and upon representations made to him that payment would be recommended for such use, and Congress has given authority to appropriate property necessary for the particular work and to pay therefor, there is an implied contract on the part of the Government to pay for the property and jurisdiction exists under the Tucker Act. (U. S. v. Buffalo Pitts Co. (1914), 34 Sup. Ct. 840, 234 U. S. 228, 58 L. Ed. 1290; 193 Fed. 905 (1912), affirmed.)

When in the exercise of its governmental rights it takes property, the ownership of which it concedes to be in an individual, the United States, under the constitutional obligation of the fifth amendment, impliedly promises to pay therefor. (Idem.)

Where necessary, canals, laterals, and structures, properly a part of a Federal irrigation system, can not be constructed by the United States because funds are not available, a landowner may advance the needed moneys to the United States, and he may be later reimbursed, without interest, by credits upon his water charges as they become due. (Departmental decision, October 8, 1919, Milk River project.)

Government's liability for damages or delays.-The Government is responsible in damages for delaying a contractor's work under contract to construct a dam for the Reclamation Service (Bureau of Reclamation), and for noncompliance with provisions respecting the prompt delivery of materials undertaken to be furnished by it. (United States Fidelity & Guaranty Co. v. U. S. (1918), 53 Ct. Cl. 561.)

The Government is not liable ex contractu for damages or delays suffered by one of its contractors by virtue of the actions of third parties merely because the latter are engaged in furnishing materials for the Government as well as for the public generally. (Idem.)

Completion of contract by surety company.-Under contract between surety company and plaintiff for completion of work on Government contract which the contractor had breached, held, that compensation should be all moneys paid out by Government on account of work required, in addition to defendant's absolute liability for certain sum. (Peters v. National Surety Co. (1918), 166 N. W. 43, 167 Wis. 131; rehearing denied (1918), 166 N. W. 1087, 167 Wis. 131.)

Under contract between plaintiff and surety company for the completion of a Government contract, held, that plaintiff was not entitled as against defendant to receive amount of penalties withheld by Government against original contractor. (Idem.)

Plaintiff contracting with surety company to complete Government work obtained by surety company, in absence of express provision, held not precluded from action on contract because it had not discharged certain claims of subcontractors and others. (Idem.)

In action on contract for Government work, where defendant surety company had repudiated any obligation to be active agent in securing certain moneys from Government, held, that it was in no position under its contract with plaintiff to insist that plaintiff obtain engineer's certificate as condition precedent to payment. (Idem.)

Plaintiff's contracting with defendant surety company to complete Government contract, after default of principal, held, under the findings, entitled to recover amount deducted by Government for materials and supplies purchased after suspension of original contract. (Idem.)

Plaintiff contracting with defendant surety company to complete Government contract, on which surety's principal had defaulted, held entitled to recover net cost of property to be furnished by defendant, and which plaintiff had purchased from third party. (Idem.)

Compensation for extra work.-Contractors held not entitled to recover extra compensation for work caused by changes of location of canal. (Page & Brinton v. U. S. (1921), 56 Ct. Cl. 176.)

Performance of contract.-Decision of chief engineer held conclusive and not subject to review by the court. (Idem.)

Compensation for damages.—Where the Government orders water turned into a canal before the extension of time allowed the contractors has expired, and keeps it in said canal for six months, thereby preventing the contractors from completing the work, it is a breach of the contract, and the contractors are entitled to recover compensation for damages resulting therefrom. (Idem.) 3. Eight-hour day.--There is no conflict between the declaration in this section that eight hours shall constitute a day's work upon the public works therein specified, and the saving clause in section 1 of the act of August 1,

1892 (27 Stat. 340), which allows more than eight hours work in one calendar day "in case of extraordinary emergency." Irrigation works for the reclamation of arid and semiarid lands, act of June 17, 1902, perfectly and comprehensively fill the idea of “public works of the United States." The eighthour law contemplated by the act of August 1, 1892, means eight hours of effective labor. The blasting, cleaning of tracks, repair of machinery, and all other similar matters incident to the reclamation work, essential to prompt and continuous service in the regular day, may legally be done before and after regular hours. The law does not prescribe in what hours of the day the labor shall be done. Blacksmiths and their helpers, firemen, and pump men are either mechanics or laborers within the meaning of the eight-hour law. Quaere, as to the status of teamsters, cooks, and flunkies. It is the duty of the engineers of the Reclamation Service (Bureau of Reclamation) to see that the eight-hour law is observed by the contractors and to report violations of that law. (26 Op. Atty. Gen. 64.)

