66 Fed. (2d) 999, it was held that an injunction would not lie against the project manager to restrain the shutting off of water to enforce the payment of charges due under orders of the Secretary of the Interior (a) unless the Secretary of the Interior were joined as a party defendant where the United States conceded the existence of the water supply claimed by the plaintiff below or (b) unless the Secretary of the Interior and the United States were joined as parties defendant, where the United States disputed the plaintiff's claim of a water supply, and where the allowance of the plaintiff's claim would affect the Government water supply available for the Flathead project.

7. Release of nonirrigable lands.--The director (commissioner) is authorized to assent to the release from stock subscription of any and all lands in any and all projects heretofore or hereafter shown by official survey or by the original or amended farm unit plats to be nonirrigable; also, to assent to the reduction of stock subscription for any such lands to the acreage so shown as irrigable. (Departmental decisions, March 11, 1912, and September 16, 1912.)

8. Taxation of land within reclamation project.-A patent to lands within a reclamation project issued to a homestead entryman under act of August 9, 1912 (37 Stat. 265), on proof of compliance with the provisions of law as to residence, reclamation, and irrigation conveys a legal title, the Government reserving only a prior lien on the land and appurtenant water rights as security for the payment of all sums due or to become due on such water rights, and such lands are taxable by the State; the lien of the tax, however, being subject to the prior lien reserved by the Government. Homestead entrymen on such lands who have made proof of compliance with the general homestead laws, but have not fully complied with the additional requirements of the reclamation act as to reclamation and irrigation, have a vested interest which may be sold, mortgaged, and inherited, and which also is subject to local taxation. Generally speaking, one who has the right to real property and is not excluded from its use and enjoyment should not be permitted to use the legal title of the Government to avoid his just share of taxation. (United States v. Canyon County, Idaho, et al. (D. C. Ida. 1916), 232 Fed. 985. See also Cheney v. Minidoka County, 26 Idaho 471, 144 Pac. 343. To the contrary, see Law Notes, Reclamation Record, 1915, p. 554; Reclamation Record. 1916, p. 65.)

The equitable title to lands within a reclamation project does not pass to the homestead entryman on his compliance with the homestead act (Rev. Stat. sec. 2291), as amended by act June 6, 1912 (37 Stat. 123). Such title does not pass until after his compliance with the requirements of this act, and the rules and regulations established by the Secretary of the Interior under Section 10 of the reclamation act so that the State can not tax the lands within the reclamation project until final certificate of compliance with the reclamation act is issued. (Irwin v. Wright (Ariz. 1922), 42 Sup. Ct. 293, 258 U. S. 219, 66 L. Ed. 573.)

Lands within the Payette-Boise Government project, on which homestead entry and proof had been made, but as to which there had been no reclamation proof made nor certificate of such proof issued, held not subject to taxation, since, until reclamation proof is accepted by the United States and final certificate issued, entryman does not have taxable interest in land. (Wood v. Canyon County (1927), 253 Pac. 839.)

On December 31, 1927, the Supreme Court of South Dakota held, following Irwin v. Wright, 258 U. S. 219, that the lands of a homestead entryman on the Belle Fourche project, on which final homestead proof but not final reclamation proof had been made, were not subject to general State taxation. (Casey v. Butte Co. (1927), 217 N. W. 508, reversing judgment of circuit court.)

The North Side Canal Co. entered into a contract with the United States for the purchase of storage rights in the Jackson Lake reservoir in Wyoming, the water stored therein to be used in Idaho. The State of Wyoming assessed taxes against the interest of the canal company in the reservoir and the canal company resisted the payment of such taxes. The trial judge held (North Side Canal Co. v. State Board of Equalization, Wyoming. September 26, 1925, 8 Fed. (2d) 739), that the taxes were properly levied. The case was appealed to the Circuit Court of Appeals for the Eighth Circuit, which reversed the decision of the District Court of the United States for the District of Wyoming and held that the attemped tax is wholly null and void for the reason that the

water rights in question are appurtenant to the lands on which the water has been applied to beneficial use, which lands are located in the State of Idaho and are therefore not within the jurisdiction of Teton County, Wyo., for taxation purposes. (December, 1926, 17 Fed. (2d) 55. Certiorari denied (1927), 47 Sup. Ct. 586; 274 U. S. 740.) Similar ruling in Twin Falls Canal Co. v. State of Wyoming.

