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IRRIGATION SURVEYS OF THE ARID REGION [Extract from] An act making appropriations for sundry civil expenses of the Government

for the fiscal year ending June 30, 1889, and for other purposes. (Act October 2, 1888, ch. 1069, 25 Stat. 505)

[Irrigation survey of arid region—Report of expenses—Withdrawal of lands-Opening of lands by proclamation.]—[There is appropriated] For the purpose of investigating the extent to which the arid region of the United States can be redeemed by irrigation, and the segregation of the irrigable lands in such arid region, and for the selection of sites for reservoirs and other hydraulic works necessary for the storage and utilization of water for irrigation and the prevention of floods and overflows, and to make the necessary maps, including the pay of employees in field and in office, the cost of all instruments, apparatus, and materials, and all other necessary expenses connected therewith, the work to be performed by the Geological Survey, under the direction of the Secretary of the Interior, the sum of $100,000 or so much thereof as may be necessary. And the Director of the Geological Survey under the supervision of the Secretary of the Interior shall make a report to Congress on the first Monday in December of each year, showing in detail how the said money has been expended, the amount used for actual survey and engineer work in the field in locating sites for reservoirs and an itemized account of the expenditures under this appropriation. And all the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches, or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches, or canals are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act, to entry, settlement, or occupation until further provided by law: Provided, That the President may at any time in his discretion by proclamation open any portion or all of the lands reserved by this provision to settlement under the homestead laws. (25 Stat. 526.)

Textual note.-See textual note relative to provision first quoted of act of August 30, 1890 (26 Stat. 371, 391), page 3.

NOTES Effect of act. The provision reserving from sale or entry lands designated or selected for reservoirs, ditches, or canals for irrigation purposes, and also lands made susceptible of irrigation by such reservoirs, ditches, or canals, operates as an immediate withdrawal of the lands thus described from entry and settlement. (19 Op. Atty. Gen. 564, May 24, 1890.)

This act construed in connection with act of August 30, 1890 (26 Stat. 371, 391), in Green v. Wilhite et al. (C. C. Ida. 1906, 160 Fed. 775.)

Repeal.-A portion of this act was repealed by the act of August 30, 1890. (Ch. 837, 26 Stat. 371.)

See debate in Congress on question of repeal. (Cong. Rec. vol. 21, pp. 7269–7987; 8270-9156.)

RESTORATION OF WITHDRAWN LANDS RESERVATION FOR

DITCHES

(Extract from] An act making appropriations for sundry civil expenses of the Government

for the fiscal year ending June 30, 1891, and for other purposes. (Act August 30, 1890, ch. 837, 26 Stat. 371)

[Restoration of irrigable lands—Existing bona fide entries validatedReservoir sites to be reserved.]—*

so much of the act of October second, eighteen hundred and eighty-eight, entitled “An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and eighty-nine, and for other purposes," as provides for the withdrawal of the public lands from entry, occupation, and settlement, is hereby repealed, and all entries made or claims initiated in good faith and valid but for said act, shall be recognized and may be perfected in the same manner as if said law had not been enacted except that reservoir sites heretofore located or selected shall remain segregated and reserved from entry or settlement as provided by said act, until otherwise provided by law, and reservoir sites hereafter located or selected on public lands shall in like manner be reserved from the date of the location or selection thereof. (26 Stat. 391.)

Textual note.--A portion of this provision combined with a part of the provision of the act of October 2, 1888 (25 Stat. 505, 526), shown at page 2, is codified as section 662, title 43, United States Code.

[Land patents to reserve right of way for Government ditches.]

That in all patents for lands hereafter taken up under any of the land laws of the United States or on entries or claims validated by this act, west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described a right of way thereon for ditches or canals constructed by the authority of the United States. (26 Stat. 391.)

Textual note.—This provision is codified as section 945, title 43, United States Code.

