DISPOSITION OF SURPLUS WATERS AND COOPERATION IN IRRIGATION WORK

An act to authorize the Government to contract for impounding, storing, and carriage of water, and to cooperate in the construction and use of reservoirs and canals under reclamation projects, and for other purposes.1 (Act February 21, 1911, ch. 141, 36 Stat. 925)

[Sec. 1. Sale of excess water-Distribution to individual users-Restriction-Fixing of charges-Limitation on price to water users.]-That whenever in carrying out the provisions of the reclamation law, storage or carrying capacity has been or may be provided in excess of the requirements of the lands to be irrigated under any project, the Secretary of the Interior, preserving a first right to lands and entrymen under the project, is hereby authorized, upon such terms as he may determine to be just and equitable, to contract for the impounding, storage, and carriage of water to an extent not exceeding such excess capacity with irrigation systems operating under the act of August eighteenth, eighteen hundred and ninety-four, known as the Carey Act, and individuals, corporations, associations, and irrigation districts organized for or engaged in furnishing or in distributing water for irrigation. Water so impounded, stored, or carried under any such contract shall be for the purpose of distribution to individual water users by the party with whom the contract is made: Provided, however, That water so impounded, stored, or carried shall not be used otherwise than as prescribed by law as to lands held in private ownership within Government reclamation projects. In fixing the charges under any such contract for impounding, storing, or carrying water for any irrigation system, corporation, association, district, or individual, as herein provided, the Secretary shall take into consideration the cost of construction and maintenance of the reservoir by which such water is to be impounded or stored and the canal by which it is to be carried, and such charges shall be just and equitable, as to water users under the Government project. No irrigation system, district, association, corporation, or individual so contracting shall make any charge for the storage, carriage, or delivery of such water in excess of the charge paid to the United States except to such extent as may be reasonably necessary to cover cost of carriage and delivery of such water through their works. (36 Stat. 925.)

NOTES

Contract to supply water.-Under the provisions of the reclamation act, June 17, 1902, and the Warren Act, February 21, 1911, the Secretary of the Interior is authorized and has the power to contract with an irrigation district for supplying water to such district, or partially supplying it with water, for the irrigation of the lands therein and for the drainage of other lands within such district. (Pioneer Irrigation District v. Stone, 23 Idaho, 344, 130 Pac. 382. Followed in Hillcrest Irrigation District v. Brose, 24 Idaho, 376, 133 Pac. 663; Nampa and Meridian Irrigation District v. Petrie et al., 153 Pac. 425; and Nampa and Meridian Irrigation District v. Petrie (1924), 223 Pac. 531; 37 Ida. 45.)

1 Popularly known as the Warren Act, being so named for Senator Francis E. Warren, of Wyoming.

Application of plan of payment under fact-finders' law. There appears to be nothing in subsection F, section 4, act of December 5, 1924 (fact-finders' law) to prevent the application of the new plan of payment to Warren Act contractors in cases where the new plan is desired by the water users and found by the Secretary to be desirable. (51 L. D. 209-210; C. L. 1360, February 3, 1925.)

Validity of contract.—Under the Warren Act a contract between the United States and a land company for the delivery to the latter of water which escaped by seepage from the canal of a reclamation project was a valid contract, which gave the United States the right to conserve and deliver water thereunder. (Ramshorn Ditch Co. v. U. S. (1920), (C. C. A. Neb.) 269 Fed. 80, affirming decree (D. C.) U. S. v. Ramshorn Ditch Co. (1918), 254 Fed. 842.)

In view of the reclamation act, the Warren Act, and the legislation of Wyoming and Nebraska, an appropriation of water by the Reclamation Service (Bureau of Reclamation) for the irrigation of lands in Nebraska is valid, though the source of the supply is in Wyoming. (Idem.)

Timber. Under this act authorizing the Reclamation Service (Bureau of Reclamation) to cooperate with private parties in carrying out projects under the Carey Act, the Kuhn Irrigation & Canal Co. may be permitted to take timber from the Teton National Forest free of charge for use in raising the dam at Jackson Lake, Wyo., which is a project authorized under the reclamation act of June 17, 1902. (Opinion Attorney General, July 3, 1915, 30 Op. Atty. Gen. 398.)

