subterfuge and fraud, in that district had paid major portion of cost of project. Klamath Irr. Dist. v. Carlson, 157 P. 2d 514, 176 Ore. 336 (1945).

Irrigation district, by instituting suit to foreclose certificates of delinquency in irrigation assessments, was not estopped from meeting defendant's allegations, which were foundation of defendant's plea for affirmative relief, that district had paid major portion of cost of project and that federal operation was a fraud and subterfuge by proof that aggregate payments were not sufficient to entitle plaintiff to take control of operation of irrigation project, and that no subterfuge or fraud had been practiced. Klamath Irr. Dist. v. Carlson, 157 P. 2d 514, 176 Ore. 336 (1945).

The United States is an indispensable party to a suit by the City of Mesa, a municipal corporation, to condemn a portion of the electrical plant and system operated by the Salt River Project Agricultural and Improvement District as an integral part of the Salt River reclamation project; and the United States not having consented to the suit, the court is without jurisdiction to entertain the action. City of Mesa v. Salt River Project Agricultural Improvement and Power District, 101 Ariz. 74, 416 P. 2d 187 (1966).

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In the construction of the American Falls Reservoir of the Minidoka project, Idaho, the Secretary of the Interior, pursuant to act of Congress of Mar. 4, 1921, 41 Stat. 1367, 1403, acquired by purchase or condemnation the fee simple title to certain lots adjacent to the town of American Falls. Power County, Idaho, assessed these lots as the property of the American Falls Reservoir District. The United States, claiming that the District had no equity in the lots, and that the placing of the lots on the assessment roll would constitute a cloud on the title of the United States, brought proceedings to have the assessments declared void. The Court held that when the Secretary of the Interior, under authority of the Congress purchases lands, the fee simple title is in the United States until the United States disposes of them; that neither the States nor their subdivisions have the power to tax property of the United States; that the lots when acquired by the United States became a necessary and proper part of the reservoir enterprise and incidental thereto, and that the only interest the District has in the reservoir is the right to receive water delivered to it by the United States therefrom. The taxing proceedings were decreed void. United States v. Power County, Idaho, et al., 21 F. Supp. 684 (1937).

Supplementary Provision: Exchanges. Section 14 of the Reclamation Project Act of 1939 authorizes the Secretary to acquire lands for the relocation of property in connection with the construction or operation and maintenance of any project, and to enter into contracts for the exchange of water, water rights, or electric energy. The Act appears herein in chronological order.

Exchange of Lands, North Platte Project. An exchange of lands on the North Platte project between the United States and the Swan Land and Cattle Company was authorized by the Act of August 9, 1921, ch.

55, 42 Stat. 147. The land was conveyed to the United States by deed dated September 12, 1921, and recorded in Goshen County, Wyoming, October 10, 1921. Patent issued February 15, 1922-Cheyenne No. 849041.

Editor's Note, Annotations. Annotations of opinions dealing with aspects of property acquisition including condemnation proceedings which are common to all Government agencies, such as valuation of property, payment of interest, acceptability of title, and so forth, are not included.

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Purpose of acquisition 1-10
Discretion of Secretary 2
Generally 1
Related lands 4

Relocation of property 3

Research and development 5 Property or interest involved

11-30

Easements and rights-of-way 19 Existing irrigation system 12 Generally 11

Indian lands 13
Leasehold 18

Municipal property 15
Noncompensable claims 21
Personal property 17
Power sites
School lands

20

14

Water rights 16

Condemnation proceedings 31

Physical seizure (inverse condemnation) 36

Availability of funds 41
Exchanges

42

Option to purchase 43
State laws 44

1. Purpose of acquisition-Generally

The Act of June 17, 1902, does not authorize the use of the reclamation fund for the purchase of any land except such as may be necessary in the construction and operation of irrigation works. California Development Co., 33 L.D. 391 (1905).

