Though there was a substantial and material difference between preliminary engineering estimates of the cost of an irrigation project and a later estimate, the courts will not interfere in the absence of some substantial showing that the action of the Secretary of the Interior in publishing notice of charges based on such original estimates was fradulent or arbitrary or so erroneous as to justify an inference of illegality or wrongdoing, especially where the increased cost was due to unexpected physical difficulties, higher wages, change of plans, increased mileage of canals, etc. (Idem.)

Under this section, the cost is to be estimated and apportioned before construction, and in case of settlement under such conditions the price can not be later increased, though the published estimate is insufficient to cover the actual cost. (Payette-Boise Water Users' Association v. Cole (1919), (D. C. Idaho) 263 Fed. 734.)

Where a reclamation project was constructed with the mutual understanding that settlers would reimburse the Government for the actual outlay, and contracts had been made to supply irrigation districts and others with water, settlers were entitled to some authoritative description of the property to which their rights related, and a definition of the extent of their interest in the project, before they could be required to pay and to have from an authoritative source and of record a declaration of the cost of the project and of the portion of which it was intended they should become the beneficial owners, and could be required to pay the cost only of such portion of the works, or such interest therein as was set apart for the use of their lands. (Idem.)

Where instead of estimating and apportioning the cost of a reclamation project before construction it was mutually understood that the settlers would reimburse the Government for the actual cost, they were chargeable with the actual cost only, and the Secretary of the Interior was without discretion in fixing the charge. (Idem.)

The requirement of this section that the cost of a project shall be estimated and apportioned before construction may be waived by settlers and the Secretary of the Interior, and was waived where there was no formal compliance with such requirement and all parties understood that ultimately the settlers would reimburse the Government for its actual and necessary outlay. (Idem.) Where a reclamation project was constructed under a mutual understanding that settlers would reimburse the Government for the actual cost, the actual cost of the project was a matter for judicial investigation and determination. (Idem.)

Where a reclamation project was constructed under a mutual understanding that the actual cost should be charged against settlers, the cost of drainage work done for the benefit of lands in the project, or to protect other lands from conditions resulting from the construction and operation of the project, was chargeable against the project lands. (Idem.)

Whatever may be the extent of the discretion of the Secretary of the Interior in the case of a reclamation project, where the charge for water and conditions of purchase are announced in advance of construction as required by statute, he could not exercise unlimited power to determine the conditions on which water would be supplied, where the project was constructed under the mutual understanding that landowners might procure water by paying their ratable proportion of the cost of construction and submitting to other equal and reasonable conditions. (Idem.)

Where landowners within a reclamation project outside of an irrigation district are charged $80 per acre, while those within the district are charged only $70, because of the possibility that all those outside the district will not take water, those paying such higher price are entitled to the additional service for which they pay, and if seven-eighths of the acreage takes water, they are entitled to the water rights for the entire acreage. (Idem.)

While administrative expenses of the Reclamation Service (Bureau of Reclamation), such as salaries of the administrative officers and of those who assisted them in the performance of administrative duties, are not chargeable as part of the cost of a project, the cost of services rendered to that particular project, such as the keeping of its accounts, preparation of engineering specifications, or purchasing and forwarding supplies, whether such services are rendered at the place of the project or elsewhere, or for such project alone or in connection with others, in such case prorative, is properly chargeable as a part of its cost. (Payette-Boise Water Users' Association v. Bond (1920), (D. C. Idaho), 269 Fed. 159.)

The amount of the claim of a contractor on an irrigation project, which is being contested by the Government in the Court of Claims, can not properly be charged to the settlers as a part of the cost of the project. (Idem.)

In computing the acreage on which the cost of an irrigation project was to be charged, a general deduction from the lands within the limits of the project of 10,000 acres, because it was "estimated" that such quantity would prove incapable of irrigation, because rough or sandy or from seepage, held not justified, where no land was described and excluded, and all lands within the project were equally entitled to water if demanded, and where specific tracts had already been excluded as nonirrigable. (Idem.)

