"And as conclusions of law from the foregoing facts it is found that the plaintiff seeks to condemn said lands and to acquire title thereto for a lawful purpose, and that the honorable Secretary of the Interior, in entering upon said project, did not exceed the authority conferred upon him by the provisions of said act of June 17, 1902, and that said lands are necessary to such purpose, and that the plaintiff is entitled to expropriate them and acquire title thereto upon the payment to the defendant of a just compensation therefor, namely, the amount found by the jury."

The compensation agreed upon and found by the jury having been paid into court, the judgment and order of condemnation was made. The case comes here upon writ of error from the judgment.

John G. Willis, for plaintiff in error.

C. H. Lingenfelter, U. S. Atty., and B. E. Stoutemyer, for defendants in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge (after stating the facts as above). The allegation of the amended complaint that a disagreement had occurred and existed between the defendant and the United States concerning the purchase price of the land sought to be condemned, in this, that the parties were unable to agree upon a price for said land, the admission of the answer that this allegation was true, except that the defendant denied that he demanded or asked a price for the land in excess of its worth, the stipulation of the parties at the trial that the question of value of the land should be submitted to a jury, and the fact that the amount for which the jury was asked to render a verdict was agreed upon by counsel for the respective parties and paid into court, have the appearance of stating a single original subject of controversy, and come very nearly rendering other questions in the case feigned issues. But this feature of the proceeding was evidently not so intended and will not be so considered. It will be treated, however, as showing conclusively that there is no claim on the part of the defendant that the United States is seeking to appropriate defendant's land without just and adequate compensation. A just and adequate compensation has been agreed upon and paid into court, and the defendant is not required to surrender his title or any rights that he may have therein without just and adequate compensation being first paid to him by the United States as provided by law.

It is contended by the defendant that the demurrer to the complaint should have been sustained because of the insufficiency of the complaint and uncertainty of the allegation as to the purpose of the United States in acquiring title to defendant's property; that is to say, it is uncertain, because it does not appear whether it was the purpose of the United States to devote the proposed irrigation project wholly and entirely to irrigation of lands owned or possessed by the United States, or whether it was proposed to devote said reservoir and project, in part or otherwise, to furnishing water for the purpose of irrigating lands in which the United States had no title, interest, or possession, but which were owned and possessed by other persons.

The specific objection to the complaint is that it is uncertain, because it alleges "that said irrigation project is being primarily constructed for the purpose of supplying water for irrigation," etc., and

that a statement as to secondary and other purposes is withheld, giving birth to a suspicion that the United States has a purpose which it does not disclose, lest such disclosure should work a failure of the proceeding. It appears from the opinion of the learned judge in the court below (United States v. Burley [C. C.] 172 Fed. 615, 618) that the original complaint was silent as to the ownership of the lands to be irrigated from the reservoir. A demurrer to the complaint was accordingly sustained by the court upon that ground, and, complying with the suggestion of the court, the attorney for the United States in the amended complaint alleged that the "project was being primarily constructed for the purpose of supplying water for irrigation to arid lands in Ada and Canyon counties in the state of Idaho, which are public lands of the United States." There was a demurrer to this amended complaint on the ground of uncertainty, and the objection renewed that the allegation as to the "primary" purpose of the United States in appropriating this land was not sufficient. The demurrer was overruled, and the allegation of the complaint denied in defendant's answer; and upon the issue thus joined evidence was taken, a finding made, and judgment of condemnation entered in favor of the United States.

We need not stop to discuss the various meanings of the word "primarily." It will be sufficient to assign to it a meaning having reference to the subject-matter and the surrounding circumstances. This rule of interpretation permits us to refer to the findings of fact in this case, based upon the evidence admitted in support of the allegation concerning the primary purpose of the irrigation project described in the complaint. It was there found that the entire project was for the irrigation and reclamation of arid lands. It contemplated the taking over of an existing canal, called the "New York Canal," which was to be improved, enlarged, and extended, and through which water was to be carried to a reservoir for the supply thereof during the seasons of the year when there was an adequate supply of water in the river for such purpose. The project so far appears to be entirely in accord with the act of June 17, 1902, which provides in section 1 that certain money received from the sale and disposal of public lands in certain states and territories including the state of Idaho shall be "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" named.

