A-95123, MAY 31, 1938, 17 COMP. GEN. 1036

A-95123: May 31, 1938

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IS AS FOLLOWS: REFERENCE IS MADE TO THE CLAUSE RELATING TO DITCHES AND CANALS CONTAINED IN THE ACT OF AUGUST 30. IT SHALL BE EXPRESSED THAT THERE IS RESERVED FROM THE LANDS IN SAID PATENT DESCRIBED AS RIGHT-OF-WAY THEREON FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES. THE RIO GRANDE CANALIZATION PROJECT IS BEING CONSTRUCTED TO SECURE TO THE UNITED STATES THE COMPLETE CONTROL OF THE STORED WATER RELEASED FROM THE EXISTING ELEPHANT BUTTE DAM AND THE CABALLO DAM. A CANAL OR CHANNEL WHICH WILL EXTEND FROM THE CABALLO DAM IN NEW MEXICO TO A POINT NEAR EL PASO. THE CANALIZED CHANNEL WILL GENERALLY FOLLOW AND STRAIGHTEN THE PRESENT COURSE OF THE RIO GRANDE BETWEEN THE POINTS NAMED.

A-95123, MAY 31, 1938, 17 COMP. GEN. 1036

REAL ESTATE - RIGHTS-OF-WAY - IRRIGATION AND FLOOD CONTROL PURPOSES - RIO GRANDE CANALIZATION PROJECT WHERE WORK UNDER THE RIO GRANDE CANALIZATION PROJECT INVOLVES NOT ONLY CONSTRUCTION OF IRRIGATION DITCHES AND CANALS, BUT ALSO LEVEES LOCATED SEVERAL HUNDRED FEET ON EITHER SIDE FOR CONVEYANCE OF FLOOD WATERS, PAYMENT OF A REASONABLE PRICE, NOT IN EXCESS OF THE APPRAISED VALUE, MAY BE MADE FOR THE ADDITIONAL AREA REQUIRED FOR FLOOD CONTROL PURPOSES, THE RIGHT-OF-WAY RESERVED, UNDER ACT OF AUGUST 30, 1890, 26 STAT. 391, IN THE PATENTS FOR THE LANDS INVOLVED, BEING WITH REFERENCE ONLY TO DITCHES AND CANALS TO CONVEY WATER FOR THE RECLAMATION OF ARID LANDS BY IRRIGATION, BUT NO PAYMENT MAY BE MADE FOR THE LANDS REQUIRED PURELY FOR IRRIGATION PURPOSES.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, MAY 31, 1938:

YOUR LETTER OF MAY 20, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO THE CLAUSE RELATING TO DITCHES AND CANALS CONTAINED IN THE ACT OF AUGUST 30, 1890 (26 STAT., 391 U.S.C.A. TITLE 43, SEC. 945), READING AS FOLLOWS:

"SEC. 945. RESERVATION IN PATENTS OF RIGHT-OF-WAY FOR DITCHES OR CANALS. --- IN ALL PATENTS FOR LANDS TAKEN UP AFTER AUGUST 30, 1890, UNDER ANY OF THE LAND LAWS OF THE UNITED STATES OR ON ENTRIES OR CLAIMS VALIDATED BY THE ACT OF AUGUST 30, 1890, WEST OF THE ONE HUNDREDTH MERIDIAN, IT SHALL BE EXPRESSED THAT THERE IS RESERVED FROM THE LANDS IN SAID PATENT DESCRIBED AS RIGHT-OF-WAY THEREON FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES. (AUG. 30, 1890, C. 837, SEC. 1, 26 STAT. 391).'

THE DECISION OF THE COMPTROLLER GENERAL RENDERED IN CONNECTION WITH THIS STATUTE, AS CONTAINED IN DECISIONS OF THE COMPTROLLER GENERAL, VOL. 7, AT PAGE 217, HAS BEEN EXAMINED, BUT WHAT THE RULING MAY BE WITH REFERENCE TO THE FOLLOWING FACTS APPEARS DOUBTFUL.

THE UNITED STATES SECTION, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, UNDER DIRECTION OF THE DEPARTMENT OF STATE, IN CONNECTION WITH ITS CONSTRUCTION PROGRAM, PLANS TO ACQUIRE NECESSARY LANDS IN THE STATE OF NEW MEXICO, ALONG AND NEAR THE RIO GRANDE BETWEEN THE AMERICAN DAM AND CABALLO DAM, FOR USE AS A RIGHT-OF-WAY IN CONSTRUCTING THE RIO GRANDE CANALIZATION PROJECT.

