B-13533, JANUARY 18, 1941, 20 COMP. GEN. 379

B-13533, JANUARY 18, 1941, 20 COMP. GEN. 379

TELEPHONE LINES ON PUBLIC LANDS - EXPENSE OF RELOCATING - FEDERAL-AID HIGHWAY CONSTRUCTION WHERE THE LINES OF A TELEPHONE COMPANY ARE LOCATED ON UNRESERVED AND UNAPPROPRIATED PUBLIC LANDS AND THEIR RELOCATION IS REQUIRED IN CONNECTION WITH THE CONSTRUCTION OF A NEW ROADWAY, THERE IS NO AUTHORITY FOR INCLUDING ANY PART OF THE COST OF SUCH RELOCATION IN THE AMOUNT FOR REIMBURSEMENT TO A STATE AS A "NECESSARY" COST UNDER THE FEDERAL HIGHWAY ACT SINCE THE GRANT OF THE "EASEMENT" TO THIS COMPANY BY THE FEDERAL GOVERNMENT MUST BE PRESUMED TO HAVE BEEN MADE SUBJECT TO THE UNCOMPENSATED RELOCATION OF THE LINES WHENEVER NECESSARY IN THE INTEREST OF PUBLIC WELFARE OR CONVENIENCE.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, JANUARY 18, 1941:

I HAVE GIVEN CAREFUL CONSIDERATION TO YOUR LETTER OF NOVEMBER 16, 1940, AS FOLLOWS:

PURSUANT TO THE FEDERAL-AID ROAD ACT OF JULY 11, 1916 (39 STAT. 355), AS AMENDED BY THE FEDERAL HIGHWAY ACT OF NOVEMBER 9, 1921 (42 STAT. 212), AND ACTS AMENDATORY THEREOF OR SUPPLEMENTARY THERETO, CERTAIN IMPROVEMENTS WERE MADE IN COOPERATION WITH THE STATE OF NEVADA ON A SECTION OF ROAD BETWEEN ELKO AND VIVIAN IN SAID STATE, THE PROJECT BEING DESIGNATED NEVADA FEDERAL AID PROJECT NO. 5.

THE FIRST IMPROVEMENT SO MADE ON THIS SECTION OF ROAD WAS UNDERTAKEN IN 1918. FINALLY IN 1937 STILL FURTHER IMPROVEMENT OF THE ROUTE PROVIDED FOR UNDER AN AMENDED AGREEMENT AND REVISED PLANS, SPECIFICATIONS, AND ESTIMATES CALLED FOR A RELOCATION AND REALIGNMENT OF SECTIONS OF THE ROAD WHICH MADE NECESSARY THE ADJUSTMENT OF A NUMBER OF POLES OF THE BELL TELEPHONE COMPANY ALONG THE ROUTE OF SAID HIGHWAY. WHEN THIS LATTER WORK WAS COMPLETED, THE FINAL CLAIM SUBMITTED BY THE STATE FOR REIMBURSEMENT INCLUDED THE ENTIRE COST INCURRED BY THE BELL TELEPHONE COMPANY FOR READJUSTING ITS POLE LINES. SOME OF THESE POLES WERE LOCATED WITHIN THE ORIGINAL HIGHWAY RIGHT-OF-WAY AND SOME ON UNAPPROPRIATED AND UNRESERVED PUBLIC LANDS OF THE UNITED STATES.

IN PASSING THE VOUCHER SUBMITTED BY THE STATE DEDUCTION WAS MADE OF THE COST INCURRED BY THE BELL TELEPHONE COMPANY FOR READJUSTING ITS POLE LINES WHERE THEY WERE LOCATED ON UNAPPROPRIATED AND UNRESERVED LANDS OF THE UNITED STATES. THIS ACTION WAS TAKEN IN LINE WITH WHAT WAS THOUGHT TO BE THE PROPER PROCEDURE AS INDICATED BY A NUMBER OF DECISIONS OF YOUR OFFICE HOLDING THAT ANY OCCUPANCY OF PUBLIC LANDS OF THE UNITED STATES WAS SUBJECT TO THE PARAMOUNT RIGHTS OF THE GOVERNMENT AND THAT ANY ADJUSTMENTS NECESSARY IN THE FACILITIES OF PRIVATE INTERESTS OCCUPYING SUCH LANDS WOULD HAVE TO BE WITHOUT EXPENSE TO THE FEDERAL GOVERNMENT.

THE STATE OF NEVADA HAS TAKEN EXCEPTION TO THIS ACTION, AND WE ARE INFORMED HAS HAD CERTAIN CORRESPONDENCE WITH YOUR OFFICE CONCERNING THE MATTER. UNDER DATE OF SEPTEMBER 26, 1940, MR. ROBERT A. ALLEN, STATE HIGHWAY ENGINEER OF NEVADA, ADDRESSED A LETTER TO YOU THROUGH THE DISTRICT ENGINEER, PUBLIC ROADS ADMINISTRATION, SAN FRANCISCO, CALIFORNIA, REQUESTING THAT THE POINT AT ISSUE BE CONSIDERED AND DECIDED BY YOU. ATTACHED TO SAID LETTER FROM MR. ALLEN WAS AN UNSIGNED STATEMENT OF FACTS, TOGETHER WITH A COPY OF YOUR LETTER OF AUGUST 21, 1940, TO THE ATTORNEY GENERAL OF NEVADA AND A COPY OF YOUR DECISION (B 7434) THEREIN REFERRED TO. THE STATE HIGHWAY ENGINEER OF NEVADA HAS REQUESTED THAT HIS SAID LETTER OF SEPTEMBER 26, 1940, TO YOU AND ITS ENCLOSURES BE TRANSMITTED TO YOU WITH REQUEST FOR YOUR DECISION ON THE MATTERS AT ISSUE, NAMELY, WHETHER OR NOT THE COST OF REMOVING AND RESETTING THE POLES OF UTILITIES LOCATED ON UNAPPROPRIATED AND UNRESERVED PUBLIC LANDS OF THE UNITED STATES ARE PROPER ITEMS FOR REIMBURSEMENT WITH FEDERAL-AID ROAD FUNDS UNDER THE FEDERAL HIGHWAY ACT WHEN MADE NECESSARY FOR THE CONSTRUCTION OF A FEDERAL- AID PROJECT SUCH AS IN THE CASE OF NEVADA FEDERAL AID PROJECT NO. 5.

