The defendants demurred, alleging unconstitutionality of the reclamation act, but the demurrer was overruled on the ground that the defendants by contracting in pursuance of the reclamation act and participating in the benefits thereof had estopped themselves from denying its constitutionality. On January 18, 1911, judgment was rendered against the defendants in the sum of $4,987.50 and costs. The judgment has been paid.

MONTANA, MILK RIVER PROJECT

On March 11, 1911, complaint in condemnation was filed in the Circuit Court of the United States, Ninth Circuit, in and for the District of Montana, by the United States against Daniel Nicholson and wife for the acquisition of 131.73 acres of land for flowage purposes, Dodson Reservoir, Milk River project, Mont. On March 27, 1911, the court appointed appraisers, and on April 11, 1911, the board reported the value of the tract at the rate of $17.27 per acre. case is awaiting motion to enter judgment.

The

October 5, 1905, a complaint was filed in the district court of the State of Montana by the New Harlem Irrigation Co. against the Fort Belknap Canal & Irrigation Co., for the adjudication of water rights on Milk River and its tributaries. Form of contract has been prepared for execution by all parties claiming water rights on Milk River, whereby the water rights of the litigants are limited and described, the remainder of the water in Milk River to belong to the United States for the Milk River project.

During the latter part of June, 1911, one Dave Clark was arrested at Vandalia, Mont., on the charge of larceny, it being charged that he had stolen a set of double harness, the property of the United States, and the defendant has been bound over to await the action of the grand jury.

Complaint in ejectment was filed by the United States on May 17, 1911, against Caroline Henkel et al., to dispossess the defendants of lands relinquished by them to the United States, said lands being within the Blackfeet Indian Reservation. On May 23, 1911, defendants filed demurrer, which was overruled on June 5, 1911. The defendants filed answer to the complaint on June 24, 1911. On June 24, 1911, a petition was filed by defendants praying that the United States be enjoined from prosecuting the said action or from seeking to dispossess plaintiffs, and that certain tracts of the land involved be allotted to the defendants.

MONTANA, SUN RIVER PROJECT

On October 25, 1905, complaint was filed in the district court of the eighth judicial district, Cascade County, Mont., by Kenneth B. McIver against Charles H. Campbell et al., for the purpose of having the water rights on Sun River and its tributaries adjudicated. On May 1, 1911, the court ordered the referee, S. B. Robbins, to make report, and on June 13, 1911, the court decreed water rights to 87,283 acres, with a total of 999.61 second-feet, there being 85 parties to whom 174 water rights were decreed.

MONTANA-NORTH DAKOTA, LOWER YELLOWSTONE PROJECT

On July 21, 1910, suit was commenced against Widell-Finley Co. for the recovery of excess cost to the United States in completing the work under a suspended contract of that company for canal construction, and against the Aetna Indemnity Co., surety, for the recovery of $10,000, the penalty under the bond.

On May 31, 1911, the Pacific Coast Construction Co., contractors for the construction of the main dam, Lower Yellowstone project, filed a petition in the Court of Claims seeking to recover $34,852.50 damages for the alleged wrongful act of the United States in declaring default on the contract. The United States has filed a petition in the nature of a set-off and counter claim, and petition against the United States Fidelity & Guaranty Co., surety, praying that the construction company be not permitted to recover under its petition, but that judgment be rendered against the said company in favor of the United States in the sum of $111,310.75, and against the surety in the sum of $40,000.

NEBRASKA-WYOMING, NORTH PLATTE PROJECT

On April 1, 1910, the North Platte Canal & Colonization Co., a corporation, filed a petition in the Court of Claims, claiming $34,441.96 and interest as damages for the alleged failure to deliver sufficient irrigation water during the irrigation seasons of 1906 and 1907, and on the same date the same company filed a petition in the same court claiming $100,000 as damages for the refusal of the Government to acknowledge their intention to and willingness to deliver 500 secondfeet of water to a power plant which the company claims it intends to construct. Evidence has been offered by the petitioners in both these cases and petitioners have rested their case. No evidence on behalf of the Government has been offered.

