
    MARY K. REYNOLDS v. THE UNITED STATES
    [No. 313-55.
    Decided January 15, 1958.
    Plaintiff’s motion for rehearing overruled March 5, 1958]
    
      
      Mr. Robert D. Wallioh for tbe plaintiff. Mr. Qlaude L. Dawson was on the briefs.
    
      Mr. Howard O. Sigmond, with whom was Mr. Assistant Attorney General Perry W. Morton, for the defendant.
   Madden, Judge,

delivered the opinion of tbe court:

The plaintiff brings this suit pursuant to a special Act of Congress which is quoted in finding 1. She alleges that her predecessor in title, the Colonial Realty Company, had a right, under an earlier Act of Congress, the Act of March 23, 1933,48 Stat. 1295, quoted in finding 2, to exchange, approximately acre for acre, 1,420 acres of land owned by it for more desirable lands owned by the Government, but that the Government wrongfully refused to accept some 230 acres of land tendered by Colonial, and to convey that acreage of the more desirable land to Colonial. The plaintiff seeks an accounting and damages for the alleged violation of the 1933 statute.

The Act of March 23, 1933, was passed to compensate Colonial for previous damage caused by the United States to Colonial, the nature or circumstances of which are not disclosed by the record. The Act provided that

upon execution and delivery by the Colonial Realty Company of a deed * * * to approximately one thousand four hundred and twenty acres of seeped and unproductive lands, as determined by the Secretary of the Interior,

in certain named sections of land in the Klamath irrigation project in Oregon, the Secretary was directed to issue to Colonial a patent for an equivalent amount of acreage of public land on the Tule Lake Division of the Klamath project in Oregon-California, the latter lands to be selected by Colonial from lands still available in the stated location.

About October 11, 1933, Colonial sent to the Secretary of the Interior a petition requesting the conveyance to it of approximately 1,400 acres which it had selected in the Tule Lake Division, and listing 1,397.7 acres of land which it proposed to give in exchange. On October 31 it tendered to the Secretary a deed conveying the same lands listed in the petition, except for minor variations.

On February 12,1934, the First Assistant Secretary of the Department of the Interior transmitted Colonial’s deed and other papers to the Commissioner of the General Land Office, instructing him to record the deed and issue to Colonial the patent “providing no other objection is found to exist.” On February 24 the Acting Director, Division of Investigations, requested the Commissioner to withhold the recording of the plaintiff’s deed and the issuance of the Government’s patent to the plaintiff, “pending an investigation.” The recording and the patenting were withheld. An investigation of charges of fraud on the part of Colonial took place.

On September 19, 1935, the Secretary advised the Commissioner of the Bureau of Declamation that he had dismissed the charges of fraud, and that the Commissioner was “authorized to proceed, in cooperation with the Office of the Solicitor, to a final disposition of the Colonial Dealty Company matter in accordance with existing law and in the light of the best interest of the United States.” In March of 1935, the Commissioner directed one W. W. Johnston, a Bureau of Declamation economist, to examine the lands tendered by Colonial for exchange to determine how many acres of such lands, in each legal subdivision, were “temporarily or permanently unproductive.” Johnston was told that his determination should be guided solely by the actual quality of the land, without reference to any existing or prior classification. At about the same time a similar set of instructions was sent to a Dr. W. L. Powers, who was the head of the Soils Department of Oregon State College and the experimental stations.

Mr. Johnston and Dr. Powers made separate investigations and reports. The basis of classification which Dr. Powers used is shown in finding 14. On January 29, 1936', the Acting Commissioner of Declamation sent to the Secretary a schedule of lands of Colonial regarded as eligible for exchange, that classification of them being based primarily on the report of Dr. Powers. The list of lands was then submitted to the Solicitor of the Department who rendered his opinion as to the title of Colonial to the lands which it proposed to exchange. A new deed had to be prepared for execution by Colonial. It conveyed 1191.35 acres, all but a minor portion of the amount found by the Department to be acceptable, according to Dr. Powers’ investigation. The United States on October 20, 1936 issued its patent to Colonial for 1190 acres in the Tule Lake Division.

On April 7, 1941, counsel for Colonial wrote a letter and a brief, addressed to the Secretary, requesting reconsideration of the exchange of lands.

The plaintiff urges that the Act of 1933 required the Secretary of the Interior to accept Colonial’s deed for 1397.7 acres of land, tendered on October 31, 1933, and grant Colonial approximately that number of acres of Tule Lake land. She says that the Act of 1933, in using the expression “seeped and unproductive lands, as determined by the Secretary” referred to a determination made before the Act was passed, and not to a determination to be made in the future. The plaintiff’s argument that there had been a determination before the Act was passed relies on a statement by the Commissioner of Reclamation which is quoted in S. Eept. 1159, 72d Cong., 2d Sess., with regard to Colonial’s lands, that “* * * the lands, or the greater part of them, are not suitable for cultivation.” We think this statement, made in a report to Congress as to the Department’s attitude to the bill, was not the determination referred to in the bill as to what lands were “seeped and unproductive.” If this statement was regarded by Congress as a constructive lump determination that all of Colonial’s lands were seeped and unproductive, there would have been no point in saying, as the statute said, that if more than 50 percent of any legal subdivision of the land was unproductive, that entire legal subdivision should be exchangeable.