NOTES

Purpose of the act.-By a series of acts and resolutions passed by Congress beginning as early as 1888 (act October 2, 1888, c. 1069, 25 Stat. 526; act March 20, 1888, 25 Stat. 618; act March 2, 1889, c. 411, 25 Stat. 960; act August 30, 1890, C. 837, 26 Stat. 391), the Government unmistakably declared a purpose to reclaim its arid lands by conducting water to and across them, and provision was shortly made to enable it to carry out that purpose. (United States v. Van Horn et al. (D. C. Colo., 1912), 197 Fed. 611).

This provision must be construed in the line of the known purpose of the Government to reclaim its arid lands by conducting water upon them, and it is not void for indefiniteness because the right of way reserved is not specifically described, but is within the undoubted powers of Congress and valid. (Idem.)

4 WITHDRAWN LANDS—RESERVATION FOR DITCHES

Under the provisions of the act of August 30, 1890, it was the evident intention of Congress to reserve perpetually to the Government an easement and right of way through and over any and all lands west of the one hun. dredth meridian that the Government might grant to settlers and purchasers subsequent to the passage of the act, and to thereby reserve the easement and right of way for the construction, maintenance, and operation of any ditches and canals the Government may construct at any time in the future for the irrigation and reclamation of arid lands. (Green v. Wilhite et al. (1908), 14 Idaho 238, 93 Pac. 971.)

The act of August 30, 1890 (26 Stat. 391), in providing that, in all patents issued under the public land laws for lands west of the one hundredth meridian, there should be expressly reserved rights of way “for ditches or canals constructed by the authority of the United States," is to be construed, in the light of the circumstances that prompted it, as including canals and ditches constructed after issuance of patent as well as those constructed before. (Ide v. United States (1924), 263 U. S. 497, 68 L. Ed. 407, 44 Sup. Ct. 182, affirming United States v. Ide (C. C. A. Wyo. 1921), 277 Fed. 373.)

Time of construction of ditches.—The word "constructed,” as used in the act of August 30, 1890, has a general reference and application to ditches or canals constructed by authority of the United States, without reference to the time of such construction. (Green v. Wilhite et al. (1908), 14 Idaho, 238, 93 Pac. 971.)

The word “constructed” as so used does not limit the reservation to a right of way for ditches already constructed, but extends as well to those "to be constructed” by the Government in furtherance of its irrigation scheme for the reclamation of arid lands. (Green v. Wilhite et al. (C. C. Ida. 1906), 160 Fed. 755.)

Drainage ditches.-The expression “ditches or canals constructed by the authority of the United States” as used, in the right of way act of August 30, 1890 (26. Stat. 391), includes the necessary waste and drainage ditches upon a Federal reclamation project. (Opinion Chief Counsel, June 10, 1918, Grand Valley project. See Reclamation Record, July, 1918, p. 328.)

Lands affected. This provision applies only to entries under the public or general land laws. (Secretary's instructions of June 4, 1903, 32 L. D. 147.)

All lands taken up under any of the public land laws of the United States subsequent to October 2, 1888, are subject to rights of way for ditches or canals constructed by authority of the United States. (General Land Office circular of July 25, 1903.)

All subsequent entrymen take their land subject to the right of the United States to construct ditches and canals over it whenever and wherever required in carrying out any of its reclamation projects. (United States v. Van Horn et al., ante.)

Under this provision the Government has full authority to construct canals or ditches over any such lands in connection with reclamation projects. (Secretary's instructions of June 6, 1908, 36 L. D. 482.)

If the actual disposition occurred after the passage of the act, the land was undoubtedly "taken up" within the meaning of those words as used in the act, and this would be so whether the disposition occurred through allotment, sale, homestead, or other manner of disposition. (Clement Ironshields, 40 L, D. 28.)

