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SURPLUS WATERS AND COOPERATION IN IRRIGATION WORK 127
district, (Pioneer Irrigation District v. Stone (1913), 23 Idaho, 344, 130 Pac. 382. Followed in Hillcrest Irrigation District v. Brose (1913), 24 Idaho, 376, 133 Pac. 663; Nampa amd Meridian Irrigation District v. Petrie et al. (1915), 153 Pac. 425; and Nampa and Meridian Irrigation District v. Petrie (1924, 223 Pac. 531 ; 37 Ida. 45.)
Validity of contract.—Under the Warren Act a contract between the United States and a land company for the delivery to the latter of water which escaped by seepage from the canal of a reclamation project was a valid contract, which gave the United States the right to conserve and deliver water thereunder. (Ramshorn Ditch Co. v. U. S. (C. C. A. Neb. 1920) 269 Fed. 80, affirming U. 8. v. Ramshorn Ditch Co. (D. C. 1918) 254 Fed. 842.)
In view of the reclamation act, the Warren Act, and the legislation of Wyoming and Nebraska, an appropriation of water by the Reclamation Service (Bureau of Reclamation) for the irrigation of lands in Nebraska is valid, though the source of the supply is in Wyoming. (Idem.)
Application of plan of payment under fact-finders' law.—There appears to be nothing in subsection F, section 4, act of December 5, 1924 (fact-finders' law) to prevent the application of the new plan of payment to Warren Act contractors in cases where the new plan is desired by the water users and found by the Secretary to be desirable. (51 L. D. 209-210; C. L. 1360, February 3, 1925.)
Estoppel to question Government's claim.-On June 14, 1915, the Bridgeport jrrigation district entered into a Warren Act contract with the United States for the purchase of a water supply from Pathfinder Reservoir, North Platte project. The contract was not authorized by a vote of the electorate of the district. The district paid the amounts due under the contract for the years 1915 to 1919, but failed to make the construction charge payments due under the terms of the contract for the years 1920 to 1924, amounting to $54,334. Suit was brought by the United States to enforce collection. To the Government's complaint the district answered that the board of directors did not, under the Statutes of Nebraska, have the authority to execute the contract, unless authorized to do so by a vote of the electorate of the district. The Government demurred. On July 15, 1929, the District Court of the United States for the District of Nebraska held that the district board of directors was authorized, without an election, to make the contract under sections 3465 and 3466, Revised Statutes of Nebraska, 1913, and under chapter 69 of Nebraska Session Laws, 1915, amending section 3466. Furthermore, the court held that the defendant was estopped, by reason of its long delay to assert the claim of its answer against the Government. The court cited various cases (see New Reclamation Era, Oct., 1929, p. 160) as upholding the contention of the United States. (Memorandum decision by Judge Woodrough, dated July 15, 1929, In re U. 8. v. Bridgeport Irr. Dist. Affirmed by U. S. C. C. A., 8th Circuit, May, 1930, 40 Fed. (20) 827). Petition for certiorari to Sup. Ct. denied October 20, 1930 (282 U. S. 866).
Timber.- Under this act authorizing the Reclamation Service (Bureau of Reclamation) to cooperate with private parties in carrying out projects under the Carey Act, the Kuhn Irrigation & Canal Co. may be permitted to take timber from the Teton National Forest free of charge for use in raising the dam at Jackson Lake, Wyo., which is a project authorized under the reclamation act of June 17, 1902. (1915) (30 Op. Atty. Gen. 398.)
Cancelation of rights of way.—The Secretary of the Interior properly canceled rights of way on the failure of the irrigation company to secure necessary financial arrangements pursuant to contract entered into under this section. (Verde River Irrigation & Power District v. Work (D. C. Ariz. 1928) 24 Fed. (20) 886.) Certiorari denied (1929) 49 Sup. Ct. 350, 279 U. S. 854, 73 L. Ed. 996.
Circular letters.—No. 868, February 10, 1920, and No. 872, February 21, 1920, concerning requirement for map showing boundaries of lands covered by Warren Act and other contracts.