The United States has constitutional authority to organize and maintain an irrigation project within a State where it owns arid lands whereby it will associate with itself other owners of like lands for the purpose of reclaiming and improving them, and for that purpose it exercises the right of eminent domain against other land owners to obtain land necessary to carry the proposed project into effect. Burley v. United States, et al., 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807 (Idaho 1910), affirming 172 F. 615 (C.C. 1909). See also Magruder v. Belle Fourche Valley Water Users' Assn., 219 F. 72, 133 C.C.A. 524 (S. Dak. 1914).

The fact that a scheme contemplates the irrigation of private as well as government land does not prevent condemnation of land necessary to carry it out. Burley v. United States, 179 F. 1, 102 C.C.A. 429, 33 L.R.A. (N.S.) 807 (Idaho 1910).

Lands condemned by the United States under the Reclamation Act for right of way for a canal or ditch required in the carrying out of an irrigation project are taken for a public use. United States v. O'Neill, 198 F. 677 (D. Colo. 1912).

The Department of the Interior had right to condemn 277.97 acres of land in the

County of Madera, California, for navigation, reclamation, and storage of waters of the San Joaquin and Sacramento Rivers, irrigation and power purposes, since those purposes were "public purposes." United States v. 277.97 Acres of Land, 112 F. Supp. 159 (D. Cal. 1953).

2. -Discretion of Secretary

In a proceeding by the United States to condemn land for reservoir purposes whether a more feasible plan of irrigation than the one adopted might be devised, or some other site selected for the reservoir, is immaterial, the determination of the proper Government authorities being conclusive. United States v. Burley, 172 F. 615 (C.C. Idaho 1909), affirmed 179 F. 1, 102 Č.C.A. 429, 33 L.Ŕ.A. (N.S.) 807 (1910).

Where Congress left determination of need for particular realty for navigation, reclamation, and storage of waters of rivers, and for irrigation and power purposes to Secretary of the Interior, courts had no right to question manner in which the Secretary of the Interior exercised the delegated power. United States v. 277.97 Acres of Land, 112 F. Supp. 159 (D.C. Cal. 1953).

When the Secretary of the Interior in the exercise of a reasonable discretion deter. mines as to the validity of title to and as to the value of a right to appropriate water for irrigation purposes to be acquired by him under the provisions of the act of June 17, 1902, his decision is conclusive upon the accounting officers. 14 Comp. Dec. 724 (1908).

3. —Relocation of property

Where establishment of a reservoir under the Reclamation Act involved flooding part of the town, the United States had constitutional power to take by condemnation other private land near by, in the only practicable and available place, as a new town site to which the buildings affected could be moved at the expense of the United States and new lots be provided in full or part satisfaction for those flooded. The fact that, as an incident of such a readjustment, there may be some surplus lots of the new town site which the Government must sell does not characterize the condemnation as a taking of one man's property for sale to another. Brown v. United States, 263 U.S. 78 (1923), affirming United States v. Brown, 279 F. 168 (1922). See also section 14 of the Reclamation Project Act of 1939. 4. Related lands

The Reclamation Act permits the United States to acquire strips of land, aggregating 10 per cent of the irrigable area of a project,

and establish and maintain thereon plantations of trees and shrubs to serve as windbreaks, in order to facilitate and protect the agricultural development of the adjacent irrigable lands and to protect irrigation canals and laterals. Departmental decision, July 24, 1912 (Umatilla).

5. -Research and development

The Secretary of the Interior is authorized to purchase or lease lands for a "development farm" in the nature of a field laboratory where this is an appropriate method of developing data relevant to such factors as classification of lands, suitability of crops, and repayment ability of irrigators. Acting Solicitor Burke Opinion, M-36219 (May 12, 1954).

11. Property or interest involved—

Generally

The Secretary of the Interior has no authority under the provisions of the Act of June 17, 1902, to embark upon or commit the Government to any irrigation enterprise that does not contemplate the absolute transfer of the property involved to the United States. California Development Co., 33 L.D. 391 (1905).

