Also, on the D264 line, between stations 7+50 and 12+50 (where appellant at first skipped using well points, but eventually had to dewater), the invert lies between 8 and 13 feet below ground surface. The November 1968 water level at station 9+80 was only a few feet below the surface. The soil at invert depth shows severe caving.

On the D266-S lateral, the invert of the pipe varies between 7 and 15 feet below ground surface. No water table is shown in November 1968, although the soil at invert depth is saturated and shows slight caving.

In conclusion, the contract indications are generally of water logged unstable soils at invert depths under a water column many feet in height which would be at its maximum during the period of contract performance. We conclude that the contract indications are such as to give ample forewarning of the kind of difficulties actually encountered in the field, and that the contract indications described and predicted with unusual precision the conditions actually encountered on excavation. In terms of Clause 4, Differing Site Conditions, we find no material difference between the subsurface conditions at the site and those indicated in the contract.

Even though appellant pleaded his case as either a first category changed condition, or as a second category changed condition, we have considered it as limited to a first category changed condition situation because of the large amount of data as to subsurface conditions included in the contract. This we believe to be the proper legal approach following the decision of the Court of Claims in Foster Construction C.A. and Williams Bros. Co. v. United States.24 According to that case all that is necessary to place a claim into the first category is that there be enough of an indication on the face of the contract documents for a bidder reasonably to conclude that he would not meet the type of subsurface conditions actually met during performance. 25

As subsequently elaborated in Pacific Alaska Contractors, Inc. v. United States, 26 the test for a successful claim is that there must be reasonably plain or positive indications that subsurface conditions would be otherwise than actually found, or stated otherwise, that there

24 Note 19, supra.

25 Cf. Charles T. Parker Construction Co. and Pacific Concrete Co. v. United States, Ct. Cl. No. 168-66 (November 13, 1970). "Under 'Category Two,' in contrast, the Government has elected not to presurvey and represent the subsurface conditions * * *." (Slip Opinion, p. 12).

26 Ct. Cl. No. 294-67 (January 22, 1971), 436 F. 2d 461.

June 22, 1971

were indications which induced reasonable reliance by the successful bidder that subsurface conditions would be more favorable than those encountered. In the present case, we conclude that the contract indicates substantially and accurately the subsurface condition actually encountered. There was adequate information in the contract from which appellant could have reasonably foreseen the situation encountered.

Furthermore, the pre-bid site examination observation of substantial flowing water along the drain alignments substantiated the contract indications of a most difficult combination of soil and water conditions. Appellant's evidence does not show that the subsurface data placed in the contract by the Government were erroneous.27

Appellant also argues that the Government failed to disclose to bidders pertinent information in its possession, with the consequence of misleading the bidders as to subsurface conditions. We find no merit in this contention. Apparently the Government had a projectwide water table map, reflecting an underground reservoir.28 But the testimony shows that the "reservoir" alluded to is merely the fact that the soil below the water-table surface is saturated. It seems to us that such a map would reveal no more about the construction area than already revealed in the contract and apparent on pre-bid visual inspection of the site. There is also testimony that the drawings and specifications disclosed all that the Government knew about water in the area.29

Lastly, the appellant asserts prejudice because the Government failed to disclose to bidders that it foresaw a water and soil problem of the severity encountered.30 The accusation here is that the Government did not make known conclusions which its personnel may have drawn from the data presented in the contract. Apart from the ambiguity of the testimony as to the pre-bid existence of such conclusions, it is clear that no factual data was withheld, only conclusions drawn from the same data as were presented to bidders. We do not think that Helene Curtis Industries, Inc. v. United States,31 involving a prejudicial failure to disclose facts, requires the Government to disclose its opinions.

27 D. J. McQuestion and Sons v. United States, Ct. Cl. No. 335-67 (March 19, 1971). 28 Tr. 236-237.

29 Tr. 175.

30 Tr. 175-176.

31 160 Ct. Cl. 437 (1963).

Act of August 11, 1916-Desert Land Entry: Generally-Reclamation Lands: Acquisition and Disposal

Where an irrigation district acting pursuant to the Smith Act of August 11, 1916, has enforced its lien against public land in an unpatented desert land entry and has sold the land at a tax sale, the rights of the entryman and his successors are terminated and the rights of the purchaser are determined by the Smith Act.

Desert Land Entry: Generally-Reclamation Lands: Inclusion and Exclusion of within Irrigation District-Withdrawals and Reservations: Reclamation Withdrawals

Land within a desert land entry included in an irrigation district does not become subject to a later reclamation withdrawal so long as the entry subsists.