WE THEREFORE SUBMIT HEREWITH MR. ALLEN'S LETTER OF SEPTEMBER 26, 1940, AND ALL OF ITS ENCLOSURES IN ORDER THAT YOU MAY HAVE THE CASE BEFORE YOU AS HE HAS PRESENTED IT. THE STATEMENT OF FACTS ATTACHED TO THE LETTER OF SEPTEMBER 26, 1940, FROM THE STATE HIGHWAY ENGINEER OF NEVADA IS SUBSTANTIALLY CORRECT AS TO THE FACTS IN THE CASE OF NEVADA FEDERAL AID PROJECT NO. 5. IT WILL BE APPRECIATED IF YOU WILL GIVE THE MATTER CONSIDERATION AND ADVISE WHETHER OR NOT THE POLICY PURSUED BY THE PUBLIC ROADS ADMINISTRATION IN DISALLOWING THE ITEMS IN QUESTION IS PROPER OR WHETHER OR NOT SUCH ITEMS PROPERLY MAY BE RECOGNIZED AS ELIGIBLE FOR REIMBURSEMENT FROM FEDERAL-AID ROAD FUNDS.

IT APPEARS FROM YOUR LETTER AND FROM OTHER FACTS OF RECORD THAT NEVADA FEDERAL AID PROJECT NO. 5 IS A PROJECT FOR THE IMPROVEMENT OF A STATE HIGHWAY WHICH WAS ORIGINALLY CONSTRUCTED SOME TIME PRIOR TO 1918. WHILE THE EXACT NATURE OF THE IMPROVEMENTS MADE WITH RESPECT TO THIS HIGHWAY IN 1937 ARE NOT DISCLOSED BY THE PRESENT RECORD, IT IS ASSUMED THAT THEY NOT ONLY INVOLVED THE WIDENING OF THE HIGHWAY AT CERTAIN POINTS BUT, IN ADDITION, THE CONSTRUCTION OF NEW STRIPS OF HIGHWAY FOR THE ELIMINATION OR ADJUSTMENT OF SHARP TURNS, DANGEROUS CURVES, ETC., ALONG THE ORIGINAL ROAD. ALSO IT IS ASSUMED THAT IN THE MAKING OF IMPROVEMENTS OF THIS LATTER TYPE IT WAS NECESSARY AT CERTAIN POINTS TO DEPART FROM THE PHYSICAL LIMITS OF THE ORIGINAL HIGHWAY RIGHT OF-WAY AND CUT THE STRIPS OF NEW ROAD THROUGH PUBLIC LANDS THERETOFORE NOT USED OR ALLOTTED FOR HIGHWAY PURPOSES.

IT IS UNDERSTOOD THAT SOME OF THE POLES WHICH HAD TO BE REMOVED WERE LOCATED ON PRIVATE LANDS, OVER WHICH THE TELEPHONE COMPANY HAD ACQUIRED EASEMENTS FROM THE INDIVIDUALS HOLDING THE FEE TITLE. THIS REMOVAL WORK WAS DONE AT PUBLIC EXPENSE. IN THIS CONNECTION SEE PANHANDLE COMPANY V. HIGHWAY COMMISSION, 294 U.S. 613. ALSO IT APPEARS THAT WHERE POLES OF THE BELL TELEPHONE CO., LOCATED ALONG THE ORIGINAL RIGHT OF-WAY AND WITHIN THE LIMITS THEREOF, INTERFERED WITH THE ROAD IMPROVEMENT PROGRAM THEY WERE REMOVED AT THE EXPENSE OF THE COMPANY WITHOUT PROTEST ON ITS PART. HOWEVER, WHERE POLES OF THE COMPANY WERE LOCATED ON UNRESERVED AND UNAPPROPRIATED PUBLIC LANDS OUTSIDE THE LIMITS OF THE ORIGINAL RIGHT-OF- WAY, AND THEIR REMOVAL WAS REQUIRED IN CONNECTION WITH THE CONSTRUCTION OF A NEW STRIP OF ROADWAY OVER THIS PREVIOUSLY UNAPPROPRIATED LAND, THERE IS A DIFFERENCE OF OPINION BETWEEN THE TELEPHONE COMPANY AND THE STATE ON THE ONE HAND AND THE FEDERAL AUTHORITIES ON THE OTHER AS TO WHETHER THE RELOCATION COST SHOULD BE BORNE BY THE COMPANY OR BY THE STATE AND THE FEDERAL GOVERNMENT. IT APPEARS FROM THE RECORD THAT THE RIGHT OF THE COMPANY TO LOCATE ITS POLES AND WIRES ON AND OVER THESE PREVIOUSLY UNRESERVED AND UNAPPROPRIATED PUBLIC LANDS EXISTED BY VIRTUE OF AN EASEMENT WHICH HAD BEEN GRANTED TO THE COMPANY IN 1915 BY THE FEDERAL GOVERNMENT PURSUANT TO THE ACT OF CONGRESS APPROVED MARCH 4, 1911, 36 STAT. 1253. THAT ACT PROVIDED IN PERTINENT PART:

