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.

C. L. 1245, July 26, 1923, right-of-way notice form.

See departmental decision interpreting this act, printed in Reclamation Record of June, 1919, page 270.

RESERVOIR SITES AND RIGHTS OF WAY

[Extract from] An act to repeal timber-culture laws, and for other purposes. (Act March 3, 1891, ch. 561, 26 Stat. 1095)

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.)

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.)

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 authorizes 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 provis ons 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 conditionsand limitations. (Op. Asst. Atty. Gen., May 18, 1905, 33 L. D. 563.)

Canal or ditch company not required to irrigate own lands.-Under section 18of 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. (1907), (C. C. Mont.) 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.)

THE RECLAMATION ACT

An act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands. (Act June 17, 1902, ch. 1093, 32 Stat. 388)

[Sec. 1. Reclamation fund established from public land receiptsException-Support of agricultural colleges-Deficiency.]—That all moneys received from the sale and disposal of public lands in Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming, beginning with the fiscal year ending June thirtieth, nineteen hundred and one, including the surplus of fees and commissions in excess of allowances to registers and receivers, and excepting the five per centum of the proceeds of the sales of public lands in the above States set aside by law for educational and other purposes, shall be, and the same are hereby, reserved, set aside, and appropriated as a special fund in the Treasury to be known as the "reclamation fund," to be used in the examination and survey for and the construction and maintenance of irrigation works for the storage, diversion, and development of waters for the reclamation of arid and semiarid lands in the said States and Territories, and for the payment of all other expenditures provided for in this act: Provided, That in case the receipts from the sale and disposal of public lands other than those realized from the sale and disposal of lands referred to in this section are insufficient to meet the requirements for the support of agricultural colleges in the several States and Territories, under the act of August thirtieth, eighteen hundred and ninety, entitled "An act to apply a portion of the proceeds of the public lands to the more complete endowment and support of the colleges for the benefit of agriculture and the mechanic arts, established under the provisions of an act of Congress approved July second, eighteen hundred and sixty-two," the deficiency, if any, in the sum necessary for the support of the said colleges shall be provided for from any moneys in the Treasury not otherwise appropriated. (32 Stat. 388.)

NOTES

Amendments. See act of February 25, 1905 (33 Stat. 814), extending the reclamation act to a portion of the State of Texas.

See act of June 12, 1906 (34 Stat. 259), extending the reclamation act to the entire State of Texas.

See act of October 2, 1917 (40 Stat. 297), placing receipts from potassium deposits in the reclamation fund.

See section 35, act of February 25, 1920 (41 Stat. 450), reserving to the reclamation fund certain amounts of money derived from bonuses, royalties, etc., under that act, commonly known as the "oil-leasing act.

See section 17, act of June 10, 1920 (41 Stat. 1072), placing proceeds of charges arising from licenses for occupancy and use of public lands, etc., in the reclamation fund.

Constitutionality of reclamation act.-The reclamation act is within the power of Congress as to lands within the States as well as Territories, under Constitution, article 4, section 3, giving it power to dispose of and make all needful

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rules and regulations respecting the territory or other property belonging to the United States," and is not in violation of the Constitution on the ground that it authorizes the expenditure of public money without an appropriation, since it is in itself an appropriation of the proceeds of land sold, nor as delegating legislative authority to the Secretary of the Interior. (United States v. Hanson, 167 Fed. 881. 33 C. C. A. 371.)

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 in effect. (Burley v. United States et al., 179 Fed. 1, 102 C. C. A. 429, 33 L. R. A. (N. S.), 807, affirming 172 Fed. 615. See also Magruder v. Belle Fourche Valley Water Users Association, 219 Fed. 72, 133 C. C. A. 524.) Irrigation plan contemplated by the act.-The act contemplates the irrigation of private lands as well as lands belonging to the Government, and the fact that a scheme contemplates the irrigation of private as well as a large tract of Government land does not render the project illegal, so as to prevent the condemnation of land necessary to carry it out. (Burley v. United States, ante.)

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 Fed. 615.)

Whatever may be its maximum power under the Constitution, it is thought that by the reclamation act (32 Stat. 388), Congress has chosen to confer authority upon the Secretary of the Interior only to undertake projects the primary or predominant purpose of which is to reclaim public lands. (Griffiths v. Cole (1919), 264 Fed. 374.)

Contract to supply water for irrigation district.-Under the reclamation act the Secretary of the Interior has power to contract with an irrigation district to supply, or partially supply, the district with water. (Pioneer Irrigation District v. Stone, 23 Idaho 344, 130 Pac. 382; Hillcrest Irrigation District v. Brose, 24 Idaho 376, 133 Pac. 663; Nampa and Meridian Irrigation District v. Petrie, 153 Pac. 425. See also Nampa & Meridian Irrigation District v. Petrie (1924), 223 Pac. 531; 37 Ida. 45.) See act February 21, 1911 (36 Stat. 925.) Assessment for operation and maintenance of project.-Irrigable lands may be assessed with the annual cost of operation and maintenance under the authority conferred on the Secretary of the Interior. (Swigart v. Baker, 229 U. S. 187, 57 L. Ed. 1143, 33 Sup. Ct. 645, reversing 199 Fed. 865, 118 C. C. A. 313, and affirming 196 Fed. 569.)

The history of the reclamation act of 1902 shows that it was the intent of Congress that the cost of each irrigation project should be assessed against the property benefited and that the assessments as fast as collected should be paid back into the fund for use in subsequent projects without diminution. This intent can not be carried out without charging the expense of maintenance during the Government-held period as well as the cost of construction. (Idem.) Subsequent legislative construction of a prior act may properly be examined as an aid to its interpretation; and so held that statutes passed since the reclamation act of 1902 indicate that Congress has construed the provisions of that act as authorizing the Secretary of the Interior to assess cost of maintenance as well as of construction of irrigation projects upon the land benefited. (Idem.)

Where the executive officer charged with its enforcement annually reports to Congress the same construction of a statute, it is significant if Congress never has taken any adverse action in regard to such construction. (Idem.) Quaere whether Congress may not by legislation construe a prior statute so that as to all matters subsequently arising the action is legislative in character. (Idem.)

The repeated and practical construction of the reclamation act of 1902 by both Congress and the Secretary of the Interior, in charging cost of maintenance as well as construction, accords with the provisions of the act taken in its entirety and is followed by this court. (Idem.)

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