1. When an irrigation system has been completed under the
Reclamation Act, subsequent construction of a drainage system to
remove injurious consequences of its normal operation on the lands
included is chargeable to maintenance and operation, rather than to
construction, and § 4 of the Reclamation Extension Act, preventing
increase of construction charges when once fixed except by
agreement between the Secretary of the Interior and a majority of
water right applicants and entrymen affected does not apply. P.
268 U. S.
53.
2. This is consistent with attributing to construction the cost
of drainage provided for in the original plan, because the need for
it was existent or foreseen. P.
268 U. S.
54.
3. Where lands of an Idaho irrigation district were included in
a. federal reclamation project under a contract obliging the
government to furnish water and construct drainage works within the
district, which was done and the cost assessed as a
construction
Page 268 U. S. 51
charge against all the project water users, the district
agreeing that the project lands in the district should pay the same
operation and maintenance charge per acre as announced by the
Secretary of the Interior for similar lands of the project,
held that the project lands within the district were
liable with the other project lands to bear, as an operation and
maintenance charge, the cost of providing drainage for project
lands outside the district which were being ruined by seepage water
from the operation of the irrigation system. P.
268 U. S.
53.
283 F. 569, 288
id. 541, affirmed.
Appeal from a decree of the circuit court of appeals affirming a
decree of the district court which dismissed a bill by which the
irrigation district sought to enjoin an official of the Federal
Reclamation Service and a water users' association from withholding
water from lands within the district for nonpayment of maintenance
and operation charges.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Appellant is an irrigation district organized as a public
corporation under the laws of Idaho. In 1915, its supply of water
being insufficient to irrigate the lands of all its members, it
entered into a contract with the United States, at that time
engaged in the construction of the Boise irrigation project, for
water to irrigate the unsupplied lands and for the construction of
a drainage system
Page 268 U. S. 52
within the district. The district undertook to represent these
lands in their relations to the government and collect from their
owners and pay over to the government construction installments and
operation and maintenance charges. The drainage system was
constructed in accordance with the contract, and the cost thereof,
after deducting the amount chargeable to the old water right
nonproject lands within the district, was paid by the United States
as a construction expense, and, with other costs of construction,
was charged ratably against all the project lands, being 40,000
acres within and 100,000 acres outside the district. After the
construction cost, including this drainage, had been fixed by the
government, it became necessary to drain project lands outside the
district because they were being ruined for agricultural uses by
the steadily rising ground level of seepage water due directly to
the operation of the irrigation system. Thereupon the Secretary of
the Interior authorized the construction of a drainage system for
these lands, the cost to be charged to operation and maintenance,
and to be borne ratably by all the water users upon project lands
both within and without the district. Appellant contended that this
expenditure was not properly chargeable to operation and
maintenance, but was an additional charge for construction, which
appellant could not be required to collect and pay over under § 4
of the Reclamation Extension Act of August 13, 1914, c. 247, 38
Stat. 686, 687, which provides that no increase in construction
charges shall be made after the same have been fixed, except by
agreement between the Secretary of the Interior and a majority of
the water right applicants and entrymen to be affected thereby. It
was insisted further that appellant would be precluded by state law
from collecting the charges from owners of nonproject lands because
they were not benefited. The government having threatened that,
unless the charges were paid, it would shut off the supply
Page 268 U. S. 53
of water from the project lands within the district, appellant
brought this suit to enjoin such action. The federal district court
dismissed the bill, 283 F. 569, and its decree was affirmed by the
circuit court of appeals, 288 F. 541. Both courts held that the
cost was a proper charge as an operating expense, and that the
project lands in the district were liable for their proportionate
part.
The contract with the district, among other things,
provides:
"The project lands in the district shall pay the same operation
and maintenance charge per acre as announced by the Secretary of
the Interior for similar lands of the Boise Project. . . ."
We agree with the courts below that the charge in question
fairly comes within this provision.
Section 4 of the Reclamation Extension Act,
supra,
prevents an increase in the construction charges to be imposed upon
the water users without the consent of a majority of them after the
amount thereof has been fixed. But this is far from saying that,
after the completion of the irrigation system in accordance with
the original plan in respect of which the construction charges were
fixed, should the need arise to remedy conditions brought about by
the use of the system, the government must bear the expense if a
majority of the water users withhold their consent. Expenditures
necessary to construct an irrigation system and put it in condition
to furnish and properly to distribute a supply of water are
chargeable to construction, but, when the irrigation system is
completed, expenditures made to maintain it as an efficient going
concern, and to operate it effectively to the end for which it was
designed are, at least generally, maintenance and operating
expenses. The expenditure in question was not for extensions to new
lands, or for changes in or additional to the system made necessary
by faulty original construction in violation of contractual or
statutory obligations,
Twin Falls Co. v. Caldwell, 272 F.
356, 369;
Page 268 U. S. 54
266 U. S. 85, but
was for the purpose of overcoming injurious consequences arising
from the normal and ordinary operation of the completed plant
which, so far as appears, was itself well constructed. The fact
that the need of drainage for the district lands, already existing
or foreseen, had been supplied, and the cost thereof charged to all
the water users as a part of the original construction, by no means
compels the conclusion that an expenditure of the same character,
the necessity for which subsequently developed as an incident of
operation, is not a proper operating charge. The same kind of work
under one set of facts may be chargeable to construction and under
a different set of facts may be chargeable to maintenance and
operation.
See Schmidt v. Louisville, C. & L. Ry. Co.,
119 Ky. 287, 301-302. For example, headgates originally placed are
charged properly to construction, but it does not follow that, if
an original headgate be swept away, its replacement, though
requiring exactly the same kind of materials and work, may not be
charged to operation and maintenance.
Appellant says the lands within the district are not benefited
by the drainage in question, and if a direct and immediate benefit
be meant, that is quite true. But it is not necessary that each
expenditure for maintenance or operation, considered by itself,
shall directly benefit every water user in order that he may be
called upon to pay his proportionate part of the cost. If the
expenditure of today does not especially benefit him, that of
yesterday has done so, or that of tomorrow will do so. The
irrigation system is a unit, to be, and intended to be, operated
and maintained by the use of a common fund to which all the lands
under the system are required to contribute ratably, without regard
to benefits specifically and directly received from each detail to
which the fund is from time to time devoted.
This conclusion, we think, fairly accords with the principle
established by the supreme court of the state in
Page 268 U. S. 55
Colburn v. Wilson, 24 Idaho, 94, 104, and we see no
merit in the contention that, under the state law, a ratable part
of the cost of this drainage cannot be assessed by the district
upon the project lands within its limits because they are not
benefited thereby. The cost of draining the district project lands
was met by a charge imposed in part and proportionately upon the
lands in the project outside the district. If now, when the latter
need like protection, the district lands are called upon to assume
an equivalent obligation, it requires no stretch of the realities
to see, following from such an equitable adjustment, a benefit on
the whole shared by both classes of lands alike. But, in any event,
since we find that the expenditure in question properly is
chargeable to operation and maintenance, appellant is liable under
the express terms of its contract.
Decree affirmed.