THAT THE HEAD OF THE DEPARTMENT HAVING JURISDICTION OVER THE LANDS BE, AND HE HEREBY IS, AUTHORIZED AND EMPOWERED, UNDER GENERAL REGULATIONS TO BE FIXED BY HIM, TO GRANT AN EASEMENT FOR RIGHTS-OF-WAY, FOR A PERIOD NOT EXCEEDING FIFTY YEARS FROM THE DATE OF THIS ISSUANCE OF SUCH GRANT, OVER, ACROSS, AND UPON THE PUBLIC LANDS, NATIONAL FORESTS, AND RESERVATIONS OF THE UNITED STATES FOR ELECTRICAL POLES AND LINES FOR THE TRANSMISSION AND DISTRIBUTION OF ELECTRICAL POWER, AND FOR POLES AND LINES FOR TELEPHONE AND TELEGRAPH PURPOSES, TO THE EXTENT OF TWENTY FEET ON EACH SIDE OF THE CENTER LINE OF SUCH ELECTRICAL, TELEPHONE, AND TELEGRAPH LINES AND POLES, TO ANY CITIZEN, ASSOCIATION, OR CORPORATION OF THE UNITED STATES, WHERE IT IS INTENDED BY SUCH TO EXERCISE THE RIGHT-OF-WAY HEREIN GRANTED FOR ANY ONE OR MORE OF THE PURPOSES HEREIN NAMED: * * * ( ITALICS SUPPLIED).

IN VIEW OF THE FACT THAT THE "EASEMENT" TO THE BELL TELEPHONE CO. IS SAID TO HAVE BEEN GRANTED BY THE SECRETARY OF THE INTERIOR IT IS ASSUMED THAT THE PUBLIC LANDS INVOLVED WERE UNDER HIS JURISDICTION. PURSUANT TO AUTHORITY VESTED IN HIM BY THE TERMS OF THE ABOVE-QUOTED ACT THE SECRETARY OF THE INTERIOR ON JANUARY 6, 1913, PROMULGATED VARIOUS REGULATIONS COVERING THE AGENT OF EASEMENTS OF PUBLIC LANDS UNDER HIS JURISDICTION. SEE 41 DECISIONS OF THE DEPARTMENT OF INTERIOR RELATING TO PUBLIC LANDS, 454. SECTION 6 OF THESE REGULATIONS, AS AMENDED OCTOBER 25, 1913 (42 DECISIONS OF THE DEPARTMENT OF THE INTERIOR RELATING TO PUBLIC LANDS, 465, 466), PROVIDED AS FOLLOWS:

BEFORE ANY RIGHT-OF-WAY IS GRANTED THE APPLICANT SHALL EXECUTE AND FILE IN OR IN AMENDMENT OF HIS APPLICATION A STATEMENT OF THE PARTICULAR TERMS AND CONDITIONS UPON WHICH AND SUBJECT TO WHICH HE ASKS TO RECEIVE AND AGREES TO TAKE THE GRANT OF RIGHT-OF-WAY; AND HE FURTHER AGREES TO CONSTRUCT, MAINTAIN, AND OPERATE THE LINE OR LINES EMBRACED BY HIS APPLICATION ACCORDING TO THE USUAL STANDARD OF SAFETY IN SUCH CASES, AND SHALL MAINTAIN THE LINE OR LINES IN SUCH MANNER AS NOT TO MENACE LIFE OR PROPERTY, AND TO INTERFERE AS LITTLE AS POSSIBLE WITH THE USE AND DEVELOPMENT BY SUBSEQUENT ENTRYMEN AND PATENTEES OF THE LANDS TRAVERSED BY THE LINE OR LINES; IT BEING UNDERSTOOD AND AGREED THAT LESS THAN 20 FEET ON EACH SIDE OF THE CENTER LINE IS COVERED BY THE EASEMENT WHEREVER SUCH DIMINISHED RIGHT-OF-WAY IS FOUND ADEQUATE FOR A PROPER USE AND ENJOYMENT THEREOF; THE GRANT MAY BE SUBJECT TO THESE TERMS AND CONDITIONS, IN WHICH CASE SUCH TERMS AND CONDITIONS, TOGETHER WITH THESE REGULATIONS, SHALL DEFINE AND LIMIT THE GRANT, WHICH SHALL BE EFFECTIVE ONLY IF AND IN SO FAR AS IT IS SUBJECT TO SUCH TERMS, CONDITIONS AND REGULATIONS. SUCH ORIGINAL OR AMENDED APPLICATION WITH THE APPROVAL THEREOF BY THE SECRETARY OF THE INTERIOR SHALL TOGETHER CONSTITUTE THE GRANT AND EXPRESS THE TERMS AND CONDITIONS THEREOF, AND THE FACT OF SUCH APPROVAL SHALL BE NOTED ON THE APPLICATION MAPS.