The Act contemplates that the United States shall be the full owner of irrigation works constructed thereunder, and clearly inhibits the acquisition of property, for use in connection with an irrigation project, subject to servitudes or perpetual obligation to pay rents to a landlord holding the legal title. Op. Asst. Atty. Gen., 34 L.D. 186 (1905).

In the acquisition of interests in real property, if not administratively objectionable, title may be acquired subject to (a) any existing coal or mineral rights reserved or outstanding in third parties and (b) any existing rights of way in favor of the public or third parties for roads, railroads, telephone lines, transmission lines, ditches, conduits or pipe lines, on over or across the property, although the property is under contract, to be conveyed to the United States in fee simple free of lien or encumbrance. Central Valley project, letter of July 9, 1940.

There is no authority for the use of the reclamation fund, either directly by the Secretary or indirectly by advancement to others, for the purchase of lands or other property outside of the territorial limits of the United States. California Development Co., 33 L.D. 391 (1905).

The Secretary of the Interior may not, in the acquisition of land needed for a reservoir to be constructed by the Bureau of Reclamation, agree that as a part of the consideration the landowner shall have the 267-067-72-vol. I-8

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perpetual right to utilize any power facilities afforded by the reservoir. Decision of First Assistant Secretary, December 15, 1936, in re Truckee Storage project, Boca reservoir.

The Secretary has full authority to purchase lands necessary for reservoir purposes, to arrange the terms of purchase, and to allow the vendor to retain possession until the land may be actually needed where by so doing the purchase may be more advantageously made; but he has no authority under said act to lease such purchased lands after the Government has taken possession thereof. Instructions, 32 L.D. 416 (1904). 12. Existing irrigation system

Where an irrigation system already constructed and in operation may be utilized in connection with a greater system to be constructed under the provisions of the Act of June 17, 1902, its purchase for such purpose comes within the purview of the act. California Development Co., 33 L.D. 391 (1905).

The Act affords authority for the purchase of an incomplete irrigation system to be used in connection with and to become a part of a larger system contemplated by the Government. Op. Asst. Atty. Gen., 34 L.D. 351 (1906).

13. Indian lands

The United States has authority to condemn tribal lands of the Crow Tribe for construction of Yellowtail Dam, under section 9(c) of the Flood Control Act of 1944 and the Federal Reclamation Laws; under the general condemnation act of August 1, 1888, 55 Stat. 357, 40 U.S.C. § 257; and under the several acts appropriating money for preconstruction work and for initiation of construction. United States v. 5,677.94 Acres of Land, 162 F. Supp. 108 (D. Mont. 1958); ibid, 152 F. Supp. 861 (D. Mont. 1957); Opinion of Solicitor Davis, M36148 (Supp.) (February 3, 1954).

Under the provisions of the Reclamation Act, the Secretary of the Interior has power to acquire the rights and property necessary therefor, including those of allottee Indians, by paying for their improvements, and giving them the right of selecting other lands. The restrictions on alienation of lands allotted to Indians within the area of the Milk River irrigation project do not extend to prohibiting an allottee Indian from selling his improvements to the United States and selecting other lands so that the United States could use the lands selected for purposes of an irrigation project as provided by Act of Congress. Henkel v. United States, 237 U.S. 43 (1915), affirming 196 F. 345, 116 C.C.A. 165 (1912).

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14. -School lands

Until so authorized by Congress, neither the Department nor the Territorial Government of Arizona has power to dedicate for use in connection with an irrigation project, lands in said territory which, by section 2 of the Act of February 2, 1863, 12 Stat. 664, sec. 1946, R.S., have been reserved for school purposes to the future State to be erected, including the same. Instructions, 32 L.D. 604 (1904).

