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PROVISIONS OF SUNDRY CIVIL APPROPRIATION ACT FOR 1916 187

conducted in a lawful and proper manner, and a Government officer can not create a legal liability on the part of the Government by promising that the Government will pay for such damages so incurred. (23 Comp. Dec. 615.)

The United States is not authorized to pay one-half the cost of a detour power line built to avoid damaging a transmission line in connection with the construction of a canal under contract. (7 Comp. Gen. 217.)

Diversion by the United States Reclamation Service (Bureau of Reclamation) of the waters of a lake, thereby depriving meadowland of its moisture derived from subirrigation, even though the land was not contiguous to the meander line of the lake, constitutes a valid claim for damages within the contemplation of the above act, which authorizes payment of damages caused by reason of the operations of the United States in the survey, construction, operation, or maintenance of irrigation works. (George W. Myers and Lillie A. Myers, 49 L. D. 106.)

Where meadowland is damaged by the diversion of the waters of a lake, the landowner is not entitled to general damages to his remaining lands as incidental to the damage to the former, if the latter were not directly benefited by those waters prior to their diversion. (Idem.)

A State statute prescribing the period of time within which action may be initiated in its courts, has no application with reference to a claim asserted against the United States pursuant to a Federal statute, where the remedy is not sought in a tribunal of that State. (Idem.)

First Assistant Secretary's decision of February 21, 1930, reverses this ruling, holding that under articles 5526 and 5529, Revised Civil Statutes of Texas, 1925, an administrative officer of the Government is not vested with authority to allow a claim against it which is barred by the lapse of time. (Palmyra Longuemare et al., Rio Grande project.)

A horse leased by the Reclamation Service (Bureau of Reclamation) from R. R. Vannoy on the Yuma project, while being used with ordinary care, became frightened at the odor, noise, and paraphernalia of a trapper who was passing by, and as a result ran away and was injured in a barbed-wire fence. The comptroller held in this case (Comp. Gen. Dec. Mar. 15, 1922) that the proximate cause of this damage was not the “operations of the United States," but circumstances entirely foreign to and in no way connected with such operations, and that therefore there was no liability on the part of the Government under the appropriation act of June 5, 1920 (41 Stat. 913), or independently thereof. (Reclamation Record for April, 1922, p. 78.)

A contract of employment was entered into by the Bureau of Reclamation and C. E. Stone for the hire of a teamster and two horses for use in cutting hay on the Grand Valley project. The team belonged to Miss Anna Ott, who also owned a mower loaned to and used by Stone. The mower driven by Stone clogged and when the team was set to back the mower a clip came off the neck yoke. One of the horses was injured so badly that it died. The Comptroller General found that the injury to the horse was caused by the use of the mower by the United States with knowledge of its defects in connection with the survey, construction, operation, and maintenance of the irrigation project. Claim was accordingly allowed. (Comp. Gen. Dec. (A-14693), July 29, 1926, citing 4 Comp. Gen. 713 post.)

Damages caused to the owners of lands or private property of any kind by reason of irrigation operations, etc., are authorized to be compromised by agreement between the claimant and the Secretary of the Interior and paid from the reclamation fund, and no payments of damages as a result of compromise agreements may be made prior to approval of the Secretary of the Interior. (4 Comp. Gen. 713.)

Comptroller General's decision of June 15, 1926 (A-6633) authorizes the designation of the Commissioner or the Acting Commissioner of Reclamation to compromise damage claims involving $1,000 or less.

The act of June 5, 1924 (43 Stat. 416), in no way suspends or supersedes the jurisdiction of the General Accounting Office to settle and adjust claims for damages as provided by section 236, Revised Statutes, as amended by section 305 of act of June 10, 1921 (42 Stat. 24). (4 Comp. Gen. 713.)

Claims for payment of damages under act of June 5, 1924 (43 Stat. 416), involving doubtful questions of law and fact should not be paid by disbursing officers but forwarded to the General Accounting Office for direct settlement. (Idem.)

188 PROVISIONS OF SUNDRY CIVIL APPROPRIATION ACT FOR 1916

The question was submitted to the Comptroller General whether one who has filed a claim for damages to private property by the operations of the Bureau of Reclamation may, after said claim has been administratively rejected, apply to the Comptroller General for review of the administrative action. The Comptroller General ruled that as the only authority of law for the payment of such claims is specifically limited to claims that “may be compromised by agreement between the claimant and the Secretary of the Interior or such officers as he may designate," unless and until there be such a compromise agreement, there can be no basis for an allowance on such a claim. Hence, if a rejected claim for such damages be referred to the Comptroller General for settlement, the decision would necessarily be adverse to the claimant. (Comp. Gen. Dec. A-17378, March 5, 1927, re claim of Mrs. John L. Dyer, Rio Grande project.)

A claim for damages in the nature of reimbursement of the cost of necessary repairs to a tugboat leased to the United States under a contract providing for return to the owner in good condition, “with allowance for usual wear and depreciation,” must be determined under the specific provisions of the contract. Such a provision in the contract does not of itself render the United States an insurer of the property or in any way enlarge its common-law liability as a bailee to exercise ordinary diligence in the care of the property, and where it appears from the evidence submitted that the injury did not result from the failure of the United States or its employees to exercise that degree of care required of a bailee, there is no authority for payment of a claim for damages. (5 Comp. Gen. 557.)