No. 1171, November 3, 1922. Form of contract for sale of water under the Warren Act for a single farm.
Sec. 2. [Cooperation with water users for reservoirs—Title to works Limit on water furnished—Water rights of United States not enlarged.]—That in carrying out the provisions of said reclamation act 128 SURPLUS WATERS AND COOPERATION IN IRRIGATION WORK
and acts amendatory thereof or supplementary thereto, the Secretary of the Interior is authorized, upon such terms as may be agreed upon, to cooperate with irrigation districts, water users' associations, corporations, entrymen, or water users for the construction or use of such reservoirs, canals, or ditches as may be advantageously used by the Government and irrigation districts, water users' associations, corporations, entrymen or water users for impounding, delivering, and carrying water for irrigation purposes: Provided, That the title to and management of the works so constructed shall be subject to the provisions of section six of said act: Provided further, That water shall not be furnished from any such reservoir or delivered through any such canal or ditch to any one landowner in excess of an amount sufficient to irrigate one hundred and sixty acres: Provided, That nothing contained in this act shall be held or construed as enlarging or attempting to enlarge the right of the United States, under existing law, to control the waters of any stream in any State. (36 Stat. 926.)
Textual note.—This section is codified as section 524, United States Code, the introductory word "That" being, omitted, and reference being made to "reclamation law," etc., instead of to "reclamation act.'
The second proviso to this section is intended to be a restriction upon the area which may be irrigated from water furnished from a Government project. It is not a restriction upon the amount of water which may be delivered to a tract of land in single ownership. (Dec. Sol. Int. Dept., March 3, 1927, M-21709.)
Contract with irrigation district.—Where a State irrigation district had purchased from the Reclamation Service (Bureau of Reclamation) a water right which was not yet paid for, and had contracted to carry through its canals water for the reclamation project, and there was grave danger that the irrigation district would be unable to operate its system, the Reclamation Service (Bureau of Reclamation) had such an interest in the district that it might contract for the operation of the district under this section. (New York Trust Co. v. Farmers' Irr. Dist. (C. C. A. Nebr. 1922), 280 Fed. 785.)
The Reclamation Service (Bureau of Reclamation) has authority to take over the operation of a State irrigation district system for the purpose of protecting its claims against the district without acquiring absolute title to the project. (Idem.)
Nevada Supreme Court holds contract valid.—The Truckee-Carson Irrigation District under date of January 22, 1921, entered into a contract with the United States by which the United States agreed to expend a maximum of $700,000 toward the drainage of the district lands, which comprise a portion of the Newlands project. Statutory proceedings to confirm the contract were brought and upon appeal to the Supreme Court of the State the court (April 5, 1926) upheld the constitutionality of the Nevada irrigation district law and confirmed the proceedings, finding the irrigation district to have been duly organized and the contract to be valid. The court also upheld the power, given to the district by a State statute, to assess high lands for drainage charges when such high lands contributed to the seeped condition of the lower lands of the district. It was also held that drainage assessments might be levied at a flat rate, if the district board found as a fact that the benefits to the land in the district were equal. (McLean v. Truckee-Carson Irrigation District (1926), 245 Pac. 285 ; 49 Nev. 278.) (See also In re Lovelock Irr. Dist., 273 Pac. 983.)
Authority to execute contract.-The Solicitor for the Interior Department in an opinion approved by the department April 17, 1928, considered section 2 of the Warren Act (act of February 21, 1911, 36 Stat. 925), in connection with section 16 of the act of August 13, 1914 (38 Stat. 686), and held that section 16 of the latter act did not prohibit the execution by the United States of & conSURPLUS WATERS AND COOPERATION IN IRRIGATION WORK 129
tract under section 2 of the Warren Act for the advance by the United States of $200,000 to permit the contractor with the United States, the North Side Canal Co., to obtain carriage capacity in the main canal of the gravity extension unit, or Gooding division of the Minidoka project, the construction of which canal for the joint benefit of the United States and the company was under contemplation. The appropriations available for carrying out this contract did not expressly authorize expenditures for the benefit of the company, but were made generally for the investigation and construction of the gravity extension unit of the Minidoka project. The company was to be required to repay the amount so expended in 20 annual installments, with interest at 6 per cent per annum.
