320 acres in the aggregate may be acquired by any one person under the agricultural public-land laws, the reclamation entry should be taken into account at its actual area and not charged as 160 acres. (Henry C. Taylor, 42 L. D. 319.)

42. Descent of homestead entryman's rights.-Upon the death of a homesteader having an entry within an irrigation project, leaving a widow, and only minor heirs, his right may, under section 2292, Revised Statutes, be sold for the benefit of such heirs. (Heirs of Frederic C. De Long, 36 L. D. 332.)

If in such case the land has been subdivided into farm units, the purchaser takes title to the particular unit to which the entry has been limited; but if subdivision has not been made, he will acquire an interest in only the land which would have been alloted to the entryman as his farm unit; in either case taking subject to the payment of the charges authorized by the reclamation act and regulations thereunder and free from all requirements as to residence and cultivation. (Idem.)

43. Reclamation homestead subject to oil and gas rights.—An applicant who has been granted a water right in connection with a reclamation homestead application for land within a petroleum reserve is entitled, upon withdrawal of the application rather than accept a surface patent, to repayment of the water charges, where he had no knowledge of the petroleum withdrawal and the public notice pursuant to which he made payment failed to state that any of the land was within a reserve. (Dorsey L. Rouse, 50 L. D. 379.)

III. RESTORATION

44. When order of restoration effective.-Where lands which have been withdrawn from all disposition are restored to entry, no application will be received or any rights recognized as initiated by the tender of an application for any such lands until the order of restoration is received at the local land office. (George B. Pratt et al., 38 L. D. 146.)

45. Restoration to entry does not validate previous void entry.-A homestead entry which was void when made because the land was withdrawn as required for reclamation construction is not validated by a subsequent order of the Secretary of the Interior declaring the land not needed for construction purposes. (U. S. v. Fall (1921), (App. D. C.) 276 Fed. 622.)

46. Rights of successful contestants.-A successful contestant can not be permitted to make entry in exercise of his preference right while the lands he seeks to enter are embraced in a first-form withdrawal under the reclamation act; but under the regulations of August 24, 1912, 41 L. D. 171, and September 4, 1912, 41 L. D. 241, he may exercise that right at any time within 30 days from notice that the lands involved have been released from withdrawal and made subject to entry. (John T. Slaton, 43 L. D. 212.)

Where land embraced in a homestead entry was withdrawn for use in connection with a reclamation project pending a contest which resulted in cancellation of the entry, the successful contestant upon restoration of the land is entitled to a period of 30 days from the date of such restoration within which to exercise his preference right to entry. (Beach v. Hanson, 40 L. D. 607; Wright v. Francis et al., 36 L. D. 499.)

Under the act of May 14, 1880 (21 Stat. 140), providing that where any person has contested and procured the cancellation of any homestead entry he shall be allowed 30 days to enter the lands, where the Department of the Interior entertained a contest while the land involved was withdrawn from entry under the reclamation act, it properly permitted the successful contestant to enter the lands within 30 days after the restoration of such lands to entry. (Edwards v. Bodkin, 241 Fed. 931. See also McLaren v. Fleischer (1919), (Cal.) 185 Pac. 967; certiorari granted (1920), 40 Sup. Ct. 482, 253 U. S. 479, 64 L. Ed. 1023; and Culpepper v. Ocheltree (1919), (Cal.) 185 Pac. 971; certiorari granted (1920), 40 Sup. Ct. 482, 253 U. S. 480, 64 L. Ed. 1023.)

While section 10 of the reclamation act authorizes the Secretary of the Interior to make such regulations as may be necessary and proper to carry the act into full force and effect, he is not authorized to amend, modify, or change the act of May 14, 1880 (21 Stat. 141), fixing the rights of a successful contestant who has secured the cancellation of any preemption, homestead, or timber-culture entry. (Edwards v. Bodkin, 249 Fed. 562, overruling Edwards v. Bodkin, 42 L. D. 172; affirmed Edwards v. Bodkin (1919), (D. C. Cal.) 267 28038-27- -3

Fed. 1004; affirmed (1920), Bodkin v. Edwards (C. C. A.), 265 Fed. 621; affirmed (1921), 41 Sup. Ct. 268, 255 U. S. 221, 65 L. Ed. 595.)

Where it did not appear that a contest was duly instituted, so as to give the land office jurisdiction to determine rights to the land, there being no question of fraud on the Government, the decision of the land office as to rights to arid land withdrawn after entry under this act, but later released, is not binding. (Idem.)

Where there was no contest against an entryman on public lands, which for a time were withdrawn under this act, but were later released, the one attempting contest could have no preference right of entry.

(Idem.)