Damages.—The First Assistant Secretary, in an opinion dated July 10, 1931, held regarding ten damage claims due to operation and maintenance of the Wapato project, Washington, in 1929, that authority granted the Secretary by the act of February 20, 1929, 45 Stat. 1252 (which is similar to the act of Mar. 3, 1915, supra, governing the operations of the Bureau of Reclamation), is sufficient to permit the payment of the ten claims submitted that a landowner may be compensated for the value of his crops and improvements, including a tree, on the right-of-way taken under the act of August 30, 1890, 26 Stat. 391, but no allowance can be made for the resulting damages to the land.

The Indian Bureau proposed to pay C. J. Mast damages under the act of Congress of February 20, 1929, 45 Stat. 1252 (very similar in its language to the provision of the act of Mar. 3, 1915, 38 Stat. 859), for damages during 1924-28 to crops, hay, etc., from water breaking through an irrigation lateral, Flathead Indian Irrigation project. The lateral was in a fill for about one mile, and this, together with borrow pits and poorly drained land on each side of the lateral, provided a location favorable for muskrats. The Comptroller General in decision of October 22, 1932, quoted in full in O. L. 2033, and decision of June 30, 1933, A-45268, held that damages could not be paid, there being no showing of absence of due care on the part of the employees of the Indian Bureau to guard against damages from muskrat activities. Also it was held that Mr. Mast, being a water user under the Flathead project, was presumed to have assumed his share of the risk, not resulting directly from the acts of the United States, its officers, or employees.

Seepage damages.-In opinion M. 26357 dated February 13, 1931, of the Solicitor for the Interior Department, approved by the First Assistant Secretary, it was held that the United States is liable for seepage damages from the St. Mary Canal to the lands embraced in Indian allotments; and that the Bureau has authority under the damage clause in the appropriation act to adopt methods for settling seepage damage claims, the cost to be collected from the landowners on the project. (Case of Caroline and William Henkel, Milk River project, Montana.) Upon reconsideration the decision of February 13, 1931, was adhered to. (Decision of Solicitor for the Interior Department approved by the First Assistant Secretary, Dec. 16, 1931.)

An injury caused by the construction and operation of a Government irrigation project, which by seepage and percolation necessarily influences and disturbs the ground water table of the entire valley where plaintiff's lands are situated, is damnum absque injuria. (Natron Soda Co. v. U. 8. (1919), 54 Ct. Cl. 169; affirmed (1921), 257 U. S. 138, 66 L. Ed. 171, 42 Sup. Ct. 58.)

PROVISIONS OF SUNDRY CIVIL APPROPRIATION ACT FOR 1916 189

An appeal was taken to the Department of the Interior from the decision of the Commissioner of the Bureau of Reclamation rejecting a claim for damage alleged to have been sustained by seepage from a Government canal crossing the lands of the claimant. There was no evidence that the damage was occasioned by negligence or unskillfulness in constructing or operating the ditch. The Government had the unquestioned right to construct the ditch upon the land it occupied. The line of the ditch pursued the most practicable route, and it apparently was constructed in the usual manner and according to the best engineering practice. The United States, “because it did that which it had a right to do,” is not liable for damages resulting to the land. The decision of the Bureau of Reclamation was upheld. (Department decision A-11253, Jan. 11, 1928, In re Trafton Dorr Co., Milk River project, citing Jackson v. U. S., 230 U. S. 1-22; Natron Soda Co. v. U. 8., 257 U. S. 138.)

Flood damages.-The United States in 1933 constructed the Alamo levee on the east side of the Rio Grande River. The landowners on the west side of the river claimed the construction of the Alamo levee had caused their lands to be flooded. The Under Secretary held that the alleged damaged lands, being a part of the flood plane of the Rio Grande River, would be flooded independently of the Alamo levee, and that the United States had a right to construct the levee to protect its property against floods in the river even if such construction resulted in damage to the lands on the opposite side of the river. (Decision of the Under Secretary, Aug. 29, 1935.)

Personal injury or death claims.--In the construction of the Echo Reservoir for the Salt Lake Basin project the Comptroller General was asked for a decision whether the contract with the Union Pacific Railroad for the removal of the track, etc., should provide for the reimbursement to the railroad of costs and expenses because of liability growing out of personal injuries or property damage incident to the work to be performed by the railroad. The Comptroller General ruled that property damages may be compromised, but unless and until Congress shall have authorized stipulations to indemnify payment of personal injury and death claims the Secretary is not authorized to enter into such a stipulation. (Comp. Gen. Dec. A-19031, July 13, 1927.)

The following circular letters refer to compromise of damages: No. 627. January 19, 1917; No. 836, July 28, 1919; No. 885, May 5, 1920 (printed at 47 L. D. 392); No. 1147, August 8, 1922; No. 1150, August 23, 1922; No. 1379, March 19, 1923, transmitting decision of Comptroller General (A-6633, Feb. 26, 1925, 4 Comp. Gen. 713), ante. C. L. 1522, printed at 5 Comp. Gen. 727.