Decree as to proceedings of irrigation district not appealed from conclusive.Where a petition or petitions have been presented to the district court for the confirmation of any part of the proceedings that have been taken and a decree has been made and entered confirming the same and no appeal has been taken therefrom, it is final and conclusive as to the proceedings taken prior thereto, unless such decree is assailed by a direct attack or unless it appears from the record that the proceedings taken and confirmed were taken in such manner that the district court was without jurisdiction to confirm the same. (American Falls Reservoir Dist. v. Thrall (1924), 228 Pac. 236.)
Bonds general lien on land until discharged.—Under the Idaho Irrigation District Law the bonds of the district are a general lien upon the lands of the district, and all of said lands are and must remain liable for the district assessments levied for the payment of such obligations until the same are fully paid and discharged. (Idem.)
Condition of irrigation district bonds as to collection irrevocable.—The bonds or other obligations of an irrigation district may contain a provision that the collection of the principal and interest of such bonds or other obligations shall be made by the county officers of the county in which the lands taxed are situate, and when such condition is indorsed upon the obligation it is irrevocable until such indebtedness is paid. (Idem.)
Irrigation district municipal corporation respecting contracts.--An irrigation district is a public, or quasi public, corporation, not organized for governmental purposes, but to conduct the business for the private benefit of the owners of the land within its limits, and as respects its contracts made in the manner prescribed by law it is a municipal corporation. (Idem.)
Court's jurisdiction not defeated because of failure to give notice.-In a proceeding to confirm the organization of an irrigation district the jurisdiction of the court to confirm is not defeated because of a failure to give notice of the hearing before the board of county commissioners, since the proceeding is in rem and the objection was available and could have been raised at the confirmatiou proceedings, of which notice was given. (Idem.)
Organization of irrigation district can not be attacked in proceeding to confrm assessment of benefits. When proceedings to organize an irrigation district are on their face regular, show a substantial compliance with the statute prescribing the method of organizing such district, and have been confirmed by a judgment of the district court, from which no appeal has been taken, the question of the validity of the district's organization is res judicata and therefore can not be attacked in a subsequent proceeding to confirm the assessment of benefits. (Idem.)
Areas in excess of 160 acres.-See note under section 1 of act of May 15, 1922 (42 Stat. 541), entitled "Areas in excess of 160 acres."
Excess acreage.—The Supreme Court of Oregon, reversing the decision of the circuit court, held that a land company which by reason of holding land under another irrigation project was prohibited from using water obtained by an irrigation district under a contract with the United States, and which had not received water from the district, had a good defense to a suit by the district to foreclose delinquent tax certificates for assessments. (Enterprise Irrigation Dist. v. Enterprise Land & Investment Co. (Oreg. 1931), 300 Pac. 507.)
But see Klamath County v. Colonial Realty Co. (Oreg. 1932), 7 Pac. (2d) 976, 139 Oreg. 311, in which the same court, under a slightly different state of facts, reached a different conclusion, and in which said court now appears to be in harmony in this matter with the courts of the other arid States and with its own earlier decisions.
130 SURPLUS WATERS AND COOPERATION IN IRRIGATION WORK
Sec. 3. [Moneys received covered into reclamation fund. ]—That the moneys received in pursuance of such contracts shall be covered into the reclamation fund and be available for use under the terms of the reclamation act and the acts amendatory thereof or supplementary thereto. (36 Stat. 926.)
Textual note.-Section 525, United States Code, codifies the substance of this section.
Assessments.—Yuma project.—Moneys received from the Imperial Irrigation District for the privilege of connecting with and using the Laguna Dam and the main canal of the Yuma reclamation project for the irrigation of lands in the Imperial Valley can not be applied in reduction of the assessments against the lands of the Yuma project, but must be covered into the reclamation fund as directed by section 3, act of February 21, 1911 (36 Stat. 926). (32 Op. Atty. Gen. 41.)
