meaning of a land-purchase contract permitting a vendor to retain possession of the land for a limited period after the execution of the contract but barring any claim for damages from an entry during that time by officers and agents of the United States "to survey for and construct reclamation works *** and other structures and appliances incident to said reclamation works.” 61-109

Damages for the extraordinary use of a public highway bridge by Government personnel in the course of constructing the various units of the Kendrick project, Wyoming, are compensable from funds made available in the Interior Department Appropriation Act, 1954, for the payment of claims for damage to property arising out of activities of the Bureau of Reclamation. The measure of damages for injury to a public highway bridge ordinarily is the cost of repairing the injured bridge. However, where the bridge is out of date and has become a safety hazard because of the extraordinary use which causes the damage, the estimated cost of repairs may be applied against the cost of a new bridge designed to meet present-day traffic requirements.

III. NEGLIGENCE

61-264

A claim for damage to privately owned property destroyed by fire through the negligence of employees of the Bureau of Reclamation may not be paid directly under an appropriation act provision for the payment of damages to "private property

by reason of the operations of the United States *** in the survey, construction, operation, or maintenance of irrigation works," since such provisions have been uniformly construed as not extending to claims arising from negligent acts. The claim may be allowed and certified to Congress for payment, however, under the act of Dec. 28, 1922 (42 Stat. 1066).

57-537

Claims for damage resulting from a flood of such unprecedented volume as to constitute it an act of God, for which the Government is not liable, cannot successfully be asserted on the ground of negligence in failure to construct a detention reservoir of sufficient volume to impound

unprecedented and unforeseeable flood waters. 58-397

IV. TAKING

The intermittent and incidental blowing of silt from a lowered reservoir to privately owned property does not constitute such a permanent invasion of the property as to amount to an appropriation of it and hence an implied taking. 57-415

V. WATER AND WATER RIGHTS

Generally

Lands under the Satus unit (Wapato Irrigation Project) found to be irrigable and for which irrigation facilities were provided by the act of Jan. 24, 1923 (42 Stat. 1174), and subsequent acts, are to be considered as a part of the Wapato irrigation project for all purposes in connection with distribution of waters and 53-622 construction costs.

Forty acres of each Indian allotment under the Satus unit (Wapato Irrigation Project) are entitled to a free water right but are subject to a lien for construction charges in the same amount as all other lands on the project receiving the same water right. 53-623

While the provision of the Landowners' Agreement governing the use of pumped water and irrigation wells in or upon Indian lands differs in its language from the corresponding provision of the Landowners' Agreement governing non-Indian lands, the differences in language are explained by the varying circumstances affecting Indian and non-Indian lands, and the language was not intended to confer greater rights on Indians than non-Indians, so far as the drilling and operation of irrigation wells are concerned. 61-313

Flooding and Overflow

A claim for damage to land flooded by irrigation ditch as result of negligence of Indian Service employees may not be paid directly under act of Feb. 20, 1929, authorizating the Secretary of the Interior to "pay *** for damages caused to owners of lands or other private property *** by reason of the operations of the United States *** in the survey, construction, operation, or maintenance of irrigation works," since this provision has

The Government is not liable in case of damage to privately owned property resulting from flooding caused by a break in its irrigation canal where the cause of the damage is shown to have been the burrowing actions of ferae naturae, over which the Government has no control, and not the result of a direct nonnegligent act of an employee in the survey, construction, operation, or maintenance of irrigation works, for which recovery may be had under annual appropriation act provisions, or a negligent act, for which recovery may be had under the act of Dec. 28, 1922 (42 Stat. 1066, 31 U.S.C. 215). 57-584

Claims for damage resulting from a flood of such unprecedented volume as to constitute it an act of God, for which the Government is not liable, cannot successfully be asserted on the ground of negligence in failure to construct a detention reservoir of sufficient volume to impound unprecedented and unforeseeable flood waters.

the service of the Government who placed a "check board" in an irrigation lateral and caused the water to overflow. 60-8 Claims for property damage caused by the flooding of downstream lands when spillway gates at a Bureau of Reclamation dam gave way may properly be regarded as "arising out of activities of the Bureau of Reclamation." 60-451

IRRIGATION DISTRICTS

Regulations of June 3, 1927, State irrigation districts in their relation to the public lands (Cir. No. 592, revised).

52-155

Lands within a Federal irrigation project will not be allowed to remain subject to entry where they are found insufficient to support a family or, after relinquishment by a former entryman, while the latter's application for an exchange of entry under subsection M of the act of Dec. 5, 1924 (43 Stat. 672, 703), is being considered. 52-222

Where the administrative officers of the Government fail to apply the net profits derived from the operation of a project power plant annually to the operation and maintenance costs of the project taken over by an irrigation district as required by subsection I of section 4 of the act of Dec. 5, 1924 (43 Stat. 672), and such profits together with the amount paid by the irrigation district would have liquidated the debt of the district, no penalty can be charged against the district.

