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

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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).

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14. -School lands

Until so authorized by Congress, neither the Department nor the Territorial Government of Arizona has power to dedicate for use in connection with an irrigation project, lands in said territory which, by section 2 of the Act of February 2, 1863, 12 Stat. 664, sec. 1946, R.S., have been reserved for school purposes to the future State to be erected, including the same. Instructions, 32 L.D. 604 (1904).

15. -Municipal property

Although land owned by a municipality was being devoted to public use, the Secretary of the Interior had authority to_condemn such land for Missouri River Basin project. United States v. 20.53 Acres of Land in Osborne County, Kansas, City of Downs, 263 F. Supp. 694 (D. Kansas 1967).

16. Water rights

The United States had power to acquire through exercise of eminent domain water rights of riparian owners and overlying owners on river below Government dam. State of California v. Rank, 293 F. 2d 340 (9th Cir. 1961), modified on other grounds 307 F. 2d 96, affirmed in part 372 U.S. 627, affirmed in part, reversed in part on other grounds sub. nom. Dugan v. Rank, 372 U.S. 609 (1963).

17.-Personal property

An engine necessary for the purpose of carrying out the provisions of this Act may be acquired under this section. United States v. Buffalo Pitts Co., 234 U.S. 228 (1914). 18. Leasehold

The Secretary is authorized by this section to acquire a leasehold interest. Acting Solicitor Burke Opinion, M-36219 (May 12, 1954), in re authority to lease or purchase lands for development farms on reclamation projects.

19. -Easements and rights-of-way

Where the United States acquired a primary easement to construct an irrigation ditch on the land of defendant, it also acquired the right, as a secondary easement, to go upon land to maintain, repair, and clean ditch, but such secondary easement can be exercised only when necessary, and in such reasonable manner as not to increase the burden upon defendant's land. Mosher v. Salt River Valley Water Users' Assn., 209 P. 596, 24 Ariz. 339 (1922).

pany had purchased and developed as a power site could not be disassociated from bed of river and flow of stream in creating a value for power site purposes, and company could not introduce evidence showing value of uplands for power site purposes, separate from use of bed of river and flow of stream. Washington Water Power Co. v. United States, 135 F. 2d 541 (9th Cir. 1943).

In condemnation proceedings for the acquisition of lands for the Grand Coulee dam, the defendant Continental Land Company claimed compensation for the inherent adaptability of its uplands for dam-site purposes for the production of electrical power. On appeal the Circuit Court affirmed the lower court holding that the Columbia River was a navigable stream and that the Company had no inherent right in the uplands for special use as against the Government's dominant right to the river bed for navigation; that the Company was limited to the reasonable market value of the upland for any purpose to which the lands may reasonably be adapted now or in a reasonable time in the future, and that the Continental Land Company had produced no proof of any possibility, reasonably near or remote, or at any time, that the land would be or could be used for dam-site purposes. Continental Land Co. v. United States, 88 F. 2d 104 (9th Cir. 1937). 21. -Noncompensable claims

The Secretary has no authority under the seventh section of this Act to compensate settlers upon lands within the limits of a withdrawal made in connection with an irrigation project, unless they have in good faith acquired an inchoate right to the land by complying with the requirements of law up to the date of the withdrawal and have such a claim as ought to be respected by the United States. Op. Asst. Atty. Gen., 34 L.D. 155 (1905).

Where a lease provides that the lessor can terminate it on 30 days' written notice and that lessee's improvements remaining on the premises after expiration of the 30 day period shall become the property of the lessor, its successors or assigns, and where lessor after conveying the property to the United States, gives the required notice of termination, which is formally accepted by the lessee, the United States, after the expiration of the notice period, cannot compensate lessee for moving of improvements. Dec. Comp. Gen., A-14629 (June 24, 1926). [Ed. note: Relief was subscquently granted the lessee through a private relief act dated March 3, 1927, 44 Stat. 1844.]

The United States does not impliedly

promise to compensate persons engaged in stock raising for the destruction of their business, or the loss sustained through the enforced sale of their cattle, the result of the inundation of their lands by the construction of a dam which arrests flood waters. Bothwell v. United States, 254 U.S. 231 (1920).

Where, in proceedings by the United States to condemn land overflowed by the construction of a dam, damages for loss from a forced sale of the landowners' cattle and the destruction of their business were denied, and the landowners brought suit in the Court of Claims, they were in no better position in respect to such damages than if no condemnation proceedings had been instituted. Bothwell v. United States, 254 U.S. 231 (1920), affirming 54 Ct. Cl. 203 (1918).

31. Condemnation proceedings

In proceedings by the United States to condemn right of way for a ditch under the Reclamation Act which provides a fund from which the damages assessed shall be paid, it is not necessary that the damages shall be assessed and paid before the Government may be allowed to take possession. United States v. O'Neill, 198 F. 677 (D. Colo. 1912). See also 5 Comp. Gen. 907 (1926).

Where land is condemned pursuant to section 7, for reclamation projects, the judgment is not required to be certified to the Congress, but may be paid from applicable reclamation funds. Such judgments are required by the Act of February 18, 1904, 33 Stat. 41, to be paid on settlements by the General Accounting Office. 5 Comp. Gen. 737 (1926).

The fact that the taking of realty by the Secretary of the Interior was for construction of distribution system did not require that contract with an irrigation district precede the taking. United States v. 277.97 Acres of Land, 112 F. Supp. 159 (D. Cal. 1953).

