OPINION OF THE COURT.
McFIE, J.There is but one question for determination in this case and that is whether or not the defendants, or Oliver M. L'ee, the demurrant herein, could acquire a right of way for a canal, ditch, reservoir, or pipe line such as he contemplated constructing, or had partially constructed, on and over the unsurveyed public lands,of the United States without first having obtained the permission of the Department of the Interior as provided by'the statute .in regard to surveyed public domain. In the lower court this seems to have been conceded to be the only question for the court’s determination. In sustaining the demurrer, Justice Edward A. Mann, presiding judge of the Sixth Judicial District, in which this case arose, handed down a carefully considered opinion in which all of the statutes involved were examined and applied to the case-at bar and in .as much as the opinion rendered by the lower court, in our opinion, states the law of the case correctly, such portions of the opinion as are deemed necessary to a determination of the case in this court will be, in whole or in part, restated here.
It becomes necessary for us to refer to, and to some extent consider, the sections above quoted of the act of Congress of March 3rd, 1891, and also make reference to the act of Congress of February 15th, 1901, in-as-much as there is some contention in this case that the latter act materially modified or repealed those sections of the former act, and it is necessary for the court to ascertain ■whether this contention of the plaintiff in error is correct or not. The act of’March 3rd, 1891, is a very comprehensive act and governed the practice as to the obtaining Qf rights of way for canals, ditches and reservoirs for many years and it governed the obtaining of these rights of way over both surveyed and unsurveyed lands and clearly defined the mode of obtaining those rights of way, depending upon whether the lands were surveyed or unsurveyed.
Sec. 18, supra, contains a grant of right of way through the public lands and reservations of the United States ’ to any canal or ditch company, duty organized), which shall file proof thereof, as prescribed, with the Secretary of the Interior for ditches, canals or reservoirs, including the right to take stone, earth or other material necessary for the construction of such canal, ditch or reservoir, from the adjacent lands for the construction thereof, .and Sec. 20 makes these provisions applicable to individuals or associations. The language of this section is almost identical so far .as the granting clause is concerned, with section 1 of the Act of March 3, 1875', granting rights of way to railroad companies over the public lands (18 St. L. 482, 6 Fed. St. Ann. 501), and this has been held b3r, the Supreme Court of the United States to grant to a railroad company which has actually constructed its road, an absolute right of way over the public lands superior to the rights of any subsequent entry of the land, although the required profile maps had not been filed as provided by Sec. 4 of the act. Jamestown & Northern Ry. Co. v. Jones, 177 U. S. 125; W. & I. R. Co. v. Coeur d’Alene R. & N. Co., 52 Fed. 765.
In the case at bar the lands are unsurveyed lands and under the provisions of Sec. 19, supra, no maps or plats are required to be filed until within twelve months after the lands have been surveyed. It is alleged in the complaint, however, that tire ditches, etc., of the defendants have already been constructed and are now being maintained, so that the same condition prevails as in Jamestown & Northern Ry. Co. v. Jones, supra, except that in the case here the lands are unsurveyed.' Tn that case a distinction is drawn between constructed roads and proposed roads desiring to acquire rights of way prior to construction on surveyed lands, and the actual construction of the road is held to answer the purpose of filing the profile maps by giving notice of the tract claimed as such right of way; but the court saya, quoting from Sec. Vilas, in Dakota Central Ry. Co. v. Downey, 8 Ld. 115:
“As to the road way, the construction of the road fixes the boundaries of the grant and fixes it by the exact rule of the statute. * * * This must undoubtedly be the rule when the road is constructed over unsurveyed lands, because then that every condition necessary to the vigor of the present grant is complied with.”
The act under consideration (Act March 3, 1875) contained an almost identical clause with reference to the filing of maps in case of unsurveyed lands within twelve months after the survey thereof by the United States.
The Department of the Interior, in its regulations concerning rights of way for canal-s, ditches and reservoirs, issued September 38th, 1905, (which it will be observed is after the passage of the Act of February 15, 1901, says at Sec. 16:
“Maps showing canals, ditches and reservoirs wholly upon unsurveyed lands, may be received and placed on file in the general land office and the local land office in the district in which the same is located, for general information, and the date of filing will be noted thereon; but the same will not be submitted to nor approved by the Secretary of the Interior, as the act makes no provision for the approval of any but maps showing the location in connection with the public surveys. The filing of such maps will not dispense with the filing of maps after the surveys of the lands and within the time limited in the act granting the right of-way, which maps if in all respects regular when filed, will receive the Secretary’s approval.’”