The plaintiff also argues that the grammar and context of the statute show that a prior determination was contemplated. We think the grammar and context point in the other direction. If they did not, Congress would have left the parties completely at large, since there was no prior determination.

The plaintiff argues that the Secretary, in February 1934, approved the exchange on the basis of the deed for 1397.7 acres tendered by the plaintiff, and that he was arbitrary and wrong in thereafter refusing to complete the transaction on that basis. It will be remembered that the First Assistant Secretary did at that time send the pertinent papers to the Commissioner of the General Land Office directing him to record Colonial’s deed and issue it a patent “providing no other objection is found to exist.” No doubt the transaction would have been consummated on that basis if the Division of Investigations had not interposed a request for delay, pending an investigation for suspected fraud. As we have seen, the charges of fraud were ultimately dismissed by the Secretary.

During the delay, the Department apparently reconsidered the action which it had almost completed, and concluded that the statute did not direct a lump exchange of Colonial’s land without a determination by the Secretary as to their quality. As we have indicated above, we think this reconsidered opinion was the correct one. The fact that the opportunity to reconsider was afforded fortuitously is immaterial. Until the transaction was consummated, the Government’s officials had not only the right, but the duty to reconsider it.

The plaintiff says that, in any event, the Secretary’s determination as to what lands were “seeped and unproductive” was wrong as to 127.4 acres of the 150.5 acres tendered by Colonial and not accepted for exchange. When the Secretary undertook to determine the quality of the lands, he requested two experts in soils to make separate investigations and reports. The two reports were not in agreement in all respects. The parties are in dispute as to which report was more favorable to the plaintiff’s position. It is probably not possible, from the record, to resolve that dispute. In any event, the Secretary made his determination almost entirely on the basis of Dr. Powers’ report.

We háve no doubt that Congress, in imposing on the Secretary the duty to make the determination, contemplated that it would be made on the basis of investigations and reports by experts. The Department, in its Bureau of Declamation, of course, relies heavily on experts with the training and experience of those used by the Secretary.

The Government urges that the determination by the Secretary, that function having been imposed upon him by the statute, was conclusive, if supported by substantial evidence. Since the Secretary’s determination was, obviously, supported by substantial evidence, the Government says that the case ends there.

The plaintiff says that Congress would have been wasting its words, and would have known that it was doing so, if it had merely authorized the plaintiff to bring this suit, but had loaded her with the impossible burden of persuading the court that the testimony of a recognized expert was not substantial. We are inclined to agree with the plaintiff. However, since the case has been tried de novo in this court, and we have the materials for deciding it without regard to presumptions or conclusiveness of administrative action, we need not decide the point raised by the Government.

We now consider the question whether 127.4 acres of the lands tendered by Colonial and not accepted by the Government, which lands the plaintiff contends were seeped and unproductive, were so, within the meaning of the 1933 Act. One of the plaintiff’s contentions is that the Secretary did not follow the statutory provision that if more than 50 percent of the acreage of a legal subdivision was seeped and unproductive, the whole of the subdivision should be regarded as exchangeable. The question here is what Congress regarded as a legal' subdivision. The plaintiff urges that a 40 acre tract, a quarter of a quarter section, is the smallest subdivision contemplated by the statute. In Government surveys of the land which had been made before the enactment of the statute, there were odd shaped tracts bounded on one or more sides by irrigation ditch or railroad rights of way or easements, or other irregular boundaries. These boundaries did not, of course, coincide with regular survey lines. The irregular shaped areas were designated-on the surveys as “lots.” The 1933 statute mentioned the fact that the “lots” did not correspond with legal subdivisions, in stating that, in order to avoid the expense of surveys to determine the exact acreage of the lots, the exchange might be made on the basis of approximate acreage. It then contains the proviso that “should any legal subdivision of the lands herein described consist of more than 50 per centum of unproductive land the whole subdivision” is exchangeable. The language in its context indicates that the plaintiff’s interpretation is correct, and that the Government should have accepted the remaining 7.4 acres in the SE14SE14 of Section 21, as “constructively” seeped and unproductive.

