16

or selected shall remain segregated and reserved from entry or settlement as provided by said act, until otherwise provided by law, and reservoir sites hereafter located or selected on public lands shall in like manner be reserved from the date of the location or selection thereof."

1891 Supplementary Provision. Section 17 of the Act of March 3, 1891, 26 Stat. 1101, provides in part: "SEC. 17. That reservoir sites located or selected and to be located and selected under the provisions of [the Act of October 2, 1888], and amendments thereto, shall be restricted to and shall contain only so much land as is actually necessary for the construction and maintenance of reservoirs; excluding so far as practicable lands occupied by actual settlers at the date of the location of said reservoirs. * * *”

Codification. An interpretation of the 1888 law, as amended by the 1890 and 1891 Acts, appears as 43 U.S.C. §§ 662, 663.

Legislative History, 1890 Amendment. Congressional debate on the question of repeal of the 1888 provision can be found at 21 Cong. Rec. 7269-7987, 8270-9156 (1890).

1897 Supplementary Provision. The Act of February 26, 1897, 29 Stat. 599, provides: "All reservoir sites reserved or to be reserved shall be open to use and occupation under the right-of-way Act of March third,

Construction with other laws 2 Effect of 1888 Act 1

1. Effect of 1888 Act

eighteen hundred and ninety-one. And any State is hereby authorized to improve and Occupy such reservoir sites to the same extent as an individual or private corporation, under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate." (43 U.S.C. § 664)

1899 Supplementary Provision. The Act of March 3, 1899, 30 Stat. 1214, 1233, provides in part: "That in the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby." (43 U.S.C. § 665, 43 U.S.C. § 958, and 16 U.S.C. $ 525)

Prior Authorization. The surveys for which this act appropriated funds were authorized by the Joint Resolution of March 20, 1888, No. 7, 25 Stat. 618.

Editor's Note, Annotations. Annotations of opinions are included only to the extent deemed relevant to activities of the Bureau of Reclamation under this statute.

The provision reserving from sale or entry lands designated or selected for reservoirs, ditches, or canals for irrigation purposes, and also lands made susceptible of irrigation by such reservoirs, ditches, or canals, operates as an immediate withdrawal of the lands thus described from entry and settlement. 19 Op. Atty. Gen. 564 (May 24, 1890).

2. Construction with other laws

The provisions of section 18 of the Act of March 3, 1891, 26 Stat. 1101, granting a right-of-way through the public lands and reservations of the United States to canal and ditch companies, do not contemplate the allowance of such rights over lands reserved by the Government for reservoir sites under the Acts of October 2, 1888, and August 30, 1890. Blue Water Land and Irrigation Co., 23 I.D. 275 (1896).

canal right-of-way to the United States under the 1890 Act may be rescinded where the purchaser had neither actual nor constructive notice of the reservation, Cosby v. Danziger, 38 Cal. App. 204, 175 Pac. 809 (1918), but may not be rescinded where the original patent containing the reservation was placed in record in the county long before the contract was entered into. Dopps v. Alderman, 12 Wash. 2d 290, 121 P. 2d 388 (1942).

2. Time of construction of canals and ditches

The Act of August 30, 1890, 26 Stat. 391, in providing that, in all patents issued under the public land laws for lands west of the one hundredth meridian, there should be expressly reserved rights of way "for ditches or canals constructed by the authority of the United States," is to be construed, in the light of the circumstances that prompted it, as including canals and ditches constructed after issuance of patent as well as those constructed before. Ide v. United States, 263 U.S. 497 (1924), affirming United States v. Ide, 277 Fed. 373 (C.C.A. Wyo. 1921)

The word "constructed," as used in the Act of August 30, 1890, 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. Green v. Wilhite, 14 Idaho 238, 93 Pac. 971 (1908)

The word "constructed" as so used does not limit the reservation to a right of way for ditches already constructed, but extends as well to those "to be constructed" by the Government in furtherance of its irrigation scheme for the reclamation of arid lands. Green v. Wilhite, 160 Fed. 755 (C.C. Ida. 1906)

3. Purpose of canals and ditches

So long as the Reclamation Service can apply surplus water appropriated for a project to a beneficial use, although on lands outside the project, and thus lessen the cost to lands within the project, it is within the scope of its authority and the service may acquire rights of way under the Act of August 30, 1890, 26 Stat. 391. Griffiths v. Cole, 264 Fed. 369 (D. Idaho 1919).

A right-of-way reserved under the Canal Act may be used by the National Park Service for the construction of a pipe line to convey water for domestic purposes. Acting Solicitor Cohen Opinion, 58 I.D. 490 (1943).

4. Drainage ditches and wells

The expression "ditches or canals constructed by the authority of the United

States" as used in the right of way Act of August 30, 1890, 26 Stat. 391, includes the necessary waste and drainage ditches upon a Federal reclamation project. Opinion Chief Counsel, June 10, 1918, Grand Valley project. See Reclamation Record, July, 1918, p. 328.

The 1890 Act makes sites for drainage wells available. Teletype of Associate Solicitor Fisher to Regional Solicitor, Los Angeles, October 8, 1959, in re WelltonMohawk division, Gila project.