From this provision of the regulations issued as late as 1905, or about four years after the Act of February 15, 1901, was passed, the Interior Department recognizes that Congress intended that ariv person may go upon unsurveyed public lands of the United States, lawfully, and construct irrigating ditches, canals or reservoirs whose main purpose is that of irrigation, filing his map or plat of the same twelve months after the survey of the lands by the government, for tire approval of the Secretary of the Interior; and that the grant becomes fixed so far as the right of way is concerned, upon the construction of the ditch or canal, the approval of the Secretary afterwards being in the nature of a confirmation of the grant and a completion of the title thereof upon the records kept by the government.
But it is contended by the plaintiff in error that the Act of February 15, 1901, modifies the former act so that no right of way can be acquired upon the public lands of the United States, surveyed or unsurveyed, without first obtaining permission from the Secretary of the Interior. The Act of 1901, however, has received no such construction from the Department of the Interior. In fact, the Hon. Secretary in Sec. 47 of the circular of regulations, draws the distinction between the two acts, in the following apt language:
“It is to be especially noted that this act (1901) does not make a grant in the nature of an easement, but authorizes a mere permission in the nature of a license, revokable at any time, and it gives no right whatever to take from the public'lands, reservations or parks adjacent to the right of way, any material, earth or stone for construction or other purposes.”
Sec. 46 of these regulations of the Interior Department of 1905, in construing the act of February 15, 1901, and providing regulations in pursuance of that act, provides : ter act should control in-so-far as the same pertains to the granting of permission to use rights-of-way for the purposes therein specified. Accordingly, all applications for permission to use rights-of-way for the purposes specified in this act must be submitted thereunder. Where, however, it is sought to acquire a right-of-way for the main purpose of irrigation, as contemplated by Sections 18 and 21 of the Act of March 3, 1891, and Sec. 2 of the Act of May.11, 1898, supra, the application must be submitted in accordance with the regulations issued under said acts.”
“Although this act does not expressly repeal any provision of law relating to the granting of permission to use rights of wdy, contained in 'the act referred to, yet, considering the general scope and purpose of the act, and Congress having, with the exception above noted, embodied therein the main features of the former acts relative to the granting of a mere permission or- license for such use, it is evident that, for purposes of administration the lat-
It is clear that the Hon. Secretary of the Interior did not take the view that the Act of February 15, 1901, repealed or modified the Act of March 3, 1891, and Sec. 2 of the Act of May 11, 1898, the latter act being amendatory of the Act of March 3, 1891, making it plain that the' Act of March 3, 1891, still applied to eases where the main purpose of the construction of ditches or canals was for irrigation and not to cases arising under the Act of February 15, 1901, which applied to parks, forest and other reservations and for the construction of electric plants, poles and lines for the generation and distribution of electrical power, and for telephone and telegraph purposes, as well as for canals, ditches, pipes and pipe lines, flumes, tunnels and other water conduits and for water plants, dams and reservoirs to promote irrigation, for it is very evident that the main purpose of the Act of February 15, 1901, was not to grant rights of way for canals, ditches and reservoirs for irrigation purposes mainly, but for many other purposes as well. It is quite significant that the Secretary in his regulations issued in 1905, construing the act of 1901, should use the language above quoted, indicating that the acts of 1891 and 1898 were still in force, where, in the construction of such canals, ditches and reservoirs, the main purpose of which, was, as in the present case, irrigation.
The term public lands, as used in the act of 1901, seems to be used in different sense than the same term is used in the act of 1891, in this, that the act, while using the term public land applies it to lands subject to use for parks, reservations and other purposes by act of the United States, necessitating the granting of a, permit or license only for right of way purposes, whereas under the former act, an easement attaches, which by the approval and confirmation of the Secretary of the Interior after survey may become permanent, as in the case of a railroad right-of-way, provided, that the right-of-way appropriated upon- unsurveyed lands by the construction of canals, ditches or reservoirs has for its main purpose the irrigation of lands, as provided for in the act of 1891, as 'amended by the act of 1898. Lands covered by parka, reservations, etc., are still lands of the United States, but are not public lands in the same sense as when free from the limitations of such incumbrances. Thus it will be seen that there is no conflict between those laws; both of them may stand, and being construed together each may serve the purpose intended by Congress depending upon the conditions existing at the time.
It has long been the policy of the government to encourage irrigation in the arid and semi-arid west. Congress in its wisdom, has enacted such laws as will enable rights-of-way to be acquired for such irrigation works over the public lands and thus encourages the development of the country. The tendency has been toward more liberal laws in that regard, and it is a matter of common knowledge that in this Territory it has been the custom for years to enter on the unsurveyed public lands of the United States and construct such ditches, canals, pipe lines and reservoirs as were necessary to put the waters of the streams to a beneficial use for agricultural and kindred purposes.