THE RIO GRANDE CANALIZATION PROJECT IS BEING CONSTRUCTED TO SECURE TO THE UNITED STATES THE COMPLETE CONTROL OF THE STORED WATER RELEASED FROM THE EXISTING ELEPHANT BUTTE DAM AND THE CABALLO DAM, NOW IN PROCESS OF CONSTRUCTION, BOTH IN THE STATE OF NEW MEXICO, FOR USE IN THE IRRIGATION OF LANDS IN BOTH THE UNITED STATES AND MEXICO.

THE PROJECT CONSISTS OF TWO FEATURES:

1. A CANAL OR CHANNEL WHICH WILL EXTEND FROM THE CABALLO DAM IN NEW MEXICO TO A POINT NEAR EL PASO, TEXAS, A DISTANCE OF ABOUT 100 MILES.

2. A DIVERSION DAM NEAR EL PASO, TEXAS, LOCATED ABOVE THE POINT WHERE THE RIO GRANDE BECOMES THE BOUNDARY LINE BETWEEN THE UNITED STATES AND MEXICO.

THIS STATEMENT DEALS ONLY WITH THE FIRST FEATURE. THE CANALIZED CHANNEL WILL GENERALLY FOLLOW AND STRAIGHTEN THE PRESENT COURSE OF THE RIO GRANDE BETWEEN THE POINTS NAMED. THE PRESENT COURSE OF THE RIO GRANDE CONSISTS OF NATURAL AND ARTIFICIAL SECTIONS OF THE RIVER; THE ARTIFICIAL SECTIONS HAVE BEEN CREATED BY VARIOUS AGENCIES OVER THE PAST THIRTY YEARS AND ARE LOCATED WHERE CUTOFFS ACROSS BENDS HAVE BEEN DEEMED DESIRABLE. THE CANALIZED CHANNEL WILL CONSIST OF AN ARTIFICIAL CHANNEL WHERE THE PRESENT ARTIFICIAL CHANNEL EXISTS AND WHEREVER NEW CUTOFFS ACROSS BENDS ARE CREATED IN THE CONSTRUCTION OF THE PROJECT. IT IS ESTIMATED THAT OF THE 100 MILES OF RIVER EMBRACED IN THE PROJECT, ABOUT79 MILES WILL BE CANALIZED, THERE BEING 21 MILES WHERE NO WORK WILL BE PERFORMED, AND THAT OF THE 79 MILES ON WHICH WORK WILL ACTUALLY BE PERFORMED, 15 MILES IS NOW AN ARTIFICIAL CHANNEL CONSTRUCTED BY THE AGENCIES OF MANKIND, AND THAT IN THE COMPLETED PROJECT, 20 MILES WILL BE ARTIFICIAL IN THE SENSE THAT NO PART OF THE NATURAL CHANNEL OF THE RIVER WILL BE USED.

THE CANALIZED CHANNEL WILL CONSIST GENERALLY IN CROSS SECTION OF A NORMAL -FLOW CHANNEL ABOUT 150 FEET IN WIDTH AND 4 FEET IN DEPTH, WITH BANKS OR LEVEES ABOUT 7 FEET HIGH AND LOCATED ABOUT 300 FEET TO EITHER SIDE, WITH A TOTAL WIDTH BETWEEN LEVEES VARYING FROM 600 TO 800 FEET.

THE CANALIZED CHANNEL WILL BE USED PRIMARILY FOR THE CONVEYANCE OF THE WATER RELEASED FROM STORAGE TO THE VARIOUS DIVERSION DAMS, INCLUDING THE AMERICAN DIVERSION DAM AT EL PASO, TEXAS, AT WHICH DAMS THE WATER IS DIVERTED FROM THE CHANNEL TO THE LANDS TO BE IRRIGATED, AND INCIDENTALLY TO CONVEY OFF ANY WATER IN EXCESS OF THAT NEEDED FOR IRRIGATION, WHICH MAY COME FROM THE DISCHARGE OF ARROYOS OR OTHER DRAINAGES THAT ENTER THE CANALIZED CHANNEL, OR FROM EXTRAORDINARY RELEASE OF STORED WATER FROM THE RESERVOIRS.

