The laws of the United States in reference to the disposition of public lands of the United States are paramount and exclusive, and a water and power company could not acquire an easement on lands of a reservoir site, withdrawn from entry by the Secretary of the Interior, by virtue of any compliance with Civil Code (Ariz.) 1913, paragraphs 5337, 5338. (Idem.)

Order of the Secretary of the Interior of July 27, 1903, withdrawing from entry a reservoir site never having been set aside, no valid claim to the lands embraced in such order could be initiated by a water and power company in the presence of such withdrawal, and notices of appropriation, posted subsequently by the company, were unavailable for any such purpose.

(Idem.)

19. Location of scrip and subsequent first form withdrawal.-The location of Valentine scrip upon unsurveyed public land in conformity with the law and departmental regulations is such an appropriation of the land as can not be defeated by a subsequent reclamation withdrawal, notwithstanding the selection had not been adjusted to an official survey, and the selector can not thereafter be deprived of his rights thus acquired except in the manner prescribed by the reclamation act. (Edward F. Smith et al., 51 L. D. 454.)

20. Uses to which withdrawn lands may be put.-The reclamation act authorizes the withdrawal of public lands from entry to provide pasture for Government animals used in carrying on operations under the act. (Departmental decision, March 21, 1910, Lower Yellowstone.)

Removal of gravel from first-form lands is unauthorized, as it contemplates a diminution in the freehold estate. (Departmental decision, July 21, 1916, Huntley.)

The removal of surface rock on first-form lands may be permitted when such removal makes available for use of the service of the better class of rock in the interior of the deposit. (Departmental decision, January 25, 1917, Rattlesnake Hill, Truckee-Carson.)

The Secretary of the Interior may establish rules as to the use of withdrawn lands while not needed for the purpose for which they are reserved, and may lease them for grazing, the revenue going into the reclamation fund. (Clyde v. Cummings, 35 Utah, 461; 101 Pac. 106.)

Under the provisions of the reclamation act the Secretary of the Interior has full authority to purchase any lands that may be necessary for reservoir purposes, to arrange for the prices and terms of purchase, and to allow the vendor to retain possession until the land may be actually needed by the Government, where by so doing the purchase may be more advantageously made; but he has no authority under said act to lease such purchased lands after the Government has taken possession thereof. (Departmental decision, 32 L. D. 416; but note decisions which follow.)

The Secretary of the Interior has authority to make temporary leases of lands reserved or acquired by purchase for use in connection with an irrigation project contemplated under the provisions of the reclamation act where use under the proposed lease will not interfere with the use and control of the lands when needed for the purposes contemplated by the reservation or purchase. (Departmental decision, 34 L. D. 480.)

Temporary lenses for grazing and other agricultural purposes may be made of lands acquired through condemnation proceedings for reservoir or canal purposes in reclamation projects during such periods as may elapse between the acquisition of title and the actual use of the same for reservoirs and canals. (Departmental decision, 39 L. D. 525.)

All such leases should state the purpose for which the lands were acquired and that such purpose will not in any manner be interfered with or delayed by the lease; should specifically provide for the immediate, or speedy, termination of the lease in event it is desired to utilize the land or any part thereof for reclamation works, or in event the work of reclamation is found to be hindered or delayed by reason thereof; and should be limited to one year, but may contain provision for renewal for the succeeding year in event the lands: should not sooner be needed for reclamation purposes. (Idem.)

Whenever it is reasonably necessary for the preservation of the buildings, works, and other property, or for the proper protection and efficiency of any reclamation project, or where special conditions make it advisable, firstform withdrawn or purchased lands may be leased to the highest bidder for a term to be decided upon by the Reclamation Service (Bureau of Reclamation) as the conditions may arise. (Reclamation decision, March 23, 1917.) See Departmental regulations, May 7, 1917, for leasing lands withdrawn under the first form. (46 L. D. 108; C. L. 660.)