We must determine whether the remaining acres in controversy were actually seeped and unproductive within the meaning of the 1933 statute. As we have said, we think Congress intended that the determination as to the quality of the lands should be made on an expert scientific basis which could be uniformly applied to a large number of tracts in various locations. The plaintiff’s witnesses in the trial before a commissioner of this court were a county farm assessor, a farmer, a rancher, a graduate agricultural engineer who was currently a real estate broker, and another real estate man with considerable appraisal experience. The Government’s witnesses were the two experts who had made the investigations and reports to the Secretary in 1935, Mr. Johnston and Dr. Powers.

We think the testimony of the plaintiff’s witnesses is not very helpful. According to the Bureau of Eeclamation’s system, land was graded in six classes, No. 1 being the best, Nos. 1 to 4 being regarded as productive, and Nos. 5 and 6 unproductive. The distinction between any two adjacent classes, such as 4 and 5 would be by no means obvious, and could hardly be made by a passerby, or even a neighbor, or any other outside observer. In passing through any countryside one will see productive farms, and an occasional unused tract grown over with brush and wild grasses and weeds. Presumably its soil has the same natural content as that of the neighboring farms. Perhaps none of them had very good natural soil, but the others have been built up by cultivation. At any rate, the class in which its soil would fall, as to whether it just made or just missed class 4 in a scientific classification, would be a problem for an expert and not for a lay observer.

The defendant’s expert, Dr. Powers, had unusual qualifications and experience for the investigation which he was requested to make. He carried and used an auger to take samples of the soil and a testing kit to analyze the samples. The results so obtained seem to us to be as objective as could possibly be hoped for.

The defendant’s other expert, Mr. Johnston, disagreed with Dr. Powers as to 51.1 acres of the land here in question. Their reports made in 1935 had similarly disagreed. As between the two experts, we think that Dr. Powers was somewhat better qualified, and that his investigation was more thorough than that of Mr. Johnston. Our conclusion is that none of the land which the Secretary refused to accept for exchange was, in fact, seeped and unproductive within the meaning of the statute.

As we have said above, there were 7.4 acres which, although not unproductive, should have been accepted because the legal subdivision in which they lay was more than 50 percent unproductive.

The plaintiff seeks to recover the difference in rental value of the land which Colonial ultimately conveyed to the Government, and the more valuable land which the Government patented to Colonial, for the period during which completion of the exchange was delayed. She computes this difference to be $35,700. She says that the fraud investigation, and the consideration and determination of the quality of the lands were unjustified. As to the fraud investigation, all that we know is that there was an investigation, and that the charges of fraud were ultimately dismissed. As to whether there was probable cause for the investigation, we do not know. We have no basis for a determination that the investigation was not justified.

As to the delay resulting from the investigation and determination of the quality of the land, the Secretary had the legal duty to make that determination. The plaintiff is not entitled to recover for delay in the completion of the exchange.

The plaintiff demands as her damages (1) the difference in the sales price in 1936 between the lands offered in exchange and the Tule Lake lands which she should have been given by the Government in exchange; (2) the loss in rental value by reason of not having had ownership of the Tule Lake lands from 1933 to 1957; (3) perhaps as an alternative to (2) the difference in the sales prices of the lands in 1957, due largely to the decrease in the value of the dollar, and (4) the loss of water credits on the lands which should have been made, but were not accepted in exchange.

The plaintiff is entitled to the difference in the sales prices of the respective lands in 1936. For the 7.4 acres which we have found should have been accepted, that difference is $565.00. She is not entitled to the difference in rental value of the lands for the 1933-1957 period. The normal measure of damages for breach of contract or other legal obligation is the difference in value between what one would have received if the obligation had been satisfied according to its terms, and what one got or had in fact. The time when performance should have taken place is the time as of which damages are measured. One cannot recover that difference, and in addition the loss which has occurred thereafter as a consequence of the breach of the obligation.

The plaintiff is not entitled to recover the difference in the sale prices of the two kinds of land in 1957. It is true that if specific performance had been feasible, and if the court had concluded that, in the circumstances, it would have been equitable to grant it, the plaintiff would have had the benefit of the increase in value. But specific performance not being granted, and there having been the same remedy at law available to this plaintiff as to any other person who has a claim founded upon an Act of Congress, there is no reason to apply an extraordinary rule of damages.

The plaintiff claims and is entitled, under the companion Act of June 14, 1933, to loss of water credits on the lands (7.4 acres) which should have been, but were not, accepted for exchange. That loss is $135.05.

The plaintiff claims interest. Claimants against the United States are not entitled to interest unless it is provided by statute or by contract. 28 U. S. C. 2516, 62 Stat. 978; United States v. Goltra, 312 U. S. 203; United States v. Thayer-West Point Hotel Co., 329 U. S. 585.

The plaintiff may have a judgment for $700.05.

It is so ordered.

Reed, Justice (Bet.), sitting by designation; Whitaker, Judge; Littleton, Judge; and Jones, Chief Judge, concur.

