SPECIAL PROVISIONS OF SUNDRY CIVIL APPROPRIATION ACT FOR 1916

[Extracts from] An act making appropriations for sundry civil expenses of the Government for the fiscal year ending June 30, 1916, and for other purposes. (Act March 3, 1915, ch. 75, 38 Stat. 822)

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[Purchase of passenger-carrying vehicles-Compromise of damages by Secretary.]-(Appropriations are made from the reclamation fund for) purchase, maintenance, and operation of horsedrawn or motor-propelled passenger-carrying vehicles; payment of damages caused to the owners of lands or private property of any kind by reason of the operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of irrigation works, and which may be compromised by agreement between the claimant and the Secretary of the Interior. (38 Stat. 859.)

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Provisions similar to the above are now carried regularly in the sundry civil appropriation bills.

The above language, in reference to damages, viz, "payment of damages caused to the owners of lands or private property of any kind by reason of the operations of the United States, its officers or employees, in the survey, construction, operation, or maintenance of irrigation works, and which may be compromised by agreement between the claimant and the Secretary of the Interior," occurs in various appropriation acts subsequent to March 3, 1915, as follows: Act July 1, 1916 (39 Stat. 304); act June 12, 1917 (40 Stat. 147); act July 1, 1918 (40 Stat. 673); act of July 19, 1919 (41 Stat. 200); act June 5, 1920 (41 Stat. 913); act March 4, 1921 (41 Stat. 1402); act May 24, 1922 (42 Stat. 584); act January 24, 1923 (42 Stat. 1206); act June 5, 1924 (43 Stat. 416); act March 3, 1925 (43 Stat. 1166); act May 10, 1926 (44 Stat. 453); except that in the last-named act (act of May 10, 1926, 44 Stat. 453), the word other " is inserted between the words or and private," making the first part of the clause read: "payment of damages caused to the owners of lands or other private property of any kind," etc. See also appropriation act of January 12, 1927, Pub. No. 541.

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Liquidation of damages by executive officer.-Where damage to lands arises in connection with construction, operation, or maintenance of a reclamation project and is caused neither by negligence nor by accident, the Secretary of the Interior now and always has had under section 10 of the reclamation act the power to liquidate the damages, as declared by Congress in this appropriation act. The latter act is a legislative construction of the reclamation act. The damages in question must be due to acts by direction of competent authority. (In re Scott, Shoshone project, Comp. Dec., June 15, 1915.) Reclamation Service (Bureau of Reclamation) was given authority to approve compromise agreements for damages by departmental decision July 29, 1915.

The fact that the negligence of an officer, agent, or employee of the Government contributed to the injury of the property does not invalidate a claim for damages provided such negligence relates to the performance of the duty of the officer, agent, or employee, as distinguished from an act of wantonness or carelessness committed in a purely personal capacity. (21 Comp. Dec. 255.)

The Government is not liable for damages to private property caused by the prosecution of public work, as, for example, blasting for excavation purposes conducted in a lawful and proper manner, and a Government officer can not create a legal liability on the part of the Government by promising that the Government will pay for such damages so incurred. (23 Comp. Dec. 615.) Diversion by the United States Reclamation Service (Bureau of Reclamation) of the waters of a lake, thereby depriving meadowland of its moisture derived

from subirrigation, even though the land was not contiguous to the meander line of the lake, constitutes a valid claim for damages within the contemplation of the above act, which authorizes payment of damages caused by reason of the operations of the United States in the survey, construction, operation, or maintenance of irrigation works. (George W. Myers and Lillie A. Myers, 49

L. D. 106.)

Where meadowland is damaged by the diversion of the waters of a lake, the landowner is not entitled to general damages to his remaining lands as incidental to the damage to the former, if the latter were not directly benefited by those waters prior to their diversion. (Idem.)

A State statute prescribing the period of time within which action may be initiated in its courts, has no application with reference to a claim asserted against the United States pursuant to a Federal statute, where the remedy is not sought in a tribunal of that State. (Idem.)

A horse leased by the Reclamation Service (Bureau of Reclamation) from R. R. Vannoy on the Yuma project, while being used with ordinary care, became frightened at the odor, noise, and paraphernalia of a trapper who was passing by, and as a result ran away and was injured in a barbed-wire fence. The comptroller held in this case (Comp. Gen. Dec. March 15, 1922) that the proximate cause of this damage was not the "operations of the United States," but circumstances entirely foreign to and in no way connected with such operations, and that therefore there was no liability on the part of the Government under the appropriation act of June 5, 1920 (41 Stat. 913), or independently thereof. (Reclamation Record for April, 1922, p. 78.)