THROUGHOUT THE ENTIRE YEAR THE CANALIZED CHANNEL WILL BE USED FOR THE CONVEYANCE OF IRRIGATION AND DRAINAGE WATER TO AND FROM THE IRRIGATED AREAS. DURING A FEW DAYS OF EACH YEAR, AND VARYING GREATLY FROM YEAR TO YEAR, THE CANALIZED CHANNEL WILL BE USED FOR THE CONVEYANCE OF FLOOD WATERS. THE COST TO THE UNITED STATES OF THE CONTEMPLATED CANALIZATION WORKS WILL BE ABOUT $3,000,000.

IT WILL BE NOTED FROM THE FOREGOING THAT FOR A DISTANCE OF APPROXIMATELY 100 MILES TO THE SOUTH FROM CABALLO DAM THE RIO GRANDE WILL BE CANALIZED FOR ABOUT 79 MILES, AND WITH THE EXCEPTION OF THE DISCHARGE INTO THE STREAM FROM VARIOUS ARROYOS, FOLLOWING OCCASIONAL RAINS, PRACTICALLY THE ENTIRE FLOW REPRESENTS WATER FROM STORED SOURCES. IN ADDITION, TAKING INTO CONSIDERATION NOT ONLY THE EXTENT OF THE EXISTING AND CONTEMPLATED ARTIFICIAL CHANNELS, BUT ALSO THE FACT THAT SUCH CHANNELS ARE USED VIRTUALLY AS CANALS, IT IS POSSIBLE THEY MIGHT BE CLASSED AS CANALS.

FUNDS FOR PAYMENT FOR LANDS AND FOR CONSTRUCTION OF THIS PROJECT WERE MADE AVAILABLE BY THE DEPARTMENT OF STATE APPROPRIATION ACT, 1938, APPROVED JUNE 16, 1937 (50 STAT., 261), READING AS FOLLOWS:

"FOR THE CONSTRUCTION * * * OF THE FOLLOWING PROJECTS UNDER THE SUPERVISION OF THE INTERNATIONAL BOUNDARY COMMISSION * * * INCLUDING * * * ACQUISITION BY DONATION, PURCHASE OR CONDEMNATION, OF REAL AND PERSONAL PROPERTY * * *.

"RIO GRANDE CANALIZATION PROJECT.--- FOR BEGINNING CONSTRUCTION OF THE RIO GRANDE CANALIZATION PROJECT AS AUTHORIZED BY THE ACTS APPROVED AUGUST 29, 1935 (49 STAT., 961), AND JUNE 4, 1936 (49 STAT., 1463) * * * $900,000

THE FOLLOWING STATEMENT SUMMARIZES THE FACTS OF A TYPICAL CASE INVOLVING ACQUISITION OF LAND NOW BELONGING TO HERMAN JUNDT AND WIFE, MARTHA J. JUNDT, OF EL PASO COUNTY, TEXAS. MR. AND MRS. JUNDT OWN A NUMBER OF TRACTS OR PARCELS OF LAND IN THE GENERAL AREA EMBRACING A TOTAL OF APPROXIMATELY 418 ACRES OF VALLEY LAND AND 400 ACRES OF LAND IN THE NEARBY FOOTHILLS. THE PLANS OF THE INTERNATIONAL BOUNDARY COMMISSION CONTEMPLATE THE USE OF ABOUT 187 ACRES OF THE JUNDT VALLEY LANDS. THERE IS ENCLOSED HEREWITH FOR YOUR INFORMATION A COPY OF IBC MAP 2595-36H SHOWING LOTS 1, 2, 3, AND 4, IN SECTION 7, AND LOT 4 IN SECTION 8, THROUGH WHICH THE CANALIZATION PROJECT WILL BE CONSTRUCTED. THE TOTAL ACREAGE OF THESE FIVE LOTS IS ESTIMATED TO BE ABOUT 395 ACRES, AND THE INTERNATIONAL BOUNDARY COMMISSION WILL ACQUIRE 119.10 ACRES OF THE ESTIMATED 395 ACRES, LEAVING ABOUT 275 ACRES OF THE FIVE LOTS REMAINING IN THE OWNERSHIP OF THE JUNDT FAMILY. THE APPRAISED VALUE OF THE 119.10 ACRES IS $2,349.86.

THE TITLE CERTIFICATES COVERING THESE LANDS MAKE SPECIFIC REFERENCE TO THE CLAUSE RESERVING A RIGHT-OF-WAY FOR DITCHES OR CANALS CONSTRUCTED BY AUTHORITY OF THE UNITED STATES, AS CONTAINED IN PATENTS FROM THE UNITED STATES TO THE PREDECESSORS IN THE TITLE CHAIN.