See 14 Comptroller's Decision, 285, which touches right of Reclamation Service (Bureau of Reclamation) to lease lands of Uintah Indian Reservation. See note 14 under this section, and notes under section 7 of the reclamation act.

21. Indemnity school selection.-A first-form withdrawal under the reclama tion act does not defeat the equitable title of the selector acquired under an indemnity school selection if the selection was legal and completed prior to withdrawal. (State of California and Overland Trust and Realty Company (on petition). 48 L. D. 614.)

Court decisions cited: Payne v. Central Pacific Ry. Co. (255 U. S. 228); Payne v. State of New Mexico (255 U. S. 367); State of Wyoming v. United States (255 U. S. 489).

(C) SECOND-FORM WITHDRAWALS

22. Entries not permitted-Desert-land entries.-Lands withdrawn from entry, except under the homestead laws, in accordance with this act, are not, during the continuance of such withdrawal, subject to entry under the desert-land laws. (James Page, 32 L. D. 536.)

Additional entries.-The right of additional homestead entry granted by section 6 of the act of March 2, 1889 (25 Stat. 854), can not be exercised upon lands within a reclamation project. (Gjerluf Hanson, 40 L. D. 234.)

An entry of lands subject to the provisions of the reclamation act will not be allowed as additional to a prior entry subject only to the provisions of the general homestead law. (Charles O. Hanna, 36 L. D. 449.)

See note 39 under this section.

Soldiers' additional entries.-By the provision that lands susceptible of irrigation under a project shall be withdrawn "from entry, except under the homestead laws," Congress intended to inhibit any mode of private appropriation of such lands except by such entry under the homestead laws as requires settlement, actual residence, improvement, and cultivation; hence such lands are not subject to soldiers' additional entry under section 2306, Revised Statutes. (Cornelius J. McNamara, 33 L. D. 520; William M. Wooldridge, 33 L. D. 525; Mary C. Sands, 34 L. D. 653.)

An application to make soldiers' additional entry, although filed prior to the passage of the act and pending at the date of an order withdrawing the lands covered thereby under the provisions of said act, is not effective to except the lands from such withdrawal. (Nancy C. Yaple, 34 L. D. 311.)

Even though approved by the Commissioner of the General Land Office, an application to make soldiers' additional entry will not, prior to the allowance of entry thereon, prevent a withdrawal of the land covered thereby. (Charles A. Guernsey, 34 L. D. 560.)

Exchange selections.-Lands withdrawn under the second form are not subject to selection under the exchange provisions of act of June 4, 1897 (30 Stat. 36). (Santa Fe Pacific R. R. Co., 33 L. D. 360.)

Entry under trust deed to water-users' association.-A homesteader whose entry is within the irrigable area of an irrigation project, but not subject to the restrictions, limitations, and conditions of the act, can not under the law, prior to the acquisition of title to the land, enter into an agreement to convey to a water-users' association any portion of the land embraced in his entry, to be held in trust and sold for the benefit of the homesteader to persons competent to make entry of such lands. (Op. Asst. Atty. Gen., March 29, 1906, 34 L. D. 532.)

See note 39 under this section.

23. Mineral lands.-Lands valuable for mineral deposits and embraced within a withdrawal of lands susceptible of irrigation by means of a reclamation project are not thereby taken out of the operation of the mining laws, but continue open to exploration and purchase under such laws. (Secretary's instructions of October 6, 1906, 35 L. D. 216; Loney v. Scott, 57 Or. 378, 112 Pac. 172.)

Withdrawals under the second form do not affect coal lands. (Albert M. Crafts, 36 L. D. 138, overruling John Hopkins, 32 L. D. 560.)

