The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-04-23

| reclaim from their desert character and
| bring under cultivation, lands situated
| in an arid or semi-arid region, is an en-
| terprise that promotes agriculture and
| adds to the wealth OF the community;
and II has been too long, and is now too
| well settled. by high judicial authority,
| to admit a discussion. that water worAs
used for developing power or for sup
plying water for domestic purposes. are
for the benefit OF the public. 1t fol-
| lows that, under said section 1863, the
| officers therein named are given the
| power to lease, sell, or otherwise dis
| pose OF public lands for the construc-
tion. maintenance and operation OF
| such works as are mentioned in the
| application.
| The power TO cucumber the public
| lands by the granting of an easement
while not in specific terms given by the
section. is clearly included in the words
| employed. AS is plainly evident, the
purpose OF the section is to protect and
promote important beneficial public OBJ
| jects. and should be construed liber-
ally In favor OF the public interests. f
| this can be done without doing vio-
lence to it's terms Sutherland, Stat.
Const. Sec. 443). Applying this well set
tied rule OF statutory construction to
the words employed. there can be no
doubt that the legislature intended TO
confer the minor power of granting an
easement when il invested the officers
OF the Territory with authority to con-
vey the full title to public lands, ,ou-
pied with authority TO lease or other
wise dispose thereof. This view of the
meaning of the words employed is
strengthened by judicial decisions Gas
will be seen by reference thereto)
wherein were construed terms of SINH |
lar import in the Federal Constitution |
and in acts of Congress.
Art 4. Sec. 3. of the Federal Consti- |
tuition provides:
That Congress shall have power to |
dispose of and make all needful rules |
and regulations respecting the Terri |
tory or other property belonging to the |
United States.
In passing upon this provision the |
Supreme Court. in United States VS.. |
Gratiot ct al. "a Pet, $40, $50, held |
that it authorized Congress to enact
laws for the leasing of the public do
main.
BY act of March 3, 1919 g Stat, 520)
the Secretary of War was authorized |
under the direction OF the President
to cause to be sold certain military
sites. By a subsequent act. passed April !
Is. 1928 a Stat. 264), the President was
had been conveyed to the Government
for forts, arsenals. dockyards. light
houses. or any like purposes. etc.
In November. 1885, the Secretary Of
War entered into contract with the
president of the Baltimore Sc Ohio Rail-
road Company, by the terms of which
authority, for an indefinite period, was
granted to the company, among other
things to construct it's railroad over
and across lands of the Government
included in the site of the Harper's
Ferry Military Arsenal. Under said
as reemcnt the company entered upon
and constructed it's line of railroad ever
and across said lands, and operated
said railroad continuously thereafter
All action was instituted
by the Government against the COM
pany to cancel the aforesaid agreement,
upon the ground Of want ,
of power in the Secretary OF War to
enter into the same. The court dis
missed the bill, holding that the Secre-
tary of War. being invested With au-
thority to dispose of 1t (the site) by {
grant in fee, all minor powers over the Z
are necessarily implied" and
that the railroad company, as well as
he public through il had acquired an IL
easement in the property, 60 long as it
United States VS.. Baltimore
Ohio Railroad Company q. Hughes.
SO. S. c.; "a Fed. Cas-, 973, 975).
Taking into consideration the Ian
mage employed in said section 1863 and 3
he rule of construction applicable to 2
he same, am of the opinion that the 4
lower conferred thereby to lease. sell z
r otherwise dispose of the public lands 81
loluces authority to grant an easement x
pom. over. and across them. 4
An easement which is granted for the n
urpose of erecting and maintaining a 8
ubfic or quasi public improvement z
ecessarily carries with it the right to q
emove so much of the soil, rock and 3
lmber from the land subject thereto as :
nay be necessary in the construction n
nd maintenance OF such improvement q
Ut ordinarily such easement does not b
onfer the right to Unfortunately use 4
oil, rock, and trees from adjacent z
'nds for the purposes of construction.
and repair of such i'm
But ii is clear to me that by sections
IS and 1913 Of said Civil laws, the Terri
'rial officers are expressly authorized q
, grant right to use earth. rock and
mber upon adjacent public lands for 4
lie purpose Of constructing. maintain
y and repairing the improvements n
greed to be erected by the applicant.
While recognize that a license" in Il
restricted. legal sense. means lib y
" or privilege upon the lands of an i
her, to be enjoyed at the will of the 4
lrty who gives it, and that the privf- =
se here sought is not intended to be 4
US revocable. yet license. in its en-
rged sense. may include a privilege
upied with an interest. in which case g. g