Where, however, in certain reservations set apart for Indian occupancy, particular tracts have been set apart, actually occupied, or improved under some usage or custom, with a view to ultimate allotment to an Indian prior to the passage of the act, the tracts being afterwards allotted, such tracts must be considered as having been “taken up” prior to the passage of the act. (Idem.)

National forest lands.--The mere fact that lands reserved as reservoir sites under the acts of October 2, 1888 (25 Stat. 526) and August 30, 1890 (26 Stat. 391), fall within the exterior limits of a national forest subsequently created does not in anywise change their status of reserved reservoir lands, or render them subject to appropriation under section 4 of the act of February 1, 1905 (33 Stat. 628), granting rights of way for the construction and maintenance of dams, reservoirs, etc., for municipal and mining purposes, within and across forest reserves of the United States. (Salt Lake City, 41 L. D. 31.)

Unallotted Indian lands, Ute Reservation, Colo.-The act of June 15, 1880 (ch. 223, sec. 3, 21 Stat. 203), providing for allotment in severalty of lands of WITHDRAWN LANDS_RESERVATION FOR DITCHES

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the Ute Indian Reservation in Colorado, further provides that “all lands not so allotted shall be held and deemed to be public lands of the United States and subject to disposal under the laws providing for the disposal of the public lands at the same price and on the same terms as other lands of like character, provided that

said lands

shall be subject to cash entry only in accordance with existing law.” Held, that it was competent for Congress to change the manner of disposition of such lands in so far as third parties were concerned, and that persons taking preemptions thereon after the passage of the act of August 30, 1890 (ch, 837, sec. 1, 26 Stat. 391), reserving from all public lands thereafter taken up right of way for ditches and canals constructed by the authority of the United States, took them subject to such provision. (United States v. Van Horn et al., ante.)

Railroad rights of way.This act does not apply to railroad rights of way acquired under the provisions of the act of March 3, 1875 (ch. 152, 18 Stat. 482). (Minidoka and S. W. R. Co. v. Weymouth et al. (1911), 19 Idaho 234, 113 Pac. 455.)

In referring to lands "taken up" and land "entries" and lands "patented" it does not refer to or include easements and rights of way granted for specific purposes where the fee does not pass and where no patents are issued, and where the amount of land covered by the easement is not limited in area or extent. (Idem.)

That the United States may in the future reasonably acquire rights of way for ditches in furthering a reclamation project, in addition to those now occupied by existing canals, and that it may be entitled to reserve land therefor under this act, does not prevent a railroad company from occupying lands in presenti legally conveyed to it within a reclamation reservation by a homestead entryman. (United States v. Minidoka & 8. W. R. Co. (C. O. Idaho 1910), 176 Fed. 762; reversed (1911) in 190 Fed. 491; affirmed (1914), 235 U. S. 211, 59 L. Ed., 200, 35 Sup. Ct. 46.)

The reservation of rights of way for canals and ditches required by this act to be inserted in patents for public lands west of the one hundredth meridian need not be inserted in patents issued for lands granted to railroad companies to which the grant or right of the company attached prior to the date of said act, but should be inserted in patents for lands covered by indemnity selections made by railroad companies, and in selections made by the Northern Pacific Railway Co., under the provisions of the act of July 1, 1898, in all cases where such indemnity or other selections are approved subsequent to August 30, 1890. (Secretary's instructions of April 19, 1912, 42 L. D. 396.)

Purchase of right of way for canal.-Certain lands in the primary lists and limits of the grant of July 1, 1862 (12 Stat. 489), as amended July 2, 1864 (13 Stat. 356), to the Central Pacific Railroad Company and patented to the Company September 6, 1896, under said grant without reservation of rights of way for canals and ditches under the provisions of the proviso in the act of Aug. 30, 1800, may not be taken under authority of said proviso for a right of way for the Hyrum-Mendon canal, Utah, but must be acquired by purchase. (Departmental decision M-27871, February 2, 1935.)