NORTH DAKOTA, BUFORD-TRENTON PROJECT

July 29, 1909, suit was filed in the United States district court of North Dakota by the United States against George C. Thompson to eject him from lots 2 and 3, section 5, T. 152 N., R. 103 W., North Dakota. The case was continued upon representations made that an appeal was pending before the Land Office, and until that was disposed of the court had no jurisdiction. The appeal has been decided, but the case has, on motion of the defendant, been continued.

NEVADA, TRUCKEE-CARSON PROJECT

On February 24, 1909, a complaint was filed by the United States. in the circuit court for the northern district of California for the condemnation of certain land owned by the Floriston Pulp & Paper Co. et al. The case has been allowed to remain in statu quo pending negotiations between the defendants and representatives of the Government.

Proceedings in the suit of the United States v. Rickey Land & Cattle Co. have been indefinitely suspended.

OREGON, UMATILLA PROJECT

On May 17, 1909, a petition was filed with the State board of control in the matter of determination of the relative rights to the waters of Umatilla River, and order was issued March 7, 1910. Statement and proof of claim of the United States were filed September, 5, 1910. Conflicting claims were made by several hundred water users. The United States generally contested all claims, and contests were generally made by the other large claimants. Amended contests were filed in June, 1911. Further hearings of contests were postponed

until the next fiscal year.

On May 31, 1911, complaint was filed by the city of Stanfield, Oreg., in the Circuit Court of the State of Oregon for Umatilla County against the Umatilla River Water Users' Association and Herbert D. Newell, the plaintiff claiming that the feed canal of the Umatilla project, by reason of seepage, has caused the ground water to rise and flood the streets and fill the cellars. A restraining order issued but was not served until June 10, 1911. On the latter date the parties made a stipulation under which the restaining order may be disregarded.

OREGON-CALIFORNIA, KLAMATH PROJECT

On October 18, 1909, a bill of complaint was filed by the Klamath Lake Navigation Co. in the Circuit Court of the United States for the District of Oregon against the California & Northeastern Railway Co. and Southern Pacific Co., seeking to recover damages for interrupting navigation by the closure of Klamath Strait. The United States intervened because the railway company was acting under contract with the United States, whereby the embankment was to be used as a levee. The case will probably come up for trial soon.

On September 5, 1910, the United States instituted suit in the District Court of the United States for the District of Oregon for the condemnation of lands owned by Fritz R. Hauger et al. The case has been compromised.

SOUTH DAKOTA, BELLE FOURCHE PROJECT

The case of the United States v. Widell-Finley Co., pending in the United States court, second division, Mankato, Minn., mentioned in former annual reports, has not been tried. It was set for the April, 1911, term, but continued until the October, 1911, term.

The suit of the United States v. William Moses, mentioned in former annual reports, was argued before the United States circuit court of appeals at St. Louis, Mo., in December, 1910. This court affirmed the decision of the district court. (185 Fed. Rep., 90.)

WASHINGTON, YAKIMA PROJECT

The suit begun June 21, 1909, in the United States Circuit Court for the Eastern District of Washington, entitled United States v. H K. Luce, Standard Building Co., and Ira Petty, for the recovery of certain personal property valued at about $10,000, referred to on page 18 of the ninth annual report, is still pending.

A suit entitled United States v. H. K. Luce, Standard Building Co., and Empire State Surety Co. was instituted in the United States Dis

trict Court for the Western District of Washington in June; 1911. This suit is on contract and bond of defaulting contractor to recover excess cost of construction work completed by the Government at contractor's expense. The amount involved is $9,772.13. The case is pending on Government's complaint.

On January 28, 1911, a suit entitled United States v. Theodore Weisberger and the Empire State Surety Co. was brought in the United States Circuit Court for the Eastern District of Washington, for the recovery of excess cost to the Government of completing contract for lining main canal, Tieton unit, after contractor's default. The amount involved is $51,095.05. The case is now pending on Government's demurrer to defendant's answer and cross complaint.