FINDINGS OP PACT

The court, having considered the evidence, the briefs and argument of counsel, and the report of Commissioner William E. Day, makes findings of fact as follows:

1. The plaintiff, Mary K. Eeynolds, is the successor in interest to the Colonial Eealty Company, and as such successor in interest, on August 9, 195'5, instituted this action for damages pursuant to the terms of a special jurisdictional act, Private Law 858, 83d Cong., 2d sess., approved August 27,1954 (68 Stat. A226), which reads as follows:

AN ACT
To confer jurisdiction upon the Court of Claims to hear, determine, and render judgment upon the claim of Mary K. Eeynolds, as succssor in interest to the Colonial Eealty Company.
Be it enacted, by the Senate md House of Representatives of the United States of America in Congress assembled, That (a) notwithstanding any statute of limitation or lapse of time, any provision of law to the contrary, any release, or any prior acceptance by the claimant of partial performance by the United States, jurisdiction is hereby conferred upon the Court of Claims to hear, determine, and render judgment upon the claim of Mary K. Eeynolds, as successor in interest to the Colonial Eealty Company, against the United States resulting from the alleged failure of the Secretary of the Interior to complete the exchange of lands authorized and directed by the Act entitled “An Act providing for an exchange of lands between the Colonial Eealty Company and the United States, and for other purposes”, approved March 23, 1933 (48 Stat. 1295), as supplemented by the Act entitled “An Act giving credit for water charges paid on damaged land”, approved June 14, 1933 (48 Stat. 13001, in the manner and to the extent required by such Acts.
(b) Jurisdiction is hereby conferred upon said court (1) to proceed as a court of equity jurisdiction in the adjustment of accounts between the claimant and the United States, (2) to enter such order or decree granting equitable relief as justice and right shall require, and (3) to enforce any such order or decree in any manner or by any proceeding available to a district court of the United States for the enforcement of its orders and decrees.
Seo. 2. (a) Suit upon such claim may be instituted hereunder not later than one year after the date of enactment of this Act.- Except as otherwise provided herein, proceedings for the determination of such claim, and review and payment or performance of any judgment, order, or decree thereon shall be had in the same manner as in the case of claims over which such court has jurisdiction under section 1491 of title 28 of the United States Code.
(b) Payment of any judgment rendered hereunder for damages and compliance by the United States with any order or decree entered hereunder for equitable relief shall constitute a full and complete satisfaction of all claims and demands of the Colonial Realty Company, its successors and assigns, arising from the Acts cited in subsection 1 (a) of this Act.

2. The Act of March 23, 1933 (48 Stat. 1295), referred to in the jurisdictional act quoted above, reads as follows:

AN ACT
Providing for an exchange of lands between the Colonial Realty Company and the United States, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That upon execution and delivery by the Colonial Realty Company of a deed conveying to the United States, title in fee, free of incumbrance, to approximately one thousand four hundred and twenty acres of seeped and unproductive lands, as determined by the Secretary of the Interior, in sections 20, 21, 22, 25, 27, 28, 31, 32, 33, and 34, township 39 south, and section 3 of township 40 south, range 9 east, Willamette meridian, Oregon, Klamath project, or to such portion thereof as said company may elect so to convey, the said Secretary is hereby authorized and directed to issue a patent to the Colonial Realty Company, conveying to said company title to approximately an equivalent amount of public lands on the Tule Lake division of the Klamath project in Oregon-California to be selected and designated by said company from available lands in that division : Provided, That in order to avoid the expense of additional surveys, and since many of the tracts to be conveyed to the United States are designated as lots by public land surveys and for this reason the subdivisions contain areas both less than and in excess of legal subdivision, the areas conveyed to the Government and the areas patented by the Government need be only approximately of the same acreage: Provided further, That should any legal subdivision of the lands herein described consist of more than 50 per centum of unproductive land the whole subdivision may, at the option of said company, be conveyed to the United States, with the right of exchange of an equivalent area as herein authorized.
Sec. 2. The water-right charges payable by said company or its successor on the Tule Lake lands patented pursuant to this Act shall be the same as those fixed for similar lands in that district and shall be subject to payment in the same manner.

3. The Act of June 14, 1933, referred to in the jurisdictional act reads as follows:

AN ACT
Giving credit for water charges paid on damaged land.
Be it enacted by the Senate and Home of Representatives of the United States of America in Congress assembled, That all construction charges heretofore paid by owners on lands to be conveyed to the United States of America pursuant to the Act of Congress approved March 23, 1933 (S. 156, Seventy-third Congress), shall be transferred as a credit to the lands to be so patented by the United States, and all payments of operation and maintenance charges with penalty and interest heretofore made on such of the lands to be conveyed as were not, in the determination of the Secretary of the Interior, during the period for which payment was made, susceptible of successful cultivation by reason of seepage, alkalinity, or other causes not within the control of the owners of such land, shall be allowed as credits on future construction, operation, and maintenance charges on the lands retained or those to be Patented by the United States pursuant to the Act of ongress approved March 23, 1933 (S. 156, Seventy-third Congress). Like credit shall also be given the irrigation district for all the charges heretofore paid by it on such lands and for which the owners of said lands have not in turn reimbursed the irrigation district.

