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management and operation of the project by the United States or its successors, is impliedly authorized by the reclamation act, and a water-right applicant will be required to conform thereto. Ibid.

Whatever may be the extent of the discretion of the Secretary of the Interior in the case of a reclamation project, where the charge for water and conditions of purchase are announced in advance of construction as required by statute, he could not exercise unlimited power to determine the conditions on which water would be supplied, where the project was constructed under the mutual understanding that landowners might procure water by paying their ratable proportion of the cost of construction and submitting to other equal and reasonable conditions. PayetteBoise Water Users' Ass'n v. Cole, 263 F. 734. (D. Idaho 1919).

20. —Quantity of water

An application for water for land in a reclamation project, providing that the measure of the water right was that quantity of water which should be beneficially used for irrigation, not exceeding the share proportionate to irrigable acreage of the water available as determined by the project manager or other proper officer during the irrigation season for the irrigation of lands under the land unit, did not authorize the project manager or other officer to decide whether a landowner needed water, but only to determine the amount of water actually available, but was too indefinite, and landowners could not be required to execute it as a condition of obtaining water. PayetteBoise Water Users' Association v. Cole, 263 Fed. 734 (D. Idaho 1919).

21. Reinstatement

Where a water-right application for land held in private ownership has been canceled for default in payment of building, operation, and maintenance charges, such application may be reinstated upon full payment of all accrued charges. Departmental decision, April 3, 1916, 45 L.D. 23.

22. -Rentals of water

Water in irrigation canals constructed and operated under the reclamation act, which has not become appurtenant to any land and is not needed for irrigation, may be temporarily disposed of by lease, in the discretion of the Secretary of the Interior, the proceeds to become a part of the reclamation fund. Alhambra Brick & Tile Co., 40 L.D. 573 (1912).

As an emergency measure to save growing crops, the director is authorized to supply squatters upon withdrawn lands under the

reclamation projects with water on a rental basis, pending decision as to their rights to the land, subject to the provision that water shall be furnished only to such settlers as file a certain designated application therefor. Department decision, May 27, 1912.

Lands too alkaline to produce profitable crops may be supplied with water for a nominal rental, in order to encourage washing the alkali from the soil. Departmental decision, March 29, 1913, C.L. 88.

26. Public notice-Generally

The requirement of this section, that the cost of a project shall be estimated and apportioned before construction, may be waived by settlers and the Secretary of the Interior, and was waived where there was no formal compliance with such requirement and all parties understood that ultimately the settlers would reimburse the government for its actual and necessary outlay. Payette-Boise Water Users' Assn. v. Cole, 263 F. 734 (D. Idaho 1919).

The determination by the Secretary of the Interior of the practicability of a project and the making of the construction contracts are conditions precedent to the estimate of cost and the public notice, under this section. Yuma County Water Users' Assn. v. Schlecht, 262 U.S. 138 (1923).

Though there was a substantial and material difference between preliminary engineering estimates of the cost of an irrigation project and a later estimate, the courts will not interfere, in the absence of some substantial showing that the action of the Secretary of the Interior in publishing notice of charges based on such original estimates was fraudulent or arbitrary or so erroneous as to justify an inference of illegality or wrongdoing, especially where the increased cost was due to unexpected physical difficulties, higher wages, change of plans, increased mileage of canals, etc. Yuma County Water Users' Assn. v. Schlecht, 275 Fed. 885 (9th Cir. 1921), affirmed 262 U.S. 138 (1923).

A public notice by the Secretary of the Interior, specifying lands for which water would be furnished under an irrigation project, the classes of charges therefor, and the construction charge as $75 per acre of irrigable land, payable in installments as enumerated, was in accord with this section, authorizing the Secretary to give public notice of the number of annual installments, to be determined with a view of returning to the reclamation fund the "estimated cost" of the project, by which is meant, not the actual, exact final sums paid for construction, but such sums as it is believed after careful computation will cover the expenses directly and fairly connected

with the construction of the project. Yuma County Water Users' Assn. v. Schlecht, 275 Fed. 885 (9th Cir. 1921), affirmed 262 U.S. 138 (1923).

