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CONSTRUCTION OF RIO GRANDE DAM

An act relating to the construction of a dam and reservoir on the Rio Grande, in New

Mexico, for the impounding of the flood waters of said river for the purposes of irrigation. (Act February 25, 1905, 33 Stat. 814)

[Sec 1. Reclamation act to apply to portion of Texas–Subject to certain conditions, irrigation dam may be constructed on the Rio Grande.]That the provisions of the reclamation act approved June seventeenth, nineteen hundred and two, shall be extended for the purposes of this act to the portion of the State of Texas bordering upon the Rio Grande which can be irrigated from a dam to be constructed near Engle, in the Territory of New Mexico, on the Rio Grande, to store the flood waters of that river, and if there shall be ascertained to be sufficient land in New Mexico and in Texas which can be supplied with the stored water at a cost which shall render the project feasible and return to the reclamation fund the cost of the enterprise, then the Secretary of the Interior may proceed with the work of constructing a dam on the Rio Grande as part of the general system of irrigation, should all other conditions as regards feasibility be found satisfactory. (33 Stat. 814.)

NOTES

Purpose of act. This act was passed for the purpose of enabling the United States to carry into effect the terms of a proposed treaty or convention with Mexico, which was afterwards signed on May 21, 1906 (34 Stat 2953). (Burley v. United States (Idaho, 1910), 179 Fed. 1; 102 C. C. A. 429; 33 L. R. A. (N. S.) 807, affirming (C. C. 1909) 172 Fed. 615.)

Dams across the Rio Grande.—The Secretary of the Interior had no power under the act of March 3, 1891 (26 Stat. 1093), providing for the location and selection of reservoir sites on the public lands of the United States and rights of way for the irrigating ditches and canals, to grant a right to construct dams across the Rio Grande for the purpose of checking the flow of water and distributing it for irrigation purposes. The control and supervision of the navigable waters of the United States are vested in the Secretary of War. The remedy of the United States in case of the erection of a dam across navigable waters is by injunction, under section 10 of the act of September 19, 1890 (26 Stats. 454), and if the dam has been constructed, also by criminal prosecution. (21 Op. Atty. Gen. 518.)

Effect of treaty of Guadalupe Hidalgo upon irrigation from the Rio Grande.Article VII of the treaty of February 2, 1848, between Mexico and the United States, known as the treaty of Guadalupe Hidalgo, is still in force, so far as it affects the Rio Grande. (21 Op. Atty. Gen. 274.)

The taking of water for irrigation from the Rio Grande above the point where it ceases to be entirely within the United States and becomes the boundary between the United States and Mexico is not prohibited by said treaty. (Idem.)

See United States v. Rio Grande Dam & Irrigation Co. (174 U. S. 690; 184 U. S. 416; 215 U. S. 266.)

Article VII is limited in terms to that part of the Rio Grande lying below the southern boundary of New Mexico and applies to such works alone as either party might construct on its own side. (Idem.)

CONSTRUCTION OF RIO GRANDE DAM

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The only right the treaty professed to create or protect with respect to the Rio Grande was that of navigation. Claims against the United States by Mexico for indemnity for injuries to agriculture alone, caused by scarcity of water resulting from irrigation ditches wholly within the United States at places far above the head of navigation, find no support in the treaty. (Idem.)

International law.–The rules, principles, and precedents of international law impose no duty or obligation upon the United States of denying to its inhabitants the use of the water of that part of the Rio Grande lying entirely within the United States, although such use results in reducing the volume of water in the river below the point where it ceases to be entirely within the United States. (21 Op. Atty. Gen. 274.)

The fact that there is not enough water in the Rio Grande for the use of the inhabitants of both countries for irrigation purposes does not give Mexico the right to subject the United States to the burden of arresting its development and denying to its inhabitants the use of a provision which nature has supplied entirely within its own territory. The recognition of such a right is entirely inconsistent with the sovereignty of the United States over its national domain. (Idem.)

Miscellaneous.—Treaty with Mexico of May 21, 1906 (34 Stat. 2953).

Act of June 12, 1906 (34 Stat. 259), extending the reclamation act to the State of Texas.

Document No. 39, House of Representatives, Sixty-second Congress, first session, waters of the Rio Grande and its tributaries.

88508—37

DISPOSAL OF PROCEEDS OF SALES OF PROPERTY AND REFUNDS

OF MONEY

An act to provide for the covering into the reclamation fund certain proceeds of sales of

property purchased by the reclamation fund. (Act March 3, 1905, ch. 1459, 33 Stat. 1032)

[Sec. 1. Proceeds from certain sales and refunds to be covered into the reclamation fund. ]-That there shall be covered into the reclamation fund established under the act of June seventeenth, nineteen hundred and two, known as the reclamation act, the proceeds of the sales of material utilized for temporary work and structures in connection with the operations under the said act, as well as of the sales of all other condemned property which had been purchased under the provisions thereof, and also any moneys refunded in connection with the operations under said reclamation act. (33 Stat. 1032.)