Circular letters.-No. 868, February 10, 1920, and No. 872, February 21, 1920, concerning requirement for map showing boundaries of lands covered by Warren Act and other contracts.

No. 1171, November 3, 1922. Form of contract for sale of water under the Warren Act for a single farm.

Sec. 2. [Cooperation with water users for reservoirs-Title to worksLimit on water furnished-Water rights of United States not enlarged.]—That in carrying out the provisions of said reclamation act and acts amendatory thereof or supplementary thereto, the Secretary of the Interior is authorized, upon such terms as may be agreed upon, to cooperate with irrigation districts, water users' associations, corporations, entrymen, or water users for the construction or use of such reservoirs, canals, or ditches as may be advantageously used by the Government and irrigation districts, water users' associations, corporations, entrymen or water users for impounding, delivering, and carrying water for irrigation purposes: Provided, That the title to and management of the works so constructed shall be subject to the provisions of section six of said act: Provided further, That water shall not be furnished from any such reservoir or delivered through any such canal or ditch to any one landowner in excess of an amount sufficient to irrigate one hundred and sixty acres: Provided, That nothing contained in this act shall be held or construed as enlarging or attempting to enlarge the right of the United States, under existing law, to control the waters of any stream in any State. (36 Stat. 926.)

NOTES

The first proviso to this section is intended to be a restriction upon the area which may be irrigated from water furnished from a Government project. It is not a restriction upon the amount of water which may be delivered to a tract of land in single ownership. (Dec. Sol. Int. Dept., March 3, 1927, M-21709.)

Contract with irrigation district.-Where a State irrigation district had purchased from the Reclamation Service (Bureau of Reclamation) a water right which was not yet paid for, and had contracted to carry through its canals water for the reclamation project, and there was grave danger the irrigation district would be unable to operate its system, the Reclamation Service (Bureau of Reclamation) had such an interest in the district that it

might contract for the operation of the district under this section. (New York Trust Co. v. Farmers' Irr. Dist. (1922), (C. C. A. Neb.) 280 Fed. 785.) The Reclamation Service (Bureau of Reclamation) has authority to take over the operation of a State irrigation district system for the purpose of protecting its claims against the district without acquiring absolute title to the project. (Idem.)

Nevada Supreme Court holds contract valid.-The Truckee Carson Irrigation District under date of January 22, 1921, entered into a contract with the United States by which the United States agreed to expend a maximum of $700,000 toward the drainage of the district lands, which comprise a portion of the Newlands project. Statutory proceedings to confirm the contract were brought and upon appeal to the Supreme Court of the State the court (April 5, 1926) upheld the constitutionality of the Nevada irrigation district law and confirmed the proceedings, finding the irrigation district to have been duly organized and the contract to be valid. The court also upheld the power, given to the district by a State statute, to assess high lands for drainage charges when such high lands contributed to the seeped condition of the lower lands of the district. It was also held that drainage assessments might be levied at a flat rate, if the district board found as a fact that the benefits to the land in the district were equal. (McLean v. Truckee-Carson Irrigation District (1926), 245 Pac. 285.)

Decree as to proceedings of irrigation district not appealed from conclusive.— Where a petition or petitions have been presented to the district court for the confirmation of any part of the proceedings that have been taken and a decree has been made and entered confirming the same and no appeal has been taken therefrom, it is final and conclusive as to the proceedings taken prior thereto, unless such decree is assailed by a direct attack or unless it appears from the record that the proceedings taken and confirmed were taken in such manner that the district court was without jurisdiction to confirm the same. (American Falls Reservoir Dist. v. Thrall (1924), 228 Pac. 236.)

Bonds general lien on land until discharged.-Under the Idaho Irrigation District Law the bonds of the district are a general lien upon the lands of the district, and all of said lands are and must remain liable for the district assessments levied for the payment of such obligations until the same are fully paid and discharged. (Idem.)

Condition of irrigation district bonds as to collection irrevocable. The bonds or other obligations of an irrigation district may contain a provision that the collection of the principal and interest of such bonds or other obligations shall be made by the county officers of the county in which the lands taxed are situate, and when such condition is indorsed upon the obligation it is irrevocable until such indebtedness is paid. (Idem.)