Subsequently to this decision the Legislature of Wyoming passed an act (chapter 36, Session Laws of Wyoming, 1927), in effect attempting to make water rights acquired under the laws of Wyoming taxable. Thereafter the State attempted to levy taxes upon the water rights, the taxability of which was litigated in the foregoing suit. The district court, in Twin Falls Canal Co. v. Teton County, unpublished memorandum decision dated November 14, 1928, held that the nontaxability of these water rights by Wyoming was res judicata, and the taxes were therefore annulled.

See Act of April 21, 1928, and notes.

Reinstatement of water right application refused.—The Department on December 24, 1935, cancelled water right application of J. W. Thompson, Yuma irrigation project, for nonpayment of construction charges more than one year in arrears. Pablo Franco later acquired the land and applied for reinstatement of the water right application. The Under Secretary, in letter of May 9, 1936, rejected Franco's application, stating that the Department was without authority to grant the application for reinstatement because the money previously paid by Thompson on this water right application, under section 5 of the Reclamation Act, had been forfeited to the United States.

9. Miscellaneous.-Secretary's instructions of August 30, 1904, relating to form of contracts to be made between water users' associations and landowners. (33 L. D. 202.)

General Land Office instructions of January 18, 1908, to registers and receivers in reference to this section. (36 L. D. 256.)

General Land Office instructions of February 10, 1909, to registers and receivers in reference to reclamation of land. (37 L. D. 448.)

Secretary's regulations of February 27, 1909, regarding reclamation of land. (37 L. D. 468.)

General Land Office circular of September 17, 1909, to registers and receivers regarding proofs. (38 L. D. 229.)

Secretary's instructions of November 15, 1909, as to information from fiscal records. (38 L. D. 311.)

Sections 100-115, inclusive, general reclamation circular, approved May 18, 1916. (45 L. D. 385.)

C. L. No. 720, January 2, 1918, water-right applications by landowners temporarily serving in the Army, Navy, or Marine Corps.

Sec. 6. [Reclamation fund to be used for operation and maintenanceManagement of works to pass to landowners-Title.]-That the Secretary of the Interior is hereby authorized and directed to use the reclamation fund for the operation and maintenance of all reservoirs and irrigation works constructed under the provisions of this act: Provided, That when the payments required by this act are made for the major portion of the lands irrigated from the waters of any of the works herein provided for, then the management and operation of such irrigation works shall pass to the owners of the lands irrigated thereby, to be maintained at their expense under such form of organization and under such rules and regulations as may be acceptable to the Secretary of the Interior: Provided, That the title to and the management and operation of the reservoirs and the works necessary for their protection and operation shall remain in the Government until otherwise provided by Congress. (32 Stat. 389.)

Textual note. The first clause, down to the first proviso, of this section is codified as section 491, title 43, United States Code, the first word "That" being omitted, "hereby" in the second line being omitted, and "act" reading "chapter." The two provisos (constituting the remainder of the section) are codified as section 498, title 43, United States Code.

Payment for operation and maintenance.-The Secretary of the Interior, being authorized to tax and determine the charges, is authorized to divide the same into two parts-one for construction and the other for maintenance and operation; and hence he is authorized to impose reasonable assessments on land irrigated prior to the time when payment of the major portion of the cost of construction had been made and the works passed under management of the owners of the irrigated land. (United States v. Cantrall (C. C. Ore. 1910), 176 Fed. 949.)

Where by a contract between the United States and landowners tributary to a Federal irrigation system, such landowners agreed to pay to the United States the charges duly levied against their lands for the construction and maintenance of the system, they were only liable for such reasonable charges as the Government was authorized to collect proportionate to their share of the cost of maintaining and operating the system, and not such as might be arbitrarily fixed in advance by such Secretary or other governmental officer. (Idem.)

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

Fishing in Elephant Butte Reservoir.-On July 5, 1917, Hon. Harry L. Patton, attorney general of the State of New Mexico, rendered an opinion in which he held that, in accordance with sections 2435 and 2470, New Mexico Code, 1915, as amended by sections 7 and 13, chapter 101, Laws, 1915, a State license is required of persons fishing in the Elephant Butte Reservoir, Rio Grande project. In reference to the jurisdiction of the United States, he interprets sections 5562 and 5563 of the New Mexico Code as not applicable to the Elephant Butte Dam, the land involved having been acquired by the United States before the enactment of these sections. He also holds that the reservoir can not be classed as a private lake within the meaning of the New Mexico fish law, as there is open communication between it and the public waters of the State.

