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under the reclamation laws, and the fact that at the time entry was made there was no specific mention of “betterment" charges in the water-right application forms then in use will not relieve the entryman from payment of betterment charges legally assessed against his land. (Idem.)

An application for water for land in a reclamation project, providing that the measure of the water right was that quantity of water which should be beneficially used for irrigation, not exceeding the share proportionate to irrigable acreage of the water available as determined by the project manager or other proper officer during the irrigation season for the irrigation of lands under the land unit, did not authorize the project manager or other officer to decide whether a landowner needed water, but only to determine the amount of water actually available, but was too indefinite, and landowners could not be required to execute it as a condition of obtaining water. (Payette-Boise Water Users' Association v. Cole (D. C. Idaho, 1919), 263 Fed. 734.)

Where a water-right application for land held in private ownership has been canceled for default in payment of building, operation, and maintenance charges, such application may be reinstated upon full payment of all accrued charges. (Departmental decision, April 3, 1916, 45 L. D. 23.)

By corporations.- No applications will be received from corporations on reclamation projects. That Congress did not intend that the reclaimed lands upon which the Government is expending the money of all the people should be the subject of corporate contract is conclusively established by the fact that the Secretary is authorized to fix the farm unit on the basis of the amount of land that will support a family. These lands are to be the homes of families. But existing corporations to which water rights have heretofore been granted should be permitted to continue without interference - and in view of past. departmental decisions applications by corporations pending at this date may be allowed. (Departmental decision, July 11, 1913, 42 L. D. 250. Pleasant Valley Farm Co., 42 L. D. 253.)

Religious, educational, charitable, and eleemosynary corporations are cepted from the decision of July 11, 1913. (Departmental decision, December 5, 1916.)

If an individual owns lands for which he makes water-right application duly accepted by the United States and the land is later in good faith transferred to a corporation, the corporate owner is entitled thereafter to the same treatment as other landowners on a project. (Departmental decision, December 6, 1916, In re The Santaquin Lime & Quarry Co., Truckee-Carson.)

In decision A-16335, dated March 8, 1932, the Assistant Secretary reversed the decision of the Commissioner of the General Land Office in the case of the Great Western Insurance Co., a corporation, assignee of reclamation homestead entry for lands in the Cheyenne, Wyo., land district. It was found that the appellant company did not take the assignment and apply for a water right with intention of holding and cultivating the land in competition with individuals or families, and it was believed that the recognition of the assignment and the granting of a water right to the company would not be in violation of the spirit of the regulations of July 11, 1913, there being no statute which prohibits a corporation from taking a reclamation entry by assignment.

By incorporated town.---An incorporated town organized as a city of the sixth class under the laws of the State of California (General Laws, 1909, ch. 7. p. 843) is entitled to make water-right application on the usual form to secure water from a Federal reclamation project for irrigating and beautifying a small tract of land which it owns, located outside the city limits and occupied by the septic tanks of the municipality. (Departmental decision, July 13, 1917, Orland.)

By soldiers. The status of one qualified to make water-right application under the reclamation act of June 17, 1902 (32 Stat. 388), is not changed by a temporary service away from home in the Army, Navy, or Marine Corps of the United States, and a water-right application executed by any such person at any point where he may be engaged in the line of duty may be received and approved if otherwise found acceptable. (Departmental decision, December 22, 1917, C. L. 720.)

See notes 5 and 6 under section 5 of this act. 6. Water charges.--An applicant for water rights under a reclamation project is required to pay for water for the entire irrigable area of his entry

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as shown on the plat upon which the construction charges were apportioned; and where mistake in the plat is alleged as to the irrigable area of the entry, application for correction thereof should be made to the local officer of the Reclamation Service (Bureau of Reclamation). (Williston Land Co., 39 L. D. 2. But see Regulations for Minidoka project, approved March 6, 1916.)

Constitutional rights were not invaded by granting each landowner in an irrigation district water rights for only 160 acres while subjecting his entire acreage to district assessments according to benefits. (Saylor v. Gray (Ariz. 1933), 20 Pac. (20) 441.)

Under an irrigation association's charter, corporations, guardians, and other fiduciaries are not qualified electors, but the right to vote is limited to individuals owning land in fee, and not to exceed 160 votes to each individual, (Idem.)