THERE HAS NOT BEEN FURNISHED TO THIS OFFICE A COPY OF THE GRANT ACTUALLY MADE TO THE BELL TELEPHONE CO. IN THE PRESENT CASE AND IT IS, THEREFORE, IMPOSSIBLE TO CONSIDER OR DISCUSS THE RIGHTS AND OBLIGATIONS OF THE PARTIES IN THE LIGHT OF THE TERMS AND CONDITIONS THEREOF. WHILE BY THE TERMS OF THE ACT OF MARCH 4, 1911, SUPRA, THE MAXIMUM INTEREST IN PUBLIC LANDS WHICH THE SECRETARY OF THE INTERIOR WAS AUTHORIZED TO GRANT TO THE BELL TELEPHONE CO. WAS AN "EASEMENT FOR RIGHTS-OF-WAY" IT SEEMS NOT UNLIKELY, IN VIEW OF THE TERMS OF THIS REGULATION, THAT THERE WAS ACTUALLY GRANTED TO THE COMPANY A MORE RESTRICTED AND LIMITED RIGHT TO USE AND OCCUPY THE PUBLIC LANDS IN QUESTION THAN IS COMMONLY THE CASE IN CONNECTION WITH AN ORDINARY GRANT OF EASEMENT FOR RIGHTS-OF WAY. SEE IN THIS CONNECTION THE " GENERAL STATEMENT" ISSUED BY THE SECRETARY OF THE INTERIOR WHEN THE REGULATIONS OF JANUARY 6, 1913, SUPRA, WERE PROMULGATED, IN WHICH IT WAS SAID:

IT WILL BE OBSERVED THAT THIS ACT, WHICH AUTHORIZES THE GRANTING OF EASEMENTS FOR ELECTRICAL POWER TRANSMISSION, AND TELEPHONE AND TELEGRAPH LINES FOR STATED PERIODS NOT TO EXCEED 50 YEARS, FOLLOWS, AS CLOSELY AS IS POSSIBLE IN THE ACCOMPLISHMENT OF ITS PURPOSES, THE LANGUAGE OF THE ACT OF FEBRUARY 15, 1901 (31 STAT. 790), WHICH AUTHORIZES MERE REVOCABLE PERMITS OR LICENSES NOT ONLY FOR SUCH LINES BUT ALSO FOR OTHER PURPOSES. THIS ACT, THEREFORE, MERELY AUTHORIZES ADDITIONAL OR LARGER GRANTS AND DOES NOT MODIFY OR REPEAL THE ACT OF 1901, AND SHOULD BE CONSIDERED AND APPLIED IN HARMONY WITH IT.

IF THE SECRETARY OF THE INTERIOR IN THE PRESENT CASE, ALTHOUGH AUTHORIZED TO GRANT AN ASEMENT," IN FACT GRANTED A LESSER RIGHT--- SUCH AS A REVOCABLE PERMIT OR LICENSE--- THEN THE COMPANY MUST BE REGARDED AS HAVING ACQUIRED THIS LESSER RIGHT ONLY. STATED DIFFERENTLY, IF BY THE TERMS OF THE GRANT AGREEMENT WHEN CONSIDERED IN CONNECTION WITH THE TERMS OF THE REGULATION, THERE WAS RESERVED TO THE UNITED STATES, EITHER EXPRESSLY OR BY NECESSARY IMPLICATION, THE RIGHT TO REQUIRE REMOVAL OF POLES UNDER CONDITIONS SUCH AS THOSE HERE INVOLVED, THE TERMS OF THAT AGREEMENT NECESSARILY MUST CONTROL.

HOWEVER, EVEN IF THE GRANT BE CONSIDERED ON THE BASIS OF AN EASEMENT, THE FEDERAL GOVERNMENT MUST BE UNDERSTOOD TO HAVE RESERVED TO ITSELF AT THE TIME THE GRANT WAS MADE THE RIGHT TO REQUIRE UNCOMPENSATED OBEDIENCE TO SUCH REASONABLE ORDERS AS WERE ISSUED BY COMPETENT AUTHORITY FOR THE PURPOSE OF REGULATING THE USE OF THE EASEMENT IN THE INTEREST OF THE PUBLIC WELFARE OR CONVENIENCE. "THE GENERAL GOVERNMENT DOUBTLESS HAS A POWER OVER ITS OWN PROPERTY ANALOGOUS TO THE POLICE POWER OF THE SEVERAL STATES, AND THE EXTENT TO WHICH IT MAY GO IN THE EXERCISE OF SUCH POWER IS MEASURED BY THE EXIGENCIES OF THE PARTICULAR CASE.' CAMFIELD V. UNITED STATES/167 U.S. 518, 525. NOR IS THE SITUATION ALTERED BY THE FACT THAT IN THE PRESENT CASE THE ROAD IMPROVEMENT WAS UNDERTAKEN BY THE STATE. ASIDE FROM THE FEDERAL INTEREST INVOLVED DUE TO THE FACT THAT THE UNITED STATES FURNISHED NOT ONLY THE RIGHT-OF-WAY BUT A MAJOR PORTION OF THE ROAD CONSTRUCTION OR IMPROVEMENT COST, IT SEEMS SUFFICIENT TO STATE THAT RIGHTS -OF-WAY OVER THE PUBLIC LANDS ARE AMENABLE TO THE POLICE POWER OF A STATE. NORTHERN PACIFIC RAILWAY V. TOWNSEND, 190 U.S. 267, 272. IT CAN MAKE NO MATERIAL DIFFERENCE, THEREFORE, WHETHER THE ROAD IMPROVEMENTS IN QUESTION ARE TO BE REGARDED AS MADE BY THE FEDERAL GOVERNMENT ON PUBLIC LAND, BY THE STATE OF NEVADA ON FEDERAL LANDS, OR BY THE STATE ON LANDS SEVERED FROM THE PUBLIC DOMAIN AND "TRANSFERRED TO THE STATE HIGHWAY DEPARTMENT" OF NEVADA, PURSUANT TO THE TERMS OF SECTION 17 OF THE ACT OF NOVEMBER 9, 1921 (42 STAT. 216), FOR THE POWER TO REGULATE THE TELEPHONE COMPANY'S USE OF ITS EASEMENT SO AS NOT TO INTERFERE WITH THE HIGHWAY PROJECT IS THE SAME IN EITHER EVENT. THAT THIS POLICE OR REGULATORY POWER MAY, IF A PROPER OCCASION ARISES, BE EXERCISED IN CONNECTION WITH A HIGHWAY IMPROVEMENT PROJECT SUCH AS THAT HERE INVOLVED SEEMS CLEAR; A MORE DIFFICULT QUESTION FOR PRESENT PURPOSES IS WHETHER THE RELOCATION OF TELEPHONE POLES UNDER THE CIRCUMSTANCES HERE INVOLVED PRESENTS SUCH AN OCCASION, OR WHETHER SUCH RELOCATION INVOLVES A MATTER OUTSIDE THE SCOPE AND REACH OF THAT POWER. WITH RESPECT TO THIS GENERAL SUBJECT THE SUPREME COURT STATED IN C.B. AND Q. RAILROAD V. DRAINAGE COMMISSIONERS, 200 U.S. 561, 584, 593, AFTER MAKING REFERENCE TO SEVERAL PREVIOUS DECISIONS OF THE COURT:

* * * IN EACH OF THOSE CASES, THIS COURT RECOGNIZED THE PRINCIPLE THAT INJURY MAY OFTEN COME TO PRIVATE PROPERTY AS THE RESULT OF LEGITIMATE GOVERNMENTAL ACTION, REASONABLY TAKEN FOR THE PUBLIC GOOD AND FOR NO OTHER PURPOSE, AND YET THERE WILL BE NO TAKING OF SUCH PROPERTY WITHIN THE MEANING OF THE CONSTITUTIONAL GUARANTEE AGAINST THE DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW, OR AGAINST THE TAKING OF PRIVATE PROPERTY FOR PUBLIC USE WITHOUT COMPENSATION. * * *

* * * IF IN THE EXECUTION OF ANY POWER, NO MATTER WHAT IT IS, THE GOVERNMENT, FEDERAL OR STATE, FINDS IT NECESSARY TO TAKE PRIVATE PROPERTY FOR PUBLIC USE, IT MUST OBEY THE CONSTITUTIONAL INJUNCTION TO MAKE OR SECURE JUST COMPENSATION TO THE OWNER. * * * IF THE MEANS EMPLOYED HAVE NO REAL, SUBSTANTIAL RELATION TO PUBLIC OBJECTS WHICH GOVERNMENT MAY LEGALLY ACCOMPLISH; IF THEY ARE ARBITRARY AND UNREASONABLE, BEYOND THE NECESSITIES OF THE CASE, THE JUDICIARY WILL DISREGARD MERE FORMS AND INTERFERE FOR THE PROTECTION OF RIGHTS INJURIOUSLY AFFECTED BY SUCH ILLEGAL ACTION. THE AUTHORITY OF THE COURTS TO INTERFERE IN SUCH CASES IS BEYOND ALL DOUBT. * * * UPON THE GENERAL SUBJECT THERE IS NO REAL CONFLICT AMONG THE ADJUDGED CASES. WHATEVER CONFLICT THERE IS ARISES UPON THE QUESTION WHETHER THERE HAS BEEN OR WILL BE IN THE PARTICULAR CASE, WITHIN THE TRUE MEANING OF THE CONSTITUTION, A "TAKING" OF PRIVATE PROPERTY FOR PUBLIC USE. IF THE INJURY COMPLAINED OF IS ONLY INCIDENTAL TO THE LEGITIMATE EXERCISE OF GOVERNMENTAL POWERS FOR THE PUBLIC GOOD, THEN THERE IS NO TAKING OF PROPERTY FOR THE PUBLIC USE, AND A RIGHT TO COMPENSATION, ON ACCOUNT OF SUCH INJURY, DOES NOT ATTACH UNDER THE CONSTITUTION. * * *

IT FOLLOWS FROM WHAT HAS BEEN SAID THAT IF THE RELOCATED OF POLES HERE INVOLVED REPRESENTS MERELY A REASONABLE REGULATION IN THE PUBLIC INTEREST OF THE USE OF THE RIGHT-OF-WAY--- AS DISTINGUISHED FROM A TAKING OF PROPERTY--- THE TELEPHONE COMPANY MAY BE REQUIRED TO BEAR THE EXPENSE OF SUCH RELOCATION. WHILE THE QUESTION AS TO WHETHER THE RELOCATION INVOLVES A MATTER OF REGULATION OR OF TAKING MUST DEPEND LARGELY UPON THE PARTICULAR FACTS OF THE CASE ( PENNA. COAL CO. V. MAHON, 260 U.S. 393, 413), THE PRIOR DECISIONS OF THE COURTS SERVE AS A GUIDE IN DETERMINING GENERALLY HOW FAR THE GOVERNMENT CAN GO BEFORE THE BOUNDARY LINE WHICH SEPARATES REGULATION FROM TAKING IS REACHED. AS STATED BY JUSTICE HOLMES IN NOBLE STATE BANK V. HASKELL, 219 U.S. 104, 112: " WITH REGARD TO THE POLICE POWER, AS ELSEWHERE IN THE LAW, LINES ARE PRICKED OUT BY THE GRADUAL APPROACH AND CONTACT OF DECISIONS ON THE OPPOSING SIDES.'