The Secretary of the Interior has no general statutory authority to suspend, even temporarily, public notices issued by him pursuant to section 4 of the Act of June 17, 1902, of lands irrigable under reclamation projects, nor does he possess supervisory power to do so in the absence of a specific statute authorizing it. Shoshone Irrigation project, 50 L.D. 223 (1923). [But see Act of February 13, 1911, 36 Stat. 902, authorizing the Secretary of the Interior to withdraw public notices issued under section 4 of the Reclamation Act.]

Contracts by water users' association to receive additional subscriptions to stock and to grant water rights were not unauthorized, on the ground that the reclamation project had been completed, and that the lands proposed to be taken into the project were not included in the area fixed and limited by the Secretary of the Interior, under this section, where the capacity of the project to supply water for irrigation had been substantially enlarged, and such contracts had been approved by the Secretary of the Inte. rior under the Act of February 13, 1911. Bethune v. Salt River Valley Water Users' Assn., 227 P. 989, 26 Ariz. 525 (1924).

Under date of July 31, 1929, the department approved a recommendation of the commissioner, Bureau of Reclamation, to the effect that a new entryman taking up land under the Belle Fourche project where a prior entry has been canceled after payment of only one construction charge installment, would be required at the time of making entry to pay such first installment and the remaining installments would be collected by the irrigation district under its contract with the United States. This plan dispenses with a public notice in cases where a district has assumed the obligation of paying charges at fixed rates.

This section contemplates a precise and formal public notice, stating the lands irrigable under a project, the limit of area for each entry, the charges per acre, the number of annual installments, and the time when payments shall commence. Yuma County Water Users' Assn. v. Schlecht, 262 U.S. 138 (1923).

Preliminary, tentative opinions of the cost of constructing projected irrigation works, expressed by government engineers and officials in official correspondence and in statements at a meeting of prospective water-users, do not constitute the estimate of cost, or the public notice, required by this

267-067-72-vol. I-7.

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section, and, though relied upon by the water-users in subjecting their lands to the project, do not bind or estop the government from afterwards fixing the construction charges against the lands pursuant to this section, in accordance with a higher estimate arrived at in the light of further investigation and experience. Yuma County Water Users' Assn. v. Schlecht, 262 U.S. 138 (1923).

Under this section, correspondence between the Secretary of the Interior and officials of the Reclamation Service relative to estimates of the cost prior to the date of a contract between the landowners and the United States, for the payment thereof could not be regarded as a public notice to the former, nor as binding on the Government. Yuma County Water Users' Assn. v. Schlecht, 275 Fed. 885, (9th Cir. 1921), affirmed 262 U.S. 138 (1923).

28. When required

The time within which the notice may be given, after determination of the practicability of the project and the making of construction contracts, is left to the sound discretion of the Secretary; and he may delay the notice while the question of cost remains in doubt. Yuma County Water Users' Assn. v. Schlecht, 262 U.S. 138 (1923), affirming 275 Fed. 885 (9th Cir. 1921).

The time of giving public notice of charges under section 4 of the Reclamation Act after the letting of the contracts is left to the discretion of the Secretary of the Interior, and notice might reasonably be delayed until the completion of the project. Moreover, when a contract fixing the amount and terms of payment of construction costs is entered into with an irrigation district pursuant to the Act of May 15, 1922, there was no purpose to be served by issuing the public notice. Lincoln Land Co. v. Goshen Irr. Dist., 42 Wyo. 229, 293 Pac. 373, 376, 378-79 (1930).

29. —Amendment of

Where after application for water rights for the irrigable area of a farm unit, under the terms and for the acreage fixed in the published notice, a second notice is given showing an increased irrigable area in the farm unit and fixing a different rate per acre, the applicant is entitled to complete payment for the area originally fixed at the rate specified in the first notice, but as to water right for the additional irrigable acreage shown by the second notice, he will be required to pay at the rate fixed in the latter notice. Walter L. Minor, 39 L.D. 351 (1910).