Compensation to landowner.—Compensation must be made for gravel taken from a right of way acquired under this section for use off the right of way where found. (Reclamation decision, July 26, 1913, in re Belanger (Lower Yellowstone).)

When the United States utilizes a right of way under this act, the landowner may be compensated for the actual value of his improvements on the right of way, but no allowance can be made for the resultant damages to the land. (Departmental decision, April 24, 1919, in re Albert W. C. Smith, Huntley, 47 L. D: 158.)

Temporary removal of transmission line.-In the construction of the main canal, Kittitas division of the Yakima project, Washington, the contract stipulated that the right of way for the work would be provided by the United States. In the course of the construction it was necessary to cross lands of a patentee over which there had been constructed a high-powered transmission line. The right of way for the irrigation ditch and the right of way for the transmission line conflicted and the contractor agreed to assume one-half of the cost of temporarily removing from the site of the irrigation ditch the transmission line, the reclamation employees advising the contractor that they would recommend 6

WITHDRAWN LANDS- -RESERVATION FOR DITCHES

that the Government reimburse it for one-half of the cost so paid. The Comptroller General, under date of September 16, 1927, citing U. 8. v. Van Horn (197 Fed. 611), ruled that the action of the employees of the Bureau of Reclamation in undertaking to arrange for payment to the contractor imposed no obligation upon the United States, and that payment was not authorized to the contractor of one-half of the cost of the temporary removal and replacement of the transmission line which interfered with the construction of the main canal. (7 Comp. Gen. 217.)

Injunction suits.-An injunction issued by a State court in a suit brought against the engineer in charge of a Government irrigation project and his foreman, as individuals, restraining the defendants and all persons under their control from entering upon certain lands and constructing a Government canal across the same, is not a bar to a suit in a Federal court by the United States to establish its right to construct such canal under the reservation of right of way therefor contained in the act of August 30, 1890 (ch. 837, sec. 1, 26 Stat. 391), and to enjoin the owners of said lands, which were acquired under the public land laws after the passage of said act, from interfering with such construction. (United States v. Van Horn et al., ante.)

Equity has jurisdiction of a suit by the United States against the owners of lands acquired under the public land laws after the passage of this act to enjoin them from interfering with its construction of an irrigation canal over such lands under the reservation of right of way therefor contained in said act. (Idem.)

Surplus water.-So long as the Reclamation Service (Bureau of Reclamation) can apply surplus water appropriated for a project to a beneficial use, although on lands outside the project, and thus lessen the cost to lands within the project, it is within the scope of its authority and the service may acquire rights of way under the act of August 30, 1890 (26 Stat. 391). (Griffiths v. Cole et al. (D. C. Idaho 1919), 264 Fed. 369.)

Effect on title.-A provision in a contract for the sale of land that the seller will deliver to the buyer an abstract of title to the land, showing the title of the seller to be free and clear of encumbrances, is not complied with by the furnishing of an abstract which shows that the seller's title to the land is subject to a right of way for ditches or canals to be constructed by the Government of the United States under this act. (Cosby v. Danziger (1918), 27 Cal. App. 344; 175 Pac. 809.)

Miscellaneous references.-Debate in Congress as to right-of-way provision of act of August 30, 1890, 21 Congressional Record, Fifty-first Congress, first session, pages 7774, 7877, 7930, 8275, 8323, 8329, 9139, 9151, 9152, 9154, 9155.

Executive Document, No. 136, Senate, Fifty-first Congress, first session.

Public Lands of the Arid Region, in Report of Commissioner of the General Land Office, 1890, pages 59–78, inclusive.

General Land Office circular of October 5, 1893, to registers and receivers directing indorsements in reference to right-of-way reservations. (17 L. D. 521.)

Sections 17 and 18, general reclamation circular, approved May 18, 1916 (45 L. D. 385).

C. L. 761, May 29, 1918. Vouchers should clearly express the fact that the claim is for damages to improvements upon the land, not for the purchase of the land itself.

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