But the findings go further, and find that the project contemplated: (1) The delivery of water to parties who already had the right to receive water from said canal by reason of existing contracts. (2) To furnish water for the irrigation of lands belonging to the United States which were susceptible of irrigation from said canal. (3) For the irrigation of unreclaimed lands belonging to private individuals. It was found, further, that the project of the construction of said reservoir was entered upon "primarily" for the purpose of irrigating public lands of the United States, and that the United States had a large

and substantial interest in the successful execution of that project, in that thereby water would be rendered available for the irrigation of large tracts of its own land, thus rendering them marketable, and that for the purpose of carrying out said irrigation project it was necessary that the United States should acquire the title to the defendant's lands as the same were described in the amended complaint in order that it might use them for a part of said reservoir site.

We now have a clear understanding of the meaning of the word "primarily" as used in the complaint. It means that the entire project is for the irrigation and reclamation of arid lands, and that the dominating purpose of the United States is to store and supply water for the irrigation and reclamation of its own arid lands. But the use of the word “primarily" in describing the project and the dominating purpose concerning such lands admits the existence of a secondary or concomitant purpose to deliver water to parties who already had the right to receive water from the existing canal, and also to furnish water for the irrigation of unreclaimed arid lands belonging to private individuals. The defendant contends that the United States has no right to take his property for a purpose which includes such secondary or concomitant purpose, and because the complaint has been framed in view of this construction he contends that it is open to his demurrer for insufficiency and uncertainty.

In determining this question our first inquiry must be whether the irrigation of private lands of an arid character is authorized by the act of June 17, 1902. The title of the act is:

"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."

In section 1 of that act there is a provision for the formation of a "reclamation fund" with the money received from the sale of public lands in certain states and territories. In section 3 the Secretary of the Interior is authorized to withdraw from public entry the lands required for irrigation works contemplated by the act, and also lands believed to be susceptible of irrigation from said works, and upon the completion of surveys of such lands, and of the necessary maps, plans, and estimates of cost, the Secretary of the Interior is required to determine whether or not the project is practicable and advisable, and, if found to be so, the public lands which it is proposed to irrigate by means of the contemplated works shall be subject to entry only under the homestead laws in tracts of not less than 40 nor more than 160 acres, and shall be subject to the limitations, charges, terms, and conditions in the act provided. In section 4 an irrigation project determined by the Secretary of the Interior to be practicable may be constructed by contract, providing there are the necessary funds in the "reclamation fund" available for that purpose. If there is, the Secretary of the Interior is then required to give notice of the lands irrigable under such project, and, among other things, the charges which shall be made per acre upon the entries made under the provisions of the act and "upon lands in private ownership which may be irrigated by the waters of the said irrigation project." In section 5 it is further

provided that "no right to the use of water for land in private ownership shall be sold for a tract exceeding one hundred and sixty acres to any one landowner." The act clearly provides for the irrigation of private lands under the conditions therein specified where such lands are arid and within the limits of an irrigation project deemed by the Secretary of the Interior to be practicable and advisable. We are therefore of the opinion that the complaint is not open to the defendant's demurrer on the ground of insufficiency or uncertainty under the provisions of the act of Congress.

We come now to the consideration of the real question in this case, which is presented as a constitutional question and may be stated in the following terms: Can the United States, owning arid lands within a state, organize and maintain a scheme or project whereby it will associate with itself other owners of arid lands for the purpose of reclaiming and improving such lands, and in that behalf exercise the right of eminent domain against another landowner for the purpose of obtaining the title and possession of land absolutely necessary in carrying the proposed scheme or project into effect?