4. On or about October 11,1933, the Colonial Realty Company, by counsel, sent to the Secretary of the Interior a petition by which it requested the transfer and conveyance to it of public lands it had selected in the Tule Lake Division of the Klamath Project in Oregon-California, of approximately 1400 acres in exchange for approximately 1397.7 acres of seeped and unproductive lands within the geographic areas described in the Act of March 23, 1933. The petition listed the specific areas the company wished to give up, as well as those areas it desired to receive.

5. On or about October 31,1933, the Colonial Eealty Company tendered a deed to the United States of the same lands which were specifically listed in the petition referred to above, except approximately 6 acres, and further excepting an area the extent of which is not shown in the record, being lots 3 and 4 in Section 3, Township 40 South, Eange 9 East, Willamette Meridian.

6. On February 12, 1934, the First Assistant Secretary, Department of the Interior, sent the following letter to the Commissioner of the General Land Office:

Herewith are deed, abstracts of title, and allied papers in connection with the conveyance by the Colonial Eealty Company to the United States of approximately 1414 acres of land in Klamath County, Oregon. The conveyance is being made pursuant to the act of March 23, 1933 (Private No. 2, 73d Cong.), and the act of June 1[4], 1933 (Private No. 12,73d Cong.).
The Solicitor’s Opinion, No. A-27613, on the condition of title to the land to be conveyed has been secured, and copy is enclosed for your information. Subject to your appropriate action in accordance with Departmental opinion you will record the deed in the county records of Klamath County, Oregon, and issue to the Colonial Eealty Company a patent for the lands selected by it described in amended Schedule B of the petition filed by the company, providing no other objection is found to exist.

7. On February 24,1934, the Acting Director, Division of Investigations, Department of the Interior, prepared and forwarded a Memorandum for Commissioner, General Land Office, in the following terms:

It is respectfully requested that patent be withheld on application for exchange of approximately 1400 acres of land in the Klamath Irrigation District of Oregon, filed by Colonial Eealty Company of Portland, your file No. 1515578 “F” P. M. E., pending an investigation.
It is also requested that no instructions be issued to record tbe deed presented by the Company until the completion of this investigation.

8. The above quoted memorandum caused the Department of the Interior to withhold further action on the exchange of lands pending the result of an investigation of charges of fraud which were instituted by that Department.

On September 19, 1935, the Secretary of the Interior directed a letter to Dr. Elwood Mead, Commissioner, Bureau of Reclamation, in which he advised that official that he had, upon recommendation made to him, dismissed the fraud charges which had resulted in the investigation. He stated further:

You are authorized to proceed, in cooperation with the Office of the Solicitor, to a final disposition of the Colonial Realty Company matter in accordance with existing law and in the light of the best interest of the United States.

9. On March 30,1935, the Commissioner of the Bureau of Reclamation sent a letter to Mr. W. W. Johnston, directing that he make an individual soil classification and appraisal report of certain lands of the Colonial Realty Company and Tule Lake lands. The pertinent portions of the letter stated:

On March 281 sent Chief Engineer Walter the following telegram:
“Send W. W. Johnston at once to Klamath Falls to make valuation of land involved in Colonial Realty Company transfer letter of instructions being mailed him care Hayden.”
Certain questions have arisen which render it desirable that full information be secured as to the agricultural value of certain lands. Two lists of the lands to be examined and reported upon are being sent to you. The list marked “A” covers lands of the Colonial Realty Company offered for exchange for like area described in list marked “B.”
You are to examine the lands in list “A” to ascertain how many acres in each legal subdivision are, in your judgment, either temporarily or permanently unproductive. You should also report as to the parts or whole subdivisions which are productive and state your estimate of their market value. In judging the productivity of the land yon should be guided solely by its actual quality without reference to any existing or prior classification. You should not seek to determine any question of law, but purely the question of fact as to the character and quality of the land.

10. A set of instructions similar to those sent to Mr. W. W. Johnston was sent to Dr. Wilbur L. Powers in March or April of 1935.