But see act June 28, 1926 (44 Stat. 776).
Penalties on account of delinquent water charges--Under contracts with irrigation districts under act of May 15, 1922 (42 Stat. 541), and also under the Warren Act of February 21, 1911, penalties on account of all classes of charges shall be credited to the reclamation fund generally and not to the project in connection with which they arise. (C. L. 1186, January 3, 1923. This circular amends C. L. 960 (standard clauses for contracts with irrigation districts), by adding a sentence to clause (H) thereof.)
Profits from sale of Jackson Lake water, Minidoka project-Certain profits arose on the Minidoka project from the sale of Jackson Lake water under the Warren Act. The Secretary of the Interior, after full consideration and a hearing accorded the parties, allocated the profits among the different divisions of the project. The Minidoka Irrigation District, representing one division of the project, being dissatisfied with the allocation, brought suit in the courts of the District of Columbia to secure a mandatory injunction compelling the Secretary to make an allocation in accordance with the contentions of the plaintiff. The trial court denied the Government's motion to dismiss, and the Government appealed to the Court of Appeals of the district, where the Secretary's allocation was upheld, and the lower court ordered to dismiss the bill. It was held that the Secretary was acting in a quasi-judicial capacity, that his decision was not arbitrary or capricious, and that the plaintiff was seeking a judgment in mandamus directing the Secretary to act contrary to the facts and the law of the case as found by him, and that such an appeal will not be entertained by the courts. (Wilbur v. Minidoka Irrigation District, decided by the Court of Appeals of the District of Columbia May 4, 1931, 50 Fed. (20) 495, 60 App. D. C., 205; certiorari denied October 1931, 284 U. S. 634, 52 S. Ct. 18; 76 L. Ed. 540.)
After the foregoing decision was rendered the Minidoka Irrigation District petitioned the Department for a review, and in decision of February 23, 1933, M-27043, the petition was denied by the Secretary of the Interior on the ground that the matter had been settled by the courts and previous departmental decision of September 27, 1926
LEASE OF SURPLUS ELECTRIC POWER
An act to amend an act entitled "An act providing for the withdrawal from public entry
of lands needed for town-site purposes in connection with irrigation projects under the reclamation act of June 17, 1902,
and for other purposes," approved April 16, 1906. (Act February 24, 1911, ch. 155, 36 Stat. 930)
[Sec. 1. Development and lease of surplus power-Proceeds—Impairment of projects prohibited—Longer lease permitted on Rio Grande project.)-That section five of an act entitled “An act providing for the withdrawal from public entry of lands needed for town-site purposes in connection with irrigation projects under the reclamation act of June seventeenth, nineteen hundred and two, and for other purposes," approved April sixteenth, nineteen hundred and six, be amended so as to read as follows:
“Sec. 5. That whenever a development of power is necessary for the irrigation of lands, under any project undertaken under the said reclamation act, or an opportunity is afforded for the development of power under any such project, the Secretary of the Interior is authorized to lease for a period not exceeding ten years, giving preference to municipal purposes, any surplus power or power privilege, and the money derived from such leases shall be covered into the reclamation fund and be placed to the credit of the project from which such power is derived: Provided, That no lease shall be made of such surplus power or power privileges as will impair the efficiency of the irrigation project: Provided further, That the Secretary of the Interior is authorized, in his discretion, to make such a lease in connection with Rio Grande project in Texas and New Mexico for a longer period not exceeding fifty years, with the approval of the water users' association or associations under any such project, organized in conformity with the rules and regulations prescribed by the Secretary of the Interior in pursuance of section six of the reclamation act approved June seventeenth, nineteen hundred and two." (36 Stat. 930.)
Textual note. The substance of the above act is codified as section 522, title 43, United States Code, the first paragraph and the words "SEC. 5. That" of the second paragraph being omitted ; "said reclamation act" reading "said reclamation law; and
section six of the reclamation açt approved June seventeenth, nineteen hundred and two" reading “section 498 of this chapter."
Cross reference.-See notes under section 5, act April 16, 1906 (34 Stat. 116).