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As an emergency measure to save growing crops, the director (commissioner) is authorized to supply squatters upon withdrawn lands under the reclamation projects with water on a rental basis, pending decision as to their rights to the land, subject to the provision that water shall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

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 which 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.)

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 the 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. S. (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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contractor is entitled to recover the value of his plant and equipment at the time it was seized; and the Government is not entitled to recover on a counterclaim for the excess of cost to complete over the contract price. (Pacific Coast Const. Co. v. U. S. (1918), 53 Ct. Cl. 582.)

Where a contractor refuses to proceed with the work and the engineer in charge telegraphs his superior that fact and requests authority to suspend the contract in case the contractor should not conclude to go on with the work, and the Director (Commissioner) of the Reclamation Service (Bureau of Reclamation) in communicating that telegram to the Secretary of the Interior recommends that the authority be granted in order that the engineer may act promptly, as indicated in the telegram, and the Secretary of the Interior grants authority as recommended, and after such suspension approves it, such suspension must be regarded as the act of the Secretary. (Idem.)

Where a contract is suspended by mistake and the work is taken over and completed by the Government, the contractors are entitled to recover compensation for damages resulting from such suspension. (Page & Brinton v. U. S. (1921), 56 Ct. Cl. 176.)

Administrative officers of the Department have no authority to waive collection of liquidated damages that accrue by reason of delay by the contractor in making delivery of the material purchased by the United States. (Decision A-17807, dated March 29, 1934, by First Assistant Secretary.)

Damages. In computing time for delay in delivery under contract, intervening Sundays, falling on neither the first nor the last days, unless specifically excepted, are to be counted. (Decision of First Assistant Secretary, October 6, 1932.)

Extension of time.-Except where specifically authorized by law, the Secretary of the Interior is not empowered to grant extensions of time, either directly or indirectly, for the payment of charges accruing from individual water users upon reclamation projects. (Departmental opinion, December 31, 1923, In re Shoshone irrigation project, 50 L. D. 223.)

Public notices.-Upon the issuance of public notices pursuant to section 4 of the reclamation act of June 17, 1902, the construction charges specified in the notices become fixed charges against the lands, and the acceptance and approval of water-right applications in a sense create a contractual relation between the applicants and the United States for the payment of the charges by the water users and the furnishing of irrigation water by the Government that can not be changed except with the consent of both parties. (Departmental opinion, December 31, 1923, In re Shoshone irrigation project, 50 L. D. 223.)

The Secretary of the Interior has no general statutory authority to suspend, even temporarily, public notices issued by him pursuant to section 4 of the act of June 17, 1902, of lands irrigable under reclamation projects, nor does he possess supervisory power to do so in the absence of a specific statute authorizing it. (Idem.)

See act of February 13, 1911 (36 Stat. 902), authorizing the Secretary of the Interior to withdraw public notices issued under section 4 of the reclamation act.

A public notice by the Secretary of the Interior respecting land irrigable under an irrigation project and charges per acre might reasonably be delayed until the completion of the project. (Lincoln Land Co. v. Goshen Irr. Dist. (Sup. Ct. Wyo. 1930), 293 Pac. 373.)

A public notice in accordance with the provisions of a trust deed executed by a landowner was not a condition qualifying an arrangement by which the landowner, agreeing to dispose of excess lands, obtained benefit of construction of irrigation works. (Idem.)

Operation and maintenance charges.-The Secretary of the Interior has authority to levy and collect assessments on lands irrigated from any irrigation works to defray the cost of maintaining such works until the time when under the act the maintenance and operation passes to the landowners. (Baker v. Swigart (D. C. Wash. 1912), 196 Fed. 569, reversed 199 Fed. 865, 118 C. C. A. 313, affirmed (1913), 229 U. S. 187, 57 L. Ed. 1143, 33 Sup. Ct. 645.)

See also notes of Swigart-Baker case entitled "Assessment for operation and maintenance of project," page 11.

The purpose of this act is to encourage the settlement and cultivation of public lands, and it contemplates that such lands may be entered on as soon as the irrigation system is so far completed that water may be furnished thereon for irrigation purposes; and when the act empowers the Secretary of the Interior to fix and determine the charges against the land, it must have intended that he should cover the cost of maintenance and operation while in control of the United States as well as construction. (United States v. Cantrall (C. C. Ore. 1910), 176 Fed. 949.)

Water may be furnished without operation and maintenance charge for the irrigation of the grounds about country schoolhouses upon reclamation projects. (Departmental decisions, January 11, 1912, and October 24, 1919.) See notes 5 and 6 under section 5 of this act.

7. Reclamation contracts to be filed in returns office. The reclamation act requires that all moneys received from any source in an irrigation project shall be paid into the reclamation fund. All charges are determined with a view of returning to the reclamation fund the cost of the construction of each project so that the moneys can be used for other irrigation works. It is certainly within the policy of the statute that all the contracts pertaining to irrigation projects should be recorded in the Interior Department in order that the condition of the projects and of the reclamation fund may be readily ascertained. Contracts authorized by the Secretary of the Interior, which were entered into between an acting supervising engineer in the United States Reclamation Service (Bureau of Reclamation) and certain users of water furnished for irrigation purposes by the Reclamation Service (Bureau of Reclamation) are within the purview of section 3744, Revised Statutes, and copies thereof should be filed in the returns office of the Department of the Interior by the officer making and signing the same. (28 Op. Atty. Gen. 66.)

By the act of February 4, 1929 (45 Stat. 1147), Sec. 4a, Title 41, U. S. C.), the returns office was transferred from the Interior Department to the General Accounting Office, effective July 1, 1929.

Must contain "Member of Congress" clause.-Agreements for the purchase of lands, for water rentals, for conveyance of water rights, and similar instruments, contractual in form, relating to the adjustment of vested water rights, executed in behalf of the United States by some officer of the Reclamation Service (Bureau of Reclamation) for the purposes within the purview of the reclamation act (32 Stat. 388), are "agreements" or "contracts" within the meaning of sections 3739-3742, Revised Statutes, which prohibit any Member of Congress from being a party to, or interested in, any contract with, or on behalf of, the United States which is in its nature executory and continuous as to future performance, and require the insertion therein of the condition prescribed by section 3941. (26 Op. Atty. Gen. 537.)

8. Assessments of water users' associations.-Where a water users' association organized for the purpose of guaranteeing payment of the construction cost of a Federal irrigation project, having executed a contract with the United States for that purpose, makes assessments against its members to raise a fund with which to conduct litigation to avoid paying project costs, the United States will not assist the association in collecting such assessments by requiring prospective water users to show as a condition precedent to acceptance of waterright applications that such assessments have been paid. (Departmental decision, May 4, 1918, Boise.)

See Umatilla W. U. A. v. Irvin, 108 Pac. 1016; U. S. v. Bunting, 206 Fed. 340. Subscriptions to water-users' association stock were construed in Michaelson v. Miller (1933), 26 Pac. (2d) 378, which outlines the history of the PayetteBoise Water Users' Association, Boise project. Michaelson was the receiver of the association and brought actions against various stockholders of the association to foreclose liens created by assessments under stock subscription contracts to meet corporate expenses (not indebtedness to the United States). The defendants had refused to sign the "court form" of water-right application contract prescribed as a result of Payette-Boise Water Users' Association v. Cole (1919), 263 Fed. 734, and alleged that by so doing they had lost their status as stockholders. This contention was not sustained, and the liens were enforced, together with deficiency judgments where the land failed to sell for sufficient to