53-257

A contract entered into between the United States and a project irrigation district, organized under the laws of the State of Montana, whereunder it is agreed by the district that it will collect and pay to the United States the construction charges due the latter, does not intend that there shall be a moratorium between the termination of the payment by any individual landowner on the primary charge and the beginning of payment on the secondary charge, where the completion of payments of the primary charge on the various units occurs in different years. 53-323

The Department will not attempt to abrogate a contract entered into more than twenty years ago between the United

States on behalf of the Indians on the Yakima Indian Reservation and the white landowners outside of the reservation under which more than fifty percent of the waters of Ahtanum Creek were apportioned to the latter during the irrigation season each year, where the division was based upon beneficial use at the time the agreement was made and valuable rights have been acquired in reliance upon the terms of the contract, notwithstanding that the Secretary of the Interior may not have had authority at the time to bind the Indians by such agreement. 53-328

Section 963 of the Wyoming Compiled Statutes of 1920 is to be construed in conjunction with sections 993 and 994 of those statutes and, when so construed, the requirement in the former section that, before an irrigation district shall contract with the United States for the construction, operation, and maintenance of an irrigation system for the benefit of the district, an election shall be held at which a majority of the qualified electors present and voting shall have voted in favor of such contract, is fulfilled where the voting is by proxy upon the basis of the quantity of acreage held by each elector as authorized by the latter mentioned sections. 53-334

The elimination of land from a reclamation project after its sale for charges assessed by the irrigation district within which it is situated would not deprive the district of its rights as purchaser under the sale, but the district will be allowed a limited time within which to assign the land to a qualified purchaser or to show cause why it should not be eliminated as not susceptible of reclamation.

53-658

The act of July 1, 1932 (47 Stat. 564) contained a proviso that "the collection of all construction costs against any Indianowned lands within any Government irrigation project is hereby deferred, and no assessment shall be made on behalf of such charges against such lands until the Indian title thereto shall have been extinguished." Held, that the surrounding circumstances afford clear warrant for the conclusion that Government Indian irrigation projects were meant, and not irriga

tion projects within the purview of the Reclamation Act. 54-90

While the law does not contemplate that an irrigation district shall permanently hold a reclamation homestead bid in by it at tax sale and receive patent thereto, there is no Federal law which requires such a district to divest itself, within a fixed period to be determined by the Secretary of the Interior, of its interest in said lands; but its retention should be limited to a reasonable time, to be governed by the circumstances of each case. 54-256

A promise to the United States by an irrigation district, holding a natural flow appropriation right under State law, to accept a specified graduated flow of water annually "in full satisfaction of all its rights to the water ***, both natural flow and surplus storage," constitutes a promise to forbear the exercise of its natural flow appropriation right in consideration of the delivery by the United States of the regulated supply provided for in the contract, and the aggregate amount of water specified in the contract consequently is the total to which the contractor is entitled annually. 56-149

Where assessments were levied by an irrigation district under the act of Aug. 11, 1916 (39 Stat. 506) against unpatented land in an existing desert-land entry, the irrigation district can enforce the lien arising from such assessment by a sale of the land in accordance with the provisions of the act, despite the cancellation of the entry and the withdrawal of the land under the Reclamation Act during the intervening period. 60-363

Generally speaking, Indian allotted and tribal lands may not, under existing law, be included, with or without the consent of the Indians, in State irrigation districts which would have the power to operate and maintain the Indian projects serving such lands, and to assess such lands for irrigation charges, under contracts which would not permit the irrigation districts to resort to foreclosure proceedings in State courts to enforce the collection of such charges. 61-177

The departmental construction of the legislation and agreements governing the

San Carlos project has been acquiesced in by Congress and confirmed by Congress in the adoption of the act of Mar. 7, 1947, authorizing the San Carlos Irrigation and Drainage District to drill new irrigation wells as agent of the San Carlos project. 61-313

Under the terms of the Landowners' Agreement, the Repayment Contract and the Gila Decree governing the operation of the San Carlos project, the pumped waters of the project are reserved as a common project water supply for the equal benefit of Indian, as well as non-Indian, land

(See also Administrative Procedure Act) JURISDICTION OVER FEDERAL AREAS

Although the consent of a State is not essential to the acquisition of title to land within the State by the United States, such consent is necessary for the acquisition by the Federal Government of jurisdiction over the land. 60-303

Section 126 of the California Government Code is applicable only to acquisitions of land by the United States in California where the Federal Government seeks to obtain from the State a cession of jurisdiction, either exclusive or partial, over the land. 60-304