A register of voters as made by the secretary of an irrigation association is not conclusive as to qualifications of voters, where the evidence discloses that corporations and fiduciaries not qualified to vote conveyed land and shares appurtenant thereto to dummy owners solely for the purpose of voting for officers. (Idem.)

There is nothing in the act to prohibit a graduated scale of the annual payments required of users of water from projects constructed thereunder, and in all cases where it is deemed advisable this plan of payment may be adopted. (Secretary's instructions, August 16, 1905, 34 L. D. 78.)

The relinquishment of a homestead entry within the irrigable area of an irrigation project, where the entryman is in default in the payment of any annual installment, does not relieve the land of such charge, and a succeeding entryman takes it subject thereto. (Secretary's instructions, July 16, 1906, 35 L, D. 29.)

Water can not be furnished from a reclamation project to a State experiment farm free of charge. (Departmental decision, September 15, 1909, In re Idaho State Experiment Farm.)

Where after entry of a farm unit within a reclamation project the farmunit plat is amended and the entryman in conforming his entry to the amended plat retains only part of the land originally entered he is entitled to have the payments theretofore made on account of building charges and on account of the Indian price for the land credited to the retained portion, but is not entitled to have the payments on account of operation and maintenance so credited. (Eugene F. Windecker,'41 L. D. 389.)

It is not optional with an entryman of lands within a reclamation project to take or refuse water service from the project; but he is compelled to take the water service and to pay the charges fixed therefor. (Mangus Mickelson, 43 L. D. 210.)

In letter dated February 18, 1918, the United States Commissioner of Internal Revenue holds that payments covering the construction charges on Federal reclamation projects are not allowable deductions in income-tax returns as the water rights secured by the payment of such charges are perpetual in nature, and the amount so paid should be added to the capital investment in order to determine the gain or loss resulting from the transaction upon subsequent disposal of the land and water rights. As to the operation and maintenance charges the commissioner holds them to be an ordinary and necessary expense of doing business, and that the amounts so paid are deductible in the incometax returns.

Charges collectible although water cut off.—A suit was brought by the United States in the Wyoming Federal District Court to recover maintenance charges, including charges for 1922, 1923, and 1924. The defendant had failed to pay charges for prior years or for the years 1922 to 1924, and the water had been shut off. Defendant maintained that for 1922, 1923, and 1924 he did not receive water, and therefor that for these three years he could not be charged for the use of it. The court ruled that the Secretary, being authorized to make rules and regulations for the government of irrigation projects, and fix maintenance charges, providing the manner in which they shall be paid, the obligation of the defendant became fixed and definite and is recoverable in an action brought for that purpose. (U. S. v. Parkins (1926), 18 Fed. (2d), 643. Wind River (Indian) project.)

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Rental of water.—Water in irrigation canals constructed and operated under the reclamation act, which has not become appurtenant to any land and is not needed for irrigation, may be temporarily disposed of by lease, in the discretion of the Secretary of the Interior, the proceeds to become a part of the reclamation fund. (Alhambra Brick & Tile Co., 40 L. D. 573. See act of February 21, 1911, 36 Stat. 925.)

As an emergency measure to save growing crops, the director (commissioner) is authorized to supply squatters upon withdrawn lands under the reclamation projects with water on a rental basis, pending decision as to their rights to the land, subject to the provision that water shall be furnished only to such settlers as file a certain designated application therefor. (Departmental decision, May 27, 1912.)

Lands too alkaline to produce profitable crops may be supplied with water for a nominal rental, in order to encourage washing the alkali from the soil. (Departmental decision, March 24, 1913.)

Construction charges.-Where after application for water rights for the irrigable area of a farm unit, under the terms and for the acreage fixed in the published notice, a second notice is given showing an increased irrigable area in the farm unit and fixing a different rate per acre, the applicant is entitled to complete payment for the area originally fixed at the rate specified in the first notice, but as to water right for the additional irrigable acreage shown by the second notice, he will be required to pay at the rate fixed in the latter notice. (Walter L. Minor, 39 L. D. 351.)

A successful contestant of an entry within a reclamation project will be required, in making entry in exercise of his preference right, to pay the building charge obtaining at the time his application is filed, and is not entitled to the rate in effect when the former entry was made nor to credit for the payments made by the former entryman. (Henry A. Schroeder, 40 L, D. 458.)

