Land reclamation

“ Since its adoption in 1902 the act has always been differently construed by the Secretary of the Interior, who, in granting water rights, has uniformly assessed the landowners with the cost of maintenance. The contrary construction by the circuit court of appeals raises a question of great importance to the owners of the land now irrigated. It is of equal importance to the government and to that part of the public interested in the reclamation of those portions of the arid region which can be irrigated as soon as funds are available. ”

“ Much of this land can be made suitable for farm homes if properly handled. But it will require that each type of land be dealt with in its own particular fashion. The arid land will require water; the cut-over land will require clearing, and the swamp land must be drained. Without any of these aids, they remain largely “No Man’s Land.” The solution of these problems is no new thing. In the admirable achievement of the Reclamation Service in reclamation and drainage, we have abundant proof of what can be done. ”

“ It was that the Government should advance sums for reclaiming the land. “The people could live on part of their earnings while thus employed, and invest the surplus in sheep to be fed on the hill pastures. When the reclamation was effected the families could be scattered out, and the holdings increased. In this district alone there are 350 holdings of reclaimable land of 20 acres each, the reclamation of which, according to a competent surveyor, ”would pay well. ”

“ The lands themselves might be conveyed to the levee contractors for work performed, or the contractors might be paid in money or in scrip representing land. If the State, therefore, after acceptance of the grant, and without applying the lands or their proceeds in money or scrip to the purpose of reclamation, had sought, by means of taxation, to compel purchasers to pay for the levees and drains necessary to reclaim their land, it would certainly be difficult to say that the contract was not violated. ”

“ If it be essential or material for the prosperity of the community, and if the improvement be one in which all the landowners have to a certain extent a common interest, and the improvement cannot be accomplished without the concurrence of all or nearly all of such owners by reason of the peculiar natural condition of the tract sought to be reclaimed, then such reclamation may be made, and the land rendered useful to all, and at their joint expense. ”

“ The reclamation of the unsettled arid public lands presents a different problem. Here it is not enough to regulate the flow of streams. The object of the Government is to dispose of the land to settlers who will build homes upon it. ”

“ The Reclamation act derives much of its value from the fact that it tends to secure the greatest possible number of homes on the land, and to create communities of freeholders, in part by settlement on public lands, in part by forcing the subdivision of large private holdings before they can get water from Government irrigation works. The law requires that no right to the use of water for land in private ownership shall be sold for a tract exceeding 160 acres to any one land owner. ”

“ So, in the present case the statute provides that the Secretary may assess 'the cost of construction of the project' without defining the term, and it may assist in arriving at the legislative intent to refer briefly to the facts leading up to the passage of the reclamation act.
The official reports show that, in 1902, there were in sixteen states and territories 535,486,731 acres of public land still held by the government and subject to entry. A large part of this land was arid, and it was estimated that 35,000,000 acres could be profitably reclaimed by the construction of irrigation works. ”

“ The area of actual reclamation of land from the bed of the river within said limits under the above-mentioned legislation amounted to nearly 750 acres.
Claims and pretensions of various kinds to the land and water within said limits, or to portions of the same, are set up in the answers of the parties who were originally made defendants to the bill and of those who have appeared in response to the public notice of the pendency of the suit given in accordance with the terms of the act. ”

“ Applying to this premise of fact the legal principle that, where property is separated from the water by land belonging to some one else, no riparian rights attach to the land of the former, it is held that the lot owners before the court have no riparian privileges which the government of the United States is in any way bound to respect. ”

“ What more absurd disposition of our timber land could have been made than the laws under which it has passed to private hands? The Homestead and Preemption acts, framed for prairies, requiring the settler to live on and cultivate the soil, have been extended to our forests, and to comply with their terms, thousands of men have withdrawn from vocations by which they were increasing the wealth of the Nation, and with blankets and provisions strapped on their backs and axe and compass in hand have worked their weary way through the pathless forests to vacant Government lands, on which they filed. ”

“ Now, without desiring to be understood as speaking judicially, we know of no authority of law by which a land-owner may enter upon the territory of his neighbor for the purpose of draining his own land, and perhaps no such power should ever be conferred. ”

“ No one seriously doubts that the land use regulations at issue rendered petitioners’ land unsusceptible of any economically beneficial use. This was true at the inception of the moratorium, and it remains true today. ”

“ Thus does a government which is so niggard of its land that it will not part with the fee-simple of the most barren rock for less than £1 an acre, while that £1 an acre law remains in force, alienate millions of acres at one-tenth of the rent which it received on its free grants. The system devised for the preservation of the waste lands will end in their confiscation. ”

“ The defendants severally own small tracts of land within the project which are either crossed by or adjacent to the ravine, and some claim to have appropriated water in the ravine for the irrigation of their tracts. All, in their answers, challenge the plaintiff's right to make the changes-some on the ground that the work involves a trespass on their tracts, and others on the ground that it involves a destruction of their asserted appropriations-and on these grounds they ask affirmative relief. ”