Any right under regulation 7 of June 6, 1905 (33 L. D. 607), issued by the Secretary of the Interior under section 10 of the reclamation act, which a successful contestant of a homestead entry on land withdrawn as susceptible of irrigation might have had, was lost by the promulgation of regulation 6 of January 19, 1909 (37 L. D. 365), declaring that where contest has been allowed prior to first-form withdrawal if made before the determination of the contest or entry of the successful contestant will terminate all rights acquired by such contest where the land before termination of the contest or entry by contestant was withdrawn under the first form for irrigation works, and the contestant had only a preference. (Idem.)

See secretary's instructions of August 24. 1912 (41 L. D. 171), overruling Fairchild v. Eby (37 L. D. 362), revoking General Land Office regulations of January 19, 1909 (37 L. D. 365), and restoring paragraphs 6 (modified) and 7 of General Land Office instructions of June 6, 1905 (33 L. D. 607). See Secretary's instruction of September 4, 1912 (41 L. D. 241), amending said instructions of August 24, 1912. See also New Castle Co. v. Zanganella (38 L. D. 314).

47. Regulations.-General Land Office instructions, June 12, 1914, governing restoration of withdrawn lands. (43 L. D. 274.)

Sec. 4. [Contracts for construction-Public notice of irrigable lands, limit of area, charges per acre, and method of payment-Limit of work hours-Mongolian labor.]-That upon the determination by the Secretary of the Interior that any irrigation project is practicable, he may cause to be let contracts for the construction of the same, in such portions or sections as it may be practicable to construct and complete as parts of the whole project, providing the necessary funds for such portions or sections are available in the reclamation fund, and thereupon he shall give public notice of the lands irrigable under such project, and limit of area per entry, which limit shall represent the acreage which, in the opinion of the Secretary, may be reasonably required for the support of a family upon the lands in question; also of the charges which shall be made per acre upon the said entries, and upon lands in private ownership which may be irrigated by the waters of the said irrigation project, and the number of annual installments, not exceeding ten, in which such charges shall be paid and the time when such payments shall commence. The said charges shall be determined with a view of returning to the reclamation fund the estimated cost of construction of the project, and shall be apportioned equitably: Provided, That in all construction work eight hours shall constitute a day's work, and no Mongolian labor shall be employed thereon. (32 Stat. 389.)

NOTES

1. Amendment.-Act August 13, 1914 (38 Stat. 686), amends this section as to installments of water charges. Further amendments made by acts of December 5, 1924 (43 Stat. 701), and May 25, 1926 (44 Stat. 636).

See section 1, act August 9, 1912 (37 Stat. 265).

2. Construction.-Under the authority conferred upon the Secretary by the act he may, in his discretion, enter into contracts for the construction of irrigation works or construct such works by labor employed and operated under

the superintendence and direction of Government officials. (Op. Asst. Atty. Gen., April 16, 1906, 34 L. D. 567.)

The act of February 4, 1887 (24 Stat. 379), to regulate commerce, is not violated by a reduction in freight rates, authorized by section 22 of that act, amended March 2, 1889 (25 Stat. 862), on materials and machinery used by the United States, or by parties contracting with them for work upon irrigation systems under construction in the arid regions of the West, provided the Government receives the whole benefit of the reduced rate or concession; but it is violated if the contractor receives any portion of such benefit. (25 Op. Atty. Gen. 408.)

There is no provision in the act to regulate commerce (act of February 4, 1887, 24 Stat. 379), or in its various amendments, which justifies the granting of reduced rates by railroads to employees of the Reclamation Service (Bureau of Reclamation) and dependent members of their families and servants accompanying them and laborers destined for work in that service. If railroads accord these reduced rates, they will be obliged to grant the same rates to the public in general in order to avoid a violation of section 2 of the act of June 29, 1906 (34 Stat. 584, 587; 26 Op. Atty. Gen. 47).

*

The national irrigation act of June 17, 1902, gives the Secretary of the Interior authority to let contracts for the construction of reclamation works only when "the necessary funds ** * are available in the reclamation fund," and if these funds are not available and sufficient, no such authority exists. (27 Op. Atty. Gen. 590.)

Contracts by engineers of the Reclamation Service (Bureau of Reclamation), acting for and on behalf of the United States, with water users or water users' associations or with representative committees of settlers to advance certain moneys and perform work in the construction of irrigation works, certificates to be issued therefor redeemable at face value in part of full payment of the charges against the lands of the holders of the certificates, are unauthorized by the national irrigation act of June 17, 1902, and the Secretary of the Interior has no authority to enter into such contracts. (27 Op. Atty. Gen. 360.)