Irrigation district municipal corporation respecting contracts.-An irrigation district is a public, or quasi public, corporation, not organized for governmental purposes, but to conduct the business for the private benefit of the owners of the land within its limits, and as respects its contracts made in the manner prescribed by law it is a municipal corporation. (Idem.)

Court's jurisdiction not defeated because of failure to give notice. In a proceeding to confirm the organization of an irrigation district the jurisdiction of the court to confirm is not defeated because of a failure to give notice of the hearing before the board of county commissioners, since the proceeding is in rem and the objection was available and could have been raised at the confirmation proceedings, of which notice was given. (Idem.)

Organization of irrigation district can not be attacked in proceeding to confirm assessment of benefits.-When proceedings to organize an irrigation district are on their face regular, show a substantial compliance with the statute prescribing the method of organizing such district, and have been confirmed by a judgment of the district court, from which no appeal has been taken, the question of the validity of the district's organization is res judicata and therefore can not be attacked in a subsequent proceeding to confirm the assessment of benefits. (Idem.)

Sec. 3. [Moneys received covered into reclamation fund.]-That the moneys received in pursuance of such contracts shall be covered into the reclamation fund and be available for use under the terms of the reclamation act and the acts amendatory thereof or supplementary thereto. (36 Stat. 926.)

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Assessments.-Yuma project.—Moneys received from the Imperial Irrigation District for the privilege of connecting with and using the Laguna Dam and the main canal of the Yuma reclamation project for the irrigation of lands in the Imperial Valley can not be applied in reduction of the assessments against the lands of the Yuma project, but must be covered into the reclamation fund as directed by section 3, act of February 21, 1911. (36 Stat. 926.) (32 Op. Atty. Gen. 41.)

But see act June 28, 1926 (44 Stat. 776.)

See also subsection J, section 4, act December 5, 1924 (43 Stat. 703.) Penalties on account of delinquent water charges.-Under contracts with irrigation districts under act of May 15, 1922 (42 Stat. 541), and also under the Warren Act of February 21, 1911, penalties on account of all classes of charges shall be credited to the reclamation fund generally and not to the project in connection with which they arise. (C. L. 1186, January 3, 1923. This circular amends C. L. 960 (standard clauses for contracts with irrigation districts), by adding a sentence to clause (H) thereof.)

LEASE OF SURPLUS ELECTRIC POWER

An act to amend an act entitled "An act providing for the withdrawal from public entry of lands needed for town-site purposes in connection with irrigation projects under the reclamation act of June 17, 1902, and for other purposes," approved April 16, 1906. (Act February 24, 1911, ch. 155, 36 Stat. 930)

[Sec. 1. Development and lease of surplus power-Proceeds-Impairment of projects prohibited-Longer lease permitted on Rio Grande project.]-That section five of an act entitled "An act providing for the withdrawal from public entry of lands needed for town-site purposes in connection with irrigation projects under the reclamation act of June seventeenth, nineteen hundred and two, and for other purposes," approved April sixteenth, nineteen hundred and six, be amended so as to read as follows:

"SEC. 5. That whenever a development of power is necessary for the irrigation of lands, under any project undertaken under the said reclamation act, or an opportunity is afforded for the development of power under any such project, the Secretary of the Interior is authorized to lease for a period not exceeding ten years, giving preference to municipal purposes, any surplus power or power privilege, and the money derived from such leases shall be covered into the reclamation fund and be placed to the credit of the project from which such power is derived: Provided, That no lease shall be made of such surplus power or power privileges as will impair the efficiency of the irrigation project: Provided further, That the Secretary of the Interior is authorized, in his discretion, to make such a lease in connection with Rio Grande project in Texas and New Mexico for a longer period not exceeding fifty years, with the approval of the water users' association or associations under any such project, organized in conformity with the rules and regulations prescribed by the Secretary of the Interor in pursuance of section six of the reclamation act approved June seventeenth, nineteen hundred and two." (36 Stat. 930.)

NOTES

Cross reference. See notes under section 5, act April 16, 1906 (34 Stat. 116).