622. Cost of construction and maintenance of irrigation project as charge on land. "and receiver" in lines 11 and 12 of this section should be omitted by virtue of section 71 of this title abolishing the office of receiver. 623. Map of district and plan of irrigation project; approval by Secretary. 17 of this section should read For grammatical precision "have" in line "had then " and 66 66 are" in line 18 should read were then." 624. Entry of approval on land records. "and receiver" in line 3 of this section should be omitted by virtue of section 71 of this title abolishing the office of receiver. 628. Patents to entered but unpatented land. "receiver" in line 8 of paragraph 1 of this section and in lines 3 and 7 of paragraph 3 should read "register" by virtue of section 71 of this title abolishing the office of receiver and transferring his duties to the register. SUPPLEMENTARY NOTES TO 1927 EDITION OF FEDERAL RECLAMATION LAWS ANNOTATED Page 5. Act of August 30, 1890 (26 Stat. 391). Insert as the second paragraph the following: Temporary removal of transmission line. In the construction of the main canal, Kittitas division of the Yakima project, Washington, the contract stipulated that the right of way for the work would be provided by the United States. In the course of the construction it was necessary to cross lands of a patentee over which there had been constructed a high-powered transmission line. The right of way for the irrigation ditch and the right of way for the transmission line conflicted and the contractor agreed to assumre one-half of the cost of temporarily removing from the site of the irrigation ditch the transmission line, the reclamation employees advising the contractor that they would recommend that the Government reimburse it for one-half of the cost so paid. The Comptroller General, under date of September 16, 1927, citing U. S. v. Van Horn (197 Fed. 611), ruled that the action of the employees of the Bureau of Reclamation in undertaking to arrange for payment to the contractor imposed no obligation upon the United States, and that payment was not authorized to the contractor of one-half of the cost of the temporary removal and replacement of the transmission line which interfered with the construction of the main canal. (7 Comp. Gen. 217.) Page 12. Section 1, act of June 17, 1902 (32 Stat. 388). Insert after "Whiffin v. Cole," in the eighth line of the second paragraph, "264 Fed. 252." Add the following paragraphs under "Removal of suits": A suit to establish right to prior use of waters, wherein the Secretary of the Interior is defendant, held not removable to Federal court, as suit against officer of revenue, of United States court, or of either House of Congress. (North Side Canal Co. v. Twin Falls Canal Co. et al., (1926) 12 Fed. (2d), 311.) Where a suit is against the United States, Federal court's jurisdiction is to be determined by that fact rather than by the fact that it arises under laws of the United States. (Idem.) The word "land" in Judicial Code, section 24, giving Federal district courts jurisdiction of suits to partition land, where the United States is tenant in common or joint tenant, means realty, as distinguished from personalty, and includes waters on land and water claimed to be appropriated for use in irrigation. (Idem.) Page 13. Section 1, act of June 17, 1902 (32 Stat. 388). Additional notes under "Reclamation fund, of what constituted": An employee of the Yakima project, Washington, died intestate, leaving neither creditors, heirs, nor relatives entitled under the laws of his last domicile to share in the distribution of his estate. In addition to compensation due the decedent by the Bureau of Reclamation, the proceeds of his effects were for disposition. It was decided that the money due from the bureau to the deceased employee could not be paid to the tax commissioner of the State to escheat to the State. To take care of such matters a special fund was established in the Treasury under the title "Effects of deceased employees, Interior Department," a settlement being issued by the General Accounting Office charging the reclamation fund with a balance due the estate after payment of the burial expenses, and crediting the new fund with a like amount. Any claims that might be subsequently submitted by parties in interest should be given proper administrative action and forwarded to the General Accounting Office for consideration and settlement. (7 Comp. Gen. 478. dated February 15, 1928.) Damages collected not to be credited to reclamation fund.