shall be held and maintained in place by a system of piling driven through and erected upon the crest of said rock dam, or as near thereto as practicable, which said system of piling may be in the form of a trestle upon which may be operated a railroad for dumping material other than rock if necessary, said system of piling to be used in conjunction with certain guy ropes and ties made fast to certain dolphin anchors erected in said river immediately above said rock dam; and that said dam shall be constructed without the placing of any rock whatsoever therein, or in connection therewith, and that the same may be kept and maintained by the defendants at said point in said river from July 1, 1919, until July 1, 1920: Provided, however, If during said period the Colorado River, whether from floods in the Gila River or from other causes, rises to such a height as, in the judgment of W. W. Schlecht, project manager of the Yuma project of the United States Reclamation Service, or his successor in office, to imminently endanger the irrigation works of said Yuma project, or any of the property of the Yuma County Water Users' Association, or any of its constituent members, or any land or lands within the said Yuma project on either side of said Colorado River, the said defendants shall immediately remove, by adequate means, such as blasting, said dam to the extent that it will permit the free flow of the waters of the Colorado River to the southward and thus remove all danger to the property above described.

2. It is further stipulated, as a condition precedent to this stipulation taking effect, that said Imperial Irrigation District shall give a bond to the United States of America and Yuma County Water Users' Association, as joint and several obligees, to reimburse the United States and said association and its constituent members for any damage which may result from the repairing, rebuilding, or maintaining of said dam or weir, and further conditioned that said district shall, on or before April 15, 1921, entirely remove, or cause to be entirely removed, all and all parts of said dam or weir and all parts of all other dams and weirs placed in said river at or near said Hanlon's heading by said district, or its predecessors in the ownership, operation, or maintenance of the Imperial Valley (Imperial County, Calif.) irrigation project, and all piles and piling, rock and brush, anchors, guys and ties, and all other materials whatsoever placed in said river at or near said Hanlon's heading by said district or its said predecessors at any time whatsoever for the purpose, or which had the effect, of impeding the flow of said river and raising the height of the waters thereof so that the same would, or did, more freely flow into the irrigation canals of said district or its said predecessors, and that such removal shall be to the extent that all the waters of the said river shall at all times flow as freely to the southward as said water did flow prior to the placing of any of said obstructions therein by said district or its said predecessors, and so as to not endanger the property of said association or the property of it constituent members.

3. And it is further stipulated and agreed between the parties hereto that the granting of the permission by the plaintiffs herein to the defendants herein to erect and maintain said brush dam, as hereinbefore stipulated for, and the entering into this stipulation and the modification of said temporary restraining order shall not be admitted as evidence in this or any other proceeding whatsoever between the parties hereto; and it shall not be taken, held, or deemed that the construction of said weir, or other, or like weirs in the past or in the future is not, and shall not be, of irreparable injury to the Yuma County Water Users' Association, its shareholders and constituent members; and it is further stipulated that the granting of said permission and the entering into this stipulation is, and shall be, without prejudice to the right of the plaintiffs in this action to have entered a decree upon a final hearing herein, and on sufficient evidence permanently restraining said irrigation district from constructing such weir or weirs across said river.

Dated this 5th day of July, 1919.

THOS. MOLLOY,

Attorney for Plaintiff. BORDWELL AND MATHEWS, PHIL D. SWING, and

J. STEWART Ross,

Attorneys for Defendant.

[Exhibit.]

AGREEMENT.

This indenture made this 5th day of July, 1919, between Imperial Irrigation District, a municipal corporation duly organized and existing under the laws of the State of California and doing business in Imperial County, State of California, party of the first part, and Yuma County Water Users' Association, a corporation duly organized and existing under the laws of the State of Arizona, and doing business at Yuma, State of Arizona, acting for and on behalf of its, and all of its, constituent members and shareholders, party of the second part, witnesseth:

Whereas said first party is engaged in the business of appropriating and diverting irrigation waters from the flow of the Colorado River at a point in said river known as Hanlon's heading, at or near fractional section 35, township 16 south, range 21 east, S. & B. M., in Yuma County, State of Arizona, for the irrigation and reclamation of many hundreds of thousands of acres of land in Imperial Valley, Imperial County, State of California, hereinafter designated as Imperial Valley irrigation project; and