Now, it is apparent, as regards the construction of ditches and canals for irrigation purposes upon unsurveyed land, that if the approval of the Secretary of the Interior must be had before any such construction can be made, it would be tantamount to saying that no such ditches, canals or reservoirs could be constructed upon unsurveyed public domain for the reason that Sec. 19 of the act of Congress of 1891 provides that
“Any canal or ditch company desiring to secure the benefits of this, act shall, within twelve months after the location of ten miles of its canal, if the same be upon surveyed land, and if upon unsurveyed land within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located, a map of its canal, ditch or reservoir, and upon approval thereof by the Secretary of the Interior the same shall be noted upon the plats of said office,” etc., showing that corporations, associations or persons may lawfully >enter upon unsurveyed public land and obtain a right-of-way for the construction of ditches, canals, etc., whose main purpose is for irrigation, and maintain the same until twelve months after the survey of - the lands by the United States, at which time maps, plats, etc., must be filed in compliance with the Act of Congress. However, years might elapse before such surveys were made by the United States. The regulations of the' Secretary of the Interior above referred to, provide for the filing of maps, plats, etc., within twelve months after the location of ten miles of a canal, provided the same be upon surveyed lands, but, as to xxnsxxrveyed landp, we find provisions indicating that the filing of such maps, plats, etc., and the approval of the Secretary of the Interior of such right-of-way is wholly unnecessary and, in fact, such approval could not be made by the Secretary.
“Maps showing canals, ditches or reservoirs wholly upon unsurveyed lands, may be received and placed on file in the general land office and the local land office of the district in which the same is located, for general information; and the date of filing will be noted thereon but the same will not be submitted to nor approved by the Secretary of the Interior, -as the act makes no provision for the approval of any but maps showing the location in connection with the pxxblic surveys. The filing of such maps will not dispense with the filing of the maps after the sixrvey of the lands and within the time limited in the act granting the right-of-way, which maps, if in all respects regular when filed will receive the Secretary’s approval.”
In the regulation just quoted, the Secretary of the Interior distinctly states that no such approval or permission as the law contemplates could be granted for a right-of-way for irrigation purposes while the land remains unsurveyed, and it does not seem reasonable with the law and regulations above referred to providing for such right-of-way for irrigation purposes, that such approval and permission should be granted by the Secretary of the Interior as a condition precedent to the construction of irrigation enterprises upon unsurveyed lands, when the granting of such approval was impossible under the law. If such view is to obtain, an irrigation system could not be established even upon surveyed lands in the event that the line of ditch or canal traversed any portion of the unsurveyed public domain.
1 It would appear as a serious step backward to now hold that such irrigation systems could not be constructed and rights-of-way acquired upon imsurveyéd land, without first seeking the consent of the Secretary of the Interior, thus involving long and tedious delays, which in, such case would be absolutely unavoidable under the law. This consent would, of course, be necessary in cases of parks and reservations where permanent rights cannot be acquired, but only a license granted by the government; but it was never intended to apply to the open, unsurveyed public lands' which will eventually be settled upon and improved.
The allegation of the complaint as to the intervening rights of settlers upon some of the public lands over which said ditches are, or may be, constructed, it is not necessary here to consider, fox the reason that this action is brought by the United States and not by settlers who may or may not be injuriously affected by the construction of the canals and ditches involved in this litigation. Furthermore, there is a provision of law for the adjudication of the rights of settlers on the public lands of the United States when the same are injuriously affected by the construction of irrigation systems, Sec. 19 Act of Congress above quoted, and in a proper case damages may be awarded, but such damages could not, in any event, be awarded in this proceeding. The sole question here is the right of the government to enjoin the defendants from going upon unsurveyed public lands arid taking, possession of them for the purpose of acquiring a right-of-way. over the unsurveyed public lands of the United States for irrigation purposes, without first filing maps and obtaining the approval and permission of the Secretary of the Interior so to do.
2 We are of the opinion that injunction will not lie against the defendants under these circumstances, as the lands involved are unsurveyed lands of the United States as to which the Secretary of the Interior would be required by law to decline either to grant such right-of-way or to approve of, the construction of such ditches, etc., if such maps were filed in his office.
There being, no error in the rendition of the decree of dismissal in the court below, the decree is affirmed with costs. It is so ordered.
Chief Justice Pope, Frank W. Parker, Justice, John E. McFie, . Justice, Ira A. Abbott, Justice, are the only members of the court as now constituted who heard this case.