-Where a contractor defaults in deliveries of material for use on work in connection with the reclamation fund, any damages collected, representing the excess cost of openmarket purchase, should be credited as a miscellaneous receipt in the Treasury, and not to the reclamation fund. The cost of any proceedings to collect damages sustained because of the failure of a contractor to comp'y with the terms of his contract would not be chargeable to the reclamation fund. The reclamation act does not provide that damages sustained by the United States on the breach of a contract, if and when collected, shall be credited to the reclamation fund, and it is improper to credit said fund with damages`collected and not charge it with the expense of collecting such damage. (8 Comp. Gen. 284.) This decision was affirmed, after reconsideration requested by the Secretary of the Interior, by the Comptroller General in Decision A-24542, of June 17, 1929. But see the act of June 6, 1930, Pub. No. 314, 71st Cong. 2d sess., which changes this procedure. Page 13. Section 1, act of June 17, 1902 (32 Stat. 388). Insert the following under the heading "Reclamation fund, applica tion of." Payment of the expenses of Federal employees while attending a State court can not be authorized from appropriated funds merely because the State law prohibits such payments to Government employees, if such be the case; nor may they be paid their salaries while so absent from duty unless they are entitled to annual leave and such absence is charged thereto. (Comp. Gen. Decision A-22498, April 27, 1928, citing 2 Comp. Gen. 801, in which it was held that fees and mileage may be paid from the appropriation "Fees of witnesses, United States courts," to persons possessing information and willing to make affidavit for the purpose of aiding prohibition enforcement officers, and who are subpoenæed to appear before a judge or a United States commissioner to make affidavits as a basis for issuing a search warrant.) Page 20. Section 3, act of June 17, 1902 (32 Stat. 388). Insert under (B) "First-Form Withdrawals," after the first "Donley v. West" citation, the following paragraph: Occupancy by a private individual of public lands during the time that an order of withdrawal from entry under this section is in force constitutes trespass, and the occupant's improvements are made at his own risk. (Capron v. Van Horn (Cal. Sup. 1927), 258 Pac. 77.) Page 22. Section 3, act of June 17, 1902 (32 Stat. 388). Insert under "Uses to which withdrawn land may be put": On February 3, 1928, the Commissioner, Bureau of Reclamation, recommended to the Secretary of the Interior the adoption of a policy of permitting the water users on the projects transferred to them for operation, to lease for grazing and agricultural purposes, all withdrawn or acquired lands where such lease would not interfere with the purposes for which withdrawn or acquired, the water users to make the leases, collect the charges, and handle all details in connection with such transactions. The recommendation was returned to the bureau without approval by First Assistant Secretary E. C. Finney under date of February 21, 1928, with the statement that such procedure would be illegal. The removal of sand and gravel for private purposes from land withdrawn under the first form is authorized, provided the privilege is granted under com petitive conditions and on terms adequately protecting the rights of the United States. (Departmental decision April 13, 1929, Boulder Canyon project.) Section 4, act of June 17, 1902 (32 Stat. 389). Insert an additional paragraph under Notes, as follows: Under date of July 31, 1929, the department approved a recommendation of the commissioner, Bureau of Reclamation, to the effect that a new entryman taking up land under the Belle Fourche project where a prior entry has been canceled after payment of only one construction charge instalment, would be required at the time of making entry to pay such first instalment and the remaining instalments would be collected by the irrigation district under its contract with the United States. This plan dispenses with a public notice in cases where a district has assumed the obligation of paying charges at fixed rates. Page 30. Section 4, act of June 17, 1902 (32 Stat. 389). Insert the following just before the paragraph headed "Completion of contract by surety company": Recovery of deductions for liquidated damages. The Court of Claims on January 23, 1928, passed upon a case where the Department of the Interior had granted extensions of time on account of certain delays in delivering materials in connection with the King Hill and Riverton projects, and where on the theory that such extensions were validly granted, payment was made to the contractor without deductions for liquidated damages, as provided for in the contracts, for delays by reason of causes beyond the control of the contractor. The Comptroller General, in passing upon the settlements, held that the extensions of time were improperly granted, and made deductions for liquidated damages from a deposit made by the contractor with a bid for other work. The case was appealed to the Court of Claims, which held that "in the absence of fraud or mistake, or of lack of authority on the part of the engineer or other governmental agents concerned in the transaction, both the Government and the plaintiff were bound by the final settlement. Plaintiff is entitled to recover the amount sued for, and it is so ordered." (SteacySchmidt Mfg. Co. v. U. S. (1928), 64 Ct. Cl. 499.) Page 33. Section 4, act of June 17, 1902 (32 Stat. 389). Charges collectible though water cut off.