Settlers on lands within an irrigation project, with the understanding that water shall be supplied to their lands and that the cost of the works will be assessed against them, are not concluded by the decision of the Secretary of the Interior as to what their interest in the works shall be, nor as to what sum shall be assessed against their lands for cost of construction, but have rights which may be judicially determined. (Idem.)

Under a contract by which the Government took over the canal system of an irrigation company for the purpose of incorporating it in a larger Government project, and providing that "an equitable proportion of the cost of maintaining and operating the system of irrigation works which may be constructed by the United States on the south side of the Boise Valley, as may be determined by the Secretary of the Interior, shall be paid to the United States by the holders of said certificates of stock," the fact that during the construction of the Government project the manager made charges for water furnished such stockholders on a different basis held not to affect the right and duty of the Secretary, after completion of the project, to make the apportionment as expressly provided in the contract. (New York Canal Co. v. Bond (1921), (D. C. Idaho), 273 Fed. 825.)

Suspension of contract.-Under contract between plaintiff and the Government reclamation service for construction of a diversion dam and headwork, held that, where work was not completed within contract period as extended, deduction of stipulated per d.em from monthly amount earned as liquidated damage was authorized, and where plaintiff decl ned to complete work because of such deductions, suspension of the contract by the Secretary of the Interior was proper. (S. R. H. Robinson & Son Contracting Co. v. U. S. (1918), 53

Ct. Cl. 536.)

Where the contract is properly suspended but the Government materially departs from the contract terms in taking over and completing the work, the contractor is entitled to recover the value of his plant and equipment at the time it was seized; and the Government is not entitled to recover on a counterclaim for the excess of cost to complete over the contract price. (Pacific Coast Const. Co. v. U. S. (1918), 53 Ct. Cl. 582.)

Where a contractor refuses to proceed with the work and the engineer in charge telegraphs his superior that fact and requests authority to suspend the contract in case the contractor should not conclude to go on with the work, and the Director (Commissioner) of the Reclamation Service (Bureau of Reclamation) in communicating that telegram to the Secretary of the Interior recommends that the authority be granted in order that the engineer may act promptly, as indicated in the telegram, and the Secretary of the Interior grants authority as recommended, and after such suspension approves it, such suspension must be regarded as the act of the Secretary. (Idem.)

Where a contract is suspended by mistake and the work is taken over and completed by the Government, the contractors are entitled to recover compensation for damages resulting from such suspension. (Page & Brinton v. U. S. (1921), 56 Ct. Cl. 176.)

Extension of time.-Except where specifically authorized by law, the Secretary of the Interior is not empowered to grant extensions of time, either directly or indirectly, for the payment of charges accruing from individual water users upon reclamation projects. (Departmental opinion, December 31, 1923, in re Shoshone irrigation project, 50 L. D. 223.)

Public notices.-Upon the issuance of public notices pursuant to section 4 of the reclamation act of June 17, 1902, the construction charges specified in the notices become fixed charges against the lands, and the acceptance and approval of water-right applications in a sense create a contractual relation between the applicants and the United States for the payment of the charges by the water users and the furnishing of irrigation water by the Government that can not be changed except with the consent of both parties. (Depart

mental opinion. L. D. 223.)

December 31, 1923, in re Shoshone irrigation project, 50

The Secretary of the Interior has no general statutory authority to suspend, even temporarily, public notices issued by him pursuant to section 4 of the act of June 17, 1902, of lands irrigable under reclamation projects, nor does he possess supervisory power to do so in the absence of a specific statute authorizing it. (Idem.)

See act of February 13, 1911 (36 Stat. 902), authorizing the Secretary of the Interior to withdraw public notices issued under section 4 of the reclamation act.

Operation and maintenance charges.-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.)

The Secretary of the Interior has authority to levy and collect assessments on lands irrigated from any irrigation works to defray the cost of maintaining such works until the time when under the act the maintenance and operation passes to the landowners. (Baker v. Swigart, 196 Fed. 569, reversed 199 Fed. 865, 118 C. C. A. 313, affirmed 229 U. S. 187, 57 L. Ed. 1143, 33 Sup. Ct. 645.)