11. Mr. W. W. Johnston graduated from Oregon State College, having majored in irrigation and drainage, in 1917. He received his master’s degree in soils from the University of Missouri in 1924r-25. He spent four years teaching in Oregon State College, during which time he worked in irrigation and soils fertility on farm lands in Klamath County and conducted experiments in the reclamation of alkali lands. He has been employed by the Bureau of Reclamation since 1925 as a Reclamation economist. The duties of that office, which he performed, required that he classify land on existing or potential irrigation projects to determine whether the lands would be sufficiently productive to repay the construction costs and support the operation and maintenance cost of each such project. Mr. W. W. Johnston has worked in classifying soils in 12 of the 17 Western States. He has also had extensive experience in appraising irrigated lands.

12. Dr. Wilbur L. Powers received a doctor’s degree in soils and plant nutrition from the University of California in 1926. From 1909 to 1915 he served as Associate Agronomist in Oregon State College. From 1915 to 1918 he was head of the Department of Drainage and Irrigation in the School of Agriculture in Oregon. From 1918 to 1953 he served as head of the Soils Department of Oregon State College and the experimental stations. He is the author of approximately 250 technical publications on soils and has served for a total of about five years in soil work in foreign countries, such as Venezuela, Greece, and Turkey. He has worked as a consultant with the Bureau of Reclamation on numerous occasions, particularly with relation to projects in Oregon. He has also had extensive experience as an appraiser of irrigation properties. Dr. Powers had unusual qualifications and experience for the investigation which he was requested to make. He carried and used an auger to take samples of the soil and a testing kit to analyze the samples.

13. On April 11, 1935, W. W. Johnston submitted to the Commissioner of Reclamation his report showing the classification and appraisal of lands as directed by the Commissioner in his letter of March 30,1935 which is quoted in part in finding 9.

14. On April 27,1935, Dr. Wilbur L. Powers submitted a comprehensive report to the Commissioner of Reclamation based upon his independent field study made by him from April 11 to 20, 1935 in which report he classified and appraised the various lands which Colonial Realty Company wished to exchange according to the classifications commonly used in the Bureau of Reclamation. In his explanation of the various classifications from class 1 to class 6, the report states as follows:

Class 6 land is permanently unproductive or with very limited productiveness. Class 5 land is at least temporarily of low productiveness and in general is only suitable for pasturage under the present conditions. Classes 1 to 4 correspond to the classifications commonly used in the Reclamation Bureau. Class 4 is of limited productive value, due to poor drainage, rough topography, alkalinity, or other limiting factors. The reasons for placing lands in_ Class 3, as frequently shown on accompanying map, is shown by the small letter added after the number, as for example, “3t”, indicating-third class topography. Class 2 may be of moderately undulating topography or less productive than the best, smooth-lying lands included in Class 1.

15. On January 29, 1936, R. F. Walter, Acting Commis-missioner of Reclamation submitted the following memorandum to the Secretary of the Interior:

Subject: Exchange of lands with the Colonial Realty Company.
On September 19, 1935, you addressed a communication to Dr. Mead with regard to the Colonial Realty Company situation, from which the following is quoted:
“You are authorized to proceed in cooperation with the office of Solicitor, to a final disposition of the Colonial Realty Company matter, in accordance with existing law and in the light of the best interests of the United States.”
On receipt of this communication _ he conferred with the Colonial Realty Company and it was agreed that in order that proper consideration be given to any additional information either as to law or fact disclosed by the hearing before Mr. Frank C. Wright that this matter be referred to Mr, C. H. Carter of the Bureau of Reclamation and Mr. F. K. Kirgis of the Solicitor’s office.
These gentlemen have reached the conclusion, after full consideration of the facts disclosed at the hearing and additional information contained in the files of this Bureau, that the areas shown on the accompanying schedule as exchangeable are eligible for exchange under the provisions of the Act of March 23,1933. The schedule is based primarily on the' classification made in 1935 by Professor W. L. Powers, who is considered well qualified as a soil scientist. These conclusions were concurred in by Dr. Mead and he recommended their acceptance by the United States.
The Colonial Realty Company has made a tentative selection of lieu lands in sections 5, 6,7 and 8, T. 47 N., R. 4 E., M. D. B. & M., California, Tule Lake division of the Klamath project. It is agreed that patent be issued to the Colonial Realty Company conveying an approximately equivalent area of land of the above selection, subject to the following conditions:
1. The selected lands shall be retained in the sump area of Tule Lake by limiting the top of the protective dikes to elevation 4039 which is 2 feet below the top of the Tule Lake dike protecting the homestead lands. This stipulation would result in flooding the lieu lands to protect the homestead lands in case of excessive runoff and it appears necessary to make reservations in the patent to adequately protect the United States from damages resulting from such flooding.
2. The Colonial Realty Company has submitted a selection of approximately 1,400 acres which leaves a strip of land approximately 60 rods wide between the east boundary of the tentative selection and the present dike. This feature is objectionable to the United States. The applicant has therefore agreed to prepare a new selection, the boundaries of which shall extend to the borrow pits adjacent to the present dikes on the north and east of the lieu lands.
3. Water for irrigation will be delivered at the present end of the J-l lateral near the northwest comer of the lieu lands. For this water the following charges are to be made:
(a) A water right necessary for beneficial use at $34 per acre, payable in equal annual payments over a period of 40 years. This amount is the same as is charged pump lands supplied water from the same lateral.
(b) Operation and maintenance charges are to be identical with such charges to the Tule Lake homestead lands; this charge being announced each year by the Secretary of the Interior.
4. All ditches, drains and dikes necessary for irrigation, drainage and protection of the lieu lands lying within the sump area shall be constructed and maintained by the owners of said land.
Enel. 770343

