A-19652, SEPTEMBER 16, 1927, 7 COMP. GEN. 217

A-19652: Sep 16, 1927

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RECLAMATION SERVICE - RIGHTS OF WAY THERE IS NOT AUTHORITY FOR THE ASSUMPTION BY THE UNITED STATES OF ONE- HALF THE COST OF REMOVING AND REPLACING A HIGH-POWERED TRANSMISSION LINE FROM ACROSS A RIGHT OF WAY RESERVED TO THE UNITED STATES. WHEREIN YOU REQUEST DECISION WHETHER YOU ARE AUTHORIZED TO PAY THE CONTRACTOR THE SUM OF $890.04 TO COVER THE PROPORTIONATE PART OF THE COST OF A DETOUR LINE IT PAID UNDER THE FOLLOWING CIRCUMSTANCES: THE CONTRACT OF MAY 29. IT WAS NECESSARY TO CROSS LANDS PATENTED APRIL 9. WHICH PATENT PROVIDED THAT "THERE IS RESERVED FROM THE LANDS HEREBY GRANTED. THOMAS AND MINNIE GRAYBEAL APPEAR TO HAVE SUCCEEDED TO THE TITLE TO THESE LANDS AND BY A RIGHT OF WAY DEED DATED AUGUST 22.

A-19652, SEPTEMBER 16, 1927, 7 COMP. GEN. 217

RECLAMATION SERVICE - RIGHTS OF WAY THERE IS NOT AUTHORITY FOR THE ASSUMPTION BY THE UNITED STATES OF ONE- HALF THE COST OF REMOVING AND REPLACING A HIGH-POWERED TRANSMISSION LINE FROM ACROSS A RIGHT OF WAY RESERVED TO THE UNITED STATES, UNDER THE PROVISIONS OF THE ACT OF AUGUST 30, 1890, 26 STAT. 391, WHERE SUCH LINE INTERFERED WITH THE CONSTRUCTION OF A PART OF AN IRRIGATION SYSTEM.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 16, 1927:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 20, 1927, AND INCLOSURES RELATIVE TO CONTRACT DATED MAY 29, 1926, BETWEEN THE UNITED STATES AND THE GENERAL CONSTRUCTION CO. FOR THE CONSTRUCTION OF A CERTAIN PART OF THE IRRIGATION SYSTEM OF THE KITTITAS MAIN CANAL, AND WHEREIN YOU REQUEST DECISION WHETHER YOU ARE AUTHORIZED TO PAY THE CONTRACTOR THE SUM OF $890.04 TO COVER THE PROPORTIONATE PART OF THE COST OF A DETOUR LINE IT PAID UNDER THE FOLLOWING CIRCUMSTANCES:

THE CONTRACT OF MAY 29, 1926, PROVIDED IN PARAGRAPH 35 OF THE SPECIFICATIONS THAT THE RIGHT OF WAY FOR THE WORK TO BE CONSTRUCTED UNDER THE CONTRACT WOULD BE PROVIDED BY THE UNITED STATES, AND, IN THE COURSE OF THE CONSTRUCTION, IT WAS NECESSARY TO CROSS LANDS PATENTED APRIL 9, 1901, TO JAMES PUGH, WHICH PATENT PROVIDED THAT "THERE IS RESERVED FROM THE LANDS HEREBY GRANTED, A RIGHT OF WAY THEREON FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES.' THOMAS AND MINNIE GRAYBEAL APPEAR TO HAVE SUCCEEDED TO THE TITLE TO THESE LANDS AND BY A RIGHT OF WAY DEED DATED AUGUST 22, 1922, THEY HAD CONVEYED THE RIGHT OF WAY TO THE PUGET SOUND POWER AND LIGHT CO. FOR THE CONSTRUCTION OF A HIGH- POWERED TRANSMISSION LINE. IT SEEMS THAT THE RIGHT OF WAY FOR THE IRRIGATION DITCH AND THE RIGHT OF WAY FOR THE TRANSMISSION LINE CONFLICTED AND THAT THE PUGET SOUND POWER AND LIGHT CO. OBTAINED JULY 22, 1926, A TEMPORARY INJUNCTION IN THE SUPERIOR COURT OF KITTITAS COUNTY, STATE OF WASHINGTON, RESTRAINING THE GENERAL CONSTRUCTION CO. FROM BLASTING OR USING EXPLOSIVES IN SUCH A MANNER AS TO INTERFERE WITH OR ENDANGER ITS TRANSMISSION LINE.