The purpose of this act is to encourage the settlement and cultivation of public lands, and it contemplates that such lands may be entered on as soon as the irrigation system is so far completed that water may be furnished thereon for irrigation purposes; and when the act empowers the Secretary of the Interior to fix and determine the charges against the land, it must have intended that he should cover the cost of maintenance and operation while in control of the United States as well as construction. (United States v. Cantrall, 176 Fed. 949.)

Water may be furnished without operation and maintenance charge for the irrigation of the grounds about country schoolhouses upon reclamation projects. (Departmental decisions, January 11, 1912, and October 24, 1919.) See notes 5 and 6 under section 5 of this act.

7. Reclamation contracts to be filed in returns office.-The reclamation act requires that all moneys received from any source in an irrigation project shall be paid into the reclamation fund. All charges are determined with a view of returning to the reclamation fund the cost of the construction of each project so that the moneys can be used for other irrigation works. It is certainly within the policy of the statute that all the contracts pertaining to irrigation projects should be recorded in the Interior Department in order that the condition of the projects and of the reclamation fund may be readily ascertained. Contracts authorized by the Secretary of the Interior, which were entered into between an acting supervising engineer in the United States Reclamation Service (Bureau of Reclamation) and certain users of water furnished for irrigation purposes by the Reclamation Service (Bureau of Reclamation) are within the purview of section 3744, Revised Statutes, and copies thereof should be filed

in the returns office of the Department of the Interior by the officer making and signing the same. (28 Op. Atty. Gen. 66.)

66

66

Must contain "Member of Congress" clause.-Agreements for the purchase of lands, for water rentals, for conveyance of water rights, and similar instruments, contractual in form, relating to the adjustment of vested water rights, executed in behalf of the United States by some officer of the Reclamation Service (Bureau of Reclamation) for the purposes within the purview of the reclamation act (32 Stat. 388), are agreements' or contracts within the meaning of sections 3739-3742, Revised Statutes, which prohibit any Member of Congress from being a party to, or interested in, any contract with, or on behalf of, the United States which is in its nature executory and continuous as to future performance, and require the insertion therein of the condition prescribed by section 3941. (26 Op. Atty. Gen. 537.)

8. Assessments of water users' associations.-Where a water users' association organized for the purpose of guaranteeing payment of the construction cost of a Federal irrigation project, having executed a contract with the United States for that purpose, makes assessments against its members to raise a fund with which to conduct litigation to avoid paying project costs, the United States will not assist the association in collecting such assessments by requiring prospective water users to show as a condition precedent to acceptance of waterright applications that such assessments have been paid. (Departmental decision, May 4, 1918, Boise.)

See Umatilla W. U. A. v. Irvin, 108 Pac. 1016; U. S. v. Bunting, 206 Fed. 340. 9. Miscellaneous references.-General Land Office circulars regarding applications for water rights. (April 4, 1906, 34 L. D. 544; March 22, 1909, 37 L. D. 521; and April 20, 1909, 37 L. D. 581.)

General Land Office instructions of January 18, 1908, to registers and receivers in reference to this section. (36 L. D. 256.)

Secretary's regulations in reference to water-right charges. (May 27, 1908, and July 8, 1908, 37 L. D. 11-16, supplemented by regulations of April 8, 1911, 40 L. D. 15.)

Secretary's instructions as to forms for water-right applications, etc. (September 9, 1910, 39 L. D. 197; January 30, 1911, 39 L. D. 532; and June 16, 1911, 40 L. D. 139.)

Secretary's order of February 26, 1913, 42 L. D. 203, and public notice of June 23, 1913, 42 L. D. 201, regarding collection of operation and maintenance charges as affected by case of Swigart v. Baker, ante.

Sections 100-115, inclusive, general reclamation circular, approved May 18, 1916, 45 L. D. 385.

Sec. 5. [Requirements of entrymen-Limit of 160 acres-ResidencePayments Disposal of receipts-Commissions.]-That the entryman upon lands to be irrigated by such works shall, in addition to compliance with the homestead laws, reclaim at least one-half of the total irrigable area of his entry for agricultural purposes, and before receiving patent for the lands covered by his entry shall pay to the Government the charges apportioned against such tract, as provided in section 4. No right to the use of water for land in private ownership shall be sold for a tract exceeding 160 acres to any one landowner, and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made. The annual installments shall be paid to the receiver of the local land office of the district in which the land is situated, and a failure to make any two payments when due shall render the entry subject to cancellation, with the forfeiture of all rights under this act, as well as of any moneys already paid thereon. All moneys received from the above sources shall be paid into the reclamation fund. Registers and receivers shall be allowed the usual commissions on all moneys paid for lands entered under this act. (32 Stat. 389.)