Act of August 11, 1916-Desert Land Entry: Generally-Reclamation Lands: Generally-Words and Phrases

"Irrigation Works" and "Water of the district available for such land." For the purpose of determining whether entered but unpatented land can be disposed of pursuant to section 6 of the Smith Act of August 11, 1916, the "irrigation works" referred to in that section are not those necessary on an individual entry to carry out irrigation but refer to facilities that serve the irrigation district in general, and "water of the district available for such land" means only that the entryman has a legally enforceable claim to available water eyen though access to it is barred by a Departmental regulation.

June 23, 1971

Desert Land Entry: Relief Acts

One who has acquired his interest in a desert land entry by purchase in 1949 cannot purchase the entry under the provisions of the act of March 4, 1929, which authorizes purchases only by an assignee under an assignment made prior to March 4, 1929.

Desert Land Entry: Suspensions

Since the suspension of desert land entries under the policy announced in Maggie L. Havens, A-5580 (October 11, 1923), was subject to termination whenever the Secretary found good reason to do so, the Secretary is authorized, when he determines that there is no public purpose to be served by continuing the suspension of entries suspended for almost 50 years, to terminate the suspension without notice or hearing and to restore the entries to the condition they were in on the date of the suspension.

Act of October 17, 1940

One who acquires an interest in a desert land entry by purchase long after he entered military service cannot derive benefits from the Soldiers' and Sailors' Civil Relief Act of 1940 which are restricted to those who acquire their interest before entering military service and who file a notice of such entrance with the land office within six months of such entrance.

Desert Land Entry: Suspensions

Where part of a desert land entry suspended under the policy announced in Maggie L. Havens, A-5580 (October 11, 1923), has been held by the United States under lease for use by the Department of the Navy for purposes which make it impossible for the entryman to reclaim the entry, the termination of the Havens suspension while the land remains under lease should not work to the detriment of the entryman and the entry is to remain suspended until it is determined that the United States' occupation has ceased or is no longer an obstacle to reclamation.

BOARD OF LAND APPEALS

C. Arden Gingery has appealed to the Secretary of the Interior from a decision dated February 27, 1968, Office of Appeals and Hearings, Bureau of Land Management, which affirmed a decision of the Riverside district and land office rejecting his application for an extension of time in which to submit final proof on desert land entry LA 038253; for relief under the provisions of section 504 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. App sec 564 (1964); or for purchase of the land in the entry in its entirety under the act of March 4, 1929, as amended, 43 U.S.C. sec. 339 (1964), or in part under the act of June 23, 1910, 43 U.S.C. sec. 441 (1964), or section 6 of the Smith Act of August 11, 1916, 43 U.S.C. sec. 628 (1964).

Michiko Shiota Gingery1 has appealed from the decision to the extent it affirmed the rejection by the land office of her application to purchase part of the entry under section 6 of the Smith Act of August 11, 1916.

The record shows that the desert land entry was allowed to Christopher C. Gingery, the father of appellant Gingery, on June 10, 1907. The entry, as adjusted, covers the S12SW14 sec. 17, SE14SE1⁄44 sec. 18, E2NE1 and NE1⁄44SE1⁄44 sec. 19, and lots 3 and 4 sec. 20, T. 15 S., R. 12 E., S.B.M., California. By dint of several extensions and suspensions the entry remained viable for over 16 years and then on October 11, 1923, it was suspended under the departmental decision in Maggie L. Havens, A-5580 (October 11, 1923). The Havens case suspended the Havens entry and all others similarly situated until water for the irrigation of the lands covered by an entry became available or until it should be found advisable to revoke the suspension for any good reason arising in the future. See Hazel, Assignee of Patterson, 53 I.D. 644 (1932).

The record also indicates that on October 19, 1920, the lands in the entry, along with others, were included in a first form reclamation withdrawal pursuant to section 3 of the act of July 17, 1902, 43 U.S.C. sec. 416 (1964). On February 16, 1921, the Secretary of the Interior approved an application filed on May 6, 1920, by the Imperial Irrigation District to place the lands under the Smith Act of August 11, 1916, supra. This act permits an irrigation district organized and operated under State law to impose a lien on unentered and entered but unpatented public land within the district boundaries for a proportionate share of charges payable for construction, maintenance, and operation of irrigation works, and authorizes the enforcement of the lien against unpatented entries by sale of the land in the same manner as assessments are enforced against privately owned lands.

By letter dated April 16, 1964, the irrigation district informed the land office that part of the lands in the entry, the SE1⁄44SE1⁄44 sec. 18 and a portion of the S2SW1⁄44 sec. 17, is within the West Mesa unit, that the remainder of the entry is in the Imperial unit, and that water

1 The land office concluded that this appellant was married to a man named Gingery and addressed its decision to her to "Michiko Shiota Gingery." Although the mail receipt for the decision is signed "Michiko S. Gingery," the appeals to the Director and to the Secretary are in the guise "Michiko Shiota (Gingery)." The Director described this appellant as the wife of C. Arden Gingery. The appellants neither admitted nor denied the assertion in their appeals to the Secretary.