THE MATTER OF THE INJUNCTION APPEARS NOT TO HAVE COME ON FOR FINAL HEARING BECAUSE IN THE MEANTIME A CONFERENCE WAS HELD WITH EMPLOYEES OF THE RECLAMATION SERVICE, AND THE GENERAL CONSTRUCTION CO. FINALLY AGREED TO ASSUME 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 THE ONE-HALF OF THE COST SO PAID. THE TRANSMISSION LINE TEMPORARILY REMOVED APPEARS TO HAVE BEEN REPLACED AND THE CONTRACTOR HAS PAID $890.04 AS ONE-HALF OF THE COST FOR WHICH IT SEEKS REIMBURSEMENT FROM THE GOVERNMENT.

THE FACTS DISCLOSE A SITUATION IN MANY RESPECTS SIMILAR TO THAT CONSIDERED IN UNITED STATES V. VAN HORN, 197 FED.REP. 611. THERE, AS HERE, THE GOVERNMENT HAD RESERVED IN THE PATENT A RIGHT OF WAY ACROSS THE LAND FOR AN IRRIGATION DITCH AND THE PATENTEE, OR HIS SUCCESSOR IN TITLE, HAD OBTAINED FROM A STATE COURT AN INJUNCTION AGAINST EMPLOYEES AND CONTRACTORS OF THE RECLAMATION SERVICE PERPETUALLY RESTRAINING AND ENJOINING THEM FROM ENTERING UPON THE LAND AND FROM CONSTRUCTING A CANAL ACROSS SAME. THE COURT SAID IN THE VAN HORN CASE RESTRAINING THE PATENTEES FROM IN ANY MANNER INTERFERING WITH THE CONSTRUCTION OF THE IRRIGATION CANAL ACROSS THEIR LAND THAT---

* * * THE CLAUSE IN THE PATENT RESERVING THE RIGHT OF WAY MUST BE CONSTRUED, LIKE ALL OTHER INSTRUMENTS, IN THE LIGHT OF THE SURROUNDING CIRCUMSTANCES AT THE TIME THE PATENT ISSUED. THE SIGNIFICANT CIRCUMSTANCES IN THAT REGARD ARE THESE: BY A SERIES OF ACTS AND RESOLUTIONS PASSED BY CONGRESS BEGINNING AS EARLY AS 1888 (ACT OCT. 2, 1888, C. 1069, 25 STAT. 526 (U.S. COMP.ST. 1901, P. 1552); ACT MARCH 20, 1888, 25 STAT. 618; ACT MARCH 2, 1889, C. 411, 25 STAT. 960 (U.S. COMP.ST. 1901, P. 1553); ACT AUG. 30, 1890, C. 837, 26 STAT. 391 (U.S. COMP.ST. 1901, P. 1553) (, THE GOVERNMENT UNMISTAKABLY DECLARED A PURPOSE TO RECLAIM ITS ARID LANDS BY CONDUCTING WATER TO AND ACROSS THEM, AND PROVISION WAS SHORTLY MADE TO ENABLE IT TO CARRY OUT THAT PURPOSE. ORDER THAT IT MIGHT NOT BE IMPEDED IN THE EXECUTION OF THE PROJECT, IT EXPRESSLY PROVIDED IN THE ACT OF AUGUST 30, 1890, C. 837, 26 STAT. 391, WHICH WAS PRIOR TO THE ISSUANCE OF ANY OF THE PATENTS TO THE LANDS IN CONTROVERSY, AND PRIOR TO ENTRY:

"THAT IN ALL PATENTS FOR LANDS HEREAFTER TAKEN UP UNDER ANY OF THE LAND LAWS OF THE UNITED STATES OR ON ENTRIES OR CLAIMS VALIDATED BY THIS ACT WEST OF THE ONE HUNDREDTH MERIDIAN, IT SHALL BE EXPRESSED THAT THERE IS RESERVED FROM THE LANDS IN SAID PATENT DESCRIBED, A RIGHT OF WAY THEREON FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES.'