Whereas in order to secure a sufficient flow of irrigation water to properly irrigate and reclaim said lands, and to prevent the same from returning to their original desert condition, it is now necessary to erect, and temporarily maintain, during low-water periods in said river, a dam, or weir, in said river at or near said Hanlon's heading; and

Whereas the irrigation and maintenance of said dam tends to create such a condition in the flow of the waters of said Colorado River as to endanger the works of the Yuma project of the United States Reclamation Service, and the lands and property of said Yuma County Water Users' Association, and its constituent members and shareholders; and

Whereas said Yuma County Water Users' Association has granted its permission that a weir, or dam, may be constructed and maintained at said point in said river from July 1, 1919, until July 1, 1920, subject to certain provisos and exceptions hereinafter more fully set forth; and has stipulated and agreed that a certain temporary restraining order heretofore issued out of the superior court of the State of Arizona in case No. 2429, and now in force and effect in said court, wherein the said Yuma County Water Users' Association et al, are plaintiffs, and the said first party et al. are defendants, restraining and enjoining the first party herein from erecting and maintaining any weir or dam at said point, shall be so modified as to permit the erection and maintenance of a weir or dam therein during said last-mentioned period; and not to further prosecute said suit during said period:

Now, therefore, the said party of the first part, in consideration of the foregoing, does hereby promise, undertake, and agree that if it becomes necessary for the accomplishment of said purposes to erect and temporarily maintain a dam, or weir, in and across the Colorado River at or near said Hanlon's heading, as hereinbefore described, that it shall construct the same out of brush, without the use of any rock whatsoever, and that said brush shall be erected and maintained on the top of the crest of the rock dam and weir erected by said first party, and maintained at said point by it during the year 1918, and as the same is now placed and situated in said river, and as the same has been eroded away by the waters of the Colorado River during the high waters of said river in the spring and early summer of the year 1919 (and that said brush weir or dam and the materials composing the same shall be held and maintained in place by a system of piling driven through and erected upon the crest of said rock dam or as near thereto as practicable, which said system of piling may be in the form of a trestle upon which may be operated a railroad for dumping material other than rock; if necessary, said system of piling to be used in conjunction with certain guy ropes and ties made fast to certain dolphin anchors erected in said river immediately above said rock dam) and said first party further promises, agrees, and undertakes to remove all of said brush dam or weir from out of said river on or prior to July 1, 1920, and at any other time between said July 1, 1919, and July 1, 1920, that W. W. Schlecht, project manager of the Yuma project of the United States Reclamation Service or his successor in office shall deem the maintenance of said dam to in any way endanger any of the works of said Yuma project, or any of the lands or property of said Yuma County Water Users' Association, and of its shareholders and constituent members, or any land within said Yuma project

on either side of said Colorado River; and the said first party hereby undertakes and agrees to keep and maintain at or near said dam a sufficient amount of explosives to immediately blow out and remove said dam to such an extent as will permit the free flow of the Colorado River to the southward, so that the same will not endanger any of said property.

And the said first party further stipulates and agrees that the permission so given to erect and temporarily maintain such a dam or weir in the Colorado Rivera at said point, and the permission heretofore given for the erection and maintenance of dams and weirs across the Colorado River at or near said point, and their erection and maintenance, and the giving in the future of permission to erect and maintain such dams and weirs, shall not be taken held, or deemed, nor shall either of them be taken, held, or deemed, not to be of irreparable injury to said Yuma County Water Users' Association, its shareholders and constituent members; and the granting of said permission and the erection and maintenance of said dam or weirs shall be without prejudice to the right of said Yuma County Water Users' Association, its shareholders and constituent members, to have entered in said suit No. 2429, or any other proceeding, in any other court of competent jurisdiction, upon due and sufficient evidence, a decree permanently restraining said first party from constructing and maintaining such weir or weirs or any weir or weirs, dam or dams across said river.

