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January 29, 1953


The opinion of the court was delivered by: DRIVER

In the process of construction of the Columbia Basin Reclamation Project, the United States, as petitioner, brought this action to condemn a right-of-way for an irrigation canal. The petition alleged that the government had a right-of-way, granted by a statute of the State of Washington, over tracts 4, 6, and 8, described in the petition, and, therefore, that the owners of such tracts were not entitled to receive any compensation for the taking. The owners appeared and claimed compensation. The issue thus raised was tried separately before the court, without a jury. *fn1"

There is no dispute as to the facts. Tracts 4, 6, and 8 are in a section sixteen which, under the enabling act, *fn2" became the property of the state of Washington upon its admission to the union, on November 11, 1889. *fn3" The lands were sold by the state by a contract, issued on October 26, 1906, and title passed by deed, on February 25, 1908, to an individual grantee, through whom the present owners have derived their titles. The deed did not mention any reservation of rights-of-way for the United States. The statutory reservation, upon which petitioners relies, became effective on March 4, 1905. It is set forth in the last sentence of section 5, of chapter 88, Laws of Washington, 1905, which reads:

 'The State, in the disposal of lands granted from the United States to the State, shall reserve for the United States rights-of-way for ditches, canals, laterals, telephone and transmission lines which may be required by the United States for the construction, operation and maintenance of irrigation works.' [ 4 ]

  The crux of the controversy is the construction to be placed upon the statutory provision just quoted. Petitioner argues that it constitutes a legislative grant to the United States of rights-of-way, which takes effect as the lands covered by the grant are disposed of by the state, and that such rights are not extinguished by conveyance of the lands to private grantees, without express reservation in the instrument of conveyance. Defendants, on the other hand, contend that the provision does not constitute a present or immediate grant, but is in the nature of a continuing offer of a grant, which does not take effect until the United States takes the steps specified in the other portions of the act, set out in footnote *fn4" , to acquire rights-of-way for the construction of a particular irrigation project. They say that, construed in context with such other parts of the act, the provision means only that, if the United States, while the lands are still in state ownership, takes such prescribed steps, then it becomes the duty of the state, on subsequent disposition of the lands, to reserve rights-of-way for the United States. It follows, according to their view, that, in the present case, since the Columbia Basin Project was not initiated until long after conveyance of the lands by the state, the conveyance extinguished the inchoate grant of the rights-of-way. The intent of the legislature should be decisive as to which of the opposing views should prevail, but such intent is not apparent from the language of the act. The statute is ambiguous and, therefore, resort may be had to extrinsic aids, such as consideration of the historical setting in which the act was passed, the purposes it was designed to accomplish, and its legislative history. *fn5" The material for such extrinsic aids is available in the present case, not only in official state records, of which the court may take judicial notice, but also in contemporaneous documents, introduced in evidence by the petitioner.

 In February, 1904, at the suggestion of the United States Reclamation Service (then under the United States Geological Survey), the governor of the state of Washington appointed an irrigation commission to make a study and recommend needed changes in the state irrigation laws. The commission advised with, and in a number of its meetings was addressed by, representatives of the reclamation service. A consulting attorney of the service, Mr. Morris Bien, furnished the commission a draft of a proposed irrigation code. The draft contained the following right-of-way provision:

 'Sec. 60. Right of way over state lands- There is hereby granted, over all the lands now or hereafter belonging to the state, a right of way for ditches or canals constructed by authority of the United States. All transfers of state lands hereafter made shall contain a reservation of such right-of-way.'

 The irrigation commission, in its report to the governor, submitted, in December, 1904, recommended passage of an irrigation bill. The proposed bill did not adopt Mr. Bien's right-of-way provision, but, instead, contained the following right-of-way section:

 'Sec. 71. Right-of-way over state lands.- When notice is given to the state engineer under section 59 of this act, the proper officers of the United States may file with the state land commissioner a list of lands owned by the state over which the government may require a right-of-way for canals or ditches of such irrigation project, and the filing of such list shall constitute a reservation by the state of such rights-of-way over such lands, which reservation shall ripen into a grant of such right-of-way upon completion of such canals or ditches over any land described in said list.'