A contract of employment was entered into by the Bureau of Reclamation and C. E. Stone for the hire of a teamster and two horses for use in cutting hay on the Grand Valley project. The team belonged to Miss Anna Ott, who also owned a mower loaned to and used by Stone. The mower driven by Stone clogged and when the team was set to back the mower a clip came off the neck yoke. One of the horses was injured so badly that it died. The Comptroller General found that the injury to the horse was caused by the use of the mower by the United States with knowledge of its defects in connection with the survey, construction, operation, and maintenance of the irrigation project. Claim was accordingly allowed. (Comp. Gen. Dec. (A14693), July 29, 1926, citing 4 Comp. Gen. 713 post.)

Damages caused to the owners of lands or private property of any kind by reason of irrigation operations, etc., are authorized to be compromised by agreement between the claimant and the Secretary of the Interior and paid from the reclamation fund, and no payments of damages as a result of compromise agreements may be made prior to approval of the Secretary of the Interior. (4 Comp. Gen. 713.)

Comptroller General's decision of June 15, 1926 (A-6633) authorizes the designation of the Commissioner or the Acting Commissioner of Reclamation to compromise damage claims involving $1,000 or less.

The act of June 5, 1924 (43 Stat. 416), in no way suspends or supersedes the jurisdiction of the General Accounting Office to settle and adjust claims for damages as provided by section 236, Revised Statutes, as amended by section 305 of act of June 10, 1921 (42 Stat. 24.) (4 Comp. Gen. 713.)

Claims for payment of damages under act of June 5, 1924 (43 Stat. 416), involving doubtful questions of law and fact should not be paid by disbursing officers but forwarded to the General Accounting Office for direct settlement. (Idem.)

A claim for damages in the nature of reimbursement of the cost of necessary repairs to a tugboat leased to the United States under a contract providing for return to the owner in good condition, "with allowance for usual wear and depreciation," must be determined under the specific provisions of the contract. Such a provision in the contract does not of itself render the United States an insurer of the property or in any way enlarge its common-law liability as a bailee to exercise ordinary diligence in the care of the property, and where it appears from the evidence submitted that the injury did not result from the failure of the United States or its employees to exercise that degree of care required of a bailee, there is no authority for payment of a claim for damages. (5 Comp. Gen. 557.)

The following circular letters refer to compromise of damages: No. 627, January 19, 1917; No. 836, July 28, 1919; No. 885, May 5, 1920 (printed at 47 L. D. 392); No. 1147, August 8, 1922; No. 1150, August 23, 1922; No. 1379, March 19, 1925, transmitting decision of Comptroller General (A-6633, Feb. 26, 1925, 4 Comp. Gen. 713), ante.

An injury caused by the construction and operation of a Government irrigation project, which by seepage and percolation necessarily influences and disturbs the ground water table of the entire valley where plaintiffs' lands are situated, is damnum absque injuria. (Natron Soda Co. v. U. S. (1919), 54 Ct. Cl. 169; affirmed (1921), 257 U. S. 138, 66 L. Ed. 171, 42 Sup. Ct. 58.)

[Obligations not to exceed appropriations or reclamation fund---Ten per cent of appropriations available interchangeably.]-Under the provisions of this act no greater sum shall be expended, nor shall the United States be obligated to expend during the fiscal year nineteen hundred and sixteen, on any reclamation project appropriated for herein an amount in excess of the sum herein appropriated therefor, nor shall the whole expenditures or obligations incurred for all of such projects for the fiscal year nineteen hundred and sixteen exceed the whole amount in the "reclamation fund" for that fiscal year.

Ten per centum of the foregoing amounts shall be available interchangeably for expenditure on the reclamation projects named; but not more than ten per centum shall be added to the amount appropriated for any one of said projects. (38 Stat. 860.)

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See section 16, act of August 13, 1914 (38 Stat. 686). Provisions similar to the above are now carried regularly in the sundry civil appropriation bills.

[No obligation increasing fixed construction charge permitted until agreement is made with water users.]-No work shall be undertaken or expenditure made for any lands, for which the construction charge has been fixed by public notice, which work or expenditure shall, in the opinion of the Secretary of the Interior, increase the construction cost above the construction charge so fixed; unless and until valid and binding agreement to repay the cost thereof shall have been entered into between the Secretary of the Interior and the water-right applicants and entrymen affected by such increased cost, as provided by section four of the act of August thirteenth, nineteen hundred and fourteen, entitled "An act extending the period of payment under reclamation projects, and for other purposes." (38 Stat. 861.)

