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Condemnation.—The power conferred on the Secretary of the Interior by the reclamation act to condemn lands necessary for use in constructing irrigation works is not subject to limitation by State statutes relating to the exercise of the power of eminent domain of the State nor is its exercise governed by a State procedure requiring the necessity of the taking in each particular case to be determined by a local commission, but such necessity is a matter to be determined by the Secretary, whose decision is not reviewable by the courts. (United States v. O'Neill (D. C. Colo. 1912), 198 Fed. 677.)

Lands condemned by the United States under the reclamation act for right of way for a canal or ditch required in the carrying out of an irrigation project are taken for a public use. (Idem.)

In proceedings by the United States to condemn right of way for a ditch under the reclamation act which provides a fund from which the damages assessed shall be paid, it is not necessary that the damages shall be assessed and paid before the Government may be allowed to take possession. (Idem.) (See also 5 Comp. Gen. 907.)

In a proceeding by the United States to condemn land for reservoir purposes, whether a more feasible plan of irrigation than the one adopted might be devised, or some other site selected for the reservoir, is immaterial, the determination of the proper Government authorities being conclusive. (United States v. Burley (C. C. Ida. 1909), 172 Fed. 615; affirmed (1910), 179 Fed. 1; 102 C. C. A. 429 ; 33 L. R. A. (N. S.) 807.)

The United States has constitutional authority to organize and maintain an irrigation project within a State where it owns arid lands, whereby it will associate with itself other owners of like lands for the purpose of reclaiming and improving them, and for that purpose may exercise the right of eminent domain against other landowners to obtain land necessary to carry the proposed project into effect. (Burley v. United States (Ida. 1910), 179 Fed. 1; 102 C. C. A. 429, 33 L. R. A. (N. S.) 807, affirming (C. C. 1909) 172 Fed. 615.)

The fact that a scheme contemplates the irrigation of private as well as Government land does not prevent condemnation of land necessary to carry it out. (Idem.)

Where, in proceedings by the United States to condemn land overflowed by the construction of a dam, damages for loss from a forced sale of the landowners' cattle and the destruction of their business were denied, and the landowners brought suit in the Court of Claims, they were in no better position in respect to such damages than if no condemnation proceedings had been instituted. (Bothwell v. United States (1920), 41 Sup. Ct. 74, 254 U. S. 231, 65 L. Ed. 238, affirming judgment (1918), 54 Ct. Cl. 203.)

Where the United States acquired a primary easement to construct an irrigation ditch on the land of defendant, it also acquired the right, as a secondary easement, to go upon her land to maintain, repair, and clean the ditch, but such secondary easement can be exercised only when necessary, and in such reasonable manner as not to increase the burden upon defendant's land. (Mosher v. Salt River Valley Water Users' Association (1922), 209 Pac. 596 ; 24 Ariz. 339.)

Where establishment of a reservoir under the reclamation act involved flooding part of the town, the United States had constitutional power to take by condemnation other private land near by, in the only practicable and available place, as a new townsite to which the buildings affected could be moved at the expense of the United States and new lots be provided in full or part satisfaction for those flooded. (Broum v. U. 8. (Ida. 1923), 263 U. S. 78, 68 L. Ed. 171, 44 Sup. Ct. 92, affirming U. 8. v. Brown (1922), 279 Fed. 168.)

The fact that, as an incident of such a readjustment, there may be some surplus lots of the new town site which the Government must sel does not characterize the condemnation as a taking of one man's property for sale to another. (Idem.)

Where land is withdrawn for construction purposes upon which there exist unpatented mining claims under the laws of the United States and of the State in which the land lies, it is necessary, unless the land has been officially Classified as mineral in character, before proceeding to condemn the mining claims or to file suit to quiet title or in ejectment against the mineral claimants, to secure a determination by the General Land Office (and by the Secletary of the Interior, if appeal is made to the department) as to the mineral

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or nonmineral character of the land, as to whether a discovery was made as a basis of the mineral claim and as to whether annual assessment work has been done, etc., so as to constitute a valid possessory mineral claim at the date of the withdrawal and subsequently thereto. Some of these facts can be determined only by the department (252 U. S. 450.; 46 L. D. 20). See C. L. 1713, April 20, 1928.

The Department of the Interior brought adverse Departmental proceedings against the Virginia-Colorado Development Company to cancel certain placer mining claims, on the sole ground that the company had not performed its annual assessment work. The Company brought suit to require the Secretary to racate his decision that the mining claims were void and obtained a decree which the Court of Appeals affirmed. (69 Fed. (2) 123, 63 Appeals D. C., 47.) Upon certiorari the Supreme Court held that failure to perform labor of the value of $100 annually did not forfeit the claims but only rendered them subject to adverse location. Decision affirmed. (295 U. S. 639.)