THIS REQUIREMENT AS TO THE FUTURE DISPOSITION OF PUBLIC LANDS WAS KNOWN TO ALL, AND ALL ENTRYMEN THEREAFTER ACTED IN THE LIGHT OF THAT KNOWLEDGE SO CHARGED TO THEM. AND THERE CAN BE NO DOUBT THAT CONGRESS WAS VESTED WITH FULL POWER TO MAKE THE RESERVATION. UNITED STATES V. GRATIOT, 14 PET. 526, 10 L.ED. 573; GIBSON V. CHOUTEAU, 13 WALL. 99, 20 L.ED. 534; LIGHT V. UNITED STATES, 220 U.S. 523, 31 SUP.CT. 485, 55 L.ED. 570.

IT WAS UNDER THESE CONDITIONS THAT THE DEFENDANTS OR THEIR GRANTORS MADE THEIR ENTRIES AND INITIATED THEIR RIGHTS TO ALL THE LANDS IN QUESTION AND THEREAFTER ACCEPTED PATENTS CONTAINING SAID RESERVATION. IT CAN NOT BE DOUBTED THAT THE INTENT, PURPOSE, AND SCOPE OF THE RESERVATION WAS FULLY UNDERSTOOD BY EACH PATENTEE. * * *

THIS CASE WAS CITED WITH APPROVAL BY THE SUPREME COURT OF THE UNITED STATES IN IDE V. UNITED STATES, 263 U.S. 497.

THE PATENT TO THE LAND IN THIS CASE RESERVED, IN ACCORDANCE WITH THE ACT OF AUGUST 30, 1890, SUPRA, A RIGHT OF WAY FOR AN IRRIGATION DITCH. SUCH RESERVATION CONSTITUTED A COVENANT RUNNING WITH THE LAND AS TO WHICH THE PUGET SOUND LIGHT AND POWER CO. HAD NOTICE, AND IT COULD HAVE OBTAINED NO RIGHT OF WAY ACROSS SAID LANDS SUPERIOR TO THAT OF THE UNITED STATES. THE INJUNCTION OF THE STATE COURT IN THIS CASE DID NOT BECOME FINAL AS IN THE VAN HORN CASE AND IT MUST BE HELD, IN ACCORDANCE WITH THE CONCLUSIONS OF THE COURT IN SAID CASE, THAT IF THE CONTRACTOR ELECTED TO PAY ONE-HALF OF THE COST OF TEMPORARILY REMOVING THE TRANSMISSION LINE, IT IS NOT ENTITLED TO REIMBURSEMENT THEREOF FROM THE UNITED STATES. THERE IS NO AUTHORITY FOR THE PAYMENT FROM PUBLIC FUNDS FOR A RIGHT WHICH THE UNITED STATES POSSESSES. SUCH A PAYMENT WOULD BE WITHOUT CONSIDERATION TO THE GOVERNMENT.

IF THE CONTRACTOR BELIEVED, AS APPEARS TO BE CONTENDED, THAT THE GOVERNMENT WAS NOT FURNISHING, IN ACCORDANCE WITH THE TERMS OF ITS CONTRACT, A RIGHT OF WAY FOR THE CONSTRUCTION OF THE DITCH BECAUSE OF THE INTERFERENCE OF THE POWER TRANSMISSION LINE, IT SHOULD HAVE BROUGHT THE MATTER TO THE ATTENTION OF THE APPROPRIATE UNITED STATES ATTORNEY FOR ENFORCEMENT OF THE GOVERNMENT'S RIGHTS TO THE RIGHT OF WAY IN ACCORDANCE WITH THE ACT OF AUGUST 30, 1890, SUPRA, AND THE VAN HORN CASE. THERE IS, OF COURSE, NOT AUTHORITY IN THE EMPLOYEES OF THE RECLAMATION SERVICE TO UNDERTAKE TO ARRANGE THE MATTER AS THEY ARE REPORTED TO HAVE DONE AND THEIR ACTION IN THIS RESPECT CAN IMPOSE NO OBLIGATION UPON THE UNITED STATES CONTRARY TO ITS LEGAL RIGHT IN THE LAND. GIBBONS V. UNITED STATES, 8 WALLACE, 269; UNITED STATES V. BARLOW, 132, U.S. 271.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT PAYMENT IS NOT AUTHORIZED TO THE GENERAL CONSTRUCTION CO. UNDER THE CONTRACT OF MAY 29, 1926, OF ONE-HALF OF THE COST OF THE TEMPORARY REMOVAL AND REPLACEMENT OF THE POWER TRANSMISSION LINE WHICH INTERFERED WITH THE CONSTRUCTION OF THE KITTITAS MAIN CANAL OF THE YAKIMA FEDERAL IRRIGATION PROJECT.