And the said party of the first part, in consideration of the premises as hereinbefore set forth, does hereby further promise, agree, and undertake to pay to said second party all damage that may result to them, or either of them, from injury to their person or property because of the erection and maintenance of said brush dam or weir or the erection and maintenance of the rock base upon which the same shall be constructed, as hereinbefore described, and the said first party further promises, undertakes, and agrees to pay to second party any and all damages that may result to them, or either of them, because of the erection or maintenance of the remaining portions of all or any of the rock dams or weirs heretofore placed in said Colorado River at or near said point, including what is known as the Clark Dam or Weir.

And it is further stipulated and agreed that said second party, or either, or any, of the constituent members or shareholders of said Yuma County Water Users' Association may sue hereunder in their own right and without joining any other party hereto as a party plaintiff: Provided, however, That if more than one of the said shareholders or constituent members should separately sue the first party for such damage, all of said actions so brought in the same court may be consolidated and tried as one action, each plaintiff recovering the amount of damage that he shall have suffered, as finally determined by such court.

The said first party, for and in consideration of said premises, further promises, covenants, and agrees to entirely remove from out of the bed of the Colorado River on or before April 15, 1921, all and all parts of any and all dams and weirs, piles and piling, rock and brush, anchors, guys, ties, and all other material whatsoever placed or caused to be placed therein by the said party of the first part, or its predecessors, in the ownership and operation of said Imperial Valley irrigation project, at any time whatsoever, for the purpose of impeding the flow of said river and raising the height of the waters thereof so that the same would more freely flow into the irrigation canals of the said first party, or any of its predecessors, and to the extent that all of the waters of the Colorado River shall flow as freely to the southward as said waters did flow prior to the placing of any obstructions in the bed thereof by said party of the first part or any of its said predecessors.

It is understood and agreed that the said first party shall furnish a satisfactory surety bond in the sum of $500,000 to the United States of America, and the second party hereto, as joint and several obligees to reimburse them for any damage resulting from the erection or maintenance of dam or weir, and conditioned for the removal of all of said obstructions from said river; and that a recovery or recoveries on said bond shall not be a bar to any action or actions by the second party hereto or its constituent members, or any of them, in the event that they, or either of them, should be damaged because of first party's breach of any of the terms or covenants of this agreement, it being understood and agreed that the first party hereto undertakes, promises, and agrees to pay all the damage that may result because of its breach of any, or all, of the terms, conditions, and covenants of this agreement, notwithstanding the execution and delivery of any bond, or bonds.

It is agreed that during the progress of the work of constructing said 1919 dam, or weir, the second party may employ and retain an inspector on said work to ascertain and determine if such construction is being prosecuted in accordance with the terms of this agreement, and first party agrees to reimburse second party for such reasonable compensation as may be paid by it to such inspector, not to exceed per diem.

It is understood and agreed that owing to the fact that first party is a municipal corporation of the State of California it may be necessary or appropriate, in the event of the breach of any of the terms or covenants of this agreement, for second party to sue hereunder, or under said reimbursement bond, in the State of California, and that such proceedings, if had, will result in additional cost and expense to second party; wherefore, first party, in consideration thereof and said premises, hereby promises and agrees to pay to second party, in the event of action being brought hereunder, or under said reimbursement bond, in the State of California, the sum of $1,000, to reimburse second party for the additional cost and expense to it of suing in the State of California, and such additional sum for attorney's fees as may be deemed reasonable by the court trying such action.

In witness whereof the said party of the first part has, by order of its board of directors, caused these presents to be executed in its corporate name by its president and secretary, and attested by its seal, the day and year first above written.

