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Fed., 491, reversed; 176 Fed., 762, affirmed.)

UJI I T M ) STATES MAY ACQUIRE INDIAN ALLOTMENT FOR RECLA-
MATION PURPOSES.

Under the provisions of the reclamation act, the Secretary of the
Interior has power to acquire the rights and property necessary there-
for, including those of allottee Indians by paying for their improve-^
ments, and giving them the right of selecting other lands.

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COUBT DECISIONS. 585

The restrictions on alienation of lands allotted to Indians within
the area of the Milk River irrigation project do not extend to pro-
hibiting 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. U. S. (Montana), 237
\J. S., 43; 196 Fed., 345, affirmed.)

(in the circuit court op appeals.)

CONSTITUTTONALITY OF BECLAHATION ACT— WITHDRAWAL OF
PUBLIC LANDS FOR PURPOSES OF ACT— RIGHTS OF SETTLER
UPON UNSURVEYED PUBLIC LAND.

The reclamation act is within the power of Congress as to lands
within the States as well as Territories, under the Constitution, arti-
cle 4, section 3, giving it power " to dispose of and make all needful
rules and regulations respecting the territory or other property be-
longing to the United States," and is not in violation of tne Constitu-
tion on the ground that it authorizes the expenditure of public
money without an appropriation, since it is in itself an appropria-
tion of the proceeds of land sold, nor as delegating legislative
authority to the Secretary of the Interior.

The reclamation act directs the Secretary of the Interior to " with-
draw from public entry the lands required for any irrigation works
contemplated under the provisions of this act," and authorizes him
"to withdraw from entry, except under the homestead laws, any
public lands believed to be susceptible of irrigation from said works.
Held that two classes of withdrawals were thereby provided for,
and that the exception of homestead entry from the second had no
applicatipn to the first; withdrawals and reservations thereunder
being, from the necessity of the case, absolute.

The reclamation act contains no provision for the recognition or
protection of any right of a settler of unsurveyed public lands which
may be withdrawn and reserved thereunder for use in the con-
struction of irrigation works, and such settler has no right which he
can oppose to the taking of the land for such purposes. (United
States V. Hanson (Washington), 167 Fed., 881, reversing trial court.)

PBIVATE LANDS IN RECLAMATION PBOJECTS-^ONSTITTTTIONAL
AUTHORITY OF THE UNITED STATES— EMINENT DOMAIN.

The reclamation act contemplated the irrigation of private lands
as well as lands belonging to the Government, and the fact that the
scheme contemplates the irrigation of private as well as a large tract
of Government land does not render a project illegal, so as to prevent
the condemnation of land necessary to carry it out.

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 pur-
pose it exercises the right of eminent domain against other land-
owners to obtain land necessary to carry the proposed project in
effect. (Burley v. United States et al. (Waho), 179 Fed., 1; aflSrm-
ing 172 Fed-, 615.)



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586 FIFTEENTH ANNUAL REPORT OF RECLAMATION SEBVIOB.

WATEB USEBS' ASSOCLA.TldK FBOPER PARTY PLAINTIFF IN SUIT
TO ENJOIN TTNITEB STATES OFFICEKS FROM COLLiSCTING
XTNIiAWFXTIi WATEB CHARGES FROM SHAREHOLDERS.

A corporation with which, as the Tepresentative of its share-
holders, who are parties accepted by the United States as holders
of water rights in a project under the reclamation act, the United
States makes a contract for the benefit of sudi shareholders relative
to the supply of water due and the dues to be paid by the share-
holders and which covenants in the contract to collect dues for the
United States and guarantees the payment thereof, is the proper
party plaintiff in a suit to enjoin officers of the United States from
collecting unlawful charges from the shareholders, turning the water
from their lands, and canceling their water rights and homestead
rights because they fail to pay such charges. (Magruder et al. v.
Belle Fourche Valley Water Users' Association (South Dakota),
219 Fed., 72, affirming lower court.)

(in federal TRIAL CJOURTS.)

RESERVATION IN PUBLIC LAND PATENT OF RIGHT Of WAT FOR
IRRIGATION CANALS REFERS TO FTTTITRE CONSTRUCTION.