Miscellaneous.—Costs cannot be recovered from the United States in condemnation suits brought by the Government. (Unpublished memorandum decision in U. 8. v. Wade et al., U. S. D. C. Ida. 1926.)

United States cannot pay costs in condemnation suits. (210 Fed. 832; 64 Fed. 472; 16 Comp. Dec. 693.)

Attorney fees cannot be awarded against the United States in litigation in which the Government is a party. (Unpublished memorandum decision in U. 8. v. Franks, U. S. D. C. Oreg. 1930.)

In this connection see New Reclamation Era, July, 1950, p. 136.

Federal courts have jurisdiction to condemn.-Act of August 1, 1888 (25 Stat. 357).

Condemnation—Interest on award.-When the award in condemnation is for the value of the property as of the date of the summons without regard to the damage arising from the owner's inability to sell or lease during the proceedings, and, under the applicable State law, the Government may obtain possession promptly after bringing suit, interest from date of summons to judgment may be allowed on the award, even though the owner remained in possession, cultivating and gathering crops meanwhile. While, semble, the act of 1888, in directing Federal courts to conform their practice and procedure in condemnation “as near as may be” to that of the State where the property is, does not bind them to follow State statutes allowing interest on the award, interest in this case, at 7 per cent, was properly included, in fixing just compensation. (Brown v. U. S., ante.)

In a proceeding to condemn land, the owner is entitled, as part of his just compensation, to interest on the confirmed award from the time when the Government took actual possession. (U. S. v. Rogers (1921), 41 S. Ct. 281, 255 U. S. 163, 65 L. Ed. 566, (1919) affirming 257 Fed. 397.)

Assuming that the local State rate of interest is not binding, there was no objection to adopting it (6 per cent) in this case. (Idem.)

Alleged informal taking of claimants' rights.-In actions in the Court of Claims for damages resulting from an unforeseen flooding of claimants' soda lakes following construction and operation of a Government irrigation project by which water was brought into the watershed, Held (1) That allegations that the water percolated through the ground, due to lack of proper lining in the Government's canals and ditches, the manner of their construction and the natural conditions, were not intended to set up negligence but merely to show causal connection between the project and the flooding, and hence did not characterize the cause of action as er delicto; (2) That, as no intentional taking of claimants' property could be implied, the Government was not liable er contractu, assuming such causal relation. (Horstmann Co. v. U. S. and Natron Soda Co. v. U. 8. (1921), 257 U. S. 138; (1919), 54 Ct. Cl. 169, 214; 55 id. 66 (1920), affirmed.)

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 plaintiffs' lands are situated, is damnum absque injuria. (Natron Soda Co. v. U. S., ante.)

See General Land Office instructions of June 30, 1909, in reference to condemning improvements. (38 L. D. 58, amending regulations of June 6, 1905, 33 L. D. 607.)

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See instructions of June 18, 1921, 48 L. D. 153, amending paragraph 14 of general reclamation circular of May 18, 1916, 45 L. D. 385.

Condemnation proceedings—Judgments.-Where land is condemned pursuant to section 7, act of June 17, 1902, for reclamation projects, the judgment is not required to be certified to the Congress, but may be paid from applicable reclamation funds. Such judgments are required by the act of February 18, 1904 (33 Stat. 41), to be paid on settlements by the General Accounting Office. (5 Comp. Gen. 737.)

As a general rule judgments are payable to the judgment creditors, but they may be paid to the clerk of a United States district court when the decree or judgment so provides, on account of exceptional circumstances, subject to accounting therefor as required by law. (Idem.)

Title.—The Secretary has no authority to embark upon or commit the Government to any irrigation enterprise that does not contemplate the absolute transfer of the property involved to the United States. (California Development Co., 33 L. D. 391.)

The act contemplates that the United States shall be the full owner of irri. gation works constructed thereunder, and clearly inhibits the acquisition of property, for use in connection with an irrigation project, subject to servitudes or perpetual obligation to pay rents to a landlord holding the legal, title. (Op. Asst. Atty. Gen., October 19, 1905, 34 L. D. 186.)

Where title to land passes to the United States pending taxing proceedings and prior to the levy, the land passes beyond the taxing power of the State and no lien attaches, the United States taking the title free of the tax incumbrance. (Departmental decision, In re John M. Simmons (Boise), April 25, 1910.)