Government may dismiss or abandon petition in condemnation proceedings at any time before taking property, notwithstanding owners claim for damages was in excess of district court jurisdiction. Owen v. United States, 8 F. 2d 992 (C.C.A. Tex. 1925).

36. Physical seizure (inverse condemnation)

(Editor's Note: See also opinions annotated under the Fifth Amendment, the Sundry Civil Expenses Appropriation Act of March 3, 1915, and the Federal Tort Claims Act as codified June 25, 1948.)

The authorization in section 7 of the Reclamation Act of 1902 that the Secretary

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of the Interior may "acquire any rights or property," "by purchase or by condemnation under judicial process," extends to the taking of private water rights by physical seizure as well as by purchase or formal condemnation. Turner v. Kings River Conservation Dist., 360 F. 2d 184, 192 (9th Cir. 1966).

The substantial reduction in the natural flow of the San Joaquin River as the result of the impoundment and diversion of the flow at Friant Dam upstream constitutes a seizure or taking, in whole or in part, of rights which may exist in the continued flow and use of the water; it does not constitute a trespass against such rights. This seizure was authorized by Congress when it authorized the project, and any relief to which claimants of the rights may be entitled by reason of such taking is by suit against the United States under the Tucker Act, 28 U.S.C. § 1346. Dugan v. Rank, 372 U.S. 609 (1963). (Ed. note: The Tucker Act is the Act of March 3, 1887, 24 Stat. 505. It authorized suits to be brought in the Court of Claims against the United States in certain cases, including claims founded upon the Constitution. This includes claims based upon the Fifth Amendment provision that private property shall not be taken for public use without just compensation. 28 U.S.C. § 1346 relates to the jurisdiction of the Federal District Courts in such cases, and 28 U.S.C. § 1491 relates to the jurisdiction of the Court of Claims. These sections appear herein in the appendix.)

United States had right to acquire by physical seizure water rights of riparian owners and overlying owners on river below Government dam and was not required to resort to judicial condemnation proceedings. State of California v. Rank, 293 F. 2d 340 (9th Cir. Cal. 1961), modified on other grounds 307 F. 2d 96, affirmed in part 372 U.S. 627, affirmed in part, reversed in part on other grounds sub. nom. Dugan v. Rank, 372 U.S. 609 (1963).

In actions in the Court of Claims for damages resulting from an unforeseen flooding of claimants' soda lakes following construction and operation of a Government irrigation project by which water was brought into the watershed, held (1) That allegations that the water percolated through the ground, due to lack of proper lining in the Government's canals and ditches, the manner of their construction and the natural conditions, were not intended to set up negligence, but merely to show causal connection between the project and the flooding, and hence did not characterize the cause of action as ex delicto; (2) That, as no intentional taking of claimants' property could be implied, the Government

State laws 1-10

1. State laws-Generally

In choosing between users within each state and in settling the terms of his contracts for the use of stored Colorado River water, the Secretary is not bound, either by section 18 of the Boulder Canyon Project Act, or by section 8 of the Reclamation Act, to follow State law. Although section 18 allows the States to do things not inconsistent with the Project Act or with federal control of the river, as for example, regulation of the use of tributary water and protection of present perfected rights, the general saving language of section 18 cannot bind the Secretary by state law and thereby nullify the contract power expressly conferred upon him by section 5. Arizona v. California, 373 U.S. 546, 58090 (1963).

Section 8 of the Reclamation Act does not mean that state law may operate to prevent the United States from exercising the power of eminent domain to acquire the water rights of others. Rather, the effect of section 8 in such a case is to leave to state law the definition of the property interests, if any, for which compensation must be made. City of Fresno v. California, 372 U.S. 627, 630 (1963).

Section 8 of the 1902 Act does not override the excess land provisions of section 5, nor compel the United States to deliver water on conditions imposed by the State. It merely requires the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein. But the acquisition of water rights must not be confused with the operation of

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Federal projects. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 291-2 (1958).

Even though navigation is mentioned as one of the purposes of the Central Valley Project, Congress realistically elected to treat Friant Dam not as a navigation project but as a reclamation project, with reimbursement to be provided for the taking of water rights recognized under State law, in accordance with section 8 of the Reclamation Act, and this election is confirmed by administrative practice. Accordingly, the judgment of the Court of Claims will be upheld granting compensation to the owners of so-called "uncontrolled grass lands" along the San Joaquin River which depend for water upon seasonal inundations resulting from overflows of the river. United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950).

Section 8 of the Reclamation Act of 1902 requires federal officers to recognize statecreated water rights and pay for them if taken, but it does not limit the authority of federal officers to take such rights for just compensation. Turner v. Kings River Conservation Dist., 360 F. 2d 184, 194–95 (9th Cir. 1966).

Section 8 of the Reclamation Act of 1902 does not compel the United States either to acquire or to deliver water on conditions imposed by the State. Turner v. Kings River Conservation Dist., 360 F. 2d 184, 197-98 (9th Cir. 1966).

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. 89 (1917). 2. —Navigable waters

Where the Government has exercised its right to regulate and develop the Colorado River and has undertaken a comprehensive project for improvements of the river and for the orderly and beneficial distribution of water, there is no room for inconsistent state laws. Arizona v. California, 373 U.S. 546, 587 (1963).

The privilege of the States through which the Colorado River flows and their inhabitants to appropriate and use the water is subject to the paramount power of the United States to control it for the purpose of improving navigation. Arizona v. Califor nia, et al., 298 U.S. 558, 569 (1936), rehearing denied, 299 U.S. 618 (1936).

The Secretary of the Interior is under no