The act of Congress August 30, 1890 (26 Stat., 391), provides that
all patents for land thereafter taken up under any of the land laws
of the United States on entries or claims validated by the act west
of the one hundredth meridian should reserve a right of way for
ditches or canals " constructed " bv authority of the United States.
Held^ that the word " constructed ''as so usea did not limit the reser-
vation to a right of way for ditches already constructed, but extended
as well to those " to be constructed " by the Government in further-
ance of its irrigation scheme for the reformation of arid lands.
(Green v. Willhite et aL (Idaho), 160 Fed., 856. See Green v. Will-
hite et al., 93 Pac, 971.)

RIGHT OF SECRETARY TO IMPOSE ASSESSMENT BEFORE PROJ-
ECT PASSES UNDER MANAGEMENT OF LANDOWNERS— LIA-
BILITY OF LANDOWNERS.

The Secretary of the Interior, being authorized to tax and deter-
mine irrigation-project charges, is authorized to divide the same
into two parts, one for construction and the other for operation
and maintenance, 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 has been made and the
works pass under management of the owners of irrigated land.

Where by a contract between the United States and landowners
tributary to a Federal irrigation system such landowners agree to
pay to tne United States the charges dulv levied against their lands
for the construction and maintenance oi the system, they are only
liable for such reasonable charges as the Government is authorized
to collect, proportionate to their share of the cost of operating and
maintaining the system, and not such as might be arbitrarily fixed
in advance by such Secretary or other Governmental officer. (United
States V. Cantrall et al. (Oregon), 176 Fed., 949.)



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COURT DECISIONS. 587

CONSTBUCTION OP BECUUffATIOK FBOJECTS NOT A GOVEBK-
MENTAL FUNCTION— RECLAMATION ACT NOT A BEVENUE
LAW— BEMOVAL OF CAUSES.

In the construction of works for the irrigation of arid public lands
under the reclamation act the United States is not exercising a gov-
ernmental function nor even a strictly public function, but is pro-
moting its proprietary interests, and such advantage as arises there-
from to the public at large is material, and not governmental.

The act is not a "revenue law" within the meaning of Revised
Statutes, section 643 (United States Compiled Statutes of 1901, p.
521), which provides for the removal of suits brought in State courts
" against any officer appointed under or acting by authority of any
revenue law of the United States." On account of any act done
under color of his office, a suit against the officer in charge of reclama-
tion work to determine water rights in a stream is not removable bv
him thereunder. Nor is there any reason of public policy why such
suit should be transferred to the Federal courts, as oy tne terms of
the act the rights of the Government as an appropriator of water are
governed by the laws of the State and are no greater than those of
any other officer. (Twin Falls Canal Co., Ltd., v, Foote et al.,
(Idaho), 192 Fed., 683. Followed in City of Stanfield v. Umatilla
River Water Users' Association et al. (Oregon), 192 Fed., 596.)

ACT PBOVIDING BESEBVATION IK PUBLIC-LAND PATENT OF
BIGHT OF WAY FOB IBBIGATION CANALS NOT VOID FOB
INDBFINITENESS— EQUITY JUBISDICTION.

The provisions of act of August 30, 1890 (26 Stat., 391), that in
all patents for lands thereafter taken up under any of the land laws
west of the one hundredth meridian, it shall be expressed that there
is reserved from the lands a right of way thereon for ditehes or
canals constructed by the authority of the United States, must be
construed in the light of the known purpose of the Government to
reclaim its arid lands bv conducting water upon them, and the pro-
vision is not void for iniefiniteness because the right of way reserved
is not specifically described but is within the undoubted powers of
Congress and valid, and all subsequent entrymien took their lands
subject to the right of the United States to construct ditches and
canals over it whenever and wherever required in carrying out any
of its reclamation projects.

Equity has jurii^iction of a suit by the United States against the
owners of lands acquired under the public land laws after the passage
of this act to enjoin them from interfering with its construction of
an irrigation canal over such lands under the reservation of right of
way therefor contained in said act. (United States v. Van Horn
et al., (Colorado), 197 Fed., 611.)

CONDEMNATION UNDEB BECLAMATION ACT NOT SUBJECT TO
LIMITATION BY STATE STATUTES, NOB GOVEBNED BY STATE
PBOCBDUBE— POSSESSION GIVEN PBIOB TO PAYMENT.

The power con/erred on the Secretary of the Interior by the rec-
lamation act to condemn lands necessary for use in constructing
irrigation works is not subject to limitation by State Statutes relat-
ing to the exercise of the power of eminent domain of the State, nor

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588 FIFTEENTH ANNUAL REPORT OF RECLAMATION SERVICE.

is its exercise governed by a State procedure requiring the necessity
of the taking in each particular case to be determined by a local
commission, but such necessity is a matter to be determined by the
Secretary, whose decision is not reviewable by the courts.