Upon the issuance of public notices pur

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suant to section 4 of the Reclamation Act of June 17, 1902, the construction charges specified in the notices become fixed charges against the lands, and the acceptance and approval of water-right applications in a sense create a contractual relation between the applicants and the United States for the payment of the charges by the water users and the furnishing of irrigation water by the Government that cannot be changed except with the consent of both parties. Shoshone irrigation project, 50 L.D. 223 (1923).

36. Charges Generally

The Department of the Interior is without authority to charge interest on the return of costs allocated to irrigation because Congress has not specifically authorized such charge. Letter of Acting Commissioner Lineweaver to Mr. William A. Owen, February 12, 1952.

The Secretary of the Interior can only make such charges to reimburse reclamation fund for construction of a project as are provided for in this section. Fox v. Ickes, 137 F.2d 30, 78 U.S. App. D.C. 84 (1943), cert. denied 320 U.S. 792.

The practice of the department in fixing a definite charge per acre in each project to cover this cost of construction, and to assess annually a specific amount per acre for operation and maintenance, collecting the same from the landowners, is correct. 27 Op. Atty. Gen. 360 (1909).

Settlers on lands within an irrigation project, with the understanding that water shall be supplied to their lands and that the cost of the works will be assessed against them, are not concluded by the decision of the Secretary of the Interior as to what their interest in the works shall be nor as to what sum shall be assessed against their lands for cost of construction, but have rights which may be judicially determined. PayetteBoise Water Users' Assn. v. Bond, 269 F. 159 (D. Idaho 1920).

In decision A-32702, of September 14, 1935, the Comptroller General held that the reclamation fund could not be reimbursed for expenditures made over a period of prior years for surveys and investigations of the All-American canal, California, as the allotment for construction of this canal was secured under the N.I.R.A., an emergency relief measure to quickly increase employment, and that most of this preliminary work seemed to be general investigations chargeable only to the reclamation fund.

The revolving fund features of section 4 are not applicable to nonreimbursable funds expended in connection with a reclamation project (Deschutes project). Letter of Act

ing Attorney General to Secretary of the Interior, September 7, 1937.

In letter dated February 18, 1918, the United States Commissioner of Internal Revenue holds that payments covering the construction charges on Federal reclamation projects are not allowable deductions in income-tax returns as the water rights secured by the payment of such charges are perpetual in nature, and the amount so paid should be added to the capital investment in order to determine the gain or loss resulting from the transaction upon subsequent disposal of the land and water rights. As to the operation and maintenance charges the commissioner holds them to be an ordinary and necessary expense of doing business, and that the amounts so paid are deductible in the income-tax returns.

In case the actual cost of a reclamation project exceeds the estimated cost of construction, it is the duty of the Secretary of the Interior to revise the estimate and make the charges sufficient to reimburse the reclamation fund for the cost of construction. Mangus Mickelsen, 43 L.D. 210 (1914). 37. Contracts

Where a reclamation project was constructed with the mutual understanding that settlers would reimburse the Government for the actual outlay, and contracts had been made to supply irrigation districts and others with water, settlers were entitled to some authoritative description of the property to which their rights related, and a definition of the extent of their interest in the project, before they could be required to pay and to have from an authoritative source and of record a declaration of the cost of the project and of the portion of which it was intended they should become the beneficial owners, and could be required to pay the cost only of such portion of the works, or such interest therein as was set apart for the use of their lands. Payette-Boise Water Users' Assn. v. Cole, 263 F. 734 (D. Idaho 1919).

Where instead of estimating and apportioning the cost of a reclamation project before construction, it was mutually understood that the settlers would reimburse the Government for the actual cost, they were chargeable with the actual cost only, and the Secretary of the Interior was without discretion in fixing the charge, the actual cost of the project being a matter for judicial investigation and determination. Payette-Boise Water Users' Assn. v. Cole, 263 F. 734 (D. Idaho 1919).