When the Secretary of the Interior has fixed the number of installments to be paid for a water right and the time of payment, he is without authority to suspend payment of same in case the alkali has risen to the surface of the soil and interfered with the crop returns from the land. (Departmental decision, In re Sam Hammond (Truckee-Carson), September 24, 1909. See regulations of the Secretary, August 11, 1915, governing extension of relief to water users whose lands are temporarily affected by seepage, alkali, etc., to such an extent as to render them impracticable of profitable cultivation.)

In case the actual cost of a reclamation project exceeds the estimated cost of construction, it is the duty of the Secretary of the Interior to revise the estimate and make the charges sufficient to reimburse the reclamation fund for the cost of construction. (Magnus Mickelsen, 43 L. D. 210.)

The reclamation act provides that the cost of the project shall be imposed upon the land benefited equitably, which is to say ratably. No authority exists in the reclamation act, either in express terms or by necessary implication, that some of the lands benefited might be required to contribute one sum and other lands a greater or less sum, for such rule of apportionment would be inequitable and not ratable. (Op. Asst. Atty. Gen., October 25, 1910, In re Prosser Falls L. & P. Co. (Yakima) ; departmental decision, February 2, 1909, 37 L. D. 428. But see Op. Atty. Gen., May 1, 1911 (Lower Yellowstone), with accompanying papers, in effect to the contrary.)

Under date of July 31, 1929, the department approved a recommendation of the commissioner, Bureau of Reclamation, to the effect that a new entryman taking up land under the Belle Fourche project where a prior entry has been canceled after payment of only one construction charge installment, would be required at the time of making entry to pay such first installment and the remaining installments would be collected by the irrigation district under its contract with the United States. This plan dispenses with a public notice in cases where a district has assumed the obligation of paying charges at fixed rates.

Apportionment of cost of improvement and of water rights.-A public notice by the Secretary of the Interior, specifying lands for which water would be furnished under an irrigation project, the classes of charges therefor, and the construction charge as $75 per acre of irrigable land, payable in installments as enumerated, was in accord with this section, as amended, and act of August 13, 1914, authorizing the Secretary to let contracts for construction work, and

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thereupon to give public notice of the lands irrigable thereunder, of the charges per acre and the number of annual installments, to be determined with a view of returning to the reclamation fund the “ estimated cost " of the project, by wbich is meant, not the actual, exact final sums paid for construction, but such sums as it is believed after careful computation will cover the expenses directly and fairly connected with the construction of the project. (Yuma County Water Users' Association v. Schlecht (C. C. A. Ariz., 1921), 275 Fed. 885 ; affirmed (1923) 43 S. Ct. 498, 262 U. S. 138, 67 L. Ed. 909.)

Under this section correspondence between the Secretary of the Interior and officials of the Reclamation Service (Bureau of Reclamation) relative to estimates of the cost prior to the date of a contract between the landowners and the United States for the payment thereof, can not be regarded as a public notice to the former nor as binding on the Government. (Idem.)

Where the Secretary of the Interior in the exercise of his discretion withdrew certain land from an irrigation project and confined it to the area described in the public notice to the landowners affected, the latter, who contracted to pay for that part of the cost which should be apportioned to them by the Secretary, could not restrain the local reclamation officers from turning off the water for failure to pay an assessment in excess of the original estimate and of the actual value of work to be constructed, on the ground that the system was not completed when the suit was filed. (Idem.)

Though there was a substantial and material difference between preliminary engineering estimates of the cost of an irrigation project and a later estimate, the courts will not interfere in the absence of some substantial showing that the action of the Secretary of the Interior in publishing notice of charges based on such original estimates was fraudulent or arbitrary or so erroneous as to justify an inference of illegality or wrongdoing, especially where the increased cost was due to unexpected physical difficulties, higher wages, change of plans, increased mileage of canals, etc. (Idem.)

Under this section the cost is to be estimated and apportioned before construction, and in case of settlement under such conditions the price can not be later increased, though the published estimate is insufficient to cover the actual cost. (Payette-Boise Water Users' Association v. Cole (D. C. Idaho, 1919), 263 Fed. 734.)

Where a reclamation project was constructed with the mutual understanding that settlers would reimburse the Government for the actual outlay, and contracts had been made to supply irrigation districts and others with water, settlers were entitled to some authoritative description of the property to which their rights related, and a definition of the extent of their interest in the project, before they could be required to pay and to have from an authoritative source and of record a declaration of the cost of the project and of the portion of which it was intended they should become the beneficial owners, and could be required to pay the cost only of such portion of the works or such interest therein as was set apart for the use of their lands. (Idem.)