The eight-hour law of June 19, 1912 (37 Stat. 137), which provides for a penalty of $5 per day for each laborer working in excess of eight hours upon construction contracts or materials under special specifications, the same to be deducted from the monthly estimates of the contractor, is effective in regard to work of the Reclamation Service (Bureau of Reclamation) since the service was put upon an annual appropriation basis by the act of August 13, 1914. (38 Stat. 686.) Prior to that time the act did not apply to the work of the Reclamation Service (Bureau of Reclamation). (Comp. Dec., June 8, 1915.) State laws affecting labor do not apply to the Reclamation Service (Bureau of Reclamation). (Departmental decision, July 31, 1915.)

See C. L. 767, June 7, 1918, citing Executive order suspending eight-hour limit during period of war.

See C. L. 772, June 28, 1918, containing instructions regarding above Executive order.

C. L. 986, March 26, 1921, cancels C. L. 772. See 24 Comp. Dec. 9.

4. Application of the act to different classes of land. 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, 179 Fed. 1, 102 C. C. A. 429, 33 L. R. A. (N. S.), 807, affirming 172 Fed. 615.)

No deduction from the irrigable area subject to water charges will be made on account of easements for highways or irrigating ditches. (Williston Land Co., 39 L. D. 2. But see Reclamation Circular Letter No. 569, July 11, 1916.)

Individual owners of lands acquired under the provisions of the Carey Act may be supplied with such additional water from reservoirs constructed under the reclamation act as may be necessary to fully develop and reclaim the irrigable portions of such lands, subject to all the conditions governing the right to the use of water under any particular project. (Op. Asst. Atty. Gen., October 11, 1906, 35 L. D. 222.)

Persons holding contracts to purchase lands from a State, on deferred payments, no conveyance of title to be made to the purchasers until full payment, are entitled, if not in default and their contracts are in good standing, to subscribe for and purchase water rights under the reclamation act for irrigation of such lands, subject to the provisions and limitations of that act. retary's instructions, September 11, 1911, 40 L. D. 270.)

(Sec

Lands held by virtue of a desert-land entry are held in private ownership within the meaning of the act, and the entryman or his assignee is entitled to the same rights and privileges and is subject to the same conditions and limitations, so far as right to the use of water is concerned, as any other owner of lands within the irrigable area of an irrigation project. (Secretary's instructions, July 14, 1905, 34 L. D. 29. See act of June 27, 1906, 34 Stat. 519.) Where the irrigable area of a legal subdivision embraced in an entry within a reclamation project is shown on the duly approved farm-unit plat to be greater than the entire area of such legal subdivision shown on the prior township plat, applications for water rights and payments therefor should be made on the basis of the actual irrigable area, and not on the basis of the acreage shown on the township plat. (J. E. Enman, 40 L. D. 600.)

Agencies of a State government are entitled to become takers of water under a reclamation project for the lands benefited. (Departmental decisions, May 12, 1909.)

The Reclamation Service (Bureau of Reclamation) can not, while construction of a project is in progress, and prior to the laying out of its canals, undertake to reexamine, at the instance of individual claimants, particular tracts falling within the project, to ascertain whether or not such tracts are capable of service from its projected canals. (Lewis Wilson, 42 L. D. 8. See also 48 L. D. 153, amending paragraph 13 of general reclamation circular of May 18, 1916.)

5. Water-right applications.-The provision in the form for water-right application by private landowner requiring applicant to agree to grant and convey to the United States, or its successors, all necessary rights of way for ditches, canals, etc., for or in connection with the project, is a proper requirement warranted by the spirit and intent of the reclamation act, and an applicant for water right will be required to conform thereto as a condition to allowance of his application. (C. M. Kirkpatrick, 42 L. D. 547.)

The provision in the form of water-right application by private landowner requiring him to bind himself not to convey the land voluntarily to any person not qualified under the reclamation law to purchase a water right, upon condition that the application and any "freehold interest" sought to be conveyed shall be subject to forfeiture, is a reasonable and proper requirement, and an application from which such provision has been eliminated will not be accepted. (Idem.)

The provision in the form of water-right application by private landowner requiring applicant to agree that the United States, or its successors, shall have full control over all ditches, gates, or other structures owned or controlled by applicant and which are necessary for the delivery of water, is in accordance with departmental regulations, and being a necessary incident to the proper management and operation of the project by the United States or its successors, is impliedly authorized by the reclamation act, and a waterright applicant will be required to conform thereto. (Idem.)

The provision in forms for the water-right applications requiring payment by applicant of "betterment " or maintenance charges is a proper requirement under the reclamation laws, and the fact that at the time entry was made there was no specific mention of "betterment" charges in the water-right application forms then in use will not relieve the entryman from payment of betterment charges legally assessed against his land. (Idem.)