Under a contract by which the government took over the canal system of an irrigation company for the purpose of incorporating it in a larger government

project, and providing that "an equitable proportion of the cost of maintaining and operating the system of irrigation works which may be constructed by the United States on the south side of the Boise Valley, as may be determined by the Secretary of the Interior, shall be paid to the United States by the holders of said certificates of stock," the fact that during the construction of the government project the manager made charges for water furnished such stockholders on a different basis did not affect the right and duty of the Secretary, after completion of the project, to make the apportionment as expressly provided in the contract. New York Canal Co. v. Bond, 273 F. 825 (D. Idaho 1921).

Where a contract between a water users' association and the United States provides that the association will promptly collect or require payment for that part of the cost of a reclamation project which shall be apportioned by the Secretary of the Interior to its shareholders, and also that payments for the water rights will be made and enforced by proper means, the fact that the cost is greater than was estimated cannot be urged as a ground for equitable relief. Yuma County Water Users' Assn. v. Schlecht, 275 F. 885, (9th Cir. 1921), affirmed 262 U.S. 138 (1923).

38. Increase

Under this section, the cost is to be estimated and apportioned before construction, and in case of settlement under such conditions the price cannot be later increased, though the published estimate is insufficient to cover the actual cost. PayetteBoise Water Users' Assn. v. Cole, 263 F. 734 (D. Idaho 1919).

Where the Secretary of the Interior in the exercise of his discretion withdrew certain lands from an irrigation project and confined it to the area described in the public notice to the landowners affected, the latter, who contracted to pay for that part of the cost which should be apportioned to them by the Secretary, could not restrain the local reclamation officers from turning off the water for failure to pay an assessment in excess of the original estimate and of the actual value of work to be constructed, on the ground the system was not completed when the suit was filed. Yuma County Water Users' Assn. Schlecht, 275 F. 885 (9th Cir. 1921), affirmed 262 U.S. 138 (1923).

ບ.

Action to enjoin the Secretary of the Interior from carrying out his intention as expressed in notice, to make charge for water distributed to land which was over and above amount determined to be within

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obligations of contract signed by water users' predecessors in interest, was not rendered "moot" by Secretary's revocation of notice, where Secretary still intended to impose such charge. Fox v. Ickes, 137 F. 2d 30, 78 U.S. App. D.C. 84 (1943), cert. denied 320 U.S. 792.

Where a new reservoir was constructed in violation of the provisions of reclamation law regarding construction charges, water users were entitled to injunction restraining Secretary of the Interior from imposing rental charge on any water which Secretary determines might be used on plaintiff users' land, in order to pay construction costs in the reservoir system of the project above the construction charge authorizedly fixed. Fox v. Ickes, 137 F. 2d 30, 78 U.S. App. D.C. 84 (1943), cert. denied 320 U.S. 792.

39. Items included

The United States may assess operation and maintenance charges against water users as well as construction charges. To hold otherwise would greatly deplete, if not entirely consume, the Reclamation Fund, thus diverting the proceeds of the public domain to the payment of local expenses. This interpretation of the Reclamation Act has been recognized by Congress. Swigart v. Baker, 229 U.S. 187 (1913).

The purpose of this Act is to encourage the settlement and cultivation of public lands, and it contemplates that such lands may be entered on as soon as the irrigation system is so far completed that water may be furnished thereon for irrigation purposes; and when the act empowers the Secretary of the Interior to fix and determine the charges against the land, it must have intended that he should cover the cost of maintenance and operation while in control of the United States as well as construction. United States v. Cantrall, 176 F. 949 (C.C. Ore. 1910).

The provision in forms for the waterright applications requiring payment by applicant of "betterment" or maintenance charges is a proper requirement under the reclamation laws, and the fact that at the time entry was made there was no specific mention of "betterment" charges in the water-right application forms then in use will not relieve the entryman from payment of betterment charges legally assessed against his land. C. M. Kirkpatrick, 42 L.D. 547 (1913).

The cost of drainage work done for the benefit of lands in the project, or to protect other lands from conditions resulting from the construction and operation of the project, was chargeable against the project

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lands. Payette-Boise Water Users' Assn. v. Cole, 263 F. 734 (D. Idaho 1919).