There is no statute authorizing the Secretary of the Interior to enter into contracts contemplating a cooperative plan whereby the United States enters into an agreement with a water users' association, by which the association undertakes to perform certain work within certain maximum prices, the work to become the property of the United States upon acceptance, payment therefor to be made by the association in certificates of work performed, which certificates are to be accepted by the United States in reduction of charges against particular tracts, as an equitable apportionment thereof. (27 Op. Atty. Gen. 590.)

For regulations as to commencement of construction work before the necessary rights over the property required for such construction have been secured. (See departmental decision, January 30, 1912, Grand Valley.)

During the construction of a Government project the temporary use of the canals of an irrigation system purchased by the Government for conveying to lands water that would otherwise be allowed to go to waste, is not incompatible with the purpose, but is directly in pursuance of the object for which the property was acquired. (Departmental decision, December 6, 1906.)

Where a steam shovel with operators is loaned by a railroad company to the Reclamation Service (Bureau of Reclamation) such operators are employees of the company and not of the United States. (Comp. Dec., in re Southern Pacific Railroad Co., October 20, 1915.)

Where a contract for Government work in connection with an irrigation project provided that the Secretary of the Interior might suspend the contract, take over the work, and complete the same at the cost of the contractor, and it appeared that the work contracted for was a novel undertaking, neither the Government nor the contractor knowing a great deal concerning its feasibility, and the Secretary of the Interior under such provision terminated the contract, and undertook to do the work itself, because it appeared that the work done in accordance with the specifications would not fulfill the desired results, and the Government finished the same at an excess cost by performing it in a substantially different manner from that specified, it was not entitled to recover the excess from the contractor and his surety. (United States v. Weisberger et al., 206 Fed. 641.)

Where property is left with the officer of the Government who has charge of the work by the owner relying upon the fact that his title is not disputed

and upon representations made to him that payment would be recommended for such use, and Congress has given authority to appropriate property necessary for the particular work and to pay therefor, there is an implied contract on the part of the Government to pay for the property and jurisdiction exists under the Tucker Act. (U. S. v. Buffalo Pitts Co. (1914), 34 Sup. Ct. 840, 234 U. S. 228, 58 L. Ed. 1290; 193 Fed. 905 (1912), affirmed.)

When in the exercise of its governmental rights it takes property, the ownership of which it concedes to be in an individual, the United States, under the constitutional obligation of the fifth amendment, impliedly promises to pay therefor. (Idem.)

Where necessary, canals, laterals, and structures, properly a part of a Federal irrigation system, can not be constructed by the United States because funds are not available, a landowner may advance the needed moneys to the United States, and he may be later reimbursed, without interest, by credits upon his water charges as they become due. (Departmental decision, October 8, 1919, Milk River project.)

Government's liability for damages or delays.-The Government is responsible in damages for delaying a contractor's work under contract to construct a dam for the Reclamation Service (Bureau of Reclamation), and for noncompliance with provisions respecting the prompt delivery of materials undertaken to be furnished by it. (United States Fidelity & Guaranty Co. v. U. S. (1918), 53 Ct. Cl. 561.)

The Government is not liable ex contractu for damages or delays suffered by one of its contractors by virtue of the actions of third parties merely because the latter are engaged in furnishing materials for the Government as well as for the public generally. (Idem.)

Completion of contract by surety company.-Under contract between surety company and plaintiff for completion of work on Government contract which the contractor had breached, held, that compensation should be all moneys paid out by Government on account of work required, in addition to defendant's absolute liability for certain sum. (Peters v. National Surety Co. (1918), 166 N. W. 43, 167 Wis. 131; rehearing denied (1918), 166 N. W. 1087, 167 Wis. 131.)

Under contract between plaintiff and surety company for the completion of a Government contract, held, that plaintiff was not entitled as against defendant to receive amount of penalties withheld by Government against original contractor. (Idem.)

Plaintiff contracting with surety company to complete Government work obtained by surety company, in absence of express provision, held not precluded from action on contract because it had not discharged certain claims of subcontractors and others. (Idem.)

In action on contract for Government work, where defendant surety company had repudiated any obligation to be active agent in securing certain moneys from Government, held, that it was in no position under its contract with plaintiff to insist that plaintiff obtain engineer's certificate as condition precedent to payment. (Idem.)

Plaintiff's contracting with defendant surety company to complete Government contract, after default of principal, held, under the findings, entitled to recover amount deducted by Government for materials and supplies purchased after suspension of original contract. (Idem.)

Plaintiff contracting with defendant surety company to complete Government contract, on which surety's principal had defaulted, held entitled to recover net cost of property to be furnished by defendant, and which plaintiff had purchased from third party. (Idem.)

Compensation for extra work.-Contractors held not entitled to recover extra compensation for work caused by changes of location of canal. (Page & Brinton v. U. S. (1921), 56 Ct. Cl. 176.)