[Protection of property along Colorado River.]-For protecting lands and property in the Imperial Valley and elsewhere along the Colorado River, within the limits of the United States, against injury or destruction by reason of the changes in the channels of the Colorado River and the Secretary of the Interior is authorized to expend any portion of such money within the limits of the Republic of Mexico as he may deem proper in accordance with such agreements for the purpose as may be made with the Republic of Mexico-$100,000, which sum shall be available for expenditure as soon as there shall have been paid into the Treasury, by contributions from the Imperial Valley irrigation district, an equivalent amount to the credit of the Secretary of the Interior, to constitute, with the amount hereby appropriated, the total sum of $200,000, to be expended by him for the purposes herein described. (38 Stat. 861.)

LIEU FARM UNITS IN CASES OF NONIRRIGABILITY

An act for the relief of homestead entrymen under the reclamation projects of the United States. (Act March 4, 1915, ch. 182, 38 Stat. 1215)

[Sec. 1. Relinquishment of homestead entries under reclamation act if land not irrigable-Selection of farm unit in lieu-Residence on original entry credited.]-That any person who has made homestead_entry under the act of June seventeenth, nineteen hundred and two (Thirty-second Statutes at Large, page three hundred and eightyeight), for land believed to be susceptible of irrigation which at the time of said entry was withdrawn for any contemplated irrigation project, may relinquish the same provided that it has since been determined that the land embraced in such entry or all thereof in excess of twenty acres is not or will not be irrigable under the project, and in lieu thereof may select and make entry for any farm unit included within such irrigation project as finally established, notwithstanding the provisions of section five of the act of June twentyfifth, nineteen hundred and ten, entitled "An act to authorize advances to the reclamation fund," and so forth, and acts amendatory thereof: Provided, That such entrymen shall be given credit on the new entry for the time of bona fide residence maintained on the original entry. (38 Stat. 1215.)

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Assignment of lieu farm unit.-Where, prior to an exchange of reclamation farm units under this act the entryman has, in connection with the original unit, fulfilled the ordinary homestead requirements and submitted proper proof thereof, the lieu farm unit may be assigned, under the act of June 23, 1910 (36 Stat. 592), subject to compliance with the requirements of the reclamation law as to payment, reclamation, and cultivation. (Sarah E. Lewellen, 46 L. D. 385.)

Miscellaneous.-General Land Office circular of April 29, 1915, under this (44 L. D. 87.)

act.

General Land Office circular of September 25, 1915, amending paragraphs 2 and 3 of circular of April 29, 1915. (44 L. D. 377.)

Reclamation Service instructions of December 20, 1915, governing credit for water-right payments in cases of lieu selection under said act. (44 L. D. 544.) Circular letter No. 536, January 26, 1916, in reference to credit on new entries under this act.

AMENDMENT OF ACT RELATING TO ASSIGNMENT OF RECLAMATION HOMESTEAD ENTRIES

An act to amend the act of June 23, 1910, entitled "An act providing that entrymen for homesteads within the reclamation projects may assign their entries upon satisfactory proof of residence, improvement, and cultivation for five years, the same as though said entry has been made under the original homestead act.' (Act May 8, 1916, ch. 114, 39 Stat. 65)

[Sec. 1. Assignment of homestead entries within reclamation projects— Confirmation of certain assignments made betwen June 23, 1910, and January 1, 1913.]-That the act of June twenty-third, nineteen hundred and ten (Public, Two hundred and forty-three, Thirty-sixth Statues, page five hundred and ninety-two), entitled "An act providing that entrymen for homesteads within reclamation projects may assign their entries upon satisfactory proof of residence, improvement, and cultivation for five years, the same as though said entry had been made under the original homestead act," is hereby amended by adding the following proviso:

"Provided, That in the absence of any intervening valid adverse interests any assignment made between June twenty-third, nineteen hundred and ten, and January first, nineteen hundred and thirteen, of land upon which the assignor has submitted satisfactory final proof and the assignee purchased with the belief that the assignment was valid and under the act of June twenty-third, nineteen hundred and ten, is hereby confirmed, and the assignee shall be entitled to the land assigned as under the act of June twenty-third, nineteen hundred and ten, nothwithstanding that said original entry was conformed to farm units and that the part assigned was canceled and eliminated from said entry prior to the date of final proof: Provided further, That all entries so assigned shall be subject to the limitations, terms, and conditions of the reclamation act and acts amendatory thereof or supplemental thereto, and all of said assignees whose entries are hereby confirmed shall, as a condition to receiving patent, make the proof heretofore required of assignees." (39 Stat. 65.)

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Cross reference.-See notes under act June 23, 1910. (36 Stat. 592.)