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. (2d) 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 crop, 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 claim 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. S. 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 theory 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. Union Gap Irrigation District, decided by Circuit Court of Appeals, 9th Circuit, March 17, 1930 (39 Fed. (2d) 46).

Rights of appropriators of water for irrigation.-Revised Codes Idaho, section 3274, 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. S. (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

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, held 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. S. (1924), 263 U. S. 497, 68 L. Ed. 407, 44 S. Ct. 182, affirming U. S. 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. S. (1924), 263 U. S. 497, 68 L. Ed. 407, 44 S. Ct. 182, affirming U. S. v. Ide (1921), 277 Fed. 373.)

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 semiarid 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

acts and to make such rules and regulations as may be necessary and proper for the purpose of carrying the provisions of this act into full force and effect. (32 Stat. 390.)

Textual note. This section is codified as section 373, title 43, United States Code. In the code the first word "That" is omitted, and "act" reads "chapter."

NOTES

Authority for and effect of rules and regulations.-Congress may authorize the Secretary of the Interior to make rules and regulations for the carrying into effect of the provisions of a law as to the public lands the enforcement of which devolves on his department. (Clyde v. Cummings (1909), 35 Utah, 461, 101 Pac. 106.)

A rule by the Secretary of the Interior, the import of which is to carry into effect the provisions of an act relating to the public lands, is valid, and has the same binding force as the law itself. (Idem.)

This section gives the Secretary of the Interior no authority or power that he would not have if it were omitted. (Op. Atty. Gen., April 27, 1905.)

Rules and regulations prescribed by the Secretary of the Interior under statutory authority have the effect of statutes and will be judicially noticed by the courts. (Alford et al. v. Hesse (D. C. A. 1st Dist. Calif., 1929), 279 Pac. 831.)

Use of withdrawn lands.-The Secretary of the Interior may establish rules as to the use of withdrawn lands while not needed for the purpose for which they are reserved, and may lease them for grazing and limit animals to be grazed thereon, the revenue derived going into the reclamation fund. (Clyde v. Cummings (1909), 35 Utah, 461, 101 Pac. 106.)

Lease of rooms.-The appropriation known as the "reclamation fund," being a permanent appropriation, the Secretary of the Interior may, under the power conferred on him by this section, authorize the leasing of certain rooms in Phoenix, Ariz., for a period of five years for the use of the Reclamation Service (Bureau of Reclamation), the rent therefor to be paid from said appropriation. (10 Comp. Dec. 461.)

Young Men's Christian Association.-Under the broad authority conferred upon the Secretary of the Interior by this section, he may, by specific contract with the employees of the Reclamation Service (Bureau of Reclamation) or by general regulation, employ trained secretaries of the Young Men's Christian Association to improve the conditions in construction camps and to look after the sanitary and related matters as incidental to the employment of and as a part of the compensation of said employees, and payment therefor may be made from the reclamation fund. (14 Comp. Dec. 672.)

Liquidation of damages.-Where damage to lands arises in connection with construction, operation, or maintenance of a reclamation project, and is caused neither by negligence nor by accident, the Secretary of the Interior now and always has had, under section 10 of the reclamation act, the power to liquidate the damages, as declared by Congress in the appropriation act of March 3, 1915. (38 Stat. 351.) The latter act is a legislative construction of the reclamation act. The damages in question must be due to acts by direction of competent authority. (Comp. Dec. In re Scott, June 15, 1915, Shoshone.)

Travel expense.-Where a contract of employment for work of intermittent character provides for the payment of an employee's traveling expenses to the first duty station, the Bureau of Reclamation has authority to pay transportation to the first duty station as a part of the agreed compensation. Section 6 of the act of December 22, 1927 (45 Stat. 50), requiring that travel performed in pursuance of change of duty station shall be authorized by the head of the department, is not applicable in such cases. (Comp. Gen. Dec. A-25799, February 5, 1929, Re Hubert A. Kraeger, Owyhee project.)

Transportation of Government property.-Charges of the Pacific Motor Transport Co., a subsidiary of the Southern Pacific Company, for transportation of property on Government bill of lading over land grant lines of the Southern Pacific Company, are subject to land-grant deduction. (Comptroller General decision A-57081, September 12, 1934.)

Appeals. Appeals from the action of a project engineer lie in the first instance to the Director (Commissioner) of the Reclamation Service (Bureau of Reclamation), with right of further appeal to the Secretary of the Interior. (Williston Land Co., 39 L. D. 2.)

The instructions of June 27, 1910 (39 L. D. 51), providing for appeals to the Director (Commissioner) of the Reclamation Service (Bureau of Reclamation) and the Secretary of the Interior, successively, from adverse action of project engineers, are applicable only in cases involving questions which properly rest for decision within the jurisdiction of the Reclamation Service (Bureau of Reclamation). (Anna M. Wright, 40 L. D. 116.)

Any matter at issue arising in connection with and within the jurisdiction of the Reclamation Service (Bureau of Reclamation) should first be decided by the Reclamation Service (Bureau of Reclamation), with right of appeal to the Secretary of the Interior. (Departmental decision, March 8, 1915, 44 L. D. 11.)

See reclamation regulations of June 27, 1910, as to appeals from action of field officers in reclamation matters. (39 L. D. 51.)

See sections 148-153, general reclamation circular, approved May 18, 1916, 45 L. D. 385.

Suspension of public notices.-The Secretary of the Interior has no general supervisory authority under section 441, Revised Statutes, under section 10 of the act of June 17, 1902, or under section 15 of the act of August 13, 1914, to suspend public notices issued under the reclamation law. (Departmental opinion December 31, 1923, In re Shoshone irrigation project, 50 L. D. 223.) Miscellaneous. See notes under section 1 of this act.

See C. L. 818, May 12, 1919, regarding authority of Secretary of the Interior to provide means for extermination of grasshoppers and other pests.

C. L. 1423, June 22, 1925, incloses Comptroller General's decision regarding employment contract for personal services and equipment.