Miscellaneous.—Spurrier V. Mitchell Irrigation District (Nebr., 1930), 229 N. W. 273. (Appeal to Sup. Ct. U. S. denied Apr. 20, 1931, for lack of jurisdiction, 283 U. S. 796.)

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[Obligations not to exceed appropriations or reclamation fund—Ten per cent of appropriations available interchangeably.]-Under the provisions of this act no greater sum shall be expended, nor shall the United States be obligated to expend during the fiscal year nineteen hundred and sixteen, on any reclamation project appropriated for herein an amount in excess of the sum herein appropriated therefor, nor shall the whole expenditures or obligations incurred for all of such projects for the fiscal year nineteen hundred and sixteen exceed the whole amount in the "reclamation fund” for that fiscal year.

Ten per centum of the foregoing amounts shall be available interchangeably for expenditure on the reclamation projects named; but not more than ten per centum shall be added to the amount apppropriated for any one of said projects. (38 Stat. 860.)

190 PROVISIONS OF SUNDRY CIVIL APPROPRIATION ACT FOR 1916

NOTES

See section 16, act of August 13, 1914 (38 Stat. 686).

Provisions similar to the above are now carried regularly in the annual appropriation acts.

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[No obligation increasing fixed construction charge permitted until agreement is made with water users. ]-No work shall be undertaken or expenditure made for any lands, for which the construction charge has been fixed by public notice, which work or expenditure shall, in the opinion of the Secretary of the Interior, increase the construction cost above the construction charge so fixed; unless and until valid and binding agreement to repay the cost thereof shall have been entered into between the Secretary of the Interior and the water-right applicants and entrymen affected by such increased cost, as provided by section four of the act of August thirteenth, nineteen hundred and fourteen, entitled "An act extending the period of payment under reclamation projects, and for other purposes.' (38 Stat. 861.)

[Protection of property along Colorado River.]-For protecting lands and property in the Imperial Valley and elsewhere along the Colorado River, within the limits of the United States, against injury or destruction by reason of the changes in the channels of the Colorado River—and the Secretary of the Interior is authorized to expend any portion of such money within the limits of the Republic of Mexico as he may deem proper in accordance with such agreements for the purpose as may be made with the Republic of Mexico—$100,000, which sum shall be available for expenditure as soon as there shall have been paid into the Treasury, by contributions from the Imperial Valley irrigation district, an equivalent amount to the credit of the Secretary of the Interior, to constitute, with the amount hereby appropriated, the total sum of $200,000, to be expended by him for the purposes herein described. (38 Stat. 861.)

LIEU FARM UNITS IN CASES OF NONIRRIGABILITY

An act for the relief of homestead entrymen under the reclamation projects of the United

States. (Act March 4, 1915, ch. 182, 38 Stat. 1215)

[Sec. 1. Relinquishment of homestead entries under reclamation act if land not irrigable_Selection of farm unit in lieu-Residence on original entry credited.]—That any person who has made homestead entry under the act of June seventeenth, nineteen hundred and two (Thirty-second Statutes at Large, page three hundred and eightyeight), for land believed to be susceptible of irrigation which at the time of said entry was withdrawn for any contemplated irrigation project, may relinquish the same provided that it has since been determined that the land embraced in such entry or all thereof in excess of twenty acres is not or will not be irrigable under the project, and in lieu thereof may select and make entry for any farm unit included within such irrigation project as finally established, notwithstanding the provisions of section five of the act of June twentyfifth, nineteen hundred and ten, entitled "An act to authorize advances to the reclamation fund," and so forth, and acts amendatory thereof: Provided, That such entrymen shall be given credit on the new entry for the time of bona fide residence maintained on the original entry. (38 Stat. 1215.) Textual note. The substance of this act is codified as section 447, title 43, United

States Code.

NOTES

Assignment of lieu farm unit.-Where, prior to an exchange of reclamation farm units under this act the entryman has, in connection with the original unit, fulfilled the ordinary homestead requirements and submitted proper proof thereof, the lieu farm unit may be assigned, under the act of June 23, 1910 (36 Stat. 592), subject to compliance with the requirements of the reclamation law as to payment, reclamation, and cultivation. (Sarah E. Lewellen, 46 L. D. 385.)

Exchange of patented farm unit.-In decision of March 22, 1934, the First Assistant Secretary of the Interior refused to approve an exchange of patented lands in the Frannie division for an unpatented unit in the Willwood division, Shoshone project.

Miscellaneous.-General Land Office circular of April 29, 1915, under this act. (44 L. D. 87.)

General Land Office circular of September 25, 1915, amending paragraphs 2 and 3 of circular of April 29, 1915. (44 L. D. 377.)

Reclamation Service instructions of December 20, 1915, governing credit for water-right payments in cases of lieu selection under said act. (44 L. D. 544.)

Circular letter No. 536, January 26, 1916, in reference to credit on new entries under this act.

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