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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. (20) 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. (20) 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 (Tuin Falls Canal Co. v. American Falls Reservoir District No. 2 (D. C. Ida., 1931) 49 Fed. (20) 632). (Affirmed, C. C. A. 9th Cir. (1932) 59 Fed. (20) 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.)
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. (Brown v. U. S. (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 sell 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 Secretary of the Interior, if appeal is made to the department) as to the mineral
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 detera mined 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 Facate 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. 8., 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. 8. v. Rogers (1921), 41 S. Ct. 281, 255 U. S. 163, 65 L. d. 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 €Z 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.)
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 administration proceedings upon the estate of the decedent owner, a deed executed hy 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 improvements.-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