15. Municipal property

Although land owned by a municipality was being devoted to public use, the Secretary of the Interior had authority to condemn such land for Missouri River Basin project. United States v. 20.53 Acres of Land in Osborne County, Kansas, City of Downs, 263 F. Supp. 694 (D. Kansas 1967). 16. Water rights

The United States had power to acquire through exercise of eminent domain water rights of riparian owners and overlying owners on river below Government dam. State of California v. Rank, 293 F. 2d 340 (9th Cir. 1961), modified on other grounds 307 F. 2d 96, affirmed in part 372 U.S. 627, affirmed in part, reversed in part on other grounds sub. nom. Dugan v. Rank, 372 U.S. 609 (1963).

17. -Personal property

An engine necessary for the purpose of carrying out the provisions of this Act may be acquired under this section. United States v. Buffalo Pitts Co., 234 U.S. 228 (1914).

18. Leasehold

The Secretary is authorized by this section to acquire a leasehold interest. Acting Solicitor Burke Opinion, M-36219 (May 12, 1954), in re authority to lease or purchase lands for development farms on reclamation projects.

19. -Easements and rights-of-way

Where the United States acquired a primary easement to construct an irrigation ditch on the land of defendant, it also acquired the right, as a secondary easement, to go upon land to maintain, repair, and clean ditch, but such secondary easement can be exercised only when necessary, and in such reasonable manner as not to increase the burden upon defendant's land. Mosher v. Salt River Valley Water Users' Assn., 209 P. 596, 24 Ariz. 339 (1922).

20. -Power sites

In proceedings by the Federal Government to condemn land located at Kettle Falls on the Columbia River in the State of Washington, uplands which power com

pany had purchased and developed as a power site could not be disassociated from bed of river and flow of stream in creating a value for power site purposes, and company could not introduce evidence showing value of uplands for power site purposes, separate from use of bed of river and flow of stream. Washington Water Power Co. v. United States, 135 F. 2d 541 (9th Cir. 1943).

In condemnation proceedings for the acquisition of lands for the Grand Coulee dam, the defendant Continental Land Company claimed compensation for the inherent adaptability of its uplands for dam-site purposes for the production of electrical power. On appeal the Circuit Court affirmed the lower court holding that the Columbia River was a navigable stream and that the Company had no inherent right in the uplands for special use as against the Government's dominant right to the river bed for navigation; that the Company was limited to the reasonable market value of the upland for any purpose to which the lands may reasonably be adapted now or in a reasonable time in the future, and that the Continental Land Company had produced no proof of any possibility, reasonably near or remote, or at any time, that the land would be or could be used for dam-site purposes. Continental Land Co. v. United States, 88 F. 2d 104 (9th Cir. 1937). 21. Noncompensable claims

The Secretary has no authority under the seventh section of this Act to compensate settlers upon lands within the limits of a withdrawal made in connection with an irrigation project, unless they have in good faith acquired an inchoate right to the land by complying with the requirements of law up to the date of the withdrawal and have such a claim as ought to be respected by the United States. Op. Asst. Atty. Gen., 34 L.D. 155 (1905).

Where a lease provides that the lessor can terminate it on 30 days' written notice and that lessee's improvements remaining on the premises after expiration of the 30 day period shall become the property of the lessor, its successors or assigns, and where lessor after conveying the property to the United States, gives the required notice of termination, which is formally accepted by the lessee, the United States, after the expiration of the notice period, cannot compensate lessee for moving of improvements. Dec. Comp. Gen., A-14629 (June 24, 1926). [Ed. note: Relief was subsequently granted the lessee through a private relief act dated March 3, 1927, 44 Stat. 1844.]

The United States does not impliedly

promise to compensate persons engaged in stock raising for the destruction of their business, or the loss sustained through the enforced sale of their cattle, the result of the inundation of their lands by the construction of a dam which arrests flood waters. Bothwell v. United States, 254 U.S. 231 (1920).