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.

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 oef ore the Government may be
allowed to take possession. (United States v. O'Neill et al. (Colo-
rado) 198 Fed. 677.)

RIGHT 07 STATE TO TAX LAIH) WITHIN BECLAMATION PBOJECT
OF THE UinTED STATES.

A patent to lands within a reclamation project issued to a home-
stead entryman under act of August 9, 1912 (37 Stat. 265) on proof
of compliance with the provisions of law as to residence, reclamation,
and irrigation conveys a legal title, the Government reserving only a
prior lien on the land and appurtenant water rights as security for
the payment of all suijis due or to become due on such water rights,
and such lands are taxable by the State ; the lien of the tax, however,
being subject to the prior lien reserved by the Government. Home-
stead entrymen on such lands who have made proof of compliance
with the general homestead laws, but have not fully complied with
the additional requirements of the reclamation act as to reclamation
and irrigation, have a vested interest which may be sold, mortgaged,
and inherited and which also is subject to local taxation.

Generally speaking, one who has the right to real property and
is not excluded from its use and enjoyment should not be permitted
to use the legal title of the Government to avoid his just share of
taxation. (United States v. Canyon County, Idaho, et al. 232 Fed.
985. Citing Cheney v. Minidoka County, 144 Pac. 343.)

IN STATE CX)URTS.

BESERVATION IN FT7BLIC-LAND PATENT OF RIGHT 07 WAT FOB
IRRIGATION CANALS REFERS TO FUTURE CONSTRUCTION.

Under the provisions of sundrv civil appropriation act, August 30,
1890, chapter 837, 26 Statutes 391 (United States Compiled Statutes
1901, p. 1570), which provides "that in all patents for lands here-
after taken up under any of the land laws of the United States, or
on entries or claims validated by this act, west of the one hundredth
meridian, it shall be expressed that there is reserved from the land
in said patent described a right of way thereon for ditches or canals
constructed by authority of the United States," the word "con-
structed" as there used, has a general reference and application to
ditches or canals constructed by authority of the United States,
without reference to the time of such construction.

Under the provisions of the act above quoted it was the evident
intention of Congress to reserve perpetually to the Government an
easement and right of way through and over any and all lands west

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COURT DECISIONS. 589

of the one hundredth meridian that the Government might grant
to settlers and purchasers subsequent to the passage of the act, and
to thereby reserve the easement and right or way for the construc-
tion, maintenance, and operation of any ditches and canals the Gov-
ernment may construct at any time in the future for the irrigation
and reclamation of arid lands. (Green v. Wilhite et al. (Idaho)
93 Pac. 971.)

FIBST FORM WITHDRAWALS NOT SUBJECT TO MINING LOCATION;
SECOND FORM WITHDRAWALS SO SUBJECT.

Under the reclamation act directing the Secretary of the Interior
(1) to withdraw from entry the lands for any irrigation works
contemplated by the act, and (2) authorizing him to withdraw any
lands believed to be susceptible of irrigation from such works, with-
drawals under the first class are not subject to location for mining
purposes, being reserved for Government use, while lands withdrawn
under the second class are disposed of only for homesteads, and as
all lands open to homestead entry are subject to mining location,
lands withdrawn under the second class are so subject. (Ix)ney et al.
V. Scott (Oregon) 112 Pac. 172.)

SECRETARY HAS POWER TO CONTRACT WITH IRRIGATION DIS-
TRICT TO SUPPLY WATER AND DRAIN LAND.

Under the provisions of the reclamation act, June 17, 1902, and
the Warren Act, February 21, 1911, the Secretary of the Interior
is authorized and has the power to contract with an irrigation dis-
trict for supplying water to such district, or partially supplying it
with water, for the irrigation of the lands therein and for the
drainage of other lands within such district. (Pioneer Irrigation
District v. Stone (Idaho) 130 Pac. 382. Followed in Hillcrest Irri-

fation District v. Brose (Idaho) 133 Pac. 663, and Nampa and
leridian Irrigation District v. Petrie et al. (Idaho) 153 Pac. 425.)

STATE TAXATION OF LAND WITHIN RECLAMATION PROJECT-
INTERESTS OP THE UNITED STATES.