The enclosure referred to above is not in evidence.

16. Thereafter on February 27,1936, Nathan R. Margold, Solicitor, submitted to the Secretary of the Interior an 18-page opinion as to the exchangeability of the lands offered for exchange by Colonial Realty Company and in which he passed upon certain questions as to title. The opinion reads in part as follows:

*****
With the foregoing propositions in mind, as well as the basic provisions of the statute that all unproductive land is exchangeable and that if more than 50 percent of any legal subdivision is unproductive the entire subdivision is exchangeable, a table has been prepared showing the acreage, classification and acceptability of the land offered to the United States by the Colonial Realty Company. That table is attached to this opinion and is, I believe, sufficiently self-explanatory to require no further detailed comment. The acreage figures are those contained in the files of the Klamath project office of the Bureau of Reclamation. The classification is that prepared by Dr. Powers, a soil scientist of the Oregon State College, who was designated by Commissioner Mead as an able and disinterested expert on whose report the Secretary of the Interior might rely in determining what lands are unproductive as he is required to do by the statute. The classification of lands used by Dr. Powers corresponds to that traditionally used by the Bureau of Reclamation. Classes 1 to 4, inclusive, embrace productive lands having varying degrees of productivity. Classes 5 and 6 embrace unproductive lands, those in class 6 being_ considered as permanently unproductive while those in class 5 are considered as having a possibility of being productive at some future time. In my opinion lands of class 5 as well as those of class 6 are exchangeable under the statute because of their present character, and they have been so treated in the attached table. It is also my opinion that the areas designated as acceptable in the table have been properly designated and that they are eligible for conveyance to the United States in exchange for an approximately equivalent area of land in the Tule Lake Division of the Klamath project in accordance with the terms of the Act of March 23,1933, supra. The total area exchangeable is 1202.9 acres.
The deed already tendered to the United States will have to be revised to exclude those lands which are not acceptable. So that the lands which are acceptable may be appropriately described by legal subdivisions and by aliquot parts of legal subdivisions I recommend that the file in this case and a copy of this opinion be referred to the General Land Office for further action looking toward the completion of the exchange in accordance with this opinion. A copy of Dr. Powers’ classification report is included in the file and will serve to identify as far as possible the particular areas designated in the attached table as acceptable. In identifying those areas with particularity it is to be borne in mind that, by the terms of the statute, the expense of additional surveys is to be avoided.
sfc # * # *

The table referred to above is set forth in the following two pages:

The acreage in the above table in lot 4, part of lot 9, and lot 10, are shown as being in E%, SE14, Sec. 21. They were in fact in SE% SE*4 sec. 21, a legal subdivision. More than 50% of the legal subdivision being acceptable as seeped and unproductive land, the remaining 7.4 acres should have been accepted..

17. The Solicitor’s opinion referred to in the preceding finding was approved by Charles West, Acting Secretary of the Interior, on February 27, 1986, and referred to the General Land Office for further action.

18. A general warranty deed, dated May 2, 1936, was executed by M. K. Reynolds, President, on behalf of Colonial Realty Company, conveying a total of 1191.35 acres of land (being 1191.35 of the 1202.9 acres found to be acceptable by the Department of the Interior) to the United States. The record does not show the dates of delivery or recordation of such deed. The 11.55 acre differential had been found to be subject to certain railroad rights-of-way.

19. On October 20,1936, the United States issued a patent to the Colonial Realty Company granting title to 1190 acres of land in the Tule Lake Division of the Klamath Project. The patent reads, excepting the legal description of the lands to which title was granted, in the following terms:

Whereas, the Colonial Realty Company, a corporation organized and existing under the laws of the State of Oregon, being the owner of certain tracts of land situated within the limits of the Klamath Irrigation District, Oregon, has, under the provision of the Act of Congress approved March 23, 1933 (48 Stat. 1295), entitled, “An Act Providing for an exchange of lands between the Colonial Realty Company and the United States, and for other purposes,” as amended by the Act of Congress approved June 14, 1933 (48 Stat. 1300), entitled, “An Act Giving credit for water charges paid on damaged land,” reconveyed and relinquished the said tracts of land to the United States and has, under the provision of said Acts, selected in lieu thereof certain tracts of land within the Tule Lake Division of the Klamath Irrigation Project, California; and
Whereas, There has been deposited in the General Land Office of the United States an Order of the Secretary of the Interior, directing that a patent issue to the said Colonial Realty Company, under provisions of the
Acts aforesaid, for the tracts of land described as follows, to wit:
* . * * * *
Now Kítow Ye, that the United States oe AmeRiga, in consideration of the premises, Has Given and Granted, and by these presents, Does Give and Grant, unto the said Colonial Eealty Company, of Portland, Oregon, and to its successors, the tracts of land above described; To Have and To Hold the same, together with all the rights, privileges, immunities, and appurtenances, of whatsoever nature thereunto belonging, unto the said Colonial Eealty Company, and to its successors and assigns, forever; subject to any vested and accrued water rights for mining, agricultural, manufacturing or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws, and decisions of courts; and there is reserved from the lands hereby granted, a right-of-way thereon for ditches or canals constructed by the authority of the United States.
This grant is made upon the express condition that the lands hereby patented are subject to the restriction that protective dikes built thereon or elsewhere for the protection of this land shall have an elevation of not exceeding four thousand thirty-nine feet above see level. This restriction is placed on the land to permit the United States or its successors or assigns in the operation of the Klamath Irrigation Project to flood the land hereby patented as part of the sump area of the Klamath Irrigation Project. It'is understood that by the acceptance of this patent the patentee, its successors or assigns, hereby releases the United States, its successors or assigns, their employees, servants or agents, in the operation or control of the Klamath Irrigation Project from all claim of any nature arising out of the flooding ofl the land in connection with the operation of the Klamath Irrigation Project. These restrictions are
Ílaced on the lands for the benefit of other lands in the 'ule Lake Division of the Klamath Project, and shall be deemed as covenants running with the land hereby patented.
‘ * H* H*

20. There is no evidence iii'the record which suggests any dissatisfaction on the part of the Colonial Eealty Company with the results of the exchange of lands here involved after the patent was issued to that company on October 20, 1936 until April 7,1941 when an attorney for the Colonial Eealty Company wrote to the Department, raising questions as to whether the exchange of lands had been made in accord with the Act of March 23,1933.

21. In 1935, Mr. Johnston appraised the property owned by the Colonial Eealty Company which was in fact accepted in exchange for Tule Lake Division property at $13,923. Mr. Johnston at the same time also made an appraisal of the property in the Tule Lake Division which was selected by the Colonial Eealty Company for exchange. Mr. Johnston adjusted his appraisal to cover only the lands which were actually patented to the Colonial Eealty Company and appraised their value in 1935 at $74,377.

22. In 1935, Dr. Powers appraised the property owned by the Colonial Eealty Company which was in fact accepted in exchange for Tule Lake Division property at $7,139.40. Dr. Powers made an appraisal of the property in the Tule Lake Division which was selected by the Colonial Eealty Company for exchange. He made an adjustment in his appraisal to cover only the lands actually patented to the Colonial Eealty Company. That appraisal was $58,062.

23. At the trial of this case, the plaintiff produced evidence intended to show that four parcels, totaling approximately 150 acres, of the land which it had tendered for exchange, and which were.found by the Secretary of the Interior to be productive and therefore not exchangeable, were in fact unproductive. The determination by the Secretary of the Interior as to which of the lands were or were not productive was based upon the report of Dr. Powers, to which reference has been made in findings 14 and 16. Dr. Powers and Mr. Johnston were called as witnesses by the defendant. The plaintiff produced six witnesses, each of whom testified as to the unproductive quality of various parcels making up about 150 acres. All of the lands which Colonial Eealty Company tendered to the United States for the exchange which were in fact unproductive were exchanged for lands of approximately the same acreage in the Tule Lake Division of the Klamath Project. Seven and four tenths acres of the tendered land, which was productive, lay in a legal subdivision, more than 50% of which was unproductive.

24. The 7.4 acres of land mentioned in the preceding finding weré worth $565.00 less than the same amount of acreage in the Tule Lake Division. The water credits under the companion Act of June 14, 1933 on the 7.4 acres amount to $135.05.

25. The parties at trial stipulated that there is no possibility at the present time of obtaining specific performance of the provisions of the Act of March 23, 1933 for the exchange of lands, since the land which the Colonial Eealty Company sought and did not receive in the Tule Lake area is no longer available for transfer.

There is no evidence in the record as to the present ability of the plaintiff to transfer to the defendant any part of the land which the plaintiff claims should have been, but was not, accepted by the defendant in exchange for lands in the Tule Lake Division.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and judgment will be entered for the plaintiff in the amount of $700.05.  