On August 3, 1917, the chief counsel of the Reclamation Service (Bureau of Reclamation) held that those who angle in the Elephant Butte Reservoir for fish protected by the New Mexico law must comply with the State law as to fishing, but the mere fact that a person has a State license does not of itself give that person a right to fish in the reservoir; he must also have the consent of the United States.

Transfer of project to water users.-The Secretary of the Interior is not authorized by the reclamation act to turn over the operation and maintenance of completed reclamation projects, in whole or in part, or to any extent, to water users' associations before the payments by such water users for water rights are made by the major portion of the lands irrigated by such works. (Op. Atty. Gen., July 28, 1913; 30 Op. Atty. Gen. 208; but see sec. 5, act August 13, 1914, 38 Stat. 686.)

Liability of State irrigation district.-A petition for damages against a State irrigation district for negligent maintenance of a canal was held to be no cause of action, in view of the State statutes and the contract making the district merely a fiscal agent for the United States, which operated and maintained the works. (Malone v. El Paso County Water Improvement District No. 1. (Tex. Civ. App. 1929) 20 S. W. (2d), 815.)

The Secretary of the Interior held an indispensable party defendant.-In a dispute between the Bureau and the Sunnyside Irrigation District as to the amount of water to be delivered the individual landowners in the district under their contract with the United States which reserved to the Government the power to fix the duty of water, the Secretary fixed the duty of water for the individual tracts, and the superintendent of the project began making deliveries in accordance with the departmental findings. The landowners brought suit for an injunction against the superintendent. The district court issued temporary injunctions commanding defendants (project superintendent and others) to open forthwith the headgates and permit a necessary supply of water to flow through them to irrigate each tract of land, in harmony with the practice for

the past 20 years. Defendants moved to dissolve the temporary restraining order and the amended bill of complaint on the ground that the Secretary of the Interior was an indispensable party defendant. Upon the district court's denial of the motion, appeal was taken to the circuit court of appeals. The court held that inasmuch as the acts complained of were done at the direction of the Secretary of the Interior, and since he had authority under the law to direct that the acts be done, the Secretary is an indispensable party defendant in the suit where the acts of his subordinates were questioned. Judgment of the lower court was reversed on the authority of Moody v. Johnson, 66 F. (2d) 999, without prejudice of the appellee's right to bring another suit in which the Secretary of the Interior should be made a party defendant (J. S. Moore et al. v. Axel Anderson et al., decided by the Circuit Court of Appeals for the Ninth Circuit, Dec. 22, 1933, 68 Fed. (2d) 191). Certiorari denied Oct. 8, 1934, 293 U. S. 567.

The Sunnyside water users asked for a rehearing of Moore et al. v. Anderson in the Circuit Court of Appeals, Ninth Circuit, and requested the Secretary to appoint an examining board to pass on the facts in dispute. The Department held that such action cannot be taken while litigation is pending as it might change the position of the parties before the court. It was further stated that if the litigation were disposed of, the Secretary would be justified in appointing a board to examine the land and determine the changes to be made in the duty of water on the separate tracts and what additional water should be acquired by the district from storage to provide an adequate supply for each acre of irrigable land. (Decision M-27697, dated April 27, 1934.)

A canal company which procured the construction of a dam could not recover a proportionate part of construction and operation expenses from a reservoir district on account of diversion of water where the Government had the title to the reservoir project. The action was brought against the wrong party, and was premature, inasmuch as, under section 6 of the reclamation act, title to and management and operation of the reservoir district's works remained in the Government (Twin Falls Canal Co. v. American Falls Reservoir District No. 2 (D. C. Ida., 1931) 49 Fed. (2d) 632). (Affirmed, C. C. A. 9th Cir. (1932) 59 Fed. (2d) 19.) (Oct. 17, 1932, petition for writ of certiorari to C. C. A. for 9th Circuit denied, 287 U. S. 638.)

The right of a canal company constructing a dam in a river was that of an easement on Government public lands, and was limited to the use of the dam so far as necessary for construction, maintenance, and use of its canals for diverting storage water. (Idem.)