Where a water-right application for land held in private ownership has been canceled for default in payment of building, operation, and maintenance charges, such application may be reinstated upon full payment of all accrued charges. (Departmental decision, April 3, 1916, 45 L. D. 23.)

An application for water for land in a reclamation project, providing that the measure of the water right was that quantity of water which should be beneficially used for irrigation, not exceeding the share proportionate to irrigable acreage of the water available as determined by the project manager or other proper officer during the irrigation season for the irrigation of lands under the land unit, did not authorize the project manager or other officer to decide whether a landowner needed water, but only to determine the amount of water actually available, but was too indefinite, and landowners could not be required to execute it as a condition of obtaining water. (Payette-Boise Water Users' Association v. Cole (1919), (D. C. Idaho), 263 Fed. 734.)

By corporations.-No applications will be received from corporations on reclamation projects. That Congress did not intend that the reclaimed lands upon which the Government is expending the money of all the people should be the subject of corporate contract is conclusively established by the fact that the Secretary is authorized to fix the farm unit on the basis of the amount of land that will support a family. These lands are to be the homes of families. But existing corporations to which water rights have heretofore been granted should be permitted to continue without interference, and in view of past departmental decisions applications by corporations pending at this date may be allowed. (Departmental decision, July 11, 1913, 42 L. D. 250. Pleasant Valley Farm Co., 42 L. D. 253.)

Religious, educational, charitable, and eleemosynary corporations are excepted from the decision of July 11, 1913. (Departmental decision, December 5, 1916.) If an individual owns lands for which he makes water-right application duly accepted by the United States and the land is later in good faith transferred to a corporation, the corporate owner is entitled thereafter to the same treatment as other landowners on a project. (Departmental decision, December 6, 1916, in re The Santaquin Lime & Quarry Co., Truckee-Carson.)

By incorporated town.-An incorporated town organized as a city of the sixth class under the laws of the State of California (General Laws, 1909, ch. 7, p. 843) is entitled to make water-right application on the usual form to secure water from a Federal reclamation project for irrigating and beautifying a small tract of land which it owns, located outside the city limits and occupied by the septic tanks of the municipality. (Departmental decision, July 13, 1917, Orland.)

By soldiers.-The status of one qualified to make water-right application under the reclamation act of June 17, 1902 (32 Stat. 388), is not changed by a temporary service away from home in the Army, Navy, or Marine Corps of the United States, and a water-right application executed by any such person at any point where he may be engaged in the line of duty may be received and approved if otherwise found acceptable. (Departmental decision, December 22, 1917, C. L. 720.)

See notes 5 and 6 under section 5 of this act. 6. Water charges.

An applicant for water rights under a reclamation project is required to pay for water for the entire irrigable area of his entry as shown on the plat upon which the construction charges were apportioned; and where mistake in the plat is alleged as to the irrigable area of the entry, application for correction thereof should be made to the local officer of the Reclamation Service (Bureau of Reclamation). (Williston Land Co., 39 L. D. 2. But see Regulations for Minidoka project, approved March 6, 1916.) There is nothing in the act to prohibit a graduated scale of the annual payments required of users of water from projects constructed thereunder, and in all cases where it is deemed advisable this plan of payment may be adopted. (Secretary's instructions, August 16, 1905, 34 L. D. 78.)

The relinquishment of a homestead entry within the irrigable area of an irrigation project, where the entryman is in default in the payment of any annual installment, does not relieve the land of such charge, and a succeeding entryman takes it subject thereto. (Secretary's instructions, July 16, 1906, 35 L. D. 29.)

Water can not be furnished from a reclamation project to a State experiment farm free of charge. (Departmental decision, September 15, 1909, in re Idaho State Experiment Farm.)

Where after entry of a farm unit within a reclamation project the farm-unit plat is amended and the entryman in conforming his entry to the amended plat retains only part of the land originally entered he is entitled to have the payments theretofore made on account of building charges and on account of the Indian price for the land credited to the retained portion, but is not entitled to have the payments on account of operation and maintenance so credited. (Eugene F. Windecker, 41 L. D. 389.)

It is not optional with an entryman of lands within a reclamation project to take or refuse water service from the project; but he is compelled to take the water service and to pay the charges fixed therefor. (Mangus Mickelson, 43 L. D. 210.)

In letter dated February 18, 1918, the United States Commissioner of Internal Revenue holds that payments covering the construction charges on Federal reclamation projects are not allowable deductions in income-tax returns, as the water rights secured by the payment of such charges are perpetual in nature, and the amount so paid should be added to capital investment in order to determine the gain or loss resulting from the transaction upon subsequent disposal of the land and water rights. As to the operation and maintenance charges the commissioner holds them to be an ordinary and necessary expense of doing business, and that the amounts so paid are deductible in the incometax returns.