IN THE CASE OF NORTHERN PACIFIC RY. V. DULUTH, 208 U.S. 583, WHERE THE VALIDITY OF AN ORDINANCE OF A MUNICIPALITY COMPELLING A RAILROAD COMPANY AT ITS OWN EXPENSE TO REPAIR A VIADUCT WHICH HAD BEEN CONSTRUCTED BY THE CITY AFTER THE OPENING OF THE RAILROAD WAS UPHELD, THE SUPREME COURT (P. 595 OF THE OPINION) QUOTED WITH APPROVAL FROM AN OPINION OF THE SUPREME COURT OF MINNESOTA IN STATE EX REL. ST. PAUL, MINNEAPOLIS AND MANITOBA RAILROAD COMPANY, 42 MINN. 247, IN PERTINENT PART AS FOLLOWS:

* * * IT CANNOT BE SUPPOSED THAT, WHEN ITS FRANCHISES WERE GRANTED TO THIS RELATOR TO CONSTRUCT AND OPERATE THIS RAILROAD, IT WAS CONTEMPLATED, EITHER BY IT OR BY THE STATE, THAT NO MORE PUBLIC HIGHWAYS SHOULD BE LAID OUT WHICH SHOULD INCREASE THE NUMBER OF PLACES WHERE THE ORDINARY POLICE REGULATIONS WOULD HAVE TO BE COMPLIED WITH BY THE RAILROAD COMPANY TO ITS INCONVENIENCE AND EXPENSE. ON THE CONTRARY, IT MUST HAVE BEEN UNDERSTOOD AND CONTEMPLATED, ESPECIALLY IN A NEW STATE RAPIDLY ADVANCING IN POPULATION AND IN THE DEVELOPMENT OF ITS RESOURCES, WHERE NEW TOWNS WERE SPRINGING UP, AND NEW AVENUES FOR TRAVEL AND TRAFFIC WERE BECOMING NECESSARY, THAT NEW STREETS AND ROADS WOULD BE AND MUST BE LAID OUT, AND THAT MANY OF THESE WOULD NECESSARILY CROSS EXISTING RAILROAD LINES. CANNOT RESIST THE CONCLUSION THAT, SO FAR AS CONCERNS THE MATTER NOW UNDER CONSIDERATION, THE CHARTER OF THE RELATOR WAS TAKEN SUBJECT TO THE RIGHT OF THE STATE TO IMPOSE THIS DUTY WHENEVER, BY REASON OF THE ESTABLISHING OF NEW HIGHWAYS, IT SHOULD BECOME NECESSARY; AND HENCE THE RELATOR IS NOT ENTITLED TO COMPENSATION FOR OBEDIENCE TO THIS REQUIREMENT. * * *

IN THE CASE OF NORTHERN PACIFIC RAILWAY V. TOWNSEND, 190 U.S. 267, 272, THE COURT MADE THE FOLLOWING STATEMENT WITH RESPECT TO THE GRANT TO A RAILROAD OF A RIGHT-OF-WAY OVER PUBLIC LANDS:

* * *1CONGRESS MUST HAVE ASSUMED WHEN MAKING THIS GRANT, FOR INSTANCE, THAT IN THE NATURAL ORDER OF EVENTS, AS SETTLEMENTS WERE MADE ALONG THE LINE OF THE RAILROAD, CROSSINGS OF THE RIGHT-OF-WAY WOULD BECOME NECESSARY, AND THAT OTHER LIMITATIONS IN FAVOR OF THE GENERAL PUBLIC UPON AN EXCLUSIVE RIGHT OF OCCUPANCY BY THE RAILROAD OF ITS RIGHT-OF-WAY MIGHT BE JUSTLY IMPOSED. * * *

IN THE CASE OF NATIONAL WATERWORKS COMPANY OF NEW YORK V. CITY OF KANSAS, 28 FED. 921, THERE WAS CONSIDERED THE QUESTION AS TO WHETHER A WATER COMPANY COULD BE REQUIRED AS ITS OWN EXPENSE TO TAKE UP ITS WATER PIPES FROM THEIR LOCATION IN THE STREETS AND RELOCATE SAID PIPES IN ANOTHER PLACE IN ORDER TO MAKE WAY FOR A CITY SEWER.

IN AFFIRMING THE RIGHT OF THE CITY TO REQUIRE THE RELOCATION, THE COURT STATED, AT PAGE 293:

THE CONTRACT BETWEEN THE PLAINTIFF AND THE DEFENDANT MUST BE INTERPRETED IN THE LIGHT OF THIS WELL-ESTABLISHED RULE; AND, SO INTERPRETED, THE PLAINTIFF TOOK ITS RIGHT TO LAY ITS PIPES IN THE STREETS OF THE CITY SUBJECT TO THE PARAMOUNT AND INALIENABLE RIGHT OF THE CITY TO CONSTRUCT SEWERS THEREIN WHENEVER AND WHEREVER, IN ITS JUDGMENT, THE PUBLIC INTEREST DEMANDS. LAYING ITS PIPES SUBJECT TO THIS RIGHT OF THE CITY, IT HAS NO CAUSE OF ACTION, IF, IN CONSEQUENCE OF THE EXERCISE OF THIS RIGHT, IT IS COMPELLED TO RELAY ITS PIPES. * * *

IN THE CASE OF NEW ORLEANS GAS COMPANY V. DRAINAGE COMMISSION, 197 U.S. 453, WHERE THE ACTION OF THE CITY IN REQUIRING THE GAS COMPANY TO CHANGE THE LOCATION OF ITS PIPES TO ACCOMMODATE A DRAINAGE SYSTEM WAS APPROVED, THE COURT STATED AT PAGE 461:

