1006. ABANDONMENT OF LAND-GRANT RAILROADS. 1007-1017. ACQUISITION.

1018. ARLINGTON MEMORIAL.

1019-1025. BURIALS.

1026-1033. CIVIL LAWS AFFECTING MILITARY RESERVA

TIONS.

1034-1037. CONSTRUCTION OF GOVERNMENT BUILDINGS. 1038-1040. CONVEYANCES.

1041. DEMOLITION OF BUILDINGS.

1042-1044. EASEMENTS FROM THE UNITED STATES. 1045-1046. EASEMENTS OR LICENSES TO THE UNITED

STATES.

1047–1052. EXCHANGE.

1053. GRANTS TO STATES, COUNTIES, AND MUNICIPALITIES.

1054-1063. INTERDEPARTMENTAL.

1064-1068. JURISDICTION.

1069-1085. LEASE FROM UNITED STATES.

1086-1097. LEASE TO UNITED STATES.

1098-1142. LICENSE FROM UNITED STATES.

1143. MEMORIALS.

1144-1162. MILITARY POSTS.

1163-1164, OFFICIALS.

1165. PROTECTION,

1:

1166-1169. REPAIR, MAINTENANCE, AND IMPROVEMENT. 1170-1179. SALE.

1180-1190. TITLE.

1191-1192. TRESPASSERS.

ABANDONMENT OF LAND-GRANT RAILROADS

1 1

1006. The question is whether or not a railroad company can be compelled to rebuild and operate a small section of its line, recently abandoned, in view of such railroad having originally been constructed with Government aid. It does not appear by what authority such service was abandoned and the rails removed; nor whether or not any persons were inconvenienced by such abandonment of service except the Government, which used said line for the transporta

tion of stone and desires to continue such use; nor does it appear what the expense would be to reconstruct and operate said abandoned line; or whether or not the railroad company is operating its entire system at a profit. Having received aid for the construction of its line by grant of free right of way and land grants as authorized by acts of Congress, and having located and constructed its line pursuant to such authority, a change of location could not be made without express authority. (Brown v. Atlantic, etc., R. Co., 55 S. E. (Ga.) 24; Lusby v. Kansas City, M. & B. R. Co., 19 So. (Miss.) 239; 36 L. R. A. 510, and note.) A railway company may not abandon any part of its lines. (State v. O. C. Trust Co., 215 Fed. 307; State v. Dodge City, M. & T. R. Co., 36 Pac. (Kan.) 755; 24 L. R. A. 564, and note; Brownell v. Old Colony R. Co., 41 N. E. (Mass.) 107; 29 L. R. A. 169.) The State, or an interested individual, by mandamus proceedings, may compel a railway company to repair, replace, or operate its railroad in accordance with its charter obligations. (Northern Pac, R. Co. v. Dustin, 142 U. S. 492; State v. Hartford & N. H. R. Co., 29 Conn. 538; Union Pac. R. Co. v. Hall, 91 U. S. 343; State v. Dodge City, M & T. Co., supra; State v. B. & M. T. Co., 43 Atl. (N. J. Law) 715; 45 L. R. A. 837; Rex v. Severn & W. R. Co., 2 Barn. & Ald. 646.) While recognizing the obligation to operate the road, the writ has generally been denied, however, when the railway company is insolvent or financially unable to repair, replace, or operate the abandoned line, or when the expense thereof would be so great and the returns so small as to imperil the entire system. (State v. Dodge City, M. & T. R. Co., supra; State v. O. C. Trust Co., supra; Jack v. Williams, 145 Fed. (C. C.) 281; Ohio & M. Ry. Co. v. People, 11 N. E. (III.) 347.) The right to compel a railway company to replace or operate an abandoned line is also denied by many strong courts when its charter merely permits the construction, maintenance, and operation of the railroad and is not mandatory in its terms. (Northern Pac. R. Co. v. Dustin, supra; San Antonio Street R. Co. v. State, 39 S. W. (Tex.) 926; 35 L. R. A. 662; State v. Helena P. & L. Co., 56 Pac. (Mont.) 685; 44 L. R. A. 692; Reg. v. Great Western R. Co., 62 L. J. Q. B. (n. s.) 572.) But this distinction is not recognized by some other courts. (State v. Hartford & N. H. R. C., supra; State v. Spokane S. R. Co,. 53 Pac. (Wash.) 719; 41 L. R. A. 515; Atty. Gen. v. West Wis. R. Co., 36 Wis. 466; Gates v. Boston & N. Y. Air Line R. Co., 5 Atl. (Conn.) 695.) Independently of its charter contract, the acceptance from the State by a railway company of land grants in aid of construction constitutes a contract with the State, obligating the company to continue operation of such aided lines until relieved by legislation. (Atty. Gen. v. West Wis. R. Co., supra; State v. Sioux City & P. R. Co., 7 Nebr. 357; Farmers Loan & T. Co. v. Henning, 8 Fed Cas. 1045 (No. 4666); see, however, State v. Des Moines & Ft. D. R. Co., 51 N. W. (Iowa) 38.) In view of the additional obligations created by the acceptance of land-grant aid, the railroad company, in the instant case, is bound, under the authorities cited, to replace the abandoned line upon demand by the United States and, upon refusal so to do, reconstruction thereof may be compelled by appropriate proceedings. 453, Aug. 5, 1920.

Secs.