24. Railroad rights of way.-Homesteaders without patents, but lawfully in possession of lands withdrawn for irrigation under a reclamation project, may grant rights of way over their settlements to a railroad company, and

R. Co. v. United States, 235 U. S. 211; 59 L. Ed. 200; 35 Sup. Ct. 46 reversing 190 Fed. 491 and affirming 176 Fed. 762.) In this case the court said: "It has always been the policy of the Government to encourage the building of railroads in the Western States, and many land grants have been made by it to aid in their construction. Congress has also provided a means by which these companies having any such grants could acquire rights of way over any portion of the public land by filing a map of definite location and securing its approval by the Secretary of the Interior. (18 Stat. 482. ch. 152.) This law, however, by its very terms, applies only to public lands,' and hence can not be construed to empower the Secretary to authorize the building of roads across land which had been segregated from the public domain by the entry and possession of homesteaders or preemptors. (Bardon v. Northern P. R. Co., 145 U. S. 538; 36 L. Ed. 809; 12 Sup. Ct. 856; United States v. Buchanan, 232 U. S. 76; 58 L. Ed. 514; 34 Sup. Ct. 237, and cases cited.) On the other hand, settlers without patent were not in a position to make deeds to right of way, not only because that had no title, but also because they were prohibited from alienating such lands before final proof. (R. S. sec. 291.)

"The consequence was that neither the Government nor the homesteader could make such grant, and as the company could not build without an assured title to its right of way, it was practically impossible to construct railroads through territories which consisted partly of public lands and partly of that which was in the possession of settlers. But it was greatly to other interests and to that of the Government that such a highway should be constructed. and in order to meet the difficulty Congress, on March 3, 1873 (17 Stat. 602, ch. 266, R. S. sec. 2288), passed an act providing that any bona fide settler might convey by warranty against his own act any part of his claim for church, school, and cemetary purposes and for a right of way for railroads.' Under this act the appellant could have constructed its road along the strip conveyed to it by the homesteader unless, as claimed by the Government, the provisions of Revised Statutes, section 2288, as amended (33 Stat. 991, ch. 1224), have been repealed as to lands within irrigation projects and the completed Minidoka irrigation works. Counsel for the United States contended that the reclamation act (32 Stat. 338, ch. 1093) requires that when an irrigation project is undertaken the Secretary of the Interior shall define its limits and withdraw all the irrigable lands therein from the public domain and from the operation of the general land laws. It is argued that when thus withdrawn the irrigation area constitutes a unit in which the United States has such a special interest as to require that it shall be subject to the supervision of the Secretary-he, in order to secure the success of the undertaking, having it in his power to decide whether a railroad should be built, and, if so, along what line and across what lands it should be constructed. It is also argued that settlers having no patents ought not to be in a position to grant a right of way over lands which they do not own and may never acquire and thereby impose a burden upon the claim if it should afterwards come into the hands of other homesteaders. These considerations, however, have not induced Congress to change its policy of encouraging the construction of railroads along routes designated by charters and over land in the possession of settlers. Neither have they induced Congress to confer upon the Secretary the power to grant rights of way through irrigation lands in the possession of homesteaders * * Except as modified by the specific terms of the reclamation act such lands are distinctly made subject to entry under the provisions of the homestead law and all of the homesteader's rights therein are the same as if the settlement had been located outside of the limits of the irrigation works. One of the privileges not affected by the reclamation act is that which permits the homesteader, without patent, but in lawful possession, to grant to a railroad company a right of way across his claim; and whatever reason there was for conferring this right upon those who entered land in a sparsely settled section is doubly operative as to land located within more thickly populated reclamation areas. Manifestly this is true as to so much as may be needed for churches and schoolhouses. It is equally so as to rights of way for railroads and other public utilities needed by the numerous residents living within irrigation areas."

(See Mindoka, etc., R. Co. v. Weymouth, 19 Idaho 234, 113 Pac. 455.) 25. Farm-unit plats.-Where the Secretary of the Interior by approval of farm-unit plats under the provisions of the act of June 17, 1902 (32 Stat. 388), heretofore or hereafter given, has determined, or may determine, that the lands

designated thereon are irrigable, the filing of such plats in the office of the Commissioner of the General Land Office and in the local land offices shall be regarded as equivalent to an order withdrawing such lands under the second form under said act, and as an order changing to the second form any withdrawal of the first form then effective as to any such tracts. (Departmental decision, July 13, 1908; 37 L. D. 27.)

