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RESERVOIR SITES AND RIGHTS OF WAY
(Extract from) An act to repeal timber-culture laws, and for other purposes.
3, 1891, ch. 561, 26 Stat. 1095)
Sec. 17. [Reservoir sites to contain only necessary lands—Occupied lands excluded when practicable.]-That reservoir sites located or selected and to be located and selected under the provisions of "An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and eighty-nine, and for other purposes," and amendments thereto, shall be restricted to and shall contain only so much land as is actually necessary for the construction and maintenance of reservoirs; excluding so far as practicable lands occupied by actual settlers at the date of the location of said reservoirs. *(26 Stat. 1101.)
Textual note. This section is codified as section 663, title 43, United States Code, with the following differences : The introductory word "That" is omitted ; the clause beginning with "under" and ending with "thereto," in the fifth line, is omitted.
Sec. 18. [Rights of way to ditch companies—Not to interfere with Government occupation-Approval—Water control of States).—That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory, which shall have filed, or may hereafter file, with the Secretary of the Interior, a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals and 50 feet on each side of the marginal limits thereof; also the right to take from the public lands adjacent to the line of the canal or ditch material, earth, and stone necessary for the construction of such canal or ditch: Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the department of the Government having jurisdiction of such reservation and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories. (26 Stat. 1101.)
Textual note.-The act of March 4, 1917 (39 Stat. 1197), amends section 18 above by inserting after the words "any canal' or ditch company," in the third line, the words "or drainage district"; and by inserting after the words "for the purpose of irrigation," in the fourth line, the words “or drainage." As so amended the section is codified as section 946, title 43, United States Code.
Amendment. The act of May 28, 1926 (44 Stat. 668), extends the scope of the act of March 3, 1891, as amended March 4, 1917 (39 Stat. 1197), and author
RESERVOIR SITES AND RIGHTS OF WAY
izes right of way, if need be, additional to the 50 feet granted by act of March 3, 1891 (51 L. D. 485).
Cross reference.-See act of March 1, 1921 (41 Stat. 1194), and notes thereunder.
Applies to Federal reclamation. For the purpose of carrying out the provisions of the reclamation act, the Government may avail itself of the privileges conferred by this act to the same extent that individuals, corporations, or associations may exercise such privileges, and subject to the same conditions and limitations. (Op. Asst. Atty. Gen., May 18, 1905, 33 L. D. 563.)
Canal or ditch company not required to irrigate own lands.—Under section 18 of above act the department has never required the canal or ditch company securing the right of way to itself engage in the irrigation of its own lands, but has granted rights of way to canal companies which may serve the public generally by disposing of water to others for irrigation. (Moffat Tunnel Commission, departmental opinion, April 4, 1924. 50 L. D. 361.)
Water rights of United States--Estoppel.—The action of the Secretary of the Interior or other departmental officer of the Government in approving the maps of location of irrigation canals or ditches over public lands or reservations, as provided for by act March 3, 1891, sections 18 and 19 (26 Stat. 1101, 1102), can not give the companies constructing the same any right to appropriate the waters of a stream, nor estop the United States to assert a priority of right thereto, where it exists, against either such companies or users who may be supplied by them. U. 8. v. Conrad Investment Co. (C. C. Mont., 1907), 156 Fed. 124; affirmed (1908), 161 Fed. 829; 88 C. C. A. 647.)
Suit by United States—Parties.-Any invasion of the prior right of the United States to the waters of a stream is a trespass, and the Government may maintain a suit in equity to protect its right against any one or all of such trespassers. (Idem.)
An act relating to the limitation of the hours of daily service of laborers and mechanics
employed upon the public works of the United States and District of Columbia. (Act Aug. 1, 1892, 27 Stat. 340)
(Limiting hours of labor. ]—That the service and employment of all laborers and mechanics who are now or may hereafter be employed by the Government of the United States, by the District of Columbia, or by any contractor or subcontractor upon any of the public works of the United States or of the said District of Columbia, is hereby limited and restricted to eight hours in any one calendar day, and it shall be unlawful for any officer of the United States Government or of the District of Columbia or any such contractor or subcontractor whose duty it shall be to employ, direct, or control the services of such laborers or mechanics to require or permit any such laborer or mechanic to work more than eight hours in any calendar day except in case of extraordinary emergency.
Sec. 2. [Penalty for violation. ]—That any officer or agent of the Government of the United States or of the District of Columbia, or any contractor or subcontractor whose duty it shall be to employ, direct, or control any laborer or mechanic employed upon any of the public works of the United States or of the District of Columbia who shall intentionally violate any provision of this act, shall be deemed guilty of a misdemeanor, and for each and every such offense shall upon conviction be punished by a fine not to exceed one thousand dollars or by imprisonment for not more than six months, or by both such fine and imprisonment, in the discretion of the court having jurisdiction thereof.
SEC. 3. [Present contracts not affected.]—The provisions of this act shall not be so construed as to in any manner apply to or affect contractors or subcontractors, or to limit the hours of daily service of laborers or mechanics engaged upon the public works of the United States or of the District of Columbia for which contracts have been entered into prior to the passage of this act.
(See act of June 19, 1912, and act of Mar. 3, 1913.)