“ And, going beyond the special language of the act in respect to the sale of lands, the court observed:
'But we go further, and say that, whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no subsequent law, or proclamation, or sale would be construed to embrace it, or to operate upon it, although no reservation were made of it. ”

“ The fact that the labor of other persons changed the current of the river, and caused the deposit of alluvion upon the land of the defendants, cannot deprive them of a right to the newly made soil.
If portions of soil were added to real estate already possessed by gradual deposition, through the operation of natural causes, or by slow and imperceptible accretion, the owner of the land to which the addition has been made has a perfect title to the addition. ”

“ In attempting to make a grant described by rivers of whose courses and location they were ignorant, by given distances which could not be made to conform to the natural objects, making a grant of over seven millions of acres of land by specific boundaries of which they knew nothing, they made a total failure, and gave no description by which any surveyor could, without the aid of a lively imagination, make any location. ”

“ It is to be observed that the three Estates Commissioners were unanimous in thinking compulsion necessary, and that which was demanded was that the occupants, or planters, who in some cases have been bona fide farmers, but whom the Land Commission inspectors reported had in many cases allowed the land to get into a bad and dirty state, should, on dispossession, be generously compensated or given their choice of other lands. ”

“ Much of this was in advance of the public surveys, and even before the passage of an act of congress opening the agricultural lands to settlement, and providing for the sale of the mineral lands. Yet the progress of the country was not thereby stayed. The first appropriator of mineral lands within certain limits, or the first settler on agricultural lands to the extent prescribed by the pre-emption laws in force in other states, was recognized everywhere as having a better right than others to the claim appropriated, or to the land settled upon. ”

“ Is only the government so restrained? Why not as well riparian proprietors, arel they also forbidden to resist natural causes, whatever devastation by floods or erosion threaten their property? Why, for instance, would not, under the principle asserted, the appellants have had a cause of action against the owner of the land at the cut-off if he had constructed the revetment? And if the government is responsible to one landowner below the works, why not to all landowners? ”

“ And heather taken for litter cannot be taken in larger quantities than is necessary for manuring the lands in respect of which the right is enjoyed. It is illegal to take the wood or heather from the common, and to sell it to any one who has not himself a right to take it. So, also, a right of digging sand, gravel, clay or loam is usually appurtenant to land, and must be exercised with reference to the repair of the roads, or the improvement of the soil, of the particular property to which the right is attached. ”

“ The general rule may be admitted that every land-owner has a right to have his land preserved unbroken, and that an adjoining owner excavating on his own land is subject to this restriction, that he must not remove the earth so near to the land of his neighbor that his neighbor's soil will crumble away under its own weight and fall upon his land. ”

“ In general there can be no doubt that a State has power to add more land that shares the benefit of a scheme, to the lawfully constituted district that has to pay for it, and to do so against the will of the owner. ”

“ Almost all jurists and legislators, however, both ancient and modern, have agreed that the owner of the land, thus bounded, is entitled to these additions. By some, the rule has been vindicated on the principle of natural justice, that he who sustains the burden of losses and of repairs, imposed by the contiguity of waters, ought to receive whatever benefits they may bring by accretion ”

“ But there is another reason for the deforesting of the country, which is—that if Home Rule becomes law, the landowners are disposed to believe that no allowance will be made for the timber which may be on the land when the land is sold to the tenant under some unknown Act to be passed at some future day. ”

“ To revert to the parallel of the disposition of land made by the owner of an estate, who certainly would not place his kitchen - garden in the loveliest part of his park, do not let the Nation surrender forest or hillside, but, preserving them intact, apportion for purposes of cultivation the less beautiful, flatter, and probably more productive ground. Let the public watch how many of the schemes brought forward relate to regulation, not inclosure. ”

“ It is obvious that even this law, which was essentially just, might work the most serious inconvenience both to the owner and the holder of the soil in dispute. The owner might be unable to purchase the improvements established on the property by the holder, and yet find no real compensation for the loss of the land in the amount which the verdict of a jury might require the latter to pay him. On the other hand, it would frequently be no real compensation to the occupant if the expense he had incurred in establishing a home on the soil of which he had been dispossessed were refunded him. ”

“ It will require three months, I judge, for a man to select a good claim (a quarter section, being 160 acres) , and fence and plough a part of it and to erect thereon a cabin. There is never a want of land to preempt in a new country. The settler can always get an original claim, or buy out the claim of another very cheap, near some other settlers. The liberal policy of our government in regard to the disposal of public lands is peculiarly beneficial to the settler. ”

“ The issue was not when a suit must be brought on a claim in respect to land taken by the United States, which is the issue before us, but whether there had been a taking at all.
Second. The Government challenges the compensation awarded for damage to the land due to erosion. It regards this damage as consequential, to be borne without any right to compensation. ”

“ On the other side of the balance, affirmatively supporting a compensation requirement, is the fact that regulations that leave the owner of land without economically beneficial or productive options for its use — typically, as here, by requiring land to be left substantially in its natural state — carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. ”