REVISION.

2249. Where the record of a trial, as forwarded to the reviewing authority for his action, is deemed by him to exhibit some error, omission, or other defect, in the proceedings capable of being supplied or remedied by the court; as, for example, an inadequate, illegal, or irregular sentence, or a finding not authorized by the evidence; or an omission of some material matter as a failure to prefix to the record a copy of the convening order, or to authenticate the proceedings by the signatures of the president and judge-advocate, or to enter the proper statement as to the members present, or to recite as to the offering to the accused of an opportunity to object to the same or as to the qualifying of the court by the prescribed oaths, or to fully record the plea, finding or sentence; or some mere clerical error in a matter of form;-the court may and in general properly will be reconvened by the order of the reviewing officer (the convening authority or his successor in the command) for the purpose of correcting the record in the faulty particular, provided a correction be practicable. In a case of an omission, the object of course is that the record may be made to conform with the fact. If the fact is that the proceeding, apparently merely omitted to be recorded, was actually not had, the proposed correction cannot of course be made. There is no limit to the number of times that a court may be reconvened for a revision of its proceedings. It is not often however reassembled a second time, where it declines on the first occasion to make the correction desired. I, 487, December, 1862; II, 154, April, 1863; XI, 490, February, 1865; XVI, 202, May, 1865; XXVIII, 286, December, 1868; 304, January, 1869.

2250. The order reassembling the court will properly indicate the particular or particulars as to which a revision or correction is desired, or refer to papers, accompanying it, in which the supposed omission or other defect is set forth. XI, 93, November, 1864. Whether to make or not the proposed correction will be in the discretion of the court. The reviewing authority cannot of course compel and would scarcely be authorized to command the court to make it. VII, 112, November, 1863; XXXIV, 435, September, 1873.

2251. A correction can be made only by a legal court. At least five therefore of the members of the court who acted upon the trial, must be present. That there are fewer members at the re-assembling than at the trial is immaterial, provided five are present. XXXV, 656, October, 1874. The judge-advocate should be present.' I, 487, December, 1862.

'If the court closes he should withdraw (act of July 27, 1892, s. 2).

2252. It is not in general necessary or desirable that the accused be present at a revision. Where, however, any possible injustice may result from his absence, he should be required or permitted to be present, and with counsel, if preferred. Thus, where the defect to be corrected consists in an omission properly to set forth a special plea made or objection taken by the accused, it may be desirable that he should be present in order that he may be heard as to the proper form of the proposed correction. Where the error is clerical merely, or, though relating to a material particular, consists in the omission of a formal statement only, the presence of the accused is not in general called for. IX, 653, September, 1864.

2253. It is now settled in our law that a court martial is not empowered, at this proceeding, to take or receive testimony. XVI, 562, September, 1865; XIX, 41, October, 1865; XLII, 275, April, 1879.

2254. The amendment can only be made by the court when duly reconvened for the purpose, and when made must be the act of the court as such. A correction made by the president or other member, or by the judge-advocate, independently of the court, and by means of an erasure or interlineation or otherwise, is unauthorized and a grave irregularity. XXVIII, 304, January, 1869. The correction must be wholly made and recorded in and by the formal proceedings upon the revision. The record of the correction, as thus made, will refer of course to the page or part of the record of the trial in which the omission or defect occurs; but this part of the record must be left precisely as it stands. The court is no more authorized to correct the same by erasure or interlineation on the page, or by the substitution for the defective portion of a re-written corrected statement, than would be the judge-advocate or a member. II, 97, March, 1863; XI, 93, November, 1864; XVI, 202, May, 1865; XXXIV, 416, August, 1873; XLV, 439, September, 1882. (See §§ 2136, 7, and 2143, ante.)

2255. Where, after a sentence had been duly adjudged, and the record forwarded to the reviewing officer, a majority of the members of the court transmitted to him a written statement to the effect that the sentence was intended to have a certain meaning not conveyed by its terms-i. e., was not intended to operate as a forfeiture of certain pay clearly forfeited by it as recorded-held that such irregular statement could have no effect as a correction of the sentence; that the proposed correction could only be made by the court itself, after having been reconvened to reconsider the sentence. XXXIII, 347, September, 1872.

2256. The reviewing officer himself can have no authority to make a correction in any part of the record. Thus where, upon a specifica

1 See G. O. 47, Hdqrs. of Army, 1879.

2 See par. 19, S. O. 99, A. G. O., 1900, quoted in note to § 2242, ante.

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

1

way was not interrupted by such reservation.' 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 rater 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

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

2 Yunker v. 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.

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 r. 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,