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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. S., 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. 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 where 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 for reclamation works, or in event the work of reclamation is found to be hindered 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. 8. 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 analogy 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 (b) 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 interference 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 State law for the development of a water supply for a reclamation 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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or Secretary of the Interior involving right, title, or interest of United States, to State court for determination, or to deny United States or Secretary the right of removal, (North Side Canal Co. v. Twin Falls Canal Co. (D. C. Ida. 1926), 12 Fed. (20) 311.)

Appropriation and use of water.—The right to the use of water acquired under this act must be appurtenant to the land and beneficial use is the basis, the measure, and the limit of the right. (Imperial Water Co., No. 5, v. Holabird, as receiver, California Development Co. (Calif. 1912), 197 Fed. 4, 116, C. C. A. 526.)

There can be no beneficial use of water for irrigation until it is actually applied to reclamation of the land. The final and only conclusive test of reclamation is production. This does not, perhaps, necessarily mean the maturing of a erop, but certainly does mean the securing of actual growth of a crop. (Departmental decision, February 5, 1909.)

Congress has control over navigable streams and the waters thereof, and no daim based upon appropriation of such waters for irrigation purposes, made without sanction of Congress, should be recognized by the Secretary of the Interior as valid. (California Development Co., 33 L. D. 391.)

The Government, like an individual, can appropriate only so much water as it applies to beneficial uses, and can only restrain a diversion which operates to its prejudice. (West Side Irr. Co. v. U. S. (Wash. 1917), 246 Fed. 212, 158 C. C. A. 372, affirming U. 8. v. West Side Irr. Co. (D. C. 1916), 230 Fed. 284.)

The statutes of Arizona (Arizona Laws, 1929, ch. 102, secs. 1-4) prohibited the erection of dams, wholly or partly within the State, except after approval of plans by the Arizona State engineer. In Arizona v. California et al., it was held that the United States may perform its functions without conforming to the police regulations of a State, and that the Hoover Dam may be erected without securing approval of plans by the State engineer of Arizona. (Ariz. V. Calif., 283 U. S. 423.)

Agreement with irrigation company limiting claim to water.-In a suit by United States to enforce terms of contract entered into by defendant, which provided that it should not divert more than 80 cubic feet per second from stream, evidence held insufficient to sustain defendant's contention that its officers and stockholders did not understand terms of contract and executed it through mistake. (West Side Irrigation Co. v. United States, 246 Fed. 212.)

United States, by construction of reservoirs, etc., under reclamation act of June 17, 1902, and having become appropriator of water, held to have sufficient interest to maintain suit to restrain defendant from diverting water in excess of amount agreed upon. Where defendant, a mutual irrigation company, executed a contract with the Government limiting its appropriation of water, and the Government proceeded with a reclamation project based on such contract, defendant can not defeat the contract on the

that it should not be construed as abandonment of rights of its stockholders. (Idem.)

Irrigation company and its stockholders, by silence while Government was proceeding with a reclamation project, held estopped to deny authority of officers to execute agreement limiting its claim to water from a river. (Idem.)

Agreement by irrigation company limiting its claim to water for purpose of inducing reclamation project, held to require measurement of water at intake of its canal and not at points of diversion therefrom by landowners. (Idem.)

For subsequent suit involving these same limiting agreements see U. S. v. Tnion Gap Irrigation District, decided by Circuit Court of Appeals, 9th Circuit, March 17, 1930 (39 Fed. (20) 46).

Rights of appropriators of water for irrigation.-Revised Codes Idaho, section 3974, et seq., as amended in 1909 (Laws 1909, p. 327), providing for the creation of water districts, the election of water masters, etc., expressly provide that they shall not apply to streams or water supplies "whose priorities of appropriation and use have not been adjudicated by the courts having jurisdiction thereof” and where the priorities of appropriators from a stream and the amounts to which they are severally entitled have not been so adjudicated by a court, there can be no legal organization of a water district, and no persons claiming to be officers of such a district have any authority to make such determination and to act on it by interfering with the irrigation works of any user. (Marsters et al. v. U. 8. (C. C. A. 1916), 236 Fed. 663.)

Diversion of water from stream-Suit to enjoin waste.-The fact that the United States has appropriated all of the unappropriated water of a stream

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in a county for an irrigation project, as permitted by a law of the State, does not give it standing to maintain a suit to enjoin a prior appropriator from using an excessive amount of water unless it is alleged and proved that it had acquired the right to such water under its own appropriation. (U. S. v. Bennett (C. C. A. Wash., 1913), 207 Fed. 524.)

Rights of prior appropriator.--Under section 2339, Revised Statutes, which provides that vested rights to the use of water from a stream on public lands for mining, agricultural, or other purposes, recognized by local laws, shall be maintained and protected, while an appropriator of water may not waste the same, he can not be required to change his system of husbandry or devote his land to other purposes because it would require less water and leave more for subsequent appropriators. (Idem.)

Right to change point of diversion. While both by the common law and by statute in Washington an appropriator of water from a stream has the right to acquire water rights from other persons and to change the point of diversion, such right is subject to the qualification that the change of use or of the point of diversion must not be permitted to injuriously affect rights which have been lawfully acquired subsequent to the appropriation. (U. S. v. Union Gap Irrigation Co. (D. C. Wash., 1913), 209 Fed. 274.)

Suit by appropriator to protect rights--Injunction. The United States, as an appropriator of water from the Yakima River for use in irrigation projects, heid entitled to an injunction to restrain defendant, as purchaser of other water rights in the river above, from so changing the use of such water and the point of diversion as to materially lessen the quantity at complainant's point of diversion, which it had lawfully appropriated and required in carrying out its project and fulfilling its contracts. (Idem.)

Rights of way for ditches and canals.--Under a statute of Wyoming (Laws 1905, ch. 85) granting rights of way over all lands of the State for ditches "constructed by or under the authority of the United States," and providing that reservations thereof shall be inserted in all State conveyances, patents of school land issued by the State to private parties expressly subject to rights of way "reserved to the United States," are subject to the right of the United States thereafter to construct and operate irrigation ditches for a reclamation project over the lands conveyed by the patents. (Ide v. U. 8. (1924), 263 U. S. 497, 68 L. Ed. 407, 44 S. Ct. 182, affirming U. 8. v. Ide (C. C. A. Wyo., 1921), 277 Fed. 373.)

This right may be exercised by straightening and using as a ditch, a natural ravine to collect waters appertaining to the Federal project which have been used in irrigating its lands and are found percolating where they are not needed, and to conduct them elsewhere for further use upon the project. (Idem.)

The evidence here shows that the ravine in question carried no natural flow of water susceptible of storage, or use in the irrigation season, and therefore none susceptible of private appropriation under the law of Wyoming, and that the water in controversy resulted from seepage from lands irrigated under the Federal irrigation project. (Idem.)

Right to waste and seepage waters.— Under the revised statutes of Nebraska, 1913, sections 3426 and 3427, and in view of the general statutory scheme for the acquisition of water rights, as well as the repeal of the act of 1895, page 260, section 44, relating to the appropriation of seepage waters, a ditch company is not entitled to appropriate seepage waters escaping from a canal under a Federal irrigation project when the Government claims the right to the use of the seepage water and the action of the Nebraska State board sustaining an attempted appropriation gave the ditch company no rights. (United States v. Ramshorn Ditch Co., 254 Fed. 842, North Platte. Affirmed in Ramshorn Ditch Co. v. U. S. (C. C. A. Nebr., 1920), 269 Fed. 80.)

The right of the United States in water appropriated generally for the lands of a reclamation project is not exhausted by conveyance of the right of user to grantees under the project and use of the water by them in irrigating their parcels, but attaches to the seepage from such irrigation, affording the Government priority in the enjoyment thereof for further irrigation on the project over strangers who seek to appropriate it for their lands. (Ide v. U. 8. (1924), 263 U. S. 497, 68 L. Ed. 407, 44 S. Ct. 182, affirming U. 8. v. Ide (1921), 277 Fed. 373.)

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Landowners within a Federal irrigation project can not avail themselves of waste and seepage water arising in connection with the operations of the project when such water is claimed by the Government. (Memorandum decision June 26, 1918, by State District Judge Isaac F. Smith, in re petition Nampa-Meridian irrigation district for confirmation of contract with the United States, Boise,

Where waste water arising from a Federal irrigation project, after percolation, is recovered by the Government by means of drainage ditches, with the intention of conserving and applying it to a beneficial use, the Government has a superior right to the water. (Griffiths v. Cole, decision in the United States District Court for Idaho, October 11, 1919, Boise, 264 Fed. 369.)

See Lambeye v. Garcia, 157 Pac. 977 (Salt River). Water right is appurtenant to the land.-Upon the issuance of a water-right certificate the right evidenced thereby becomes appurtenant to the land, subject to forfeiture for failure to pay the annual installments at the time and in the manner prescribed by law and the regulations, and a subsequent purchaser of the land succeeds to the rights and status of the original owner, subject to the same charges and conditions. (Fleming McLean, 39 L. D. 580.)

Interstate streams.-Congress was solicitous that all questions respecting interstate streams thought to be involved in that litigation (Kansas v. Colorado) should be left to judicial determination unaffected by the reclamation act—in other words that the matter be left just as it was before. (Wyoming v. Colorado (1922), 42 S. Ct. 552, 259 U. S. 419, 463, 66 L. Ed. 999.)

Nebraska brought suit against Wyoming in the Supreme Court for an equitable apportionment between the two States of waters of the North Platte river, alleging that the laws of both of these States recognize the doctrine of prior appropriation, and that Wyoming, in spite of Nebraska's protestations, neglected to control appropriators, whose rights arise under the law of Wyoming, from encroaching upon the rights of Nebraska appropriators. Wyoming on Jan. 21, 1935, 294 U. S. 693, entered a motion to dismiss. The court, in denying the motion, held that Nebraska had cited no wrongful act by Colorado, and even though the river rises and drains a large area in that State, Colorado is not an indispensable party; that the Secretary of the Interior, as an appropriator under the irrigation laws of Wyoming, will be bound by the adjudication of Wyoming's rights, and is not an indispensable party; that the allegations of the bill are not vague and indefinite; and if Nebraska's contention that there are no tributaries of the North Platte and the Platte rivers between the state line and the City of Grand Island, Nebraska, supplying any substantial amount of water, be not a fact, Wyoming may make this an issue to be determined by proof. (Nebraska v. Wyoming, 295 U. S. 40.)

Wyoming v. Colorado, 260 U. S. 1 and 286 U. S. 494. See also Wyoming v. Colorado, 287 U. S. 579, and U. S. Supreme Court decision June 1, 1936, in Wyoming v. Colorado.

Sec. 9. [Repealed by section 6, act of June 25, 1910, 36 Stat. 835.]

NOTES

The repealed section reads as follows:

"That it is hereby declared to be the duty of the Secretary of the Interior in carrying out the provisions of this act, so far as the same may be practicable and subject to the existence of feasible irrigation projects, to expend the major portion of the funds arising from the sale of public lands within each State and Territory hereinbefore named for the benefit of arid and semiarid lands within the limits of such State or Territory: Provided, That the Secretary may temporarily use such portion of said funds for the benefit of arid or semi. arid lands in any particular State or Territory hereinbefore named as he may deem advisable, but when so used the excess shall be restored to the fund as soon as practicable, to the end that ultimately, and in any event, within each 10-year period after the passage of this act, the expenditures for the benefit of the said States and Territories shall be equalized according to the proportions and subject to the conditions as to practicability and feasibility aforesaid."

Sec. 10. [Authority to make rules and regulations.]—That the Secretary of the Interior is hereby authorized to perform any and all

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