Although a right-of-way reserved to the United States under the 1890 Act would not extend to the drilling of a well to develop a new supply of underground water, it would permit the drilling of a well to prevent seepage loss from the canal. Memorandum of Deputy Solicitor Fisher to Regional Solicitor, Los Angeles, May 24, 1961.

5. Lands affected-General

This provision applies only to entries under the public or general land laws. Instructions, 32 L.D. 147 (1903).

All subsequent entrymen take their land 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. United States v. Van Horn, 197 Fed. 611 (D. Colo. 1912).

Under this provision the Government has full authority to construct canals or ditches over any such lands in connection with reclamation projects. Instructions, 36 L.D. 482 (1908).

If the actual disposition occurred after the passage of the act, the land was undoubtedly "taken up" within the meaning of those words as used in the act, and this would be so whether the disposition occurred through allotment, sale, homestead, or other manner of disposition. Clement Ironshields, 40 L.D. 28 (1911).

6. -Indian lands

Where, however, in certain reservations set apart for Indian occupancy, particular tracts have been set apart, actually occupied, or improved under some usage or custom, with a view to ultimate allotment to an Indian prior to the passage of the act, the tracts being afterwards allotted, such tracts must be considered as having been "taken up" prior to the passage of the act. Clement Ironshields, 40 L.D. 28 (1911).

The Act of June 15, 1880, ch. 223, sec. 3, 21 Stat. 203, providing for allotment in severalty of lands of the Ute Indian Reservation in Colorado, further provides that "all lands not so allotted shall be held and

deemed to be public lands of the United States and subject to disposal under the laws providing for the disposal of the public lands at the same price and on the same terms as other lands of like character, *** provided that ✶ ✶ ✶ said lands ✶ ✶ ✶ shall be subject to cash entry only in accordance with existing law." Held, that it was competent for Congress to change the manner of disposition of such lands insofar as third parties were concerned, and that persons taking preemptions thereon after the passage of the Act of August 30, 1890, ch. 837, sec. 1, 26 Stat. 391, reserving from all public lands thereafter taken up right of way for ditches and canals constructed by the authority of the United States, took them subject to such provision. United States v. Van Horn, 197 Fed. 611 (D. Colo. 1912).

The provisions of this act do not operate to reserve a right-of-way across the tribal lands of the Flathead Indians since the lands were by statute in tribal status in 1890 and such lands do not become subject to such rights-of-way by being allotted; however, a contrary past administrative interpretation of this statute does not give rise to a redressible claim against the Government. Solicitor Gardner Opinion, 58 I.D. 319 (1943).

The Canal Act does not apply to tribal lands of Indian reservations established by treaty prior to August 30, 1890, because such lands were not subject to disposal under the land laws; and although past practice has reserved rights-of-way in lands from such reservations allotted to individual Indians after 1890, under revised concepts of Indian rights, compensation should be paid to such allottees in the future when rightsof-way are taken. Solicitor Gardner Opinion, 58 I.D. 319 (1943).

The Department is not required as a matter of law to reserve a right-of-way for ditches or canals in patenting to an individual Indian or his successor an allotment out of an Indian reservation created from the public domain after August 30, 1890. Solicitor White Opinion, 59 I.D. 461 (1947).

The allottees of the Yuma Reservation are entitled to compensation for interceptor drains across their lands in connection with the All-American Canal even though construction was completed in 1941. An exception will be recognized in this case from the conclusion in Solicitor's Opinion M-31156, 58 I.D. 319 (1943) that allowance of compensation should not be applied retroactively because final settlement with the Yuma Indians had been expressly held in abeyance pending a decision by the Department. Solicitor White Opinion, M-34842 (January 22, 1947).

7. Railroad lands

19

This act does not apply to railroad rightsof-way acquired under the provisions of the Act of March 3, 1875, ch. 152, 18 Stat. 482. Minidoka and S.W.R. Co. v. Weymouth, 19 Idaho 234, 113 Pac. 455 (1911).

In referring to lands "taken up" and land "entries" and lands "patented" it does not refer to or include easements and rights of way granted for specific purposes where the fee does not pass and where no patents are issued, and where the amount of land covered by the easement is not limited in area or extent. Minidoka and S.W.R. Co. v. Weymouth, 19 Idaho 234, 113 Pac. 455 (1911).

The United States may in the future reasonably acquire rights of way for ditches in furthering a reclamation project, in addition to those now occupied by existing canals, and that it may be entitled to reserve land therefor under this act, does not prevent a railroad company from occupying lands in praesenti legally conveyed to it within a reclamation reservation by a homestead entryman. United States Minidoka & S.W.R. Co. 176 Fed. 762 (C.C. Idaho 1910); reversed 190 Fed. 491 (1911); affirmed 235 U.S. 211 (1914).

ບ.

The reservation of rights-of-way for canals and ditches required by this act to be inserted in patents for public lands west of the one hundredth meridian need not be inserted in patents issued for lands granted to railroad companies to which the grant of right of the company attached prior to the date of said act, but should be inserted in patents for lands covered by indemnity selections made by railroad companies, and in selections made by the Northern Pacific Railway Co., under the provisions of the Act of July 1, 1898, in all cases where such indemnity or other selections are approved subsequent to August 30, 1890. Instructions, 42 L.D. 396 (1912).

The Southern Pacific Company in 1916 filed a general map of the station grounds at Mohawk, Ariz., adjoining its rights-ofway and in 1936 filed for approval a map giving the exact location points. In 1929 the Bureau withdrew the land under a first form reclamation withdrawal for the Gila project. The General Land Office as a condition precedent to approval of the map, requested that a stipulation be signed making certain reservations to the United States. The First Assistant Secretary in decision A-20886 (July 24, 1937) held that the execution of the stipulation could not lawfully be required since the station grounds were private property at the time of the reclamation withdrawal and were not affected thereby. The station grounds were

held to be subject to the provisions of the Act of August 30, 1890, 26 Stat. 391, making reservations for ditch and canal rights-of-way.

Certain lands in the primary lists and limits of the grant of July 1, 1862, 12 Stat. 489, as amended July 2, 1864, 13 Stat. 356, to the Central Pacific Railroad Company and patented to the Company September 6, 1896, under said grant without reservation of rights-of-way for canals and ditches under the provisions of the proviso in the Act of August 30, 1890, may not be taken under authority of said proviso for a right-of-way for the Hyrum-Mendon canal, Utah, but must be acquired by purchase. Solicitor's Opinion, M-27871 (February 2, 1935).

8. Subsurface estate excluded

The Act of August 30, 1890, concerns itself solely and exclusively with easements or surface rights-of-way for ditches and canals constructed by the United States, and such easement or surface right does not inIclude title to the oil and gas underlying the land constituting the right-of-way. Northern Pac. Ry. v. United States, 277 F. 2d 615 (10th Cir. 1960), reversing 169 F. Supp. 735 (D. Wyo. 1959).

9. Compensation

[Editor's Note. Compensation is now payable for canals and ditches constructed after January 1, 1961, as provided by the Act of September 2, 1964, as amended.]

Compensation must be made for gravel taken from a right-of-way acquired under this section for use off the right-of-way where found. Reclamation decision (July 26, 1913) in Belanger, Lower Yellowstone.

When the United States utilizes a rightof-way under this act, the landowner may be compensated for the actual value of his improvements on the right-of-way, but no allowance can be made for the resultant damages to the land. Albert W. C. Smith, 47 L.D. 158 (1919).

Where work under the Rio Grande canalization project on land entered or patented subject to canal right-of-way retained by the United States under the act of August 30, 1890, 26 Stat. 391, involves not only construction of irrigation ditches and canals, but also levees located several hundred feet on either side of the straightened channel of the river for the conveyance of floodwaters, payment of a reasonable price, not in excess of the appraised value, may be made for the additional area required for flood control purposes, but no payment may be made for the lands required purely for irrigation purposes, the right-of-way reserved under the act of

August 30, 1890, 26 Stat. 391, in the patents for the lands involved being with reference only to ditches and canals to convey water for the reclamation of arid lands by irrigation. Dec. Comp. Gen., A-95123 (May 31, 1938).

There is no authority for the assumption by the United States of one-half of the cost of removing and replacing a high-powered transmission line from across a right-of-way reserved to the United States, under the provisions of the Act of August 30, 1890, 26 Stat. 391, where such line interfered with the construction of a part of an irrigation system. 7 Comp. Gen. 217 (1927).

If the use by the government of a road sought to be condemned across defendant's land is reasonable and necessary for the construction, operation and maintenance of a government conduit constructed across the land, and such use will not increase the burden already imposed on the servient land by the government's right-of-way under the 1890 Act, then the owner has no compensable interest. United States V. 5.61 Acres of Land, More or Less, in El Dorado County, California, 148 F. Supp. 467 (N.D. Cal. 1957).

Where the United States utilizes a rightof-way under the 1890 Act, the landowner may be compensated for the actual value of improvements on the right-of-way, but no allowance can be made for severance or other resultant damages to the land itself. Consequently, there is no authority to construct a farm bridge over a canal that bisects a landowner's farm. Letter of Commissioner Dexheimer to Senator Mansfield, December 9, 1958.

It is the policy of the Bureau of Reclamation to compensate for crop damages occasioned by non-tortious activities of the Bureau during operation and maintenance under transmission line and pipe line easements no matter what the method of acquisition of the easement; and the fact that an easement for a tile drainage system was acquired under the 1890 Act poses no different problem. Memorandum of Associate Solicitor Hogan to Regional Solicitor, Los Angeles, May 19, 1964.

The Government in constructing the Cross Cut Canal on the Upper Snake River storage project, Idaho, lowered the water table, causing damage to the crops of Arthur Winters, the water level under whose land was held at the optimum level for subirrigation, partly by seepage from irrigated lands above, and partly by the use of an irrigation water supply. The United States had canal right-of-way under the Act of August 30, 1890. He made a claim for his crop loss. The Department held that the canal right-of-way belonging to the United