4

WITHDRAWN LANDS-RESERVATION FOR DITCHES

Under the provisions of the act of August 30, 1890, it was the evident intention of Congress to reserve perpetually to the Government an easement and right of way through and over any and all lands west of the one hundredth meridian that the Government might grant to settlers and purchasers subsequent to the passage of the act, and to thereby reserve the easement and right of way for the construction, maintenance, and operation of any ditches and canals the Government may construct at any time in the future for the irrigation and reclamation of arid lands. (Green v. Wilhite et al. (1908), 14 Idaho 238, 93 Pac. 971.)

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 (1924), 263 U. S. 497, 68 L. Ed. 407, 44 Sup. Ct. 182, affirming United States v. Ide (C. C. A. Wyo. 1921), 277 Fed. 373.)

Time of construction of ditches. 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 et al. (1908), 14 Idaho, 238, 93 Pac. 971.) 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 et al. (C. C. Ida. 1906), 160 Fed. 755.)

Drainage ditches.-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.)

Lands affected. This provision applies only to entries under the public or general land laws. (Secretary's instructions of June 4, 1903, 32 L. D. 147.)

All lands taken up under any of the public land laws of the United States subsequent to October 2, 1888, are subject to rights of way for ditches or canals constructed by authority of the United States. (General Land Office circular of July 25, 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 et al., ante.)

Under this provision the Government has full authority to construct canals or ditches over any such lands in connection with reclamation projects. (Secretary's instructions of June 6, 1908, 36 L. D. 482.)

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.)

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. (Idem.) National forest lands.-The mere fact that lands reserved as reservoir sites under the acts of October 2, 1888 (25 Stat. 526) and August 30, 1890 (26 Stat. 391), fall within the exterior limits of a national forest subsequently created does not in anywise change their status of reserved reservoir lands, or render them subject to appropriation under section 4 of the act of February 1, 1905 (33 Stat. 628), granting rights of way for the construction and maintenance of dams, reservoirs, etc., for municipal and mining purposes, within and across forest reserves of the United States. (Salt Lake City, 41 L. D. 31.)

Unallotted Indian lands, Ute Reservation, Colo.-The act of June 15, 1880 (ch. 223, sec. 3, 21 Stat. 203), providing for allotment in severalty of lands of

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WITHDRAWN LANDS-RESERVATION FOR DITCHES

* * *

**

*

*

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 in so far 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 et al., ante.)

Railroad rights of way. This act does not apply to railroad rights of 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 et al. (1911), 19 Idaho 234,

113 Pac. 455.)

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. (Idem.)

That 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 præsenti legally conveyed to it within a reclamation reservation by a homestead entryman. (United States v. Minidoka & S. W. R. Co. (C. C. Idaho 1910), 176 Fed. 762; reversed (1911) in 190 Fed. 491; affirmed (1914), 235 U. S. 211, 59 L. Ed., 200, 35 Sup. Ct. 46.)

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 or 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. (Secretary's instructions of April 19, 1912, 42 L. D. 396.)

Purchase of right of way for canal.-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 Aug. 30, 1800, 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. (Departmental decision M-27871, February 2, 1935.)

Compensation to landowner.-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 re Belanger (Lower Yellowstone).)

When the United States utilizes a right of 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. (Departmental decision, April 24, 1919, in re Albert W. C. Smith, Huntley, 47 L. D. 158.)

Temporary removal of transmission line. In the construction of the main canal, Kittitas division of the Yakima project, Washington, the contract stipulated that the right of way for the work would be provided by the United States. In the course of the construction it was necessary to cross lands of a patentee over which there had been constructed a high-powered transmission line. The right of way for the irrigation ditch and the right of way for the transmission line conflicted and the contractor agreed to assume one-half of the cost of temporarily removing from the site of the irrigation ditch the transmission line, the reclamation employees advising the contractor that they would recommend

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WITHDRAWN LANDS-RESERVATION FOR DITCHES

that the Government reimburse it for one-half of the cost so paid. The Comptroller General, under date of September 16, 1927, citing U. S. v. Van Horn (197 Fed. 611), ruled that the action of the employees of the Bureau of Reclamation in undertaking to arrange for payment to the contractor imposed no obligation upon the United States, and that payment was not authorized to the contractor of one-half of the cost of the temporary removal and replacement of the transmission line which interfered with the construction of the main canal. (7 Comp. Gen. 217.)