26. Second withdrawal after revocation of first.-All entries of lands withdrawn under the act are subject to the conditions imposed by this section, and a revocation of the withdrawal operates to remove those conditions and leaves the entries in the same situation as entries made prior to the withdrawal, and such conditions can not, by force of a second withdrawal, be reimposed upon such of the entries made during the period of the first withdrawal as had not been perfected at the date of the second withdrawal. (Op. Asst. Atty. Gen., 34 L. D. 445.)

27. Right of settler superior to that of State.-A settlement upon public lands, withdrawn at date of settlement, is valid against everyone except the United States, and, where one settles prior to survey, upon withdrawn lands embraced within a school section, the right of such settler to make entry upon approval of the survey and vacation of the withdrawal is paramount to the right of the State under its school-land grant. (State of Idaho v. Dilley, 49 L. D. 644.)

II. ENTRY UNDER THE RECLAMATION LAW

28. Entry must be under homestead laws. In the withdrawal of lands under the second form there was an exception in favor of homesteads; that is to say, such lands were not withdrawn from public entry under the homestead laws, but were continued to be open to such entry, "subject to all the provisions, limitations, charges, terms and conditions" of the act. (Edwards v. Bodkin, 249 Fed. 562; affirmed Edwards v. Bodkin (1919), (D. C. Cal.) 267 Fed. 1004; decree affirmed (1920), (C. C. A.) Bodkin v. Edwards, 265 Fed. 621; decree affirmed (1921), 41 Sup. Ct. 268, 255 U. S. 221, 65 L. Ed. 595.)

29. Secretary can not prevent entry.-The Secretary of the Interior has no power to withhold lands withdrawn under the second form from disposition under the homestead laws pending sufficient progress in the construction of the works to assure a sufficiency of water for the irrigation of the land. (Secretary's instructions of July 12, 1904, 33 L. D. 104. But see sec. 5, act of June 25, 1910, 36 Stat. 835, as amended by act of February 18, 1911, 36 Stat. 917, and sec. 10, act of August 13, 1914, 38 Stat. 686.)

30. Entry may be initiated by settlement.-Entry of lands within a reclamation project can be initiated by settlement. In section 3 of the reclamation act the word " only," in the proviso that "public lands which it is proposed to irrigate by means of any contemplated works shall be subject to entry only under the provisions of the homestead laws," applies to and qualifies the clause "under the provisions of the homestead law.” (Chapman v. Pervier, 46 L. D. 113.)

Lands subject to entry within reclamation projects are no exception to the rule of law that an outstanding preference right of entry of certain lands is not, of itself, a bar to settlement thereupon, the settlement being subject, however, to the preference right if exercised. (Chapman v. Pervier, 46 L. D. 188.)

Settlement upon any portion of a farm unit entitles the settler to claim, by virtue of such settlement, only lands contained in that farm unit. (McDonald v. Rizor, 42 L. D. 554.)

31. Rule of approximation.-Rule applied to reclamation homestead entries coming within the provisions of the reclamation act, that when the excess area in an entry above 160 acres is less than the deficiency would be if the smallest subdivision were excluded, it may be included in the entry; where it is greater it must be excluded. (General Land Office Instructions, March 30,

1910, 38 L. D. 513.)

32. Limit of area of entry.-The Secretary of the Interior is empowered to fix the limit of area for each homestead entry under the same project according to the quality and character of the land with reference to its productive value; but all entries must be of contiguous tracts and of not less than 40 nor more than 160 acres. (Secretary's instructions, August 21, 1903, 32 L. D. 237. But see act June 27, 1906, 34 Stat. 519, and notes thereunder.)

33. Entries must be by legal subdivisions. All entries must be made according

authority to allow an entry for less than 40 acres, nor to subdivide a 40-acre tract for combination with other subdivisions. (Idem. But see act June 27, 1906, 34 Stat. 519, and notes thereunder.)

