefore be authorized to seize arms, &c., disposed of contrary to such prohibition, whenever and wherever found. XXII, 525, December, 1866. But inasmuch as there have been sundry authorized sales of arms and other ordnance stores since the end of that war, advised that officers, before making seizures, should assure themselves that the parties in possession have not acquired title in a legal manner. XXIX, 187, 204, August, 1869.

2274. A person who illegally purchases army clothing from a soldier cannot now be proceeded against for merely purchasing or receiving, under the existing law (Secs. 1242 and 3748, Rev. Sts.); but if, in so purchasing, he aids a soldier to desert, he is subject to trial and punishment under Sec. 5455, Rev. Sts. 60, 371, July, 1893.

2275. Sec. 3748, Rev. Sts., provides that clothing furnished by the United States to a soldier shall not be bartered, exchanged, pledged, loaned or given away, and that no person not a soldier or officer of the United States who has possession of any such clothing so furnished and which has been the subject of such sale, barter, etc., shall have any right, title or interest therein, but that the same may be seized and taken wherever found by any officer of the United States, civil or military, and shall thereupon be delivered to any quartermaster or other officer authorized to receive the same, that the possession by a civilian of clothing, etc., furnished to a soldier shall be presumptive evidence of the sale, barter, exchange, etc. The language of this statute indicates that a summary seizure is intended to be authorized and the fact that the military officer is authorized to seize the property shows that no writ or other process of the courts is required. But while the power to summarily make the seizure exists, the officer authorized to take possession of the property may also assert his rights through the courts, and this latter course may be in many cases the preferable and better one. Card 5303, November, 1898.

See these provisions as now incorporated in the Revised Statutes, in Secs. 1242 and 3748. The further provision of the original Act making punishable with fine and imprisonment persons purchasing from soldiers their arms, equipments, clothing, &c., has not been retained in the Revised Statutes.