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 reservation of right of way therefor contained in the act of August 30, 1890 (ch. 837, sec. 1, 26 Stat. 391), 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 et al., ante.)

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. (Idem.)

Surplus water. So long as the Reclamation Service (Bureau of Reclamation) 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 et al. (D. C. Idaho 1919), 264 Fed. 369.)

Effect on title.-A provision in a contract for the sale of land that the seller will deliver to the buyer an abstract of title to the land, showing the title of the seller to be free and clear of encumbrances, is not complied with by the furnishing of an abstract which shows that the seller's title to the land is subject to a right of way for ditches or canals to be constructed by the Government of the United States under this act. (Cosby v. Danziger (1918), 27 Cal. App. 344; 175 Pac. 809.)

Miscellaneous references.-Debate in Congress as to right-of-way provision of act of August 30, 1890, 21 Congressional Record, Fifty-first Congress, first session, pages 7774, 7877, 7930, 8275, 8323, 8329, 9139, 9151, 9152, 9154, 9155.

Executive Document, No. 136, Senate, Fifty-first Congress, first session. Public Lands of the Arid Region, in Report of Commissioner of the General Land Office, 1890, pages 59-78, inclusive.

General Land Office circular of October 5, 1893, to registers and receivers directing indorsements in reference to right-of-way reservations. (17 L. D. 521.) Sections 17 and 18, general reclamation circular, approved May 18, 1916 (45 L. D. 385).

C. L. 761, May 29, 1918. Vouchers should clearly express the fact that the claim is for damages to improvements upon the land, not for the purchase of the land itself.

RESERVOIR SITES AND RIGHTS OF WAY

[Extract from] An act to repeal timber-culture laws, and for other purposes.

3, 1891, ch. 561, 26 Stat. 1095)

(Act March

Sec. 17. [Reservoir sites to contain only necessary lands-Occupied lands excluded when practicable.]-That reservoir sites located or selected and to be located and selected under the provisions of “An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, eighteen hundred and eighty-nine, and for other purposes," 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. (26 Stat. 1101.)

Textual note.-This section is codified as section 663, title 43, United States Code, with the following differences: The introductory word "That" is omitted; the clause beginning with "under" and ending with "thereto," in the fifth line, is omitted.

Sec. 18. [Rights of way to ditch companies-Not to interfere with Government occupation-Approval Water control of States].-That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any State or Territory, which shall have filed, or may hereafter file, with the Secretary of the Interior, a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals and 50 feet on each side of the marginal limits thereof; 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.)

Textual note.-The act of March 4, 1917 (39 Stat. 1197), amends section 18 above by inserting after the words "any canal or ditch company,' in the third line, the words "or drainage district"; and by inserting after the words "for the purpose of irrigation," in the fourth line, the words "or drainage." As so amended the section is codified as section 946, title 43, United States Code.

NOTES

Amendment.-The act of May 28, 1926 (44 Stat. 668), extends the scope of the act of March 3, 1891, as amended March 4, 1917 (39 Stat. 1197), and author

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RESERVOIR SITES AND RIGHTS OF WAY

izes right of way, if need be, additional to the 50 feet granted by act of March 3, 1891 (51 L. D. 485).

Cross reference.-See act of March 1, 1921 (41 Stat. 1194), and notes thereunder.

Applies to Federal reclamation. 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., May 18, 1905, 33 L. D. 563.)

Canal or ditch company not required to irrigate own lands.-Under section 18 of above act the department has never required the canal or ditch company securing the right of way to itself engage in the irrigation of its own lands, but has granted rights of way to canal companies which may serve the public generally by disposing of water to others for irrigation. (Moffat Tunnel Commission, departmental opinion, April 4, 1924. 50 L. D. 361.)

Water rights of United States-Estoppel.-The action of the Secretary of the Interior or other departmental officer of the Government in approving the maps of location of irrigation canals or ditches over public lands or reservations, as provided for by act March 3, 1891, sections 18 and 19 (26 Stat. 1101, 1102), can not give the companies constructing the same any right to appropriate the waters of a stream, nor estop the United States to assert a priority of right thereto, where it exists, against either such companies or users who may be supplied by them. U. S. v. Conrad Investment Co. (C. C. Mont., 1907), 156 Fed. 124; affirmed (1908), 161 Fed. 829; 88 C. C. A. 647.)

Suit by United States-Parties.-Any invasion of the prior right of the United States to the waters of a stream is a trespass, and the Government may maintain a suit in equity to protect its right against any one or all of such trespassers. (Idem.)