for maintenance and operation; and hence he is authorized to impose reasonable assessments on land irrigated prior to the time when payment of the major portion of the cost of construction had been made and the works passed under management of the owners of the irrigated land. United States v. Cantrall, 176 Fed. 949 (C.C. Ore. 1910).

Where by a contract between the United States and landowners tributary to a Federal irrigation system, such landowners agreed to pay to the United States the charges duly levied against their lands for the construction and maintenance of the system, they were only liable for such reasonable charges as the Government was authorized to collect proportionate to their share of the cost of maintaining and operating the system, and not such as might be arbitrarily fixed in advance by such Secretary or other governmental officer. Ibid.

3. Transfer of

The Secretary of the Interior is not authorized by the Reclamation Act to turn over the operation and maintenance of completed reclamation projects, in whole or in part, or to any extent, to water users' associations before the payments by such water users for water rights are made by the major portion of the lands irrigated by such works. 30 Op. Atty. Gen. 208 (1913); but see section 5 of the Act of August 13, 1914, which authorizes the Secretary to transfer the care, operation and maintenance of all or any part of a project to a water users' association or irrigation district.

4. Negligence actions

A petition for damages against a State irrigation district for negligent maintenance of a canal was held to be no cause of action, in view of the State statutes and the contract making the district merely a fiscal agent for the United States, which operated and maintained the works. Malone v. El Paso County Water Improvement Dist. No. 1, 20 S.W. 2d 815 (Tex. Cir. App. 1929).

Where alleged negligence of federal government, while in control of maintenance and operation of irrigation system, could not be imputed to irrigation district, defendant in suit by district to foreclose land for delinquent assessments could not maintain a claim for affirmative relief against district by way of recoupment, set-off or counterclaim based on such negligence. Klamath Irr. Dist. v. Carlson, 157 P. 2d 514, 176 Ore. 336 (1945).

11. Title to property-Generally

The gravity extension unit (Gooding division) of the Minidoka project was con

structed by the United States under a repayment contract with American Falls Reservoir District No. 2. It diverts water from the Snake River below Minidoka dam in an area of slack water caused by Milner dam, which was built in 1903 by the Twin Falls Land and Water Company, and is operated and maintained by the Twin Falls Canal Company. The latter brought suit against the American Falls Reservoir District No. 2 for a proportionate share of the costs of construction and operation of Milner dam. The suit was dismissed on the grounds: (1) that the United States, not the reservoir district, was the proper party defendant, notwithstanding a provision in the repayment contract that the district would hold the United States harmless against claims in favor of the owners of Milner dam, because under section 6 of the Reclamation Act title to and management and operation of the works remained in the Government; and (2) that the gravity diversion works were not damaging plaintiff's water rights or its use of Milner dam. Twin Falls Canal Co. v. American Falls Reservoir Dist. No. 2, 59 F. 2d 19 (9th Cir. 1932); affirming 49 F. 2d 632 (D. Idaho 1931); see also 45 F. 2d 649 (D. Idaho 1930) overruling demurrer to amended complaint.

The United States is not an indispensable party to a suit by a landowner receiving water from the Yakima project to enjoin the Secretary of the Interior from imposing additional charges for water delivery, representing part of the cost of the new Cle Elum reservoir, beyond those stated in a repayment contract with a water users' association and in the public notice issued by the Secretary, because the landowner, not the United States, is the owner of the water right under Federal and State law and under contract with the Secretary. This ownership is wholly distinct from the property right of the Government in the irrigation works. The suit is to enjoin the Secretary from enforcing an order, the wrongful effect of which will be to deprive the landowner of vested property rights, and may be maintained without the presence of the United States. Ickes v. Fox, 300 U.S. 82 (1937). See also Fox v. Ickes, 137 F. 2d 30 (D.C. Cir. 1943), cert. denied, 320 U.S. 792.

In suit by irrigation district to foreclose for delinquent taxes and assessments, evidence adduced by defendant under claim for affirmative relief by way of recoupment, set-off or counterclaim was insufficient to sustain allegation that alleged federal control, which would defeat defendant's right to affirmative relief against district, was a

subterfuge and fraud, in that district had paid major portion of cost of project. Klamath Irr. Dist. v. Carlson, 157 P. 2d 514, 176 Ore. 336 (1945).

Irrigation district, by instituting suit to foreclose certificates of delinquency in irrigation assessments, was not estopped from meeting defendant's allegations, which were foundation of defendant's plea for affirmative relief, that district had paid major portion of cost of project and that federal operation was a fraud and subterfuge by proof that aggregate payments were not sufficient to entitle plaintiff to take control of operation of irrigation project, and that no subterfuge or fraud had been practiced. Klamath Irr. Dist. v. Carlson, 157 P. 2d 514, 176 Ore. 336 (1945).