Whereas by section 10 of an act of Congress approved March 3, 1899, entitled "An act making appropriations for the construction, repair, and preservation of certain public works on rivers and harbors, and for other purposes," it is provided that it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river or other water of the United States outside established harbor lines or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill. or in any manner to alter or modify the course, location, condition, or capacity of any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary, of War prior to beginning the same:

And whereas application has been made to the Secretary of War by the Imperial irrigation district of California, for authority to repair and rebuild its temporary diversion dam or weir (originally constructed under authority of War Department permit dated February 14, 1917), located in the Colorado River at or near Hanlon's Heading at the site shown on the map hereto attached, and to maintain said structure until July 1, 1920 as recommended by the Chief of Engineers;

Now, therefore, This is to certify that the Secretary of War hereby authorizes the said work of repairing and rebuilding the Imperial irrigation district's temporary diversion dam or weir, in the Colorado River at or near Hanlon's Heading and maintaining the same until July 1, 1920, upon the following conditions:

1. That it is to be understood that this authority does not give any property rights either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining State assent to the work authorized. It

merely expresses the assent of the Federal Government so far as concerns the public rights of navigation. (See Cummings v. Chicago, 188 U. S., 410.)

2. That the work shall be subject to the supervision and approval of the district engineer, engineer department at large, in charge of the locality, who may temporarily suspend the work at any time if, in his judgment, the interests of navigation so require.

3. That if any pipe, wire, or cable is herein authorized, it shall be placed and maintained with a clearance not less than that shown by the profile on the plan attached hereto.

4. That so far as any material is dredged in the prosecution of the work herein authorized it shall be removed evenly, and no large refuse piles shall be left. It shall be deposited to the satisfaction of the said district engineer and in accordance with his prior permission or instructions, either on shore above high water or at such dumping ground as may be designated by him, and where he may so require, within or behind a good and substantial bulkhead or bulkheads, such as will prevent escape of the material into the waterway; and so far as the pipe, wire, or cable is laid in a trench, the formation of permanent ridges across the bed of the waterway shall be avoided and the back filling shall be so done as not to increase the cost of future dredging for navigation. If the material is to be deposited in the harbor of New York, or in its adjacent or tributary waters, or in Long Island Sound, a permit therefor must be previously obtained from the Supervisor of New York Harbor, Army Building, New York City.

5. That there shall be no unreasonable interference with navigation by the work herein authorized.

6. That if inspections or any other operations by the United States are necessary in the interests of navigation, all expenses connected therewith shall be borne by the permittee.

7. That the permittee assumes all responsibility for damages to the work or structure herein authorized, and for damage caused by it or by work of the permittee in connection therewith to passing vessels or other craft, and shall not attempt in any way to prevent free use by the public of the area at or adjacent to the work or structure.

8. That if future operations by the United States require an alteration in the position of the structure or work herein authorized, or if, in the opinion of the Secretary of War, it shall cause unreasonable obstruction to the free navigation of said water, the permittee will be required, upon due notice from the Secretary of War, to remove or alter the structural work or obstructions caused thereby without expense to the United States so as to render navigation reasonably free, easy, and unobstructed; and if, upon the expiration or revocation of this permit, the structure, fill, excavation, or other modification of the watercourse hereby authorized shall not be completed, the permittee shall, without expense to the United States, and to such extent and in such time and manner as the Secretary of War may require, remove all or any portion of the uncompleted structure or fill and restore to its former condition the navigable capacity of the watercourse. No claim shall be made against the United States on account of any such removal or alteration.

9. That if the display of lights and signals on any work hereby authorized is not otherwise provided for by law, such lights and signals as may be prescribed by the Bureau of Lighthouses, Department of Commerce, shall be installed and maintained by and at the expense of the permittee.

10. That the permittee shall notify the said district engineer at what time the work will be commenced, and as far in advance of the time of commencement as the said district engineer may specify, and shall also notify him promptly, in writing, of the commencement of work, suspension of work, if for a period of more than one week, resumption of work, and its completion. 11. That before this permit shall become operative the said district shall give a good and sufficient bond satisfactory to the Secretary of War, in the penal sum of $25.000, conditioned for the prompt and complete removal of the said diversion dam or weir at any time on the order of the said district engineer, and in any event on or before July 1, 1920; and also a bond in the penal sum of $500.000 satisfactory to the Secretary of the Interior, to reimburse the United States and the Yuma County Water Users' Association for any damage caused by the said structure to lands, works, or property of the United States or members of the said association.

12. That adequate measures satisfactory to the district engineer shall be taken by the permittee for furnishing him prompt warnings of floods and for