IN VIEW OF THE FOREGOING YOUR OPINION IS REQUESTED AS TO WHETHER ON THE BASIS OF THE FACTS HEREIN PRESENTED, THE INTERNATIONAL BOUNDARY COMMISSION WOULD BE ENTITLED UNDER THE ABOVE-MENTIONED ACT OF AUGUST 30, 1890, TO TAKE OVER THE LANDS OF THE JUNDT FAMILY, AS WELL AS ANY OTHER LANDS NECESSARY TO COMPLETE THE PROJECT WHERE A SIMILAR RESERVATION CLAUSE WAS INCLUDED IN THE PATENT, WITHOUT PAYING COMPENSATION THEREFOR. PROCEEDING TO ENFORCE SUCH RIGHTS OR CLAIMS AGAINST THE PRESENT OCCUPANTS OF LAND IN THE PROJECT RIGHT-OF-WAY WITHOUT COMPENSATION MAY INVOLVE SOME LITIGATION ON THE PART OF THE UNITED STATES.

AN EARLY OPINION WOULD BE GREATLY APPRECIATED TO ENABLE THE COMMISSION TO PROCEED WITH THE ACQUISITION OF LANDS FOR THE RIGHT-OF WAY NEEDED IN CONNECTION WITH THE CONSTRUCTION OF THE RIO GRANDE CANALIZATION PROJECT BEFORE COMMENCEMENT OF THE 1938 FLOOD SEASON.

THE ACT OF AUGUST 30, 1890, 26 STAT. 391, DOES NOT SPECIFY FOR WHAT PURPOSES THE DITCHES AND CANALS TO BE CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES ARE TO BE USED. THE HISTORY OF THE ACT, HOWEVER, CLEARLY INDICATES THAT IT HAD REFERENCE TO DITCHES OR CANALS TO CONVEY WATER FOR THE RECLAMATION OF ARID LANDS BY IRRIGATION. UNITED STATES V. VAN HORN, 197 FED. 611; IDE V. UNITED STATES, 263 U.S. 497. TO THE EXTENT, THEREFORE, THAT THE PROPOSED PROJECT IS FOR IRRIGATION PURPOSES ALONE, THE TITLE TO RIGHT-OF-WAY IS ALREADY VESTED IN THE UNITED STATES AND NO PAYMENT MAY BE MADE FOR THE LANDS REQUIRED THEREFOR.

IT WOULD APPEAR FROM YOUR DESCRIPTION OF THE PROJECT, HOWEVER, THAT IT CONTEMPLATES SOMETHING MORE THAN A CANAL OR DITCH FOR IRRIGATION PURPOSES. YOU STATE THAT IT WILL CONSIST GENERALLY OF A NORMAL FLOW CHANNEL 150 FEET IN WIDTH AND 4 FEET DEEP BUT IT WILL ALSO HAVE BANKS OR LEVEES 7 FEET HIGH AND LOCATED 300 FEET TO EITHER SIDE, MAKING A TOTAL WIDTH BETWEEN THE LEVEES OF FROM 600 TO 800 FEET; THAT THROUGH THE YEAR THE CANALIZED CHANNEL WILL BE USED FOR CONVEYANCE OF IRRIGATION AND DRAINAGE WATER TO AND FROM THE IRRIGATED AREAS, BUT THAT DURING A FEW DAYS EACH YEAR THE CHANNEL WILL BE USED FOR THE CONVEYANCE OF FLOOD WATERS.

FROM THESE STATEMENTS IT WOULD APPEAR THAT IT IS ONLY THE NORMAL FLOW CHANNEL 150 FEET BY 4 FEET THAT IS TO BE CONSTRUCTED AND USED FOR IRRIGATION PURPOSES AND THAT THE ADDITIONAL WIDTH BETWEEN THE 7-FOOT BANKS OR LEVEES IS FOR THE PURPOSE OF CONTROLLING FLOOD WATERS. IF SUCH BE THE TRUE SITUATION PAYMENT IS NOT AUTHORIZED FOR THE 150-FOOT RIGHT-OF-WAY, BUT FOR THE ADDITIONAL AREA REQUIRED FOR FLOOD-CONTROL PURPOSES, PAYMENT MAY BE MADE AT A REASONABLE PRICE NOT IN EXCESS OF THE APPRAISED VALUE OF THE LAND INVOLVED. 7 COMP. GEN. 217.