Performance of contract.-Decision of chief engineer held conclusive and not subject to review by the court. (Idem.)

Compensation for damages.-Where the Government orders water turned into a canal before the extension of time allowed the contractors has expired, and keeps it in said canal for six months, thereby preventing the contractors from completing the work, it is a breach of the contract, and the contractors are entitled to recover compensation for damages resulting therefrom. (Idem.) 3. Eight-hour day.-There is no conflict between the declaration in this section that eight hours shall constitute a day's work upon the public works therein specified, and the saving clause in section 1 of the act of August 1,

1892 (27 Stat. 340), which allows more than eight hours work in one calendar day "in case of extraordinary emergency." Irrigation works for the reclamation of arid and semiarid lands, act of June 17, 1902, perfectly and comprehensively fill the idea of "public works of the United States." The eighthour law contemplated by the act of August 1, 1892, means eight hours of effective labor. The blasting, cleaning of tracks, repair of machinery, and all other similar matters incident to the reclamation work, essential to prompt and continuous service in the regular day, may legally be done before and after regular hours. The law does not prescribe in what hours of the day the labor shall be done. Blacksmiths and their helpers, firemen, and pump men are either mechanics or laborers within the meaning of the eight-hour law. Quaere, as to the status of teamsters, cooks, and flunkies. It is the duty of the engineers of the Reclamation Service (Bureau of Reclamation) to see that the eight-hour law is observed by the contractors and to report violations of that law. (26 Op. Atty. Gen. 64.)

The eight-hour law of June 19, 1912 (37 Stat. 137), which provides for a penalty of $5 per day for each laborer working in excess of eight hours upon construction contracts or materials under special specifications, the same to be deducted from the monthly estimates of the contractor, is effective in regard to work of the Reclamation Service (Bureau of Reclamation) since the service was put upon an annual appropriation basis by the act of August 13, 1914. (38 Stat. 686.) Prior to that time the act did not apply to the work of the Reclamation Service (Bureau of Reclamation). (Comp. Dec., June 8, 1915.) State laws affecting labor do not apply to the Reclamation Service (Bureau of Reclamation). (Departmental decision, July 31, 1915.)

See C. L. 767, June 7, 1918, citing Executive order suspending eight-hour limit during period of war.

See C. L. 772, June 28, 1918, containing instructions regarding above Executive order.

C. L. 986, March 26, 1921, cancels C. L. 772. See 24 Comp. Dec. 9.

4. Application of the act to different classes of land. The act contemplates the irrigation of private lands as well as lands belonging to the Government, and the fact that a scheme contemplates the irrigation of private as well as a large tract of Government land does not render the project illegal, so as to prevent the condemnation of land necessary to carry it out. (Burley v. United States, 179 Fed. 1, 102 C. C. A. 429, 33 L. R. A. (N. S.), 807, affirming 172 Fed. 615.)

No deduction from the irrigable area subject to water charges will be made on account of easements for highways or irrigating ditches. (Williston Land Co., 39 L. D. 2. But see Reclamation Circular Letter No. 569, July 11, 1916.)

Individual owners of lands acquired under the provisions of the Carey Act may be supplied with such additional water from reservoirs constructed under the reclamation act as may be necessary to fully develop and reclaim the irrigable portions of such lands, subject to all the conditions governing the right to the use of water under any particular project. (Op. Asst. Atty. Gen., October 11, 1906, 35 L. D. 222.)

Persons holding contracts to purchase lands from a State, on deferred payments, no conveyance of title to be made to the purchasers until full payment, are entitled, if not in default and their contracts are in good standing, to subscribe for and purchase water rights under the reclamation act for irrigation of such lands, subject to the provisions and limitations of that act. retary's instructions, September 11, 1911, 40 L. D. 270.)

(Sec

Lands held by virtue of a desert-land entry are held in private ownership within the meaning of the act, and the entryman or his assignee is entitled to the same rights and privileges and is subject to the same conditions and limitations, so far as right to the use of water is concerned, as any other owner of lands within the irrigable area of an irrigation project. (Secretary's instructions, July 14, 1905, 34 L. D. 29. See act of June 27, 1906, 34 Stat. 519.) Where the irrigable area of a legal subdivision embraced in an entry within a reclamation project is shown on the duly approved farm-unit plat to be greater than the entire area of such legal subdivision shown on the prior township plat, applications for water rights and payments therefor should be made on the basis of the actual irrigable area, and not on the basis of the acreage shown on the township plat. (J. E. Enman, 40 L. D. 600.)

Agencies of a State government are entitled to become takers of water under a reclamation project for the lands benefited. (Departmental decisions, May 12, 1909.)