 It should be noted that, although the foregoing section 71 provided for acquisition by the United States of rights-of-way over lands owned by the state at the time of the initiation of an irrigation project, it contained no provision such as the last sentence of section 5, chapter 88, Laws of Washington, 1905, set out in footnote *fn4" , for the reservation of rights-of-way upon the conveyance of state lands to private grantees.

 In his message to the legislature, in January, 1905, the governor directed attention to what he called 'A subject of very great importance to the state,' namely, irrigation. He pointed out that, under the reclamation act of June 17, 1902, congress had made provision to set aside as a special fund the receipts from the sale of public lands in thirteen western states, including Washington, which fund was to be used to construct irrigation works for the reclamation of arid lands within the states. 43 U.S.C.A. § 391. It seemed to be the intent of the act, he said, to expend, in each state, the money derived from the sale of public lands in that state, and that Washington had contributed about three and one-half million dollars to the fund. No one doubted that there were feasible irrigation projects in the state, from an engineering standpoint; but 'our laws are not such as to warrant those in charge of the reclamation service in undertaking to carry out such projects'. Therefore, the governor concluded, 'in the final analysis,' it depended upon 'the action of this legislature' whether the money contributed to the reclamation fund by the state was to be expended in the state. He said that it had been suggested to him by officials of the United States Reclamation Service that Washington irrigation laws should be revised and that he had, accordingly, appointed an irrigation commission to study the problem and recommend needed changes. He invited the legislators to give their 'Most careful attention' to the commission's report, which he said would be submitted to them.

 Shortly after delivery of the governor's message, the proposal of the irrigation commission, was introduced in the legislature in the form of twin house and senate bills. Later in the session, two representatives of the reclamation service, who were then in Olympia, reported to their chief engineer, in Washington, D.C., that considerable opposition to the irrigation bill had developed and that it was not likely to pass. They suggested that the provisions deemed necessary to facilitate the reclamation work of the government be incorporated in a separate measure, and they forwarded a draft of their proposed bill. The chief engineer approved the procedure, but, in a telegram, suggested that there should be included in the draft a provision for 'right-of-way for telephone and transmission lines' and that 'All conveyances state lands should contain right-of-way reservation as in original code'. The telegram was followed by an explanatory letter. Five days later, on February 20, 1905, the chief engineer was informed by letter, by his subordinates in Olympia, that the proposed separate bill had been revised in accordance with his telegraphic suggestions, and a copy of the revised bill was mailed to him. The concluding clause of section 5 of the revised separate bill was as follows:

 'Provided, that the state in the disposal of lands granted from the United States to the state shall reserve for the United States, right-of-way for ditches, canals, laterals, telephone and transmission lines which may be required by the United States in construction, operation and maintenance of irrigation works.'

 The separate bill, drafted by the reclamation service, was introduced in the House and in the Senate as a substitute for the irrigation commission's bill, with the clause quoted above at the end of section 5, except that, by the deletion of the words 'provided that,' the proviso was converted to a separate sentence. The substitute bill was then enacted into law without substantial amendment. On the same day that it was approved by the governor, March 4, 1905, the legislature passed a joint memorial, directed to the Senate and House of Representatives of the United States, urging that the Okanogan Irrigation Project of the state of Washington be approved. On December 2, 1905, the Okanogan Project was given final approval by the Secretary of the Interior. Two other Washington state projects, the Sunnyside and the Tieton, were approved on March 27, 1906. All three projects were constructed by the reclamation service.

 It thus appears that, in order for the state to receive the benefits of the federal reclamation act, it was necessary for the state legislature to enact irrigation laws acceptable to the United States Reclamation Service. An irrigation bill formulated by the governor's irrigation commission and introduced in the legislature upon the recommendation of the governor, was not acceptable to the reclamation service, for the reason that it failed to provide for the reservation of rights-of-way for ditches and canals for federal irrigation projects over lands sold by the state. The reclamation service, in all its dealings with the state authorities, prior to the enactment of chapter 88, Laws of Washington, 1905, insisted upon such a provision. The last sentence of section 5, which is the subject of the present controversy, had its origin in a substitute bill, prepared by the reclamation service and enacted by the legislature to meet the requirements of the service. Surely, it should be assumed that the legislature, in good faith, intended to give what the reclamation service required, namely, present rights-of-way in all lands then owned by the state, ...

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