March 20, 1964

offeror to give a description which is at least sufficient on its face to delimit the land applied for. If the description is not sufficient on its face, the offer is defective. It is not for the Department to salvage from the description some land that may be considered properly described. Joe Bart Moore, A-29361 (July 1, 1963); Lendal R. Smith, Sr., A-28868 (August 10, 1962); Duncan Miller, A-28767 (July 23, 1962); Daniel H. Cruz, A-28524 (February 28, 1961); W. H. Burnett, William Weinberg, A-28037 (August 20, 1959).

Specifically, in this case, for the Bureau to determine that the offer was acceptable for the SSE4 it was necessary for the Bureau to determine that the defective description of the right-ofway affected both the SW4SW1⁄44 and the SE1⁄44SW1⁄44. This did not appear from the face of the description. The offer gave the center line of the right-of-way as beginning at a point in the north line of the SW4SW4 but gave the ending point only as a "point in the South line of Section 28." Only by computing the course of the center line on a plat could it be determined that the right-of-way invaded also the SE4SW14 but did not invade any part of the SSE4. In other words, Moss' description was not sufficient on its face to show what part of the S2S2 was affected by the description of the right-of-way.

It is no answer to say that the angle of the course given for the center line was such that it was obvious that the right-of-way did not extend into the SSE4 and that the right-of-way was not confined to the SW4SW4 but extended also into the SE1⁄44SW14. This is so assuming that section 28 is a regular section with regularly sized and shaped legal subdivisions. Even so, a computation had to be made, simple though it may have been in this case. This is not within the contemplation of the regulation or permitted by its terms.

In the case of irregular sections, which are oversized or undersized with portions which are surveyed as lots, it would be impossible without plotting out a description such as that given here to determine what legal subdivisions might not be affected by the error in description.

It is true in this case that Moss could have avoided the problem of how to describe the right-of-way by simply describing the S2S1⁄2 of section 28 without any exception. Any lease issued to him would have excluded the right-of-way. However, he would have had to

pay for this method of description by remitting rental for the entire S2S2 without any diminution for the land in the right-of-way and his offer would have been chargeable with the full acreage in the S1/2S12.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4) (a); 24 F.R. 1348), the decision appealed from is reversed and the case is remanded for further proceedings in conformity with this decision.

ERNEST F. HOм,

Assistant Solicitor.

A-29847

RUSSEL A. BEAVER

J. F. BEAVER

Decided March 23, 1964

Color or Claim of Title: Generally-Color or Claim of Title: Applications A color of title application is properly rejected when a sale for taxes to a governmental agency has interrupted the statutory period of a 20-year holding in good faith adverse possession under claim or color of title within the meaning of the Color of Title Act and an action to obtain possession by the United States, the true owner, has been instituted prior to the end of 20 years from the date of the tax sale.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

Russell A. and J. F. Beaver have appealed to the Secretary of the Interior from a decision of the Division of Appeals, Bureau of Land Management, dated November 1, 1962, which affirmed as modified a Phoenix, Arizona, land office decision, dated April 11, 1961, rejecting their color of title application, Arizona 030521. The land office decision concluded that the land described in the appellants' application, the SENE1⁄44 sec. 20, T. 1 N., R. 23 W., G.& S.R.B.M., Arizona, was patented to Cherry S. E. Carlin on January 30, 1914, under homestead Phoenix 017132, and was thus not under the jurisdiction of the office. The Bureau decision agreed that the land was patented (Patent No. 381486), as stated, but concluded that the land had subsequently eroded away and is no longer in existence and that the appellants have presented no evidence purporting to convey the land to them.1

1 The decision points out that the land in question has accreted to sec. 4, T. 9 S, R. 22 E., S.B.M., and is now considered part of California.

March 23, 1964

The appellants contend that their deed "precisely" describes the subject land and that the land does exist and can be located "either on the face of the earth or upon plats."

Prior to the time the appellants filed their application, the United States instituted an action to condemn the land applied for. By decision dated December 31, 1963, the United States District Court for the Southern District of California, Southern Division, in United States of America v. 11.8 acres of land, more or less, in the County of Imperial, State of California, et al., Civil No. 2468-SD-K, decided that the appellants' contention that they hold a vested interest in the subject land under color of title cannot be sustained. The court determined that, although a patent was issued in 1914, the appellants have not maintained uninterrupted possession for the necessary 20 years to qualify under the Color of Title Act, as amended, 67 Stat. 227 (1953); 43 U.S.C. § 1068 et seq. (1958), since in 1940 the land was taken by Arizona for delinquent taxes and on February 18, 1942, the State sold the property to the predecessors in interest of the appellants.