"VATiere a homestead entryman of land included within a Govern-
ment reclamation project presents proof to the proper Government
officer that he has complied with the law in relation to residence
and cultivation of said land, and secures a certificate from the United
States that his proof has been accepted, further residence on the
land is not required in order to obtain final certificate and patent, and
patent will issue upon proof that at least one-half of the irrigable
area in the entry as finally adjusted has been reclaimed and that all
the charges and fees and commissions due on account thereof have
been paid to the proper officer of the Government.

Where such entryman, in addition to establishing his residence
on and cultivation of such land, has paid the United States five an-
nual installments on his water right, amounting to $11 per acre, as
provided by the reclamation act and the rulings of the Secretary
of the Interior thereunder, and the entryman still owes the United
States five iinnual installments in payment of what is known as the
constriiction charge for the irrigation canals and other works con-



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590 FIFTEENTH ANNUAL BEPOBT OF RECLAMATION SEBVIOE.

structed by the United States for the purpose of furnishing water to
the land entered, he has an equitable interest in such land, which is
" property " within the meaning of that word as used in the constitu-
.tion and laws of this State, and the matter then rests wholly with the
entryman whether he will make the deferred payments* and the addi-
tional proof required by said reclamation act.

Under said act, where a person has so far complied with the pro-
visions of said law as to residence and cultivation of land for more
than five years, he can complete his title at any time by making final
proof and paying the deferred payments on his water right and the
fees provided by law to be paid. Under said act the Government
simply retains title as security for payment of the money owing on
the purchase price of the water rignt for such land.

"V^en such entryman makes his proof of residence and cultivation,
and there only remains the lien of the Government for deferred pay-
ments on the water right for such land, the entryman's interest in
such land is taxable.

The interests of the entryman in such land can be sold at delin-
quent tax sale and the lien of such sale foreclosed and title thereto
obtained.

Nothing that the taxing authorities have done or could do can or
will affect the lien rights or interests of the United States in such
land for the deferred payments on the water right. — (Cheney v,
Minidoka County et al. (Idaho) 144 Pac, 343.)

UTIOATION.

[Oases Initiated in the fiscal year ending June 30, 1916, marked thus: *.]

ABIZONA, SALT BIVEB FBOJECT.

Arizona Alfalfa Milling Company \. United States, — Suit brought
June 2, 1913, in Court of Claims for $46,527.36. Case pending.

State V. A. J. Haltom, — Warrant for criminal trespass, issued May
10, 1915, from court of justice of the peace at Phoenix. Case pend-
ing on appeal taken to Superior Court, for Maricopa County.

TT. B, Lount and Tlattie L, Mosher v. A, J, Haltom. — Suit brought
May 25, 1915, in Superior Court for Maricopa County for $1,718.96
damages. Tried April 12-13-14, 1916, and verdict rendered for
defendant. Case pending on plaintiffs' motion for a new trial.

^United States v. Alice M, Mitchell et al, — Proceedings initiated
October 27, 1915, in United States district court for condemnation
of land for canal right of way. Case pending.

ABIZONA-CALIFOBNIA, YUMA PROJECT.

No litigation.

CALIFOBNIA, OBLAND PBOJECT.

No litigation. ,

COLOBADO, GBAND VALLEY FBOJECT.

In re Adjudication Water Rights^ Grand River,, District No. Ifi, —
Petition filed November 2, 1008, in State district court. October
4, 1915, Colorado Supreme Court quashed writ of error without

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LmOATION. 591

Erejudice to United States, on ground that judgment was not final.
Orchard Mesa Irrigation District intervened to nave its rights deter-
mined. Decree entered Jfovember 5, 1915. On November 6, 1915,
motion of United States for new trial denied, written exceptions
filed and leave granted for extension of the record.

GOLOBADO, XTNCGMPAHOBE VALLEY PROJECT.

United States, to the u»e of^ the Montrose Hardware Company et
dl, Y.G, D. MoPhee et cH. — Suit brought September 11, 1905, m ^tate
district court. Appeal argued in Supreme Court of Colorado Jan-
uary 17, 1916; decision not yet rendered.

UTtited States v. AVymer F. Reeves, — Condemnation proceedings
brought March 17, 1911, in United States district court for canal
right of way. Case pending.

United States v. Martin Van Horn et cd. — Suit brought April 25,
1912, in United States district court for an injunction. Case pend-
ing.

IDAHO, BOISE PBOJECT.