Where instead of estimating and apportioning the cost of a reclamation project before construction it was mutually understood that the settlers would reimburse the Government for the actual cost, they were chargeable with the actual cost only, and the Secretary of the Interior was without discretion in fixing the charge. (Idem.)

The requirement of this section that the cost of a project shall be estimated and apportioned before construction may be waived by settlers and the Secretary of the Interior, and was waived where there was no formal compliance with such requirement and all parties understood that ultimately the settlers would reimburse the Government for its actual and necessary outlay. (Idem.)

Where a reclamation project was constructed under a mutual understanding that settlers would reimburse the Government for the actual cost, the actual cost of the project was a matter for judicial investigation and determination. (Idem.)

Where a reclamation project was constructed under a mutual understanding that the actual cost should be charged against settlers, the cost of drainage work done for the benefit of lands in the project, or to protect other lands from conditions resulting from the construction and operation of the project, was chargeable against the project lands. (Idem.)

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Whatever may be the extent of the discretion of the Secretary of the Interior in the case of a reclamation project, where the charge for water and conditions of purchase are announced in advance of construction as required by statute, he could not exercise unlimited power to determine the conditions on which water would be supplied, where th project was constructed under the mutual understanding that landowners might procure water by paying their ratable proportion of the cost of construction and submitting to other equal and reasonable conditions. (Idem.)

Where landowners within a reclamation project outside of an irrigation district are charged $80 per acre, while those within the district are charged only $70, because of the possibility that all those outside the district will not take water, those paying such higher price are entitled to the additional service for which they pay, and if seven-eighths of the acreage takes water, they are entitled to the water rights for the entire acreage. (Idem.)

While administrative expenses of the Reclamation Service (Bureau of Reclamation), such as salaries of the administrative officers and of those who assisted them in the performance of administrative duties, are not chargeable as part of the cost of a project, the cost of services rendered to that particular project, such as the keeping of its accounts, preparation of engineering specifications, or purchasing and forwarding supplies, whether such services are rendered at the place of the project or elsewhere, or for such project alone or in connection with others, in such case prorative, is properly chargeable as a part of its cost. (Payette-Boise Water Users' Association v. Bond (D. C. Idaho, 1920), 269 Fed. 159.)

The amount of the claim of a contractor on an irrigation project, which is being contested by the Government in the Court of Claims, can not properly be charged to the settlers as a part of the cost of the project. (Idem.)

In computing the acreage on which the cost of an irrigation project was to be charged, a general deduction from the lands within the limits of the project of 10,000 acres, because it was "estimated” that such quantity would prove incapable of irrigation, because rough or sandy or from seepage, held not justified, where no land was described and excluded, and all lands within the project were equally entitled to water if demanded, and where specific tracts had already been excluded as nonirrigable. (Idem.)

Settlers on lands within an irrigation project, with the understanding that water shall be supplied to their lands and that the cost of the works will be assessed against them, are not concluded by the decision of the Secretary of the Interior as to what their interest in the works shall be, nor as to what sum shall be assessed against their lands for cost of construction, but have rights which may be judicially determined. (Idem.)

Under a contract by which the Government took over the canal system of an irrigation company for the purpose of incorporating it in a larger Government project, and providing that “an equitable proportion of the cost of maintaining and operating the system of irrigation works which may be constructed by the United States on the south side of the Boise Valley, as may be determined by the Secretary of the Interior, shall be paid to the United States by the holders of said certificates of stock," the fact that during the construction of the Government project the manager made charges for water furnished such stockholders on a different basis held not to affect the right and duty of the Secretary, after completion of the project, to make the apportionment as expressly provided in the contract. (New York Canal Co. v. Bond (D. C. Idaho, 1921), 273 Fed. 825.)

Suspension of contract.-Under contract between plaintiff and the Government Reclamation Service (Bureau of Reclamation) for construction of a diversion dam and headworks, held that, where work was not completed within contract period as extended, deduction of stipulated per diem from monthly amount earned as liquidated damage was authorized, and where plaintiff declined to complete work because of such deductions, suspension of the contract by the Secretary of the Interior was proper. (S. R. H. Robinson & Son Contracting v. U. 8. (1918), 53 Ct. Cl. 536.)

Where the contract is properly suspended but the Government materially departs from the contract terms in taking over and completing the work, the



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