The case of Julius Anthon and wife v. United States, filed in November, 1909, in the Circuit Court for the Eastern District of Washington to collect damages of $10,000 for alleged breach of right of way contract and injury to land during construction of Mabton Siphon, Sunnyside unit, referred to on page 19 of the eighth annual report, is still pending.

In May, 1910, a suit entitled United States v. State of Washington et al. was brought in the United States Circuit Court for the Eastern District of Washington for the condemnation of certain property needed for construction purposes in connection with Sunnyside unit. This suit is now pending on agreed continuance.

In July, 1910, suit entitled United States v. H. E. Nicolai was brought in the United States Circuit Court for the Eastern District of Washington for the purpose of abating a public nuisance, defendant having partially constructed an insecure dam above the Sunnyside Main Canal which endangers its safety and the irrigable lands lying below it. This case is now pending on defendant's answer.

A suit entitled W. A. Bell v. J. S. Conway and David O'Hara was filed in the Superior Court of the State of Washington against the project engineer and property officer of the Reclamation Service, the suit being brought by a trustee for the creditors of Theodore Weisberger, defaulting contractor on Government work, to recover by replevin certain machinery and personal property claimed by said creditors under chattel mortgage from defaulting contractor and held by the defendants for the United States by virtue of contract provisions. The case has been transferred to the United States Circuit Court for the Eastern District of Washington and appearance made by the United States attorney.

On June 17, 1911, a suit entitled D. P. Baker v. Chas. H. Swigart, E. McCulloh, and R. K. Tiffany was brought in the United States Circuit Court for the Eastern District of Washington, for the purpose of securing an injunction against officers of the Reclamation Service, restraining them from refusing water because of nonpayment of maintenance fees. Temporary injunction was granted on June 30, 1911. The case is now pending on Government's answer to application for permanent injunction.

In December, 1910, a suit entitled United States v. Sarah A. Wright et vir was brought in the United States Circuit Court for the Eastern District of Washington, for specific performance of a contract for the purchase of land. Before the case came to trial, deed for the land was given by Mrs. Wright, and the case will now be dismissed.

WYOMING, SHOSHONE PROJECT

On February 19, 1910, the United States filed a suit in the United States District Court for the District of Montana against Charles Spear for damages to the amount of $188,999.81 on account of default on contract for the construction of the Corbett Tunnel, Shoshone

project. On the same date a suit was filed in the same court by the United States against Charles Spear, as principal, and Paul McCormick and Alexander C. Johnson, as sureties on the bond of Charles Spear, for damages in the sum of $75,000, the amount of the bond on the contract for construction of the tunnel. A proposition for settlement of these cases has been submitted by Alexander C. Johnson, one of the sureties, and the Assistant Attorney General is considering the same. In the meantime the suits have been continued by stipulation, the last stipulation having been filed June 29, 1911.

May 19, 1910, complaint was filed in the Circuit Court of the United States for the District of Wyoming by the United States against Charles Spear, Western Construction Co., Paul McCormick, Alexander C. Johnson, H. J. Thompson, and Jeffrey Manufacturing Co., for the purpose of securing the declaration of an equitable lien in favor of the United States upon the Charles Spear Corbett Tunnel plant. On December 12, 1910, argument was had on demurrer filed by the Jeffrey Manufacturing Co., judgment creditor, and H. J. Thompson, vendee under bill of sale. The court overruled the demurrer and granted defendants 30 days in which to file answer to the complaint. The time for filing answer has been extended by stipulation from time to time pending consideration of proposition for settlement submitted by Alexander C. Johnson, said proposition comprehending all cases against Charles Spear and his bondsmen filed by the United States in Montana and Wyoming.

PURCHASES OF RIGHTS AND PROPERTY

Section 7 of the reclamation act provides that where, in carrying out the provisions of the act, it is necessary to acquire any rights or property the Secretary of the Interior may acquire them for the United States by purchase or by condemnation through judicial

process.

The following is a complete list of all such completed purchases to June 30, 1911, except as heretofore reported in annual reports: