CANAL ACT States could not be used in such a way as to injure the rights or property of the claimant, unless the claimant is compensated by the repayment of damages. Assistant Secretary decision, A-21167 (January 31, 1938). 10. Injunction suits An injunction issued by a State court in a suit brought against the engineer in charge of a Government irrigation project and his foreman, as individuals, restraining the defendants and all persons under their control from entering upon certain lands and constructing a Government canal across the same, is not a bar to a suit in a Federal court by the United States to establish its right to construct such canal under the res 21 ervation of right-of-way therefor contained in the Act of August 30, 1890, 26 Stat. 391, ch. 837, sec. 1, and to enjoin the owners of said lands, which were acquired under the public land laws after the passage of said act, from interfering with such construction. United States v. Van Horn, 197 Fed. 611 (D. Colo. 1912). Equity has jurisdiction 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, 197 Fed. 611 (D. Colo. 1912). 22 GRANT OF RIGHTS OF WAY FOR RESERVOIRS AND CANALS [Extracts from] An act to repeal timber-culture laws, and for other purposes. (Act of March 3, 1891, ch. 561, 26 Stat. 1095) Sec. 18. [Rights of way to canal companies and irrigation and drainage districts for reservoirs, canals, and laterals for irrigation and drainage purposes.]-The right of way through the public lands and reservations of the United States is hereby granted to any canal ditch company, irrigation or drainage district formed for the purpose of irrigation or drainage, and duly organized under the laws of any State or Territory, and which shall have filed, or may hereafter file, with the Secretary of the Interior a copy of its articles of incorporation or, if not a private corporation, a copy of the law under which the same is formed and due proof of its organization under the same, to the extent of the ground occupied by the water of any reservoir and of any canals and laterals and fifty feet on each side of the marginal limits thereof, and, upon presentation of satisfactory showing by the applicant, such additional right of way as the Secretary of the Interior may deem necessary for the proper operation and maintenance of said reservoirs, canals, and laterals; also the right to take from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch: Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps of location shall be subject to the approval of the department of the Government having jurisdiction of such reservation; and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories. (26 Stat. 1101; § 1, Act of March 4, 1917, 39 Stat. 1197; Act of May 28, 1926, 44 Stat. 668; 43 U.S.C. § 946) EXPLANATORY 1926 Amendment. The Act of May 28, 1926, 44 Stat. 668, substituted "canal ditch company, irrigation or drainage district" for "canal or ditch company or drainage district" and inserted "or, if not a private corporation, a copy of the law under which the same is formed" following "articles of incorporation" and ", and, upon presentation of satisfactory showing by the applicant, such additional right of way as the Secretary of the Interior may deem necessary for the proper operation and maintenance of said reservoirs, canals, and laterals" following "marginal limits thereof.” 1917 Amendment. The Act of March 4, 1917, 39 Stat. 1197, inserted the words "or drainage district," after "any canal ditch company," and "or drainage," after "for the purpose of irrigation". NOTES 1897 Supplementary Provisions: Use of Reserved Reservoir Sites; State laws. The Act of February 26, 1897, ch. 335, 29 Stat. 599, 43 U.S.C. § 664 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, 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 Ter GRANT OF RIGHTS OF WAY ritories in which such reservoirs are in whole or part situate." 1898 Supplementary Provisions: Subsidiary Purposes. Section 2 of the Act of May 11, 1898, 30 Stat. 404, as amended by the addition of the words "or drainage" at the end by section 2 of the Act of March 4, 1917, 39 Stat. 1197, provides: "Rights of way for ditches, canals or reservoirs heretofore or hereafter approved under the provisions of [sections 18, 19, 20, and 21 of the Act of March 3, 1891] may be used for purposes of a public nature; and said rights of way may be used for purposes of water transportation, for domestic purposes, or for the development of power, as subsidiary to the main purpose of irrigation or drainage." (43 U.S.C. § 951) 1921 Supplementary Provisions: Sites for Auxiliary Buildings. The Act of March 1, 1921, 41 Stat. 1194, provides: "In addition to the rights of way granted by sections 18, 19, 20 and 21 of the [Act of Limitations 2 23 March 3, 1891, as amended], and, subject. to the conditions and restrictions therein contained, the Secretary of the Interior is authorized to grant permits or easements for not to exceed five acres of ground adjoining the right of way at each of the locations, to be determined by the Secretary of the Interior, to be used for the erection thereon of dwellings or other buildings or corrals for the convenience of those engaged in the care and management of the works provided for by said sections: Provided, That this section shall not apply to lands within national forests." (43 U.S.C. § 950) Cross Reference. The Act of February 15, 1901, authorizes permits for the use of rights of way for canals, ditches, and other water facilities. The Act appears herein in chronological order. 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. NOTES OF OPINIONS Relation to reclamation program 1 1. Relation to reclamation program 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 Irri gation Co., 23 L.D. 275 (1896). A withdrawal under the Reclamation Act will not bar the allowance of an application for right-of-way for private irrigation canal under the Act of March 3, 1891, over the withdrawn lands, where the allowance of the application will not interfere with the use of the lands by the United States in connection with the administration of the reclamation act and where the water proposed to be conveyed over such right-of-way has not been appropriated and is not claimed by the United States. Boughner v. Magenheimer, et al., 42 L.D. 595 (1913). Under the Act of February 8, 1905, and the Act of March 3, 1891, as amended, the Bureau may issue a permit to an irrigation district to remove clay without charge from public lands to be used in connection with the operation and maintenance of drainage facilities of a federal reclamation project. This authority is not repealed by section 10(a) of the Reclamation Project Act of 1939. Memorandum of Acting Asso ciate Solicitor Coulter, August 11, 1966, in re request of Yuma Mesa Irrigation and Drainage District. For the purpose of carrying out the provisions of the reclamation act, the Government may avail itself of the privileges conferred by this act to the same extent that individuals, corporations, or associations may exercise such privileges, and subject to the same conditions and limitations. Op. Asst. Atty. Gen., 33 L.D. 563 (1905). 