Where, in proceedings by the United States to condemn land overflowed by the construction of a dam, damages for loss from a forced sale of the landowners' cattle and the destruction of their business were denied, and the landowners brought suit in the Court of Claims, they were in no better position in respect to such damages than if no condemnation proceedings had been instituted. Bothwell v. United States, 254 U.S. 231 (1920), affirming 54 Ct. Cl. 203 (1918).

31. Condemnation proceedings

In proceedings by the United States to condemn right of way for a ditch under the Reclamation Act which provides a fund from which the damages assessed shall be paid, it is not necessary that the damages shall be assessed and paid before the Government may be allowed to take possession. United States v. O'Neill, 198 F. 677 (D. Colo. 1912). See also 5 Comp. Gen. 907 (1926).

Where land is condemned pursuant to section 7, for reclamation projects, the judgment is not required to be certified to the Congress, but may be paid from applicable reclamation funds. Such judgments are required by the Act of February 18, 1904, 33 Stat. 41, to be paid on settlements by the General Accounting Office. 5 Comp. Gen. 737 (1926).

The fact that the taking of realty by the Secretary of the Interior was for construction of distribution system did not require that contract with an irrigation district precede the taking. United States v. 277.97 Acres of Land, 112 F. Supp. 159 (D. Cal. 1953).

Government may dismiss or abandon petition in condemnation proceedings at any time before taking property, notwithstanding owners claim for damages was in excess of district court jurisdiction. Owen v. United States, 8 F. 2d 992 (C.C.A. Tex. 1925).

36. Physical seizure (inverse condemnation)

(Editor's Note: See also opinions annotated under the Fifth Amendment, the Sundry Civil Expenses Appropriation Act of March 3, 1915, and the Federal Tort Claims Act as codified June 25, 1948.)

The authorization in section 7 of the Reclamation Act of 1902 that the Secretary

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of the Interior may "acquire any rights or property," "by purchase or by condemnation under judicial process," extends to the taking of private water rights by physical seizure as well as by purchase or formal condemnation. Turner v. Kings River Conservation Dist., 360 F. 2d 184, 192 (9th Cir. 1966).

The substantial reduction in the natural flow of the San Joaquin River as the result of the impoundment and diversion of the flow at Friant Dam upstream constitutes a seizure or taking, in whole or in part, of rights which may exist in the continued flow and use of the water; it does not constitute a trespass against such rights. This seizure was authorized by Congress when it authorized the project, and any relief to which claimants of the rights may be entitled by reason of such taking is by suit against the United States under the Tucker Act, 28 U.S.C. § 1346. Dugan v. Rank, 372 U.S. 609 (1963). (Ed. note: The Tucker Act is the Act of March 3, 1887, 24 Stat. 505. It authorized suits to be brought in the Court of Claims against the United States in certain cases, including claims founded upon the Constitution. This includes claims based upon the Fifth Amendment provision that private property shall not be taken for public use without just compensation. 28 U.S.C. § 1346 relates to the jurisdiction of the Federal District Courts in such cases, and 28 U.S.C. § 1491 relates to the jurisdiction of the Court of Claims. These sections appear herein in the appendix.)

United States had right to acquire by physical seizure water rights of riparian owners and overlying owners on river below Government dam and was not required to resort to judicial condemnation proceedings. State of California v. Rank, 293 F. 2d 340 (9th Cir. Cal. 1961), modified on other grounds 307 F. 2d 96, affirmed in part 372 U.S. 627, affirmed in part, reversed in part on other grounds sub. nom. Dugan v. Rank, 372 U.S. 609 (1963).

In actions in the Court of Claims for damages resulting from an unforeseen flooding of claimants' soda lakes following construction and operation of a Government irrigation project by which water was brought into the watershed, held (1) That allegations that the water percolated through the ground, due to lack of proper lining in the Government's canals and ditches, the manner of their construction and the natural conditions, were not intended to set up negligence, but merely to show causal connection between the project and the flooding, and hence did not characterize the cause of action as ex delicto; (2) That, as no intentional taking of claimants' property could be implied, the Government