While administrative expenses of the reclamation service, such as salaries of the administrative officers and of those who assisted them in the performance of administrative duties, are not chargeable as part of the cost of a project, the cost of services rendered to that particular project, such as the keeping of its accounts, preparation of engineering specifications, or purchasing and forwarding supplies, whether such services are rendered at the place of the project or elsewhere, or for such project alone or in connection with others, in such case prorative, is properly chargeable as a part of its cost. Payette-Boise Water Users' Assn. v. Bond, 269 F. 159 (D. Idaho 1920).

The full amount of the claim of a contractor on an irrigation project, which is being contested by the Government in the Court of Claims, cannot properly be charged to the settlers as a part of the cost of the project. "It is a matter of common knowledge that such claims are usually susceptible to compromise and adjustment, and if the settlers are to be charged with a specific amount, the best settlement possible should have been made. * * If the reclamation officials and the plaintiff cannot agree as to the proper amount to be charged on account of the contingent liability, or if a settlement agreeable to all parties cannot be made with the claimants, the full claim should be permitted to stand as a charge only upon condition and with the understanding that, in case the Government is successful in defeating it, appropriate credit be given the settlers." Payette-Boise Water Users' Assn. v. Bond, 269 F. 159 (D. Idaho 1920).

Where the irrigable area of a legal subdivision embraced in an entry within a reclamation project is shown on the duly approved farm-unit plat to be greater than the entire area of such legal subdivision shown on the prior township plat, applications for water rights and payments therefor should be made on the basis of the actual irrigable area, and not on the basis of the acreage shown on the township plat. J. E. Enman, 40 L.D. 600 (1912).

An applicant for water rights under a reclamation project is required to pay for water for the entire irrigable area of his entry as shown on the plat upon which the construction charges were apportioned; and where mistake in the plat is alleged as to the irrigable area of the entry, application for correction thereof should be made to the

local officer of the Reclamation Service. Williston Land Co., 39 L.D. 2 (1910). [But see Regulations for Minidoka project, approved March 6, 1916.]

No deduction from the irrigable area subject to water charges will be made on account of easements for highways or irrigating ditches. Williston Land Co., 39 L.D. 2 (1910). [But see Reclamation Circular Letter No. 569, July 11, 1916.]

The Reclamation Act provides that the cost of the project shall be imposed upon the land benefited equitably, which is to say ratably. No authority exists in the Reclamation Act, either in express terms or by necessary implication, that some of the lands benefited might be required to contribute one sum and other lands a greater or less sum, for such rule of apportionment would be inequitable and not ratable. Op. Asst. Atty. Gen., October 25, 1910, In re Prosser Falls L. & P. Co. (Yakima); Williston Land Co., 37 L.D. 428. [But see Op. Atty. Gen., May 1, 1911 (Lower Yellowstone), with accompanying papers, in effect to the contrary.]

Where landowners within a reclamation project outside of an irrigation district are charged $80 per acre, while those within the district are charged only $70, because of the possibility that all those outside the district will not take water, those paying such higher price are entitled to the additional service for which they pay, and if seven-eighths of the acreage takes water, they are entitled to the water rights for the entire acreage. Payette-Boise Water Users Assn. v. Cole, 263 F. 734 (D.C. Idaho 1919).

In computing the acreage on which the cost of an irrigation project was to be charged, a general deduction from the lands within the limits of the project of 10,000 acres, because it was "estimated" that such quantity would prove incapable of irrigation, because rough or sandy or from seepage, was not justified, where no land was described and excluded, and all lands within the project were equally entitled to water if demanded, and where specific tracts had already been excluded as non-irrigable. Payette-Boise Water Users' Assn. v. Bond, 269 F. 159 (D. Idaho 1920). 41. Payment

A successful contestant of an entry within a reclamation project will be required, in making entry in exercise of his preference right, to pay the building charge obtaining at the time his application is filed, and is not entitled to the rate in effect when the former entry was made nor to credit for the payments made by the former entry