2. Limitations The Secretary of the Interior has the discretion to deny an application for a right of way for a reservoir in Colorado that would store Rio Grande water for irrigation purposes, until a determination can be made that such a development would not interfere with the treaty obligation to deliver Rio Grande water to Mexico and with the Engle Dam project. Francis W. Bosco, 39 L.D. 104 (1910). 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 L.D. 275 (1896). 3. Water rights By section 9 of the Act of July 26, 1866, section 1 of the Desert Land Act of 1877, and section 18 of the Act of March 3, 1891, 24 GRANT OF RIGHTS OF WAY Congress recognized and assented to the appropriation of water under State laws in contravention of the common law rules of riparian rights; but it is not to be inferred that Congress thereby meant to confer on any State the right to appropriate all the waters of the tributary streams which unite into a navigable watercourse, and so destroy the navigability of that watercourse in derogation of the interests of all the people of the United States. United States v. Rio Grande Dam and Irr. Co., 174 U.S. 690, 704-07 (1899). Sec. 19. [Map-Damages to settlers.]—Any canal or ditch company desiring to secure the benefits of this act shall, within twelve months after the location of ten miles of its canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a map of its canal or ditch and reservoir; and upon the approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way. Whenever any person or corporation, in the construction of any canal, ditch or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. (26 Stat. 1102; 43 U.S.C. § 947) Sec. 20. [Application to existing and future canals-Forfeiture of rights not completed in five years after location.]—The provisions of this act shall apply to all canals, ditches, or reservoirs, heretofore or hereafter constructed, whether constructed by corporations, individuals, or association of individuals, on the filing of the certificates and maps therein provided for. If such ditch, canal, or reservoir has been or shall be constructed by an individual or association of individuals, it shall be sufficient for such individual or association of individuals to file with the Secretary of the Interior, and with the register of the land office where said land is located, a map of the line of such canal, ditch, or reservoir, as in case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association, if any there be. Plats heretofore filed shall have the benefits of this act from the date of their filing, as though filed thereunder: Provided, That if any section of said canal, or ditch, shall not be completed within five years after the location of said section, the rights herein granted shall be forefeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture. (26 Stat. 1102; 43 U.S.C. § 948) Sec. 21. [Use for canal or ditch only.]-Nothing in this act shall authorize such canal or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance, and care of said canal or ditch. (26 Stat. 1102; 43 U.S.C. § 949) EXPLANATORY NOTE Legislative History. H.R. 7254 in the 51st Congress. Reported by Senate with amendment-no number. 21 Congr. Rec. 10085, 10454; 22 Congr. Rec. 3545; 3611. 25 CAREY ACT [Extract from] An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and ninety-five, and for other purposes. (Act of August 18, 1894, ch. 301, 28 Stat. 372) Sec. 4. [Grant of desert land to States for State-supported reclamation projects.]-To aid the public-land States in the reclamation of the desert lands therein, and the settlement, cultivation and sale thereof in small tracts to actual settlers, the Secretary of the Interior with the approval of the President is, as of August 18, 1894, authorized and empowered, upon proper application of the State to contract and agree, from time to time, with each of the States in which there may be situated desert lands as defined by the Act approved March 3, 1877, and the Act amendatory thereof, approved March 3, 1891, binding the United States to donate, grant and patent to the State free of cost for survey or price such desert lands, not exceeding one million acres in each State, as the State may cause to be irrigated, reclaimed, occupied, and not less than twenty acres of each one hundred and sixty acre tract cultivated by actual settlers, as thoroughly as is required of citizens who may enter under the said desert-land law, within ten years from the date of approval by the Secretary of the Interior of the State's application for the segregation of such lands; and if actual construction of reclamation works is not begun within three years after the segregation of the lands or within such further period not exceeding three years, as shall be allowed by the Secretary of the Interior, the said Secretary of the Interior, in his discretion, may restore such lands to the public domain; and if the State fails, within ten years from the date of such segregation, to cause the whole or any part of the lands so segregated to be so irrigated and reclaimed, the Secretary of the Interior may, in his discretion, continue said segregation for a period not exceeding five years, or may, in his discretion, restore such lands not irrigated and reclaimed to the public domain upon the expiration of the ten-year period or of any extension thereof. Before the application of any State is allowed or any contract or agreement executed or any segregation of any of the land from the public domain is ordered by the Secretary of the Interior, the State shall file a map of the said land proposed to be irrigated which shall exhibit a plan showing the mode of the contemplated irrigation and which plan shall be sufficient to thoroughly irrigate and reclaim said land and prepare it to raise ordinary agricultural crops and shall also show the source of the water to be used for irrigation and reclamation, and the Secretary of the Interior may make necessary regulations for the reservation of the lands applied for by the States to date from the date of the filing of the map and plan of irrigation, but such reservation shall be of no force whatever if such map and plan of irrigation shall not be approved. Any State contracting under this section is hereby authorized to make all necessary contracts to cause the said lands to be reclaimed, and to induce their settle 267-067-72-vol. I- -5 |