Farmers Cooperative Ditch Co. v. Riverside Irrigation District
et oZ.— Suit brouffht in August, 1902, in State district court, to adju-
dicate water rights. Notice given of application for a temporary
order of court fer the season of 1916 providing a sliding scale allow-
ing varying amounts of water during various portions of the season.

united States v. Highland Valley Power Co. — Suit brought Feb-
ruary 2, 1911, in Federal court, to quiet title. The Unit^ States
has taken title through purchase at receiver's sale (July 31, 1916)
and the case has been dismissed.

Page db Brinton v. United States. — ^Petition filed February 27,
1912, in Court of Claims for $325,000 damages. Testimony was taken
during July and August, 1915, at Boise, Idaho, and Salt Lake City,
Utah. It IS expected the case will be argued before the Court of
Claims some time during the coming winter.

United States v. Marsters and La%in. — Suit brought July 13, 1913,
in United States District Court, for injunction and damages. De-
fendants' appeal to Circuit Court of Appeals argued February 23,
1916, but not yet decided.

Pioneer Irrigation District v. American Ditch Co. et al. — Suit
brought July 14, 1913, in State district court for adjudication of
water rights. Tried at Caldwell, Idaho, November 11-12, 1915.
Argued and submitted November 24, 1915, but not yet decided.

united States v. American Ditch Co.^ et aZ.— Suit brought October
3, 1913, in United States district court to adjudicate water rights.
Case pending.

George R. Glover v. Frank L. Brown^ United States^ et al. — Suit
brought in February, 1914, to quiet title. Case dismissed as to United
States in August, 1915.

United States v. State of Idaho. — Complaint -filed August 26, 1914,
for condemnation of land. Case pending.

United States v. State of Idaho. — Complaint filed August 26, 1914,
for condemnation of land. Case pending.

In re petition of Nampa and Meridian Irrigation District for con-
firmation of proposed contract with the United States and proceed-



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592 FIFTEENTH ANNUAL REPORT OF RECLAMATION SERVICE.

iifi^a in connection therewith — Nampa and Meridian Irrigation Dis-
trict V. Petrie et al. — Case brouffht February 8, 1916, in State district
court, to confirm contract. Objecting parties appealed to the Su-
preme Court, October 29, 1915, and the case was argued in that court
November 20, 1915. Judgment of trial court affirmed. (See 153
PaG.,425.)

* United States v. Boise Fruit Tracts Co. et al, — Suit brought
Au^st 20, 1915, for an injunction to restrain defendants from trans-
ferring or changing point of diversion of certain old water rights on
Boise Kiver. In June, 1916, case settled bv stipulation to the effect
that permanent injunction issue as prayed for, except as to one right.

* united States v. Canyon County et al. — Suit brought in Decem-
ber, 1915, in the United States district court to determine right of
the county to tax two certain classes of reclamation homestead
lands before complete title has passed from the United States to
the entryman. The two classes referred to are: (a) Those where
the entryman has not yet secured patent or final certificate or made
reclamation proof, but has made residence proof and received certifi-
cate of compliance with the provisions of the ordinary homestead
law; and (b) those for which the conditional reclamation patent has
been issued reserving a lien in favor of the United States. April 29,
1916, the trial court rendered a decision holding both classes of lands
taxable.

* United States v. Samuel W. Shook et al. — Proceedings brought
March 28, 1916, to condemti a strip of land needed as right of way
for the Ten Mile Drainage Canal of the Boise project. Issue has
been joined; case pending.

IDAHO, MINIDOKA PROJECT.

Brinck as Receiver v. United States. — Suit for $122,148 in the
Court of Claims. During July, 1915, testimony was taken at Boise
and Rupert, Idaho, and in March, 1916, in Washington, D. C. Case
pending.

* Mrs. E. C. Kinney v. United States. — Claim made for $6,500,
alleged value of certain placer mining claims flooded by Lake Wal-
cott Reservoir. Testimony taken. March 25^ 1916, the First Assist-
ant Secretary of the Interior transmitted decision of the department
dated February 29, 1916 (D-17194) holding that if claimant would
accept $1,000, the matter might be compromised and settled. Claim-
ant accepted offer and delivered relinquishment of all claims involved.

KANSAS, GABDEN CITY PROJECT.

Camden Iron Works v. United States. — Suit filed March 14, 1912,
in Court of Claims, for $9,271.86. Judgment rendered against the
United States for the amount.



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