ACQUISITION

1007-1013. FOR MILITARY PURPOSES.

1014. FOR INLAND WATERWAYS.

1015. FOR RIVER AND HARBOR PURPOSES.

1016. FOR ROADS.

1017. FOR TARGET RANGES.

Secs.

FOR MILITARY PURPOSES

1007-1012, AUTHORITY.

1013. COMPENSATION.

AUTHORITY

Secs.

1007. IN GENERAL.

1008. ACT OF AUGUST 1, 1888.

1009-1012. ACT OF JULY 2, 1917.

IN GENERAL

1007. Real estate not needed by the Government can not lawfully be acquired by the Government for the purpose of exchanging it for real estate which is needed by the Government. Such action would directly contravene R. S. 3678 and would permit the Government to do indirectly that which it can not do directly. 601, June 19, 1918.

Since no appropriation now exists to pay for the land, the expenditure of money incident to the trial of condemnation proceedings, and the prosecution of such proceedings in judgment, is not justified. No executive branch of the Government has the power to prosecute condemnation proceedings to acquire private property where no funds are available to pay for the property upon completion of the proceedings. Admittedly, no authority exists for the institution of condemnation proceedings to acquire land prior to an appropriation, or at least a specific authorization by Congress for that purpose, and where funds were available at the time the proceedings were commenced, but were subsequently withdrawn by Congress, such act operates as an absolute suspension of the power to proceed, and the department thereby is placed in a position similar to what would have existed had no appropriation been made. 601.1, Jan. 18, 1922.

Where condemnation proceedings are brought by the Government for the acquisition of land, if the funds appropriated should be inadequate to pay the full amount of the award, request must be made of Congress for an additional appropriation. The difference can not be "certified to Congress" for an appropriation, as this procedure is authorized only in case the claim is based on a⚫ legal liability of the Government, as, for example, where the law authorizes a thing to be done without limit as to the expense, or where the claim is based upon a contract under an appropriation adequate to its fulfillment but which appropriation has lapsed and been carried to the surplus fund, and must be reappropriated I efore it can be used. 601.1, Sept. 22, 1924.

ACT OF AUGUST 1, 1888

1008. The Government desires to obtain title to certain lands to be used in connection with the right of way and trackage facilities at an Army supply base, the titles to which land are defective. The Army appropriation act of July 9, 1918 (40 Stat. 845, 860), makes provision, inter alia, for storage and shipping facilities "including rentals and purchase of land." This appropriation gives the necessary authority to purchase the land, and section 1, act of August 1, 1888 (25 Stat. 357), authorizes the acquisition of the property by condemnation proceedings. This condemnation procedure will not be affected by the termination of the legal status of the war. 601.1, Mar. 19, 1919.

The act of August 1, 1888 (25 Stat. 357), which is the only act authorizing the condemnation of lands for storage purposes for the use of the Army, contains no provision whereby possession thereof may be taken pending the outcome of such proceedings. It provides, however, that the United States Circuit or District Courts of the district wherein such real estate is located shall have jurisdiction of the proceedings for such condemnation, and under section 2 thereof, that

the practice, pleadings, forms, and modes of proceeding in causes arising under the provisions of this act shall conform, as near as may be, to the practice, pleadings, forms, and proceedings existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held, any rule of the court to the contrary notwithstanding.

Section 7339 of the Compiled Laws of Utah (1917) makes provision for occupancy of premises by applying to the court or a judge thereof for an order permitting such occupancy and filing a bond in a penal sum not less than double the value of the premises sought to be condemned. R. S. 1001, however, provides that whenever any process issues from a circuit court, by the United States, no bond, obligation, or other security shall be required of the United States, either to prosecute the suit or to answer in damages or costs, and it has been held that the adoption of the State practice, “as near as may be," does not have the effect of abrogating this provision of R. S. 1001. (United States v. Bryant, 111 U. S. 499, 504.) The United States may therefore proceed under the Utah statute to obtain immediate possession but can not be required to give bond. 601.1, Sept. 13, 1920.

Secs.

1009. IN GENERAL.

ACT OF JULY 2, 1917

1010. FOR CAMP SITE.

1011. FOR PRODUCTION OF MUNITIONS.

1012. IN FOREIGN COUNTRIES.

IN GENERAL

1009. Land can not be requisitioned or condemned for the erection thereon of dormitories to house the employees of a privately owned manufacturing plant. The authority to requisition land is limited to such land as is required for storage facilities of military supplies (sec. 10, act of August 10, 1917, 40 Stat. 279); and the act relating to the condemnation of land permits the condemnation thereof for the construction and operation of plants (act of July 2, 1917 (40 Stat. 241), as amended April 11, 1918 (40 Stat. 518)). The erection of dormitories is not included within either statute. 601, June 15, 1918. The act of August 10, 1917, supra, was applicable to the period of the emergency only.

FOR CAMP SITE 1.

1010. Authority "for the acquirement by condemnation of any land, temporary use thereof, or other interest therein, or right pertaining thereto needed for the site, location, construction, or prosecution of works for fortifications, coast defenses, and military training camps," is found in the act of July 2, 1917 (40 Stat. 241). When land is to be acquired for purposes other than those above specified, authority for their acquisition must be sought elsewhere. 015.7, Feb. 6, 1918. .

Certain clay and gravel lands, needed by the Government for the purpose of obtaining clay and gravel in connection with cantonment and other construction