It is contended by the defendant that this cannot be done, and the case of Kansas v. Colorado, 206 U. S. 46, 91, 27 Sup. Ct. 655, 665, 51 L. Ed. 956, is cited as authority for such a limitation upon the power and authority of Congress. It is said that the court, referring to the statute under consideration, held in substance that article 4, § 3, of the Constitution of the United States, providing that "Congress shall have power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States," did not authorize Congress to provide an irrigation project to be carried out within a state for the reclamation of arid lands not the property of the United States. The controversy in that case was between the states of Kansas and Colorado concerning the diversion of the waters of the Arkansas river for the irrigation of lands in Colorado. It was alleged that such diversion damaged certain riparian proprietors in Kansas, through which state the river flows. The case was decided against the state of Kansas on the ground that the detriment to Kansas in the diminution of the flow of water by the diversion in Colorado, while substantial, was not so great as to make the appropriation of the water in Colorado an inequitable apportionment between the states. The United States intervened in the case for its interest, contending that the determination of the rights of the two states inter sese in regard to the flow of water in the Arkansas river was subordinate to the superior right on the part of the national government to control the whole system of reclamation of arid lands within the states. It was in answer to this contention that the court expressed the opinion, the substance of which has been stated. But the court said further concerning the national control of the arid regions:

"It does not follow that the national government is entirely powerless in respect to this matter. These arid lands are largely within the territories, and over them, by virtue of the second paragraph of section 3 of article 4 heretofore quoted, or by virtue of the power vested in the national government to acquire territory by treaties, Congress has full power of legislation, subject to no restrictions other than those expressly named in the Constitu

tion, and therefore it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the states, at least of the Western states, the national government is the most considerable owner, and has power to dispose of and make all needful rules and regulations respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found mainly, if not only, in the Western and newer states, yet the powers of the national government within the limits of those states are the same, no greater and no less than those within the limits of the original thirteen, and it would be strange if, in the absence of a definite grant of power, the national government could enter the territory of the states along the Atlantic and legislate in respect to improving by irrigation or otherwise the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to this limitation."

That is to say, it would be strange if the national government could enter the territory of a state where there were no public lands of the United States requiring irrigation and no public lands through which water flows necessary for the irrigation of arid lands, and by legislation provide a system of irrigation for the private lands within the state and control its administration. It would indeed be a strange proceeding and obviously wholly outside of the authority of Congress. But in this case the United States is the owner of large tracts of land within the states named in the act of June 17, 1902. The public welfare requires that these lands, as well as those held in private ownership, should be reclaimed and made productive. To do this effectively and economically with the available water supply, large tracts must be brought into relation with a single system or project. These states having arid lands have accordingly acted upon the subject, and in the state of Idaho, where the land is located in this case, it has been provided in section 14 of article 1 of the Constitution that:

"The necessary use of lands for the construction of reservoirs, or storage basins, for the purposes of irrigation, or for the rights of way for the construction of canals, ditches, flumes or pipes to convey water to a place of use, for any useful, beneficial or necessary purpose or for drainage or for the drainage of mines, etc. is hereby declared to be a public use, and subject to the regulation and control of the state. Private property may be taken for public use but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor."

The act of June 17, 1902, not only recognizes the Constitution and laws of the state providing for the appropriation of its waters and the reclamation of its arid lands, but it requires that the Secretary of the Interior, in carrying out the provisions of the act, shall proceed in conformity with such laws. In what respect does such a proceeding contravene the Constitution of the United States? Has not the United States as a landowner the same rights within the state that any other landowner has? And when the land is of such a character that, to be useful, it must be irrigated and reclaimed in large tracts, may not the United States, co-operating with such other landowners, organize and establish an effective and economical system or project for such irrigation and reclamation? And, finally, if the necessary use of lands for such a purpose is made a public use by the state, is there any reason why the United States should not exercise its right of eminent domain to acquire title to lands absolutely necessary to such public use?