Textual note.—This act is codified as section 393, title 43, United States Code, with the following changes : The introductory word “That" 'is omitted; the words beginning with "established," second line, and ending with "reclamation act," third line, are omitted ; "said act" in fifth line reads "reclamation law”; and "said reclamation act" in the last line reads "the reclamation law."

NOTES

Cross reference.-See act of June 6, 1930 (46 Stat. 522).

Act does not operate retrospectively.—This act only relates to and affects such moneys as have been and shall be derived from the specified sources after the passage of the act and moneys so derived prior to its passage but which had not been deposited in the Treasury to the credit of some other fund. It does not operate retrospectively. (12 Comp. Dec. 297.)

Refunds and proceeds not credited to projects.-Moneys received by the Reclamation Service (Bureau of Reclamation) both as refunds and as proceeds of sales of material and property that have served their purpose in connection with reclamation projects must be credited to the reclamation fund generally and not to the particular appropriation made therefrom for the project from which the refunds or sales arose. Such application will not work to the detriment of the water users on any particular project, since the matter of the net cost of any such project and hence the amount to be paid by the water users as reimbursement of the Government for such cost is to be determined by the Interior Department quite independently of the question as to what particular public fund is to be credited with refunds or sales arising in connection with the project. (22 Comp. Dec. 54.)

Receipts from sales of certain commissary supplies.-Where funds paid to the Reclamation Service (Bureau of Reclamation) pursuant to contract by an irrigation company to cover the cost of work being done by that service for the benefit of said company are expended for commissary and other supplies, which are resold during the progress of the work, the receipts from such resales are to be applied to the completion of the work and are not to be covered into the reclamation fund. (22 Comp. Dec. 289.)

Moneys forfeited by bidders.—Moneys forfeited by successful bidders for work under the Reclamation Service (Bureau of Reclamation) because of failure to perform the award should, under the provisions of this act, be covered into the Treasury to the credit of the reclamation fund. (12 Comp. Dec. 297.)

DISPOSAL OF PROCEEDS OF SALES OF PROPERTY-REFUNDS 75

See note under section 1 of the act of June 17, 1902, entitled “Damages collected not to be credited to reclamation fund.”

Refund of money paid on proposed construction of railway line.—The Great Northern Railway Co. paid the United States the estimated construction charges on a small acreage of land on the Teton Division of the Sun River project, over which land the company proposed to construct a railway line under the act of March 3, 1875 (18 Stat. 482). Neither the Teton Division nor the line of road was constructed, and the grant to the company was forfeited by court decree. The railway company made an application for refund of the construction charges paid. The Comptroller General in decision of October 7, 1932 (4-43217) refused to make the refund on the ground that such refund was prohibited by section 1 of the act of Congress of March 26, 1908 (35 Stat. 48), as amended by the act of December 11, 1919, 41 Statute 366, permitting the return of filing fees and commissions in connection with public land entries, etc., only when the entry is rejected, not when it is allowed.

Erroneous deposit in Treasury.-When moneys appropriated by Congress for a particular purpose have been erroneously covered into the Treasury to the credit of the unappropriated surplus, the error may be corrected by withdrawing the money s from the Treasury and re-covering them into the credit of the appropriation to which Congress directed they should belong. The proceeds of sales of property belonging to the Reclamation Service (Bureau of Reclamation) required by this act to be covered into the Treasury to the credit of the reclamation fund form a part of the appropriation for the Reclamation Service (Bureau of Reclamation), and those erroneously covered into the Treasury as "proceeds of Government property” may be withdrawn from the Treasury and recovered into the credit of the reclamation fund. (12 Comp. Dec. 733.)

Miscellaneous.-J. D. Mell et al., 50 L. D. 314.
C. L. 827, June 17, 1919, regarding increase of compensation.

DAMS ACROSS YELLOWSTONE RIVER, MONT.

An act to authorize the Secretary of the Interior to construct dams across the Yellowstone

River at Montana in connection with irrigation works. (Act March 3, 1905, ch. 1476, 33 Stat. 1045)

[Sec. 1. Construction of dams authorized. ]—That where, in carrying out projects under the provisions of the national reclamation act, it shall be necessary to construct dams in or across the Yellowstone River in the State of Montana, the Secretary of the Interior is hereby authorized to construct and use and operate the same in the manner and for the purposes contemplated by said reclamation act. (33 Stat. 1045.)

Textual note.—This act is codified as section 422, title 43, United States Code. In the code the word “That" at the beginning of the act is omitted ; "national reclamation act" in the second line reads "reclamation law"; and "said reclamation act” in the last line reads "said reclamation law."

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