The United States is an indispensable party to a suit by the City of Mesa, a municipal corporation, to condemn a portion of the electrical plant and system operated by the Salt River Project Agricultural and Improvement District as an integral part of the Salt River reclamation project; and the United States not having consented to the suit, the court is without jurisdiction to entertain the action. City of Mesa v. Salt River Project Agricultural Improvement and Power District, 101 Ariz. 74, 416 P. 2d 187 (1966).

71

In the construction of the American Falls Reservoir of the Minidoka project, Idaho, the Secretary of the Interior, pursuant to act of Congress of Mar. 4, 1921, 41 Stat. 1367, 1403, acquired by purchase or condemnation the fee simple title to certain lots adjacent to the town of American Falls. Power County, Idaho, assessed these lots as the property of the American Falls Reservoir District. The United States, claiming that the District had no equity in the lots, and that the placing of the lots on the assessment roll would constitute a cloud on the title of the United States, brought proceedings to have the assessments declared void. The Court held that when the Secretary of the Interior, under authority of the Congress purchases lands, the fee simple title is in the United States until the United States disposes of them; that neither the States nor their subdivisions have the power to tax property of the United States; that the lots when acquired by the United States became a necessary and proper part of the reservoir enterprise and incidental thereto, and that the only interest the District has in the reservoir is the right to receive water delivered to it by the United States therefrom. The taxing proceedings were decreed void. United States v. Power County, Idaho, et al., 21 F. Supp. 684 (1937).

Supplementary Provision: Exchanges. Section 14 of the Reclamation Project Act of 1939 authorizes the Secretary to acquire lands for the relocation of property in connection with the construction or operation and maintenance of any project, and to enter into contracts for the exchange of water, water rights, or electric energy. The Act appears herein in chronological order.

Exchange of Lands, North Platte Project. An exchange of lands on the North Platte project between the United States and the Swan Land and Cattle Company was authorized by the Act of August 9, 1921, ch.

55, 42 Stat. 147. The land was conveyed to the United States by deed dated September 12, 1921, and recorded in Goshen County, Wyoming, October 10, 1921. Patent issued February 15, 1922-Cheyenne No. 849041.

Editor's Note, Annotations. Annotations of opinions dealing with aspects of property acquisition including condemnation proceedings which are common to all Government agencies, such as valuation of property, payment of interest, acceptability of title, and so forth, are not included.

72

Purpose of acquisition 1-10
Discretion of Secretary 2
Generally 1
Related lands 4
Relocation of property 3

Research and development 5 Property or interest involved 11-30 Easements and rights-of-way 19 Existing irrigation system 12 Generally 11 Indian lands Leasehold 18

13

Availability of funds

41

Exchanges 42
Option to purchase 43
State laws 44

1. Purpose of acquisition-Generally

The Act of June 17, 1902, 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 (1905).

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., 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807 (Idaho 1910), affirming 172 F. 615 (C.C. 1909). See also Magruder v. Belle Fourche Valley Water Users' Assn., 219 F. 72, 133 C.C.A. 524 (S. Dak. 1914).

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. Burley v. United States, 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807 (Idaho 1910).

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. United States v. O'Neill, 198 F. 677 (D. Colo. 1912).

The Department of the Interior had right to condemn 277.97 acres of land in the

County of Madera, California, for navigation, reclamation, and storage of waters of the San Joaquin and Sacramento Rivers, irrigation and power purposes, since those purposes were "public purposes." United States v. 277.97 Acres of Land, 112 F. Supp. 159 (D. Cal. 1953).

2. -Discretion of Secretary

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 F. 615 (C.C. Idaho 1909), affirmed 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807 (1910).

Where Congress left determination of need for particular realty for navigation, reclamation, and storage of waters of rivers, and for irrigation and power purposes to Secretary of the Interior, courts had no right to question manner in which the Secretary of the Interior exercised the delegated power. United States v. 277.97 Acres of Land, 112 F. Supp. 159 (D.C. Cal. 1953).

When the Secretary of the Interior in the exercise of a reasonable discretion determines as to the validity of title to and as to the value of a right to appropriate water for irrigation purposes to be acquired by him under the provisions of the act of June 17, 1902, his decision is conclusive upon the accounting officers. 14 Comp. Dec. 724 (1908).

3. -Relocation of property

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 town site 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. 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. Brown v. United States, 263 U.S. 78 (1923), affirming United States v. Brown, 279 F. 168 (1922). See also section 14 of the Reclamation Project Act of 1939. 4. Related lands

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).