THE RECLAMATION ACT
An act appropriating the receipts from the sale and disposal of public lands in certain
States and Territories to the construction of irrigation works for the reclamation of arid lands. (Act June 17, 1902, ch. 1093, 32 Stat. 388)
[Sec. 1. Reclamation fund established from public land receipts—Exception Support of agricultural colleges—Deficiency. ]—That all moneys received from the sale and disposal of public lands in Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming, beginning with the fiscal year ending June thirtieth, nineteen hundred and one, including the surplus of fees and commissions in excess of allowances to registers and receivers, and excepting the five per centum of the proceeds of the sales of public lands in the above States set aside by law for educational and other purposes, shall be, and the same are hereby, reserved, set aside, and appropriated as a special fund in the Treasury to be known as the “reclamation fund,” to be used in the examination and survey for and the construction and maintenance of irrigation works for the storage, diversion, and development of waters for the reclamation of arid and semiarid lands in the said States and Territories, and for the payment of all other expenditures provided for in this act: Provided, That in case the receipts from the sale and disposal of public lands other than those realized from the sale and disposal of lands referred to in this section are insufficient to meet the requirements for the support of agricultural colleges in the several States and Territories, under the act of August thirtieth, eighteen hundred and ninety, entitļed "An act to apply a portion of the proceeds of the public lands to the more complete endowment and support of the colleges for the benefit of agriculture and the mechanic arts, established under the provisions of an act of Congress approved July second, eighteen hundred and sixty-two,” the deficiency, if any, in the sum necessary for the support of the said colleges shall be provided for from any moneys in the Treasury not otherwise appropriated. (32 Stat. 388.)
Textual note. This section, down to the proviso, is codified as section 391, title 43, United States Code, the introductory word "That" being omitted ; the words "and in the State of Texas" being inserted after "Territories."
With regard to the proviso above, see historical note to section 321 of title 7, United States Code Annotated (West Pub. Co.).
Amendatory and supplementary acts. The act of February 25, 1905 (33 Stat. 814) extends the reclamation act to a portion of the State of Texas.
Act of March 3, 1905 (33 Stat. 1032), provides for covering into the reclamation fund proceeds of sale of property, and also moneys refunded in connection with the operations under the reclamation act.
Section 2, act of April 16, 1906 (34 Stat. 116), provides that proceeds from sale of town lots shall be placed in the reclamation fund. See also section 3, act of June 27, 1906 (34 Stat. 519); and section 2, act of June 11, 1910 (36 Stat. 466).
The act of June 12, 1906 (34 Stat. 259), extends the reclamation act to the entire State of Texas.
Act of October 2, 1917 (40 Stat. 297), places receipts from potassium deposits in the reclamation fund.
Section 35, act of February 25, 1920 (41 Stat. 450), reserves to the reclamation fund certain amounts of money derived from bonuses, royalties, etc., under that act, commonly known as the "oil-leasing" act.
Act of May 20, 1920 (41 Stat. 605), provides for placing moneys derived from the sale of lands no longer needed for irrigation purposes into the reclamation fund.
Section 17, act of June 10, 1920 (41 Stat. 1072), provides for placing proceeds of charges arising from licenses for occupancy and use of public lands, etc., into the reclamation fund.
Act of June 6, 1930 (46 Stat. 522), provides for depositing into the reclamation fund moneys collected from defaulting contractors or their sureties.
Constitutionality of reclamation act.-The reclamation act is within the power of Congress as to lands within the States as well as Territories, under Constitution, article 4, section 3, giving it power “to dispose of and make all needful rules and regulations respecting the territory or other property belong. ing to the United States", and is not in violation of the Constitution on the ground that it authorizes the expenditure of public money without an appro priation, since it is in itself an appropriation of the proceeds of land sold, nor as delegating legislative authority to the Secretary of the Interior. (United States v. Hanson (Wash. 1909), 167 Fed. 881, 93 C. C. A, 371.)
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 it exercises the right of eminent domain against other land owners to obtain land necessary to carry the proposed project into effect. (Burley v. United States et al. (Ida. 1910), 179 Fed. 1, 102 C. C. A. 429, 33 L. R. A. (N. S.) 807, affirming (C. C. 1909), 172 Fed. 615. See also Magruder v. Belle Fourche Valley Water Users' Association (S. D. 1914), 219 Fed. T2, 133 C. C. A. 524.)
In Arizona v. California et al, the Supreme Court of the United States decided that the Boulder Canyon project act of December 21, 1928 (45 Stat. 1057), was constitutional. (Arizona r. ('alifornia et al., 283 L'. S. 423.)
Irrigation plan contemplated by the act.—The act contemplates the irrigation of private lands as well as lands belonging to the Government and the fact that a scheme contemplates the irrigation of private as well as a large tract of Government land does not render the project illegal, so as to prevent the condemnation of land necessary to carry it out. (Burley v. United States, ante.)
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, 172 Fed. 615.)
Whatever may be its maximum power under the Constitution, it is thought that by the reclamation act (32 Stat. 388), Congress has chosen to confer authority upon the Secretary of the Interior only to undertake projects the primary or predominant purpose of which is to reclaim public lands. (Griffiths F. Cole (D. C. Ida. 1919), 264 Fed. 374.)
Contract to supply water for irrigation district.—Under the reclamation act the Secretary of the Interior has power to contract with an irrigation district to supply, or partially supply, the district with water. (Pioneer Irrigation District v. Stone (1913), 23 Idaho 344, 130 Pac, 382; Hillcrest Irrigation District v. Brose (1913), 24 Idaho 376, 133 Pac. 663; Nampa & Meridian Irrigation District v. Petrie (1915), 153 Pac. 425. See also Nampa & Meridian Irriga