-A suit was brought by the United States in the Wyoming Federal District Court to recover maintenance charges, including charges for 1922, 1923, and 1924. The defendant had failed to pay charges for prior years or for the years 1922 to 1924, and the water had been shut off. Defendant maintained that for 1922, 1923, and 1924 he did not receive water, and therefore that for these three years he could not be charged for the use of it. The court ruled that the Secretary, being authorized to make rules and regulations for the Government of irrigation projects, and fix maintenance charges, providing the manner in which they shall be paid, the obligation of the defendant became fixed and definite and is recoverable in an action brought for that purpose. (U. S. v. Parkins (1926), 18 Fed. (2d), 643. Wind River (Indian) project. See New Reclamation Era, August, 1927, p. 126.) Page 42. Section 5, act of June 17, 1902 (32 Stat. 389). Notes to follow Irwin v. Wright citation. Lands within the Payette-Boise government project, on which homestead entry and proof had been made, but as to which there had been no reclamation proof made nor certificate of such proof issued, held not subject to taxation, since, until reclamation proof is accepted by the United States and final certificate issued, entryman does not have taxable interest in land. (Wood v. Canyon County (1927), 253 Pac. 839.) On December 31, 1927, the Supreme Court of South Dakota held, following Irwin v. Wright, 258 U. S. 219, that the lands of a homestead entryman on the Belle Bourche project, on which final homestead proof but not final reclamation proof, had been made, were not subject to general State taxation. (Casey v. Butte Co. (1927), 217 N. W. 508, reversing judgment of circuit court.) Amend the paragraph on this page beginning— The North Side Canal Co." by deleting the words "in an unpublished manuscript decision," in the seventh line and substituting therefor "8 Fed. (2d), 739." In the next to the last line, same paragraph, delete the words “unpublished manuscript decision," and substitute "17 Fed. (2d), 55.” Subsequently to this decision the Legislature of Wyoming passed an act (chapter 36, Session Laws of Wyoming, 1927), in effect attempting to make water rights acquired under the laws of Wyoming taxable. Thereafter the State attempted to levy taxes upon the water rights, the taxability of which was litigated in the foregoing suit. The district court, in Twin Falls Canal Co. v. Teton County, unpublished memorandum decision dated November 14, 1928, held that the nontaxability of these water rights by Wyoming was res judicata, and the taxes were therefore annulled. Page 43. Section 6, act of June 17, 1902 (32 Stat. 389). Insert the following under Notes: Liability of State irrigation district.-A petition for damages against a State irrigation district for negligent maintenance of a canal was held to be no cause of action, in view of the State statutes and the contract making the district merely a fiscal agent for the United States, which operated and maintained the works. (Malone v. El Paso County Water Improvement District No. 1. (Tex. Civ. App. 1929) 20 S. W. (2d), 815.) Page 45. Section 7, act of June 17, 1902 (32 Stat. 389). Add the following to the notes under the title "Condemnation": Where land is withdrawn for construction purposes upon which there exist unpatented mining claims under the laws of the United States and of the State in which the land lies, it is necessary, unless the land has been officially classified as mineral in character, before proceeding to condemn the mining claims or to file suit to quiet title or in ejectment against the mineral claimants, to secure a determination by the General Land Office (and by the Secretary of the Interior, if appeal is made to the department) as to the mineral or nonmineral character of the land, as to whether a discovery was made as a basis of the mineral claim and as to whether annual assessment work has been done, etc., so as to constitute a valid possessory mineral claim at the date of the withdrawal and subsequently thereto. Some of these facts can be determined only by the department (252 U. S. 450; 46 L. D. 20). See C. L. 1713, April 20, 1928. Costs can not be recovered from the United States in condemnation suits brought by the Government. (Unpublished memorandum decision in U. S. v. Wade et al., U. S. D. C. Ida. 1926.) Attorney fees can not be awarded against the United States in litigation in which the Government is a party. (Unpublished memorandum decision in U. S. v. Franks, U. S. D. C. Oreg. 1930.) In this connection see New Reclamation Era, July, 1930, p. 136. Page 47. Section 7, act of June 17, 1902 (32 Stat. 389). Insert the following as the last paragraph under “ Title ": Sec. 355 of the Revised Statutes requiring an opinion of the Attorney General in favor of the validity of title before title is vested in the United States is not applicable to the purchase of land for the Bureau of Reclamation. Under section 7 of the act of June 17, 1902, the Secretary of the Interior is vested with discretion to determine what property he will acquire, so long as it is acquired |