The court stated:

*The time must be held to commence from the date of the Arizona tax deed to defendants' predecessors which was dated February 18, 1942, rather than from 1914, the date of the Government patent to Carlin, for the reason that a sale for taxes to a governmental agency interrupts the statutory period. 3 Am. Jur. 2d, Adverse Possession § 75. Here there was no showing that during the period the State of Arizona claimed the property for taxes between 1940 and 1942, that any of defendants' predecessors in interest or the State of Arizona were in possession of the parcel. Defendants contend that although it be true that the twenty-year period did not commence until February 18, 1942, the twenty-year period elapsed for the reason that the Government was not granted possession in this action until June 14, 1962. However, it is uniformly held that an action to obtain possession by the true owner interrupts the statutory period and that possession obtained through such action by the true owner relates back to the date of the bringing of the action. 3 Am. Jur. 2d, Adverse Possession § 91; Weber v. Commissioners, 18 Wall 57, 21 L.Ed. 798 (1873). The complaint in the instant action contains allegations that the Government claimed title to the land involved and that it was only seeking to condemn the adverse interest of the defendants. Furthermore, a declaration of taking was filed together with a nominal deposit on the same day that the action was commenced on October 10, 1960, pursuant to the Declaration of Taking Act, § 258, Title 49 U.S.C.A. This Act provides that where a declaration of taking is filed pursuant to the Act, title to the property vests in the United States as of the date of the filing of declaration. See United States v. Dow, 357 U.S. 17 (1958).

We concur in these conclusions and find that the appellants are not qualified to assert a color of title claim against the United States.2 Thus, the contentions made by the appellants, set forth above, need not be discussed."

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 DM 2.2A (4) (a); 24 F.R. 1348), the decision appealed from is affirmed as modified.

Under Public Works Appropriation Acts, an award may be made only upon a showing that the damage was the direct result of nontortious activities of employees of the Bureau of Reclamation.

Irrigation Claims: Water and Water Rights: Seepage

Under Public Works Appropriation Acts, with respect to seepage claims, the liability of the Bureau of Reclamation is limited to water arising from its own irrigation structures. A claim cannot be allowed in the event the damage is caused by private irrigation.

ADMINISTRATIVE DETERMINATION

F. W. Mattson of Moses Lake, Washington, has filed a claim against the United States in the sum of $14,8201 for crop losses in 1962 on Farm Unit 38, Irrigation Block 83, Columbia Basin Project, Washington. It is alleged that 114 acres of beans were destroyed by seepage of water from the RB5J1 lateral, an irrigation canal of the Bureau of Reclamation.

2 The case record indicates that the public land to which the accretion attached has been at all times material subject to a reclamation withdrawal. If this is so, the land added by accretion fell within the withdrawal and was never open to the establishment of a color of title claim. Axel Ursin, A-28310 (August 4, 1960).

3 As to whether the court was the proper tribunal for the appellants to assert their color of title claim in, see Best v. Humboldt Placer Mining Co., 371 U.S. 334, 338-340 (1963).

1 An initial claim was submitted by Mr. Mattson's attorneys, Messrs. Ries and Kenison, by Mr. Charles T. Schillberg of Moses Lake, Washington, for $10,350. By letter dated December 10, 1962, the amount of the claim was increased to $14,820 by claimant's attorneys.

March 24, 1964

The claim has been submitted to us for determination under the Public Works Appropriation Act, 1964 (77 Stat. 844). That Act authorizes the payment of claims for damage to or loss of property arising out of activities of the Bureau of Reclamation. However, this authority is applicable only with respect to claims which are the direct result of some nontortious action by Bureau of Reclamation personnel. 39 Op. Atty. Gen. 425, 428 (1940); Harold D. Jensen, TA-227 (Ir) (March 14, 1963), 70 I.D. 97; Northern Pacific Railway Co., T-560 (Ir.) (May 10, 1954).

A direct cause has been defined as a cause without which the injury would not have occurred, and which by itself is a self-sufficient cause of the injury. As applied to seepage claims, the liability of the Bureau of Reclamation is limited to water arising from its own irrigation structures. It cannot be extended to damage caused by private irrigation. The requirement of direct cause has been

stated as follows: 5

Consequently, the record must show that seepage water from project facilities alone, without contribution from other sources, was sufficient to cause the damage complained of. If, however, water from sources other than such facilities was sufficient alone to cause the damage, any seepage contribution from canals or laterals must be considered as an indirect cause thereof.

Farm Unit 38 was operated by claimant in 1962 under lease from Phil Anderson of Grandview, Washington. The unit is very hilly. The land slopes generally from the north and south to a low area in the center of the farm. The southern and highest portion of the farm is bounded by the RB5J1 lateral which delivers irrigation

water to the unit.

In 1962 claimant Mattson planted approximately 152 acres of beans. The crop was sprinkler irrigated from a farm reservoir which claimant built below the RB5J1 lateral. By June 15, 1962, after about thirty days' irrigation, a wet area formed near the center of the farm. As the season progressed, the wet area increased to

* The claim cannot be considered administratively under the Federal Tort Claims Act (28 U.S.C., 1958 ed., Supp. I, sec. 2671 et seq.), since it is in excess of that act's $2,500 jurisdictional limitation for administrative determination.

Sanguinetti v. United States, 264 U.S. 146 (1924).

Isabelle S. Gorrell, T-616 (Ir.) (March 4, 1954).

* Chicago, Milwaukee, St. Paul, and Pacific Railroad Co., T-1001 (Ir.) (May 18, 1960); Howard D. Gallentine, T-980 (Ir.) (May 5, 1960), 67 I.D. 191; Ralph E. Osborne, T-832 (Ir.) (September 17, 1959).

Farm Unit 38 has 65 acres of Class 6 nonirrigable land interspersed with the irrigable land. In planting the bean crop, Mattson ignored the classification and put under cultivation approximately 40 acres of this Class 6 land.