Appeal from the District Court of the United States for the Northern Division of the Southern District of California; Oscar A. Trippet, Judge.

Suit by the United States against the Kern River Company and others. From a decree of dismissal, the United States appeals.

Section IS 01 tlie Act of March 3, 1891 (26 Stat. 1095 [Comp. St. § 4934]), provisos:

“Tliat the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any state or territory, which shall have tiled, or may hereafter file, with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of sucli canal or ditch: Provided, that no such right of way shall be so located as to interfere with the proper occupation by the government of any such reservation, and all maps of location shall be subject to the approval of the department of the government, having jurisdiction of such reservation, and the privilege herein granted shall not he construed to interfere with the control of water for irrigation and other purposes under authority of the respective states or territories.”

Section 19 (Comp. St. § 4935) provides:

“Tliat any canal or ditch company desiring to secure the benefits of this act shall, wilhin twelve months after the location of ten miles of its canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land oiiiee for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said óbice, and thereafter all such lands over which such rights of way shall pass shall he disposed of subject to such right of way.”

This act was amended by the Act of May 11, 1898 (BO Stat. 404 [Comp. St. §§ 4913, 1938]), and as amended provides that the rights of way thus acquired “may bo used for purposes of a public nature, and said rights of way may bo used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation.”

The Kern River Company is a corporation organized under the laws ot the state of Maine, for the purpose of carrying on the business of building, constructing, maintaining and operating canals, ditches, reservoirs, dams, Unities, aqueducts, pipes and pipe lines for carrying, storing and supplying water for the purposes of irrigation, for the transmission of power, and for other purposes not material here. The company filed with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organi-sation, and the maps provided for by the act and the regulations applicable thereto, and made application for a right of way over the Sequoia National Forest in the slate of California. On the 12th day of November, 1897, the Commissioner of the General Land Office, in a letter to the register and receiver at Visalia, Cal., called attention to the fact that “tile two acts of March 3, 1891, and May 14, 1896, are so different in the character of estates or permissions therein provided for, as well as in the use to which the rights of way may be devoted and the extent of such rights of way, that no permission or grant can be sanctioned which is based on the two acts”- — ■ citing li. TV. O'Melvcny, 21 Land Dec. 560.

It may be here stated that the Act of May 14, 1896 (Comp. St. § 4914), provides:

“That the Secretary of the Interior be, and hereby is, authorized and empowered, under general regulations to be fixed by him, to permit the use of right of way to the extent of twenty-five feet, together with the use of necessary ground, not exceeding forty acres, upon the public lands and forest reservations of the United States, by any citizen or association of citizens of the United States, for the purposes of generating, manufacturing, or distributing electric power.”

The application for the right of way was accompanied by the certificate of 'the president and secretary of the Kern River Company, certifying, among other things, that the maps had been prepared for the approval of the Secretary of the Interior in order that the company might obtain the benefit of sections 18 to 21, inclusive, of the act of Congress approved -March 8, 1891 (Comp. St. §§ 4934-4937), entitled “An act to repeal timber culture laws and for other purposes,” and section 2 of the Act of May 11, 1898, entitled “An act to amend an act to permit the use of right of way through public lands for tramroads, canals and reservoirs, and' for other purposes,” and further certifying that the right of way for said canal was desired solely for the purposes provided by the aforesaid acts. On the 14th day of April, 1899, the Secretary of the Interior approved the maps and location as required by law, subject to all valid existing rights. The Kern River Company thereafter constructed its canal and power house, transmission lines, etc., at a cost of approximately $3,000,000. Some time prior to the 19th day of January, 1905, the company-filed an application with the Secretary of the Interior to amend its original maps and location to conform to the line of the ditch or canal as constructed.

Again the Acting Commissioner of the General Land Office, in a letter to the register and receiver at Yisalia, said: “The company’s attention is called to the fact that, unless the canal as shown by the amended survey of the amended definite location is desired for the purpose of wTigation only, the application cannot be granted under the Act of March 3,1891 (26 Stat. 1095), under which it was filed, but should be filed under the Act of February 15, 1901 (31 Stat. 790), which grants permission to use the right of way over the public lands for irrigation and other purposes” — citing Denver, Northwestern & Pacific Ry. Co. v. Hydroelectric Power Company, 32 Land Dec. 452.

In support of this application the president and secretary of the Kern River Company certified as before that the approval of the Secretary of the Interior was sought “in order that the company might obtain the benefits of sections 18 to 21, inclusive, of the act of Congress approved March 3, 1891, entitled ‘An act to repeal timber culture laws, and for other purposes,’ and section 2 of the act of Congress approved May 11, 1898, and that the right of way described on said map was desired for public purposes.” , On the 27th day of November, 1905, the amended application was approved by the Secretary of the Interior, subject to all valid existing rights. On the 27th day of March, 1908, by direction of the Secretary of the Interior, notice was served upon the Kern River Company to show cause within 90 days from date of such notice why proceedings should not be instituted to cancel the grant of the right of way, on the ground that the same was procured by the approval of said maps for the main purpose of irrigation, but was in fact used solely for power pufposes. In response to this notice the company made answer, and on the 18th day of November, 1909, the Acting Commissioner of the General Land Office served notice -on the company that it would be given 60 days within which to further amend its amended application for a right of way, so as to bring the case within the provisions of the Act of February 15, 1901 (Comp. St. § 4946), and providing that such amended application should be accompanied by a proper relinquishment of all rights and interests acquired under the approvals given under the act of 1891. With this request the company failed and refused to comply.

It was stipulated, among other things, that the Kern River & Los Angeles Electric Power Company was organized as a corporation under the laws of the state of Arizona on May 18, 1895, and that the object of the project was as follows: “The intent and object of the enterprise is to use the flow of the North fork of Kern river for the generation of electrical energy, and to convey and sell the same to various consumers as far as Los Angeles. It is probable that 80 per cent, of the total power generated would go to that city; the remaining 20 per cent, being disposed of to the mining, milling, and agricultural interests embraced in the first 70 miles of the line.”

This company was succeeded by the Kern River Company upon its organization, with the same officers, and the purpose was to develop the same projects. The canal constructed by the Kern River Company has never been used for the purpose of irrigation, but has been used at all times solely for the purpose of carrying water to be used to generate electric power, which the company and its successors sell mainly for the purpose of furnishing motive power to electric railways in the municipalities of Southern California. A smali percentage of the electricity is used to pump water for irrigation from wells along the course of the power lines.

The present suit was brought by the United States to vacate and sot aside tile order of the Secretary of the Interior approving the maps of locution for the ditch or canal, filed under the act of March 3, 1891, to cancel and annul the grant of the right of way; to quiet title in the plaintiff, and to restrain the defendants from using the right of way until they have complied with the requirements of the act of February 15, 1901, relating to the construction of ditches over forest reserves for power purposes. From a decree of dismissal the present appeal is piosecuted.