5. Research and development

The Secretary of the Interior is authorized to purchase or lease lands for a "development farm" in the nature of a field laboratory where this is an appropriate method of developing data relevant to such factors as classification of lands, suitability of crops, and repayment ability of irrigators. Acting Solicitor Burke Opinion, M-36219 (May 12, 1954).

11. Property or interest involved

Generally

The Secretary of the Interior has no authority under the provisions of the Act of June 17, 1902, 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 (1905).

The Act contemplates that the United States shall be the full owner of irrigation 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., 34 L.D. 186 (1905).

In the acquisition of interests in real property, if not administratively objectionable, title may be acquired subject to (a) any existing coal or mineral rights reserved or outstanding in third parties and (b) any existing rights of way in favor of the public or third parties for roads, railroads, telephone lines, transmission lines, ditches, conduits or pipe lines, on over or across the property, although the property is under contract, to be conveyed to the United States in fee simple free of lien or encumbrance. Central Valley project, letter of July 9, 1940.

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. California Development Co., 33 L.D. 391 (1905).

The Secretary of the Interior may not, in the acquisition of land needed for a reservoir to be constructed by the Bureau of Reclamation, agree that as a part of the consideration the landowner shall have the 267-067-72—vol. I—8

73

perpetual right to utilize any power facilities afforded by the reservoir. Decision of First Assistant Secretary, December 15, 1936, in re Truckee Storage project, Boca reservoir.

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. Instructions, 32 L.D. 416 (1904). 12. Existing irrigation system

Where an irrigation system already constructed and in operation may be utilized in connection with a greater system to be constructed under the provisions of the Act of June 17, 1902, its purchase for such purpose comes within the purview of the act. California Development Co., 33 L.D. 391 (1905).

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., 34 L.D. 351 (1906).

13. Indian lands

The United States has authority to condemn tribal lands of the Crow Tribe for construction of Yellowtail Dam, under section 9(c) of the Flood Control Act of 1944 and the Federal Reclamation Laws; under the general condemnation act of August 1, 1888, 55 Stat. 357, 40 U.S.C. § 257; and under the several acts appropriating money for preconstruction work and for initiation of construction. United States v. 5,677.94 Acres of Land, 162 F. Supp. 108 (D. Mont. 1958); ibid, 152 F. Supp. 861 (D. Mont. 1957); Opinion of Solicitor Davis, M36148 (Supp.) (February 3, 1954).

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. United States, 237 U.S. 43 (1915), affirming 196 F. 345, 116 C.C.A. 165 (1912).

72

Purpose of acquisition 1-10
Discretion of Secretary 2
Generally 1
Related lands 4

Relocation of property 3

Research and development 5 Property or interest involved

11-30

Easements and rights-of-way 19 Existing irrigation system 12 Generally 11

Indian lands

Leasehold 18

13

1. Purpose of acquisition-Generally

The Act of June 17, 1902, 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 (1905).

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., 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807 (Idaho 1910), affirming 172 F. 615 (C.C. 1909). See also Magruder v. Belle Fourche Valley Water Users' Assn., 219 F. 72, 133 C.C.A. 524 (S. Dak. 1914).

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. Burley v. United States, 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807 (Idaho 1910).

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. United States v. O'Neill, 198 F. 677 (D. Colo. 1912).

The Department of the Interior had right to condemn 277.97 acres of land in the

County of Madera, California, for navigation, reclamation, and storage of waters of the San Joaquin and Sacramento Rivers, irrigation and power purposes, since those purposes were "public purposes." United States v. 277.97 Acres of Land, 112 F. Supp. 159 (D. Cal. 1953).

2. -Discretion of Secretary

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 F. 615 (C.C. Idaho 1909), affirmed 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807 (1910).

Where Congress left determination of need for particular realty for navigation, reclamation, and storage of waters of rivers, and for irrigation and power purposes to Secretary of the Interior, courts had no right to question manner in which the Secretary of the Interior exercised the delegated power. United States v. 277.97 Acres of Land, 112 F. Supp. 159 (D.C. Cal. 1953).

When the Secretary of the Interior in the exercise of a reasonable discretion determines as to the validity of title to and as to the value of a right to appropriate water for irrigation purposes to be acquired by him under the provisions of the act of June 17, 1902, his decision is conclusive upon the accounting officers. 14 Comp. Dec. 724 (1908).

3. -Relocation of property

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 town site 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. 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. Brown v. United States, 263 U.S. 78 (1923), affirming United States v. Brown, 279 F. 168 (1922). See also section 14 of the Reclamation Project Act of 1939. 4. Related lands

The Reclamation Act permits the United States to acquire strips of land, aggregating 10 per cent of the irrigable area of a project,