NOTES

1. Amendment.-See act of August 9, 1912 (37 Stat. 265), amending this section in reference to payments, etc.

See act of August 10, 1917 (40 Stat. 273), suspending residence requirements during World War.

See notes under section 4 of this act.

2. Homestead entry requirements.-Persons making homestead entry of lands within the irrigable area of any project commenced or contemplated under the act, will be required to comply fully with the requirements of the homestead law as to residence, cultivation, and improvement; and failure to supply water from such works in time for use upon the land entered will not justify a failure to comply with the law and to make proof thereof within the time required by the statute. (Secretary's instructions (Minidoka ) May 17, 1904, 32 L. D. 633. See act of June 25, 1910, 36 Stat. 864.)

There is no authority for granting a leave of absence to a homesteader who made entry of lands believed to be susceptible of irrigation under a contemplated project, on the ground that he can raise no crops on the land in its present arid state and that it is impossible to procure water for the irrigation thereof prior to completion of the project. (Jacob Fist, 33 L. D. 257. See act of June 25, 1910, 36 Stat. 864.)

The provisions of the three-year homestead act of June 6, 1912 (37 Stat. 123), respecting cultivation, have no application to entries made under the reclamation act; but the reclamation laws require, as a prerequisite to the issuance of final certificate and patent, that the entryman shall have reclaimed, for agricultural purposes, at least one-half of the total irrigable area of his entry and paid all reclamation charges at that time due. (Wilbur Mills, 42 L. D. 534.)

The provisions of the three-year homestead law respecting cultivation do not apply to entries made subject to the reclamation act. (Rosa Voita, 43 L. D. 436.)

Upon the death of an entryman who has made satisfactory homestead final proof on a reclamation farm unit, the homestead becomes a part of his estate and as such subject to distribution, and is not an unperfected entry subject to the provisions of section 2291, Revised Statutes. The condition imposed by the reclamation act as to reclamation, payment of charges, and filing of waterright application are conditions not of homestead law or proof but arising out of reclamation and imposed as a further requirement. (Heirs of Wm. L. Naftzger, 46 L. D. 61. See also Edward Pierson, 47 L. D. 625.)

3. Limit of acreage. The provision of this section, restricting the sale of a right to use water for land in private ownership to not more than 160 acres, will not prevent the recognition of a vested water right for a larger area, and protection of the same by allowing the continued flowage of the water covered by the right through the works constructed by the Government. Atty. Gen., 34 L. D. 351; Anna M. Wright, 40 L. D. 116.)

(Op. Asst.

A qualified water-right applicant may, after having disposed of a previously acquired water right, make another application, and as to the latter, may be considered in the position of an original applicant. A landowner may be the purchaser of the right to the use of water for separate tracts at the same time, provided he can properly qualify and the tracts involved do not exceed 160 acres in the aggregate. (Departmental decision, in re Wm. B. Bridgman (Sunnyside), November 20, 1909.)

The fact that a widow who under section 2291, Revised Statutes, succeeds to the right of her husband in an unperfected homestead entry within a reclamation project has previously secured water from the project for reclamation of land held by her in private ownership in no wise affects her right to acquire water under the project for completion of such entry under the reclamation act. (Anna M. Wright, 40 L. D. 116.)

Congress is without power to control or regulate the sale or acreage of lands in private ownership within reclamation projects; but, so long as the projects are under Government control, may determine the acreage for which water may be supplied through such projects to any one landowner. (Amaziah Johnson, 42 L. D. 542.)

A person who holds a farm unit shall not be permitted before full payment has been made on the appurtenant water right, to acquire other lands with appurtenant water rights unless the water-right charges on the latter have been fully paid. A person may hold private lands with appurtenant water