* * * IT WOULD BE UNREASONABLE TO SUPPOSE THAT IN THE GRANT TO THE GAS COMPANY OF THE RIGHT TO USE THE STREETS IN THE LAYING OF ITS PIPES IT WAS EVER INTENDED TO SURRENDER OR IMPAIR THE PUBLIC RIGHT TO DISCHARGE THE DUTY OF CONSERVING THE PUBLIC HEALTH. THE GAS COMPANY DID NOT ACQUIRE ANY SPECIFIC LOCATION IN THE STREETS; IT WAS CONTENT WITH THE GENERAL RIGHT TO USE THEM, AND WHEN IT LOCATED ITS PIPES IT WAS AT THE RISK THAT THEY MIGHT BE, AT SOME FUTURE TIME, DISTURBED, WHEN THE STATE MIGHT REQUIRE FOR A NECESSARY PUBLIC USE THAT CHANGES IN LOCATION BE MADE.

* * * THE NEED OF OCCUPATION OF THE SOIL BENEATH THE STREETS IN CITIES IS CONSTANTLY INCREASING, FOR THE SUPPLY OF WATER AND LIGHT AND THE CONSTRUCTION OF SYSTEMS OF SEWERAGE AND DRAINAGE, AND EVERY REASON OF PUBLIC POLICY REQUIRES THAT GRANTS OF RIGHTS IN SUCH SUBSURFACE SHALL BE HELD SUBJECT TO SUCH REASONABLE REGULATIONS AS THE PUBLIC HEALTH AND SAFETY MAY REQUIRE. THERE IS NOTHING IN THE GRANT TO THE GAS COMPANY, EVEN IF IT COULD LEGALLY BE DONE, UNDERTAKING TO LIMIT THE RIGHT OF THE STATE TO ESTABLISH A SYSTEM OF DRAINAGE IN THE STREETS. WE THINK WHATEVER THE RIGHT THE GAS COMPANY ACQUIRED WAS SUBJECT IN SO FAR AS THE LOCATION OF ITS PIPES WAS CONCERNED, TO SUCH FUTURE REGULATIONS AS MIGHT BE REQUIRED IN THE INTEREST OF THE PUBLIC HEALTH AND WELFARE. THESE VIEWS ARE AMPLY SUSTAINED BY THE AUTHORITIES. * * *

FOR OTHER CASES INVOLVING THE RIGHT OF A STATE TO REGULATE THE LOCATION AND USE OF POLES AND LINES OF TELEPHONE AND OTHER UTILITY COMPANIES SEE HARDIN-WYANDOT COMPANY V. UPPER SANDUSKY, 251 U.S. 173, 178; WESTERN UNION TELEGRAPH COMPANY V. RICHMOND, 224 U.S. 160, 171; OIL CITY V. POSTAL TELEGRAPH CABLE COMPANY, 68 PA. SUPER. CT. 77; DUQUESNE LIGHT COMPANY V. CITY OF PITTSBURGH, 251 PA. 577; 97 AT. 85, 87; AND PORTER V. MUNICIPAL GAS COMPANY, 220 N.Y. 152, 156.

