(dissenting in part).
I disagree with the majority’s conclusion that the reservation for highways provided for by 48 U.S.C.A. § 321d has no applicability to the patent in issue. In my opinion neither the legislative history of the 1947 act nor construction of the language “taken up, entered, or located” supports the conclusion that the 1947 act is inapplicable to sales of land under the Federal Small Tract Act of June 1, 1938.
The patent which was issued on December 3, 1953, to appellees’ predecessor in interest contained four reservations relevant to this appeal. The pertinent portions of the patent disclose that it was issued subject to the following reservations:
(2) the reservation of a right-of-way for ditches or canals constructed by the authority of the United States, in accordance with the act of August 30, 1890 (26 Stat., 391, 43 U.S.C. sec. 945), and (3) the reservation of a right-of-way for roads, roadways, highways, tramways, trails, bridges, and appurtenant structures constructed or to be constructed by or under authority of the United States or by any State created out of the Territory of Alaska, in accordance with the act of July 24, 1947 (61 Stat. 418, 48 U.S.C. sec. 321d). There is also reserved to the United States a right-of-way for the construction of railroads, telegraph and telephone lines, in accordance with section 1 of the act of March 12, 1914 (38 Stat., 305, 48 U.S.C. sec. 305); * * *
*730In addition to the foregoing reservations, which were part of the printed portion of the patent, the patent also contained the following typed portion:
This patent is subject to a right of way not exceeding 33 feet in width, for roadway and public utilities purposes, to be located along the north and east boundaries of said land.1
Apparently the question of whether the 1947 act’s reservation for highways applies to patents issued pursuant to the Small Tract Act is one of first impression.2
The 1947 act (48 U.S.C.A. § 321d (1959)) provided in part:
In all patents for lands hereafter taken up, entered, or located in the Territory of Alaska * * * there shall be expressed that there is reserved, from the lands described in said patent or deed, a right-of-way thereon for roads, roadways, highways * * * and appurtenant structures constructed or to be constructed by or under the authority of the United States or of any State created out of the Territory of Alaska. (Emphasis supplied.)
Appellant contends that the trial court’s-conclusion that lands leased or sold under the Small Tract Act 3 are not lands “taken up, entered, or located” under the 1947 act and therefore are not subject to the 1947 act’s reservation for highways is erroneous. I am of the opinion that appellant’s view has merit.
In urging that the 1947 act is applicable-to lands sold or leased under the Small Tract Act, appellant makes several persuasive points. Initially, appellant contends that there is no difference between the applicablility of the 1947 act to Small Tract Act lands which have been leased or sold and the applicability of the 1890 act4 (reservation of a right-of-v/ay for ditches- or canals), and the 1914, act 5 (reservation of a right-of-way for construction of railroads, telegraph and telephone lines) to these same lands.6 Appellant then cites authorities which have broadly construed the words “taken up” in the 1890 act and urges-that this court should adopt these authorities and render a broad construction to the terms. *731"taken up, entered, or located” as used in the 1947 act.7
I am of the view, upon consideration of the authorities cited by appellant, that a broad construction of the terms “taken up, entered, or located” as used in the 1947 act, is appropriate here. A broad construction leads to the conclusion that lands sold or leased pursuant to the Small Tract Act of June 1, 1938, were subject to the reservation for highways contained in the 1947 act. Such a construction in turn results in the conclusion that in the case at bar appellant had the right to use this reserved right-of-way in addition to the thirty-three foot right-of-way reserved along the northerly and easterly boundaries of appellees’ land.8
I think it is appropriate to point out that in making the foregoing argument to this court, appellant, to a great extent, relies upon the Ironshields 9 decision for the first time.10 It is also pertinent to note that appellant additionally relies upon and cites an unpublished “Memorandum of Opinion of the Office of the Solicitor, Department of the Interior, dated October 9, 1959.”11 This Memorandum Opinion also was not brought to the attention of the trial court.12
I concur in all other aspects of the majority’s opinion.
. As the majority opinion points out this reservation was inserted under the discretionary authority vested by the Small Tract Act in the Secretary of Interior to sell or lease small tracts under such “rules and regulations as he may prescribe.”