Miscellaneous references.-For construction by the courts of powers of a cor poration organized to cooperate with the United States see

Orme v. Salt River Valley Water Users' Association (Ariz. 1923), 217 Pac. 935;

Green & Griffith Real Estate & Investment Co. v. Salt River Valley Water Users' Association (1923), 217 Pac. 945;

Bethune v. Salt River Valley Water Users' Association (1924), 227 Pac. 989, 26 Ariz. 525;

Salt River Valley Water Users' Association v. Spicer (1925), 236 Pac. 728; Brewster v. Salt River Valley Water Users' Association (1924), 229 Pac. 929, Sec. 7. [Authority to acquire property-Attorney General to institute condemnation proceedings.]-That where in carrying out the provisions of this act it becomes necessary to acquire any rights or property, the Secretary of the Interior is hereby authorized to acquire the same for the United States by purchase or by condemnation under judicial process, and to pay from the reclamation fund the sums which may be needed for that purpose, and it shall be the duty of the Attorney General of the United States upon every application of the Secretary of the Interior, under this act, to cause proceedings to be commenced for condemnation within 30 days from the receipt of the application at the Department of Justice. (32 Stat. 389.)

Textual note. This section is codified as section 421, title 43, United States Code, the introductory word "That" and the word "hereby", in line 3, being omitted; and "act", which occurs twice, being changed to "chapter."

Property that may be acquired.-Under the provisions of the reclamation act, the Secretary of the Interior has power to acquire the rights and property necessary therefor, including those of allottee Indians by paying for their improvements, and giving them the right of selecting other lands. The restrictions on alienation of lands allotted to Indians within the area of the Milk River irrigation project do not extend to prohibiting an allottee Indian from selling his improvements to the United States and selecting other lands so that the United States could use the lands selected for purposes of an irrigation project as provided by act of Congress. (Henkel v. U. S. (Mont. 1915), 237 U. S. 43, 59 L. Ed. 831, 35 Sup. Ct. 536, affirming (1912) 196 Fed. 345, 116 C. C. A. 165.)

See note following first section of act of March 3, 1915, entitled "Seepage damages," which relates to the Henkel claims.

The act does not authorize the use of the reclamation fund for the purchase of any land except such as may be necessary in the construction and operation of irrigation works. (California Development Co., 33 L. D. 391.)

There is no authority for the use of the reclamation fund, either directly by the Secretary or indirectly by advancement to others, for the purchase of lands or other property outside of the territorial limits of the United States. (Idem.)

Where an irrigation system already constructed and in operation may be utilized in connection with a greater system to be constructed under the act, its purchase for such purpose comes within the purview of the act. (Idem.) The act affords authority for the purchase of an incomplete irrigation system to be used in connection with and to become a part of a larger system contemplated by the Government. (Op. Asst. Atty. Gen., January 6, 1906, 34 L. D. 351.)

Until so authorized by Congress, neither the department nor the territorial government of Arizona has power to dedicate for use in connection with an irrigation project lands in said territory which, by section 2 of the act of February 2, 1863 (12 Stat. 664, sec. 1946, R. S.), have been reserved for school purposes to the future State to be erected, including the same. (Secretary's instructions, May 10, 1904, 32 L. D. 604.)

The secretary has no authority under the seventh section of this act to compensate settlers upon lands within the limits of a withdrawal made in connection with an irrigation project, unless they have in good faith acquired an inchoate right to the land by complying with the requirements of law up to the date of the withdrawal and have such a claim as ought to be respected by the United States. (Op. Asst. Atty. Gen., October 12, 1905, 34 L. D. 155.)

The Secretary has no authority to permit the owner of lands needed for a reservoir to be constructed under said act to select other lands of the same area within the district that may be made susceptible of irrigation from the proposed reservoir, in exchange for the lands so needed for reservoir purposes. (Op. Ast. Atty. Gen., February 20, 1904, 32 L. D. 459.)

The Secretary has no authority, under existing legislation, to permit the cutting of timber from the public lands for use in the construction of irrigation works under said act. (Op. Asst. Atty. Gen., March 12, 1904, 32 L. D. 495. But see act of February 8, 1905, 33 Stat. 706.)

The act does not authorize the expense of procuring mere options to purchase rights of way, water rights, or lands. (9 Comp. Dec. 569.)

The reclamation act permits the United States to acquire strips of land, aggregating 10 per cent of the irrigable area of a project, and establish and maintain thereon plantations of trees and shrubs to serve as windbreaks, in order to facilitate and protect the agricultural development of the adjacent irrigable lands and to protect irrigation canals and laterals. (Departmental decision, July 24, 1912 (Umatilla).)

Purchases should be made with available funds.-The authority to purchase property given by section 7 of reclamation act is an authority to make such purchases out of the reclamation fund available therefor at the time such purchases are made, and does not include authority to make purchases on the credit of the reclamation fund or in anticipation of a future increment therein. (27 Comp. Dec. 662.)