A CONSIDERABLE PORTION OF THE THOUGHT WHICH PERVADES THESE CASES SEEMS APPLICABLE TO THE PRESENT CASE. THUS IT MIGHT HAVE BEEN CONTEMPLATED WHEN THE EASEMENT OR OTHER RIGHT HERE IN QUESTION WAS GRANTED TO THE BELL TELEPHONE CO. THAT NEW HIGHWAYS WOULD, FROM TIME TO TIME, BE CONSTRUCTED ACROSS THE PUBLIC DOMAIN AND THAT OLD ONES WOULD BE IMPROVED AND ALTERED. THE COMPANY MUST BE PRESUMED TO HAVE TAKEN AND OCCUPIED THE RIGHTS-OF-WAY WITH THIS IN MIND, AND SUBJECT TO THE PARAMOUNT RIGHT OF THE STATE AND THE FEDERAL GOVERNMENT TO REQUIRE ADJUSTMENT OF ITS POLES AND LINES IF A PUBLIC NEED FOR SUCH ADJUSTMENT SHOULD ARISE. THERE IS NOTHING TO INDICATE THAT THE GRANT TO THE STATE INVOLVED A DEFINITE OR SPECIFIC STRIP OF LAND THE BOUNDARIES OF WHICH HAD BEEN ASCERTAINED IN ADVANCE AND OUTLINED IN THE GRANT. ON THE CONTRARY, SO FAR AS APPEARS, THE COMPANY WAS MERELY ACCORDED THE RIGHT TO PLACE ITS POLES AND LINES ON AND OVER THE PUBLIC DOMAIN, THE EXACT LOCATION OF THE POLES BEING LEFT FOR DETERMINATION WHEN THE TIME FOR THEIR ERECTION ARRIVED. THUS THE GRANT WAS SIMILAR TO THE ONES TO THE GAS AND WATER COMPANIES IN THE CASES DISCUSSED ABOVE WHERE THEY WERE GIVEN THE RIGHT TO USE THE STREETS WITHOUT NAMING THE EXACT STREETS NOR THE EXACT PLACES THEREON WHERE THE FACILITIES WERE TO BE PLACED. NOR CAN A DISTINCTION BE PREDICATED UPON THE FACT THAT THE RIGHT OF A PUBLIC UTILITY COMPANY TO USE CITY STREETS IS USUALLY BASED UPON A GRANT OF A FRANCHISE WHILE THE GRANT HERE IN QUESTION IS THAT OF AN EASEMENT--- ASSUMING, OF COURSE, THAT THE GRANT ACTUALLY CONSTITUTED AN EASEMENT. FOR WHILE PIPES AND POLES ARE USUALLY PLACED IN THE STREETS OF A MUNICIPALITY PURSUANT TO THE TERMS OF A FRANCHISE, WHICH DOES NOT CARRY WITH IT AN INTEREST IN LANDS, NEVERTHELESS WHEN "THE FRANCHISE TO USE THE STREETS IS ACTED ON BY APPROPRIATING PERMANENTLY DEFINITE PORTIONS OF THEM FOR THE SUPPORT OF POLES AND OVERHEAD WIRES, AND FOR THE RECEPTION OF UNDERGROUND CABLES, A LOCATED RIGHT TO USE DEFINITE LANDS FOR THESE PURPOSES ARISES WHICH EXCLUDES USE OTHERWISE TO THE EXTENT OF THE PHYSICAL OCCUPATION, AND WHICH MAY NOT INAPPROPRIATELY BE TERMED AS EASEMENT, A PROPERTY RIGHT IN THAT LAND.' CITY OF FORT WORTH V. SOUTHWESTERN BELL TELEPHONE COMPANY, 80 FED. (2D) 972, 976. THUS, WHILE UTILITY COMPANIES ACQUIRE AN EASEMENT IN THE STREETS THAT PROPERTY RIGHT IS SUBJECT TO THE HIGHER RIGHT OF THE STATE OR CITY TO REQUIRE REMOVAL IN THE PUBLIC INTEREST OF POLES, WIRES, ETC., TO OTHER LOCATIONS ON THE SAME OR OTHER STREETS. SIMILARLY, THE GENERAL RIGHT OF THE BELL TELEPHONE CO. TO LOCATE POLES ACROSS THE PUBLIC LANDS WOULD APPEAR TO BE SUBJECT TO THE RIGHTS OF THE GOVERNMENT, STATE OR FEDERAL, TO REQUIRE THEIR RELOCATION IN A DIFFERENT PLACE OVER THE PUBLIC LANDS IF SUCH RELOCATION SHOULD PROVE NECESSARY IN THE INTEREST OF THE PUBLIC WELFARE OR CONVENIENCE. THE RIGHT OF THE TELEPHONE COMPANY TO CONTINUE TO USE THE PUBLIC LANDS FOR ITS LEGITIMATE BUSINESS PURPOSES IS NOT THEREBY DENIED. NO ESSENTIAL PROPERTY RIGHT IS TAKEN. COMPARE OWENSBORO V. CUMBERLAND TELEPHONE COMPANY, 230 U.S. 58. ITS USE IS MERELY REGULATED IN THE PUBLIC INTEREST. C.B. AND Q.R.R. V. CHICAGO, 166 U.S. 226. THERE IS NOTHING TO INDICATE THAT THE RELOCATION IN THE PRESENT CASE WAS ARBITRARY OR UNREASONABLE AND WAS NOT REQUIRED IN THE INTEREST OF THE PUBLIC WELFARE AND CONVENIENCE. SEE NASHVILLE, C. AND ST.L.RY. V. WALTERS, 294 U.S. 405, 415.

IT IS UNNECESSARY TO CONSIDER THE QUESTION AS TO WHETHER THE STATE OF NEVADA, THOUGH POSSESSED OF AUTHORITY TO REQUIRE REMOVAL OF THE POLES WITHOUT COMPENSATION MIGHT NEVERTHELESS, IF IT ELECTED TO DO SO, ACCOMPLISH THIS PURPOSE UNDER AN AGREEMENT BY WHICH THE COST WOULD BE DEFRAYED BY THE STATE. FOR EVEN IF IT WERE TO BE ASSUMED THAT SUCH A CONTRACT OR AGREEMENT PROVIDING COMPENSATION TO THE TELEPHONE COMPANY WOULD BE BINDING AS BETWEEN THE PARTIES THERETO (SEE NORTHERN PACIFIC RY. V. DULUTH, 208 U.S. 583), IT DOES NOT FOLLOW THAT THE UNITED STATES WOULD BE OBLIGATED TO REIMBURSE THE STATE FOR EXPENSES THUS INCURRED. THE AGREEMENT OF THE UNITED STATES UNDER THE FEDERAL GOVERNMENT TO REIMBURSE THE STATE FOR A SPECIFIC PERCENTAGE OF THE NECESSARY COST OF THE PROJECT AND ANY EXPENDITURES WHICH THE STATE WAS NOT REQUIRED TO MAKE IN THAT CONNECTION COULD NOT BE REGARDED AS A NECESSARY ITEM OF COST.

IN VIEW OF THE AUTHORITIES HEREIN CITED IT MUST BE HELD, ON THE PRESENT RECORD, THAT THERE IS NO PROPER BASIS FOR INCLUDING IN THE AMOUNT FOR REIMBURSEMENT TO THE STATE OF NEVADA UNDER THE FEDERAL HIGHWAY ACT, THE EXPENDITURE HERE UNDER CONSIDERATION, AND THAT THE DISTRICT ENGINEER OF THE BUREAU OF PUBLIC WORKS PROPERLY REFUSED TO CERTIFY FOR PAYMENT ANY PART OF THE COST OF RELOCATING THE POLES OF THE BELL TELEPHONE CO., WHICH WERE LOCATED ON UNAPPROPRIATED AND UNRESERVED PUBLIC LANDS.