Under this rule making authority, the Secretary of Interior promulgated the following regulation:
Unless otherwise provided in the classification order, the leased land will be subject to a right-of-way of not to exceed 33 feet in width along the boundaries of the tract for street and road purposes and for public utilities.
. Note: The act of July 24, 1947, 61 Stat. 418, 48 U.S.O. § 321d (1959), was repealed (effective July 1, 1959) by Pub. L. 86-70, § 21(d) (7), 73 Stat. 146.
I am of the opinion that the trial court was correct in concluding that the re-pealer of the 1947 act was not intended to have retroactive effect.
. Act of June 1, 1938, 52 Stat. 609, 43 U.S.O.A. § 682(a) (1964), which was made applicable to Alaska by the act of July 14, 1945, 59 Stat. 467.
. The act of August 30, 1890, 26 Stat. 391, 43 U.S.O. § 945 (1959), provides:
In all patents for lands taken up after August 30, 1890, under any of the land laws of the United States ⅜ s ⅛ it shall be expressed that there is reserved from the lands in said patent described a right of way thereon for ditches or canals * ⅜ *. (Emphasis supplied.)
. The act of March 12, 1914, 38 Stat. 305, 48 U.S.O. § 305 (1952), provides:
In all patents for lands taken up, entered, or located in Alaska after March 12, 1914, there shall be expressed that there is reserved to the United States a right of way for the construction of railroads, telegraph and telephone lines ⅜ ⅜ ⅞. (Emphasis supplied.)
Note: As shown in the text, reservations under both the 1890 act and the 1914 act were included in the subject patent.
. Appellant additionally points out that if the 1947 act’s reservation is held inapplicable to the subject patent then the same result is reached as to the reservations contained in the 1890 and 1914 acts.
. Appellant relies on the following authorities (interpreting the 1890 act) in support of the broad construction argument it has advanced in regard to the 1947 act. United States v. 5.61 Acres of Land, 148 F.Supp. 467 (D.Cal.1957); United States v. Van Horn, 197 F. 611, 616 (D.Colo.1912); United States ex rel. Southern Pac. R. R. v. Lane, 46 L.D. 407 (1917); Clement v. Ironshields, 40 L.D. 28 (1911); Interior Dep’t. Instructions, 36 L.D. 482 (1908); Cosby v. Danziger, 38 Cal.App. 204, 175 P. 809, 810 (1918); Minidoka & S. W. Ry. v. Weymouth, 19 Idaho 234, 113 P. 455, 458-459 (1911); Green v. Wilhite, 14 Idaho 238, 93 P. 971, 973 (1908).
. Supra note 1.
. Supra note 7. In the Ironshields case, the issue was whether a reservation un•der the 1890 act for “ditches and canals” was includable in the subject patent pertaining to Sioux Indian Reservation lands sold pursuant to the act of March 2, 1889, 25 Stat. 888. The decision read in part:
It will be noted that the reservation was to be inserted ‘in all patents for lands hereinafter taken up under any of the land laws of the United States’. * * * jf tfie actual disposition occurred after the passage of the Act, the land was undoubtedly ‘taken up’ loithin the meaning of those loords as used in the Act of 1890, and this toould be so whether the disposition occurred through allotment, sale, homestead, or other manner of disposition. (Emphasis supplied.)
. In its brief appellant states:
The ease was, apparently unknown to all counsel in the proceedings in the Superior Court herein, and was thus ■ not called to the attention of the Court.
. As to the Memorandum Opinion, appellant asserts that it
held that patents issued pursuant to the provisions of the Small Tract Act (during the effective period of the 1947 Act) must contain the Reservation of the 1947 Act.
. The Memorandum Opinion of the Office of the Solicitor reads in part as follows:
It is apparent that there could be an overlapping of rights-of-way over a tract of land as where a right-of-way generally provided for under the act of 1947, supra, and specifically referred to in reservation designating a certain width, could intersect or cross an access boundary road reserved under authority of 43 CFR 257.17(b).
Each authoi-ity has a separate and distinct application and should be included to authorize separate reservations in the Final Cei'tificate and patent, as well as the Classification Order.
Note: Under the authority of Udall v. Tallman, 380 U.S., 185 S.Ct. 792, 13 L.Ed.2d 616 (1965), appellant further argues that deference must be given to the Department of Interior’s construction of the 1947 act.