34. Uniformity of area not required.-The Secretary of the Interior may require that homestead entries shall comprise certain specified tracts, selected with reference to soil and water supply, whether the areas of the entries are uniform or not. (Idem.)

35. All entries subject to reduction to farm unit.-Every entry of lands within the limits of a withdrawal under the act is subject to reduction to a farm unit as thereafter established by the Secretary of the Interior, and improvements placed upon the different subdivisions by the entryman prior to such reduction are at his risk. (Jerome M. Higman, 37 L. D. 718.)

A successful contestant in exercising his preference right of entry upon lands within a reclamation project is limited to one farm unit, although such unit may embrace less than the area covered by the entry he contested. (Joseph F. Gladieux, 41 L. D. 286.)

Where an entryman of lands within a reclamation project fails, after notice, to conform his entry to an established farm unit, the Secretary of the Interior has the power to so conform the entry. (Mangus Mickelson, 43 L. D. 210.)

36. Farm units not confined to limits of entry.-In subdividing such an entry the Secretary of the Interior is not required to confine the farm units to the limits of the entry, but may combine any legal subdivision thereof with a contiguous tract or tracts lying outside of the entry so as to equalize in value the several farm units. (Jerome M. Higman, 37 L. D. 718.)

37. Homestead entry partly within and partly without reclamation project.— Where a portion of a homestead entry made subject to the provisions of the reclamation act is subsequently eliminated from the project, and the portion remaining within the project is designated as a farm unit, the entryman may retain either the farm unit or the portion lying without the limits of the project, at his election, and the entry will be canceled as to the remainder. (Laurel L. Shell, 39 L. D. 502.)

In view of the equities in this particular case, direction is given that if the entryman so desires the portion of the entry eliminated from the project may be again brought thereunder and added to the farm unit with a view to permitting him to complete entry for the entire tract. (Idem.)

38. Conflicting rights regarding school-section lands.-A settler on unsurveyed land in a school section who after survey and after withdrawal of the land under the reclamation act as susceptible of reclamation under an irrigation project was permitted to make entry for the full area of 160 acres, acquires rights by such settlement and entry which bar the attachment of any rights to the land on behalf of the State under its school grant. He must, however, conform his entry to a farm unit. (Sarah E. Allen, 44 L. D. 331, modifying Sarah E. Allen, 40 L. D. 586, 589, and William Boyle, 38 L. D. 603.)

39. Additional entries.-The fact that lands are within a reclamation withdrawal does not prevent additional entry thereof under section 2, act of April 28, 1904 (33 Stat. 527), where farm units have not been established and where the original entry, to which the additional must be contiguous, was made subject to the restrictions and conditions of the reclamation act, the combined original and additional entry, however, being subject to adjustment to a farm unit when established. (Henry W. Williamson, 38 L. D. 233.) The case of Henry W. Williamson (38 L. D. 233), distinguished, and section 24 of the regulations of May 18, 1916 (45 L. D. 385, 390), declared obsolete and inoperative. Bert Scott (48 L. D. 85, 113.)

See note 22 under this section.

40. Desert entryman may adopt one of two courses.-A desert entryman whose land is included within a reclamation project may elect to proceed with the reclamation thereof on his own account, and thus acquire title to all, or so much of, the land included within his entry as he can secure water to irrigate, or accept the conditions of the reclamation act and acquire title thereunder to 160 acres; but he can not avail himself of both the reclamation project and other means of reclamation and thus acquire title to more than 160 acres of land. (Robert J. Slater, 39 L. D. 380.)

41. Aggregate area of public land.-A homestead entry of a farm unit within a reclamation project, regardless of the area embraced therein, is the equivalent of a homestead entry for 160 acres outside of a project; but in fixing the area that should be charged against the entryman by reason of such entry, under the provision in the act of August 30, 1890 (26 Stat. 371), that not more than