The fact that the United States is immune to process for collection of municipal and State revenue does not justify the acquistion of property subject to a tax lien. The fact of immunity requires a more scrupulous course of conduct in order that the United States may do nothing tending to defeat the public revenues of the States or their municipalities. (Op. Asst. Atty. Gen. November 23, 1912, in re Northwestern Improvement Co. (Yakima).)

Where the Government acquires an irrigation system held in private ownership, for use in connection with a reclamation project under the act of June 17, 1902 (32 Stat. 388), it takes the same free from any obligation or control of State authority theretofore existing. (Op. Asst. Atty. Gen., July 7, 1908, 37 L. D. 6.)

Assured title to lands donated to the United States must be shown. (Opinion Assistant Attorney General, March 28, 1911, In re Jos. Cunha (Umatilla).)

Where real estate owned by heirs in common is to be conveyed to the United States for a very small consideration and the grantors will not bring adminis. tration proceedings upon the estate of the decedent owner, a deed executed his all the heirs will be accepted after submission of credible proof by well-informed persons as to the heirs, indebtedness, etc., of decedent. (Departmental decision, November 26, 1909.)

Sec. 355 of the Revised Statutes requiring an opinion of the Attorney General in favor of the validity of title before title is vested in the United States is not applicable to the purchase of land for the Bureau of Reclamation. Under section 7 of the act of June 17, 1902, the Secretary of the Interior is vested with discretion to determine what property he will acquire so long as it is acquired for the purpose of carrying out the provisions of this act. (12 Comp. dec. 691 dated May 19, 1906, citing letter of March 24, 1904, from the Acting Attorney General to the Secretary of the Interior.)

In decision A-34979, February 12, 1931, in response to letter of January 3, 1931. from the department, the Comptroller General stated that otherwise proper payments for land acquired in connection with reclamation projects would not be questioned where the validity of title is determined in accordance with the procedure established under appropriate regulations prescribed or approved by the Secretary of the Interior.

Federal purchase of land liable to reassessment to meet cost of local improve. ments.-The United States purchased in the city of American Falls land subject (1) to existing sidewalk and sewer assessments which the United States paid or required the vendors to pay before settling with them, and (2) to possible reassessment under the statutes of Idaho, if the previous assessment failed to

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net sufficient to meet the cost of the sidewalk and sewer work. After title had vested in the United States, it was found that the first assessment was insufficient, and actions were brought by bondholders against the United States in the United States District Court of Idaho, sitting as a Court of Claims, to recover the amounts which would have been apportioned to the lands purchased by the United States, if title had not been taken by the Government. The decision of the Circuit Court of Appeals, Ninth Circuit, was in favor of the United States, the plaintiff bondholders' contingent right of reassessment being held not to be the property for the taking of which a suit would lie against the United States (John K. and Catherine S. Mullen Benevolent Corporation v. U. 8., and the J. K. Mullen Investment Co. v. U. S., 63 Fed. (20) 48, 56 (1933), reversing 40 Fed. (20) 937). Certiorari granted May 29, 1933, 289 U. S. 721. Decision of the Circuit Court of Appeals, Ninth Circuit, affirmed by United States Supreme Court, November 6, 1933, 290 U. S. 89.

See note entitled "Purchase of title insurance in connection with right-of-way agreements,” after sec. 3 of act of Dec. 21, 1928.

Expense of abstracts of title.--The expense of procuring abstracts of title to land or rights to be acquired under this act is payable from the appropriation known as the “reclamation fund," provided the land or rights are to be purchased and not condemned. When, however, a suit for condemnation is brought, the expenses of such suit, like all other suits in which the United States is a party, are payable from the appropriations made for the Department of Justice. (9 Comp. Dec. 569.) (See also 8 Comp. Gen. 308.)

Lease of property acquired.--The Secretary has full authority to purchase lands necessary for reservoir purposes, to arrange the terms of purchase, and to allow the vendor to retain possession until the land may be actually needed wliere by so doing the purchase may be more advantageously made; but he has no authority under said act to lease such purchased lands after the Government has taken possession thereof. (Secretary's instructions, January 28, 1904, 32 L. D. 416.)

The Secretary has authority to make temporary leases of lands reserved or acquired by purchase for use in connection with an irrigation project where use under such lease will not interfere with the use and control of the lands when needed for the purposes contemplated by the reservation or purchase. (Up. Asst. Atty. Gen., March 10, 1906, 34 L. D. 480.)

Temporary leases for grazing and other agricultural purposes may be made of lands acquired through condemnation proceedings for reservoir or canal purposes in reclamation projects during such periods as may elapse between the acquisition of title and the actual use of the same for reservoirs and canals. (Secretary's instructions, February 28, 1911, 39 L. D. 525.)