By subsection (b) of section 3, Article II, Circular No. 1, it is provided that, if work is located at points remote and inaccessible, 40 hours' work in one week shall be permitted after it is determined by the State Engineer (P.W.A.), prior to advertisement, that the work is remote and inaccessible; and this regulation vests authority in the State Engineer (P.W.A.) for determining whether 40 hours shall constitute a week's work on any designated project with authority lodged in the Federal Emergency Administration of Public Works to modify such regulation. 54-327

The order of the Secretary of the Interior of Aug. 23, 1933, requiring that all work performed with funds granted by the Federal Emergency Administration of Public Works shall be subject to the labor policies and wage requirements prescribed by said organization, embraces work performed in National Parks, whether under contract or by the Government's own forces. 54-327

The Secretary of the Interior, as such, is without authority to approve and make effective plans submitted by the Director of the Office of National Parks, Buildings, and Reservations, for changing the hours of labor from 30 to 40 per week, upon work in National Parks, within the scope of the Federal Emergency Administration of Public Works, his authority in this connection being that conferred upon him as head of the Federal Emergency Administration of Public Works. 54-328

To be legally effective, a change from or waiver of the statutory 30-hour workweek prescribed by the National Industrial Recovery Act and the Federal Emergency Administration of Public Works, as applied to national parks, must be authorized by officials of the latter organization or the State Engineer (P.W.A.), in such persons residing the duty of determining whether it is impracticable or infeasible to do the work required on the 30-hour week basis

or to substitute therefor the 40-hour week authorized in Circular No. 1 and the rules and regulations approved Aug. 9, 1933.

54-328 Congress having fixed the minimum hours of labor per day for employees in the Executive Departments in Washington at not less than seven hours per day, except employees whose compensation is determined by special wage-fixing authorities, and declared that service shall be required each day except Sundays and days declared public holidays, there is no authority of law for elimination of Saturday as a partial workday by adding to the other workdays the four hours of service required by the act of Mar. 3, 1931 (46 Stat. 1482). 54-565

II. WAGE RATES

The Bureaus and agencies of the Department have the right to bargain collectively with representatives of their ungraded employees on all matters within their discretion, and particularly with respect to wages and working conditions.

59-292

The wage rate for ungraded laborers or mechanics employed by the Bureau of Rec lamation for a particular type of work in connection with operation or maintenance activities at the Hoover Dam may be established at a level different from the wage rate of personnel performing the same type of work in connection with construction activities on the project or in the locality of the project. 60-47

The minimum-wage provision in a Government contract is not a representation or warranty to the contractor that such wages are those actually prevailing in the The Davis-Bacon Act (49 Stat. 1011) is not for the benefit of contractors but for the protection of their employees against substandard earnings.

area.

LACHES

61-423

Laches may not be imputed from mere lapse of time in asserting an equitable right, and, as a rule, one in peaceable possession of real estate under claim of right is not called upon to take affirmative action unless and until his title or possession is attacked; and failure to appeal to equity during the period is no defense to a suit

subsequently brought to establish, enforce, or protect his right. Summers Creek Coal Company v. Doran (142 U.S. 417); Ruckman v. Cory (129 U.S. 387). 54-112

An examination of the cases wherein the Department, following erroneous action in canceling entries, selections, and other filings, has later declined to reinstate them, discloses that there were commonly present in such cases elements of affirmative acquiescence in the decision sought to be vacated, laches in passively permitting the initiation of adverse rights, or other equitable bar. 54-113

MATERIALS ACT

The act of Sept. 27, 1944 (58 Stat. 745; 50 U.S.C., App. 1601), expired on Dec. 31, 1946, when the President proclaimed the cessation of hostilities (now 30 U.S.C., 1952 ed., Supp. V, Sec. 601).

59-467

MIGRATORY BIRD CONSERVATION ACT I. ACQUISITION OF REFUGE LANDS The United States may acquire by condemnation lands within a State which it desires for the purpose of creating refuges for wild fowl under the Federal Migratory Bird Law. 53-693

MIGRATORY BIRD TREATY ACT

I. RULES AND REGULATIONS Regulations under the Migratory Bird Treaty Act of July 3, 1918 (40 Stat. 755; 16 U.S.C. 704), prohibiting the taking of migratory birds on privately owned lands, do not pertain to a "foreign affairs functions" or to "public property," as those terms are used in section 4 of the Administrative Procedure Act (5 U.S.C. 1003). The procedure prescribed in that section should be followed in connection with the issuance of such regulations. 59-431

II. HUNTING AND FISHING The Migratory Bird Treaty Act of July 3, 1918 (40 Stat. 755), passed to give effect to the treaty between the United States and Great Britain, proclaimed by the President on Dec. 8, 1916 (39 Stat., pt. 2, p. 1702), is applicable to Indians and Indian reservations, the treaty and statute containing no provision excluding Indians or Indian reservations from their opera