Rental of water.-Water in irrigation canals constructed and operated under the reclamation act, which has not become appurtenant to any land and is not needed for irrigation, may be temporarily disposed of by lease, in the discretion of the Secretary of the Interior, the proceeds to become a part of the reclamation fund. (Alhambra Brick & Tile Co., 40 L. D. 573. See act of February 21, 1911, 36 Stat. 925.)

As an emergency measure to save growing crops, the director is authorized to supply squatters upon withdrawn lands under the reclamation projects with water on a rental basis, pending decision as to their rights to the land, subject to the provision that water shall be furnished only to such settlers as file a certain designated application therefor. (Departmental decision, May 27, 1912.)

Lands too alkaline to produce profitable crops may be supplied with water for a nominal rental, in order to encourage washing the alkali from the soil. (Departmental decision, March 24, 1913.)

Construction charges.-Where after application for water right for the irrigable area of a farm unit, under the terms and for the acreage fixed in the published notice, a second notice is given showing an increased irrigable area in the farm unit and fixing a different rate per acre, the applicant is entitled to complete payment for the area originally fixed at the rate specified in the first notice, but as to water right for the additional irrigable acreage shown by the second notice, he will be required to pay at the rate fixed in the latter notice. (Walter L. Minor, 39 L. D. 351.)

A successful contestant of an entry within a reclamation project will be required, in making entry in exercise of his preference right, to pay the building charge obtaining at the time his application is filed, and is not entitled to the rate in effect when the former entry was made nor to credit for the payments made by the former entryman. (Henry A. Schroeder, 40 I.. D. 458.)

When the Secretary of the Interior has fixed the number of .nstallments to be paid for a water right and the time of payment, he is with ut authority to suspend payment of same in case the alkali has risen to the surface of the soil and interfered with the crop returns from the land. (Departmental decision, in re Sam Hammond (Truckee-Carson), September 24, 1909. See regulations of the Secretary, August 11, 1915, governing extension of relief to water users whose lands are temporarily affected by seepage, alkali, etc., to such an extent as to render them impracticable of profitable cultivation.)

In case the actual cost of a reclamation project exceeds the estimated cost of construction, it is the duty of the Secretary of the Interior to revise the estimate and make the charges sufficient to reimburse the reclamation fund for the cost of construction. (Mangus Mickelson, 43 L. D. 210.)

The reclamation act provides that the cost of the project shall be imposed upon the land benefited equitably, which is to say ratably. No authority exists in the reclamation act, either in express terms or by necessary implication, that some of the lands benefited might be required to contribute one sum and other lands a greater or less sum, for such rule of apportionment would be inequitable and not ratable. (Op. Asst. Atty. Gen., October 25, 1910, in re Prosser Falls L. & P. Co. (Yakima); departmental decision, February 2, 1909, 37 L. D. 428. But see Op. Atty. Gen., May 1, 1911 (Lower Yellowstone), with accompanying papers, in effect to the contrary.)

Apportionment of cost of improvement and of water rights.-A public notice by the Secretary of the Interior, specifying lands for which water would be furnished under an irrigation project, the classes of charges therefor, and the construction charge as $75 per acre of irrigable land, payable in installments as enumerated, was in accord with this section, as amended, and act of August 13, 1914, authorizing the Secretary to let contracts for construction work, and thereupon to give public notice of the lands irrigable thereunder, of the charges per acre and the number of annual installments, to be determined with a view of returning to the reclamation fund the "estimated cost" of the project, by which is meant, not the actual, exact final sums paid for construction, but such sums as it is believed after careful computation will cover the expenses directly and fairly connected with the construction of the project. (Yuma County Water Users' Association v. Schlecht (1921), (C. C. A. Ariz.), 275 Fed. 885; affirmed (1923) 43 S. Ct. 498, 262 U. S. 138, 67 L. Ed. 909.)

Under this section, correspondence between the Secretary of the Interior and officials of the Reclamation Service (Bureau of Reclamation) relative to estimates of the cost prior to the date of a contract between the landowners and the United States, for the payment thereof can not be regarded as a public notice to the former, nor as binding on the Government. (Idem.)

Where the Secretary of the Interior in the exercise of his discretion withdrew certain land from an irrigation project and confined it to the area described in the public notice to the landowners affected, the latter, who contracted to pay for that part of the cost which should be apportioned to them by the Secretary, could not restrain the local reclamation officers from turning off the water for failure to pay an assessment in excess of the original estimate and of the actual value of work to be constructed, on the ground the system was not completed when the suit was filed. (Idem.)