All such leases should state the purpose for which the lands were acquired and that such purpose will not in any manner be interfered with or delayed by the lease; should specifically provide for the immediate, or speedy, termination of the lease in event it is desired to utilize the land or any part thereof tor reclamation works, or in event the work of reclamation is found to be nindered or delayed by reason thereof; and should be limited to one year, but may contain provision for renewal for the succeeding year in event the lands should not sooner be needed for reclamation purposes. (Idem.)

Whenever it is reasonably necessary for the preservation of the buildings, works, and other property, or for the proper protection and efficiency of any reclamation project, or where special conditions make it advisable, first-form withdrawn or purchased lands may be leased to the highest bidder for a term to be decided upon by the Reclamation Service (Bureau of Reclamation) as the conditions may arise. (Reclamation decision, March 23, 1917.)

Lands acquired by purchase or condemnation pursuant to section 7 of the reclamation act, when no longer needed for reclamation purposes, can be disposed of only at public auction and the proceeds derived therefrom must be placed in the reclamation fund to the credit of the particular project; such lands a | the oil and gas deposits therein are not subject to prospecting or lease under the act of February 25, 1920. (J. D. Mell et al., 50 L. D. 308.)

See notes 14 and 20 under section 3 of this act.

On June 13, 1918, the United States leased lands in Idaho to George H. Schodde, W. W. Custer, Louis Nelson, C. H. Matson, and Claude Myers for 3

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years at an annual rental of $1,855. Action was commenced by the United States in the District Court of Idaho to recover $1,855 alleged to be due under above lease, and judgment was obtained. This judgment was never appealed from nor set aside. In October 1929 the United States marshal levied upon certain money of W. W. Custer. Custer instituted a suit to enjoin this action but upon motion of the marshal the injunction was set aside. Custer then appealed to the Circuit Court of Appeals which affirmed the order of the district court. Petition for writ of certiorari was made to the Supreme Court and was granted, the Supreme Court holding that the statutory period within which execution may issue upon a judgment had elapsed, and judgments of the district court and Circuit Court of Appeals were reversed. The United States then brought action June 15, 1931, to renew the judgment in the original suit. The district court decided in the affirmative and the defendants then appealed to the Circuit Court of Appeals, which affirmed the decision. (U. S. v. Schodde, Custer, and Nelson, Mar. 12, 1934, U. S. C. A., Ninth Circuit.)

Electrical power line over purchased land.-In a decision dated December 31, 1928, M. 24897, the department held that an easement for the construction and maintenance of an electrical transmission line over lands purchased under the reclamation law could be granted for a maximum period of 50 years in ana logy to the requirements under the act of March 4, 1911 (36 Stat. 1253), and the regulations thereunder of January 6, 1913 (41 L. D. 454), the grant to be (a) conditioned upon the payment each year in advance at the rate of $5 per mile per annum, and (6) subject to termination on writien notice by the Secretary for breach of any of its terms or conditions.

Sec. 8. [Irrigation laws of States and Territories not affected—Interstate streams—Water rights.]—That nothing in this act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in,

to, or from any interstate stream or the waters thereof: Provided, That the right to the use of water acquired under the provisions of this act shall be appurtenant to the land irrigated and beneficial use shall be the basis, the measure, and the limit of the right. (32 Stat. 390.)

Textual' note.-The first portion of this section, down to the proviso, is codified as section 383, title 43, United States Code, the first word "That" being omitted, and the word "act", occurring twice, reading “chapter." The proviso is codified as section 372, title 43, United States Code. In the code the words "Provided, That" are omitted, and “this act" reads "the reclamation law."

NOTES

Application of State laws.-There is nothing in the language of this section to indicate that the intent of Congress was to go further than to recognize and prevent inierference with the laws of the State relating to the appropriation, control, or distribution of water. (San Francisco v. Yosemite Power Co., 46 L. D. 96.)

The Supreme Court of Idaho held that under section 8 of the Reclamation Act of June 17, 1902, the 5-year period for completion of irrigation appropriations fixed by the S ate law for the development of a water supply for a reclama. tion project in Idaho was applicable to the United States. (Pioneer Irrigation District v. American Ditch Association et al. (1931), 1 Pac. (20) 196, 52 Idaho 732.)

Removal of causes.—The word "control” in section 8 of the reclamation act providing that nothing therein shall be construed to affect or interfere with State laws relating to control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, held not to warrant inference that Congress thereby intended to relegate suit against United States

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