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UNITED STATES v. 111.2 ACRES

April 4, 1968

UNITED STATES of America, Plaintiff,
v.
111.2 ACRES OF LAND, MORE OR LESS, IN FERRY COUNTY, WASHINGTON, State of Washington, et al., Defendants



The opinion of the court was delivered by: POWELL

 POWELL, Chief Judge.

 This is an action in eminent domain commenced on November 20, 1964 for the purpose of acquiring title to 111.2 acres of land located in Ferry County, Washington. The land was owned by the defendant State of Washington and acquired as school granted lands.

 The United States Bureau of Reclamation acquired title to the lands by a declaration of taking. The lands were required for the Bureau of Reclamation Columbia Basin Project. They are located on the shores of Lake Roosevelt, the reservoir created by the back waters of Grand Coulee Dam. The lands are located in Section 16, Township 35 North, Range 37 E.W.M., Ferry County, Washington.

 The Government asserts that a prior grant of an easement under a State statute, RCW 90.40.050, entitles the Government to take the land without the payment of compensation. *fn1"

 The State's answer to the Government's claim is stated as follows:

 1. That the United States can claim no estate or interest in state school lands under RCW 90.40.050 until such time as two conditions have been met:

 (a) The full market value of the estate or interest sought by the government has been ascertained; and

 (b) Payment of the full market value has been made or safely secured to the State for its common school system.

 2. That the obligation to ascertain and pay full market value arises independently from the land-grant provisions of the Enabling Act, §§ 10, 11, and the state constitution, art. 9, § 3; art. 16, § 1.

 3. That the State is not estopped from enforcing the foregoing constitutional and Enabling Act provisions.

 The trial of this case resulted in a full presentation of all issues, except the amount of compensation. Based on the evidence and the arguments and briefs this memorandum disposes of the above issues under Federal Rules of Civil Procedure -- Rule 42(b).

 I. RCW 90.40.050

 The government has not compensated nor offered to compensate the State for this easement. Thus if compensation were an implied condition precedent to a grant under RCW 90.40.050 the government would not have acquired any interest pursuant to the statute and would be required to pay for the easement it seeks. It appears that RCW 90.40.050 contemplates uncompensated grants of school land to the United States.

 This section does not mention ascertainment or payment of compensation to the State. It details a process whereby notice leads to reservation and reservation ripens into grant. Were compensation a prerequisite one would expect that step to be detailed as well. The context of this section also indicates that compensation is not a prerequisite. RCW 90.40.010 gives the government eminent domain power against the State for irrigation projects. Thus to imply compensation as a condition in RCW 90.40.050 would render the section superfluous.

 This irrigation chapter was drafted and urged upon the Legislature by T. A. Noble, an employee of the United States Reclamation Service. Correspondence between Noble and his superiors in the Reclamation Service indicates that one of the purposes of proposing this legislation was to secure rights-of-way over State land for reclamation projects without compensation to the State. Noble's work stemmed from an earlier "Draft Of A State Irrigation Code" by Morris Bein, also a Reclamation Service employee. Section 60 of Bein's Code was a grant, in praesenti and without compensation, of rights-of-way over all State lands. Referring to his proposed code Bein commented that "lands required by the Reclamation Service shall be transferred to the United States without charge." (Excerpt From Proceedings Of the Second Conference Of The Reclamation Service 4) (undated).

 This construction of RCW 90.40.050 is supported by Judge Driver's opinion in United States v. Anderson, 109 F. Supp. 755 (E.D.Wash.1953). Judge Driver concluded the last sentence of RCW 90.40.050 constituted a grant in praesenti to the United States. The opinion does not discuss payment of compensation to the State. The circumstances of the case show that the State was compensated by Anderson, the purchaser from the State. The government had not complied with the notice and reservation steps detailed in the statute. Judge Driver held that the United States had acquired an easement by virtue of the statute when the State sold the land to defendant's predecessor in interest. A natural inference is that compensation is not a prerequisite to a grant under RCW 90.40.050.

 II. The Enabling Act.

 Section 10 of the Enabling Act is a legislative grant to the states. ...


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