RELIEF OF CERTAIN RECLAMATION HOMESTEAD ENTRYMEN WHEN WATER IS NOT AVAILABLE

An act for the relief of homestead entrymen under the reclamation projects in the United States. (Act April 30, 1912, ch. 100, 37 Stat. 105)

[Sec. 1. Homesteaders under reclamation act allowed time to reestablish residence after water is available-Period of absence not credited.]— That no qualified entryman who prior to June twenty-fifth, nineteen hundred and ten, made bona fide entry upon lands proposed to be irrigated under the provisions of the act of June seventeenth, nineteen hundred and two, the national reclamation law, and who established residence in good faith upon the lands entered by him, shall be subject to contest for failure to maintain residence or make improvements upon his land prior to the time when water is available for the irrigation of the lands embraced in his entry, but all such entrymen shall, within ninety days after the issuance of the public notice required by section four of the reclamation act, fixing the date when water will be available for irrigation, file in the local land office a water-right application for the irrigable lands embraced in his entry, in conformity with the public notice and approved farmunit plat for the township in which his entry lies, and shall also file an affidavit that he has reestablished his residence on the land with the intention of maintaining the same for a period sufficient to enable him to make final proof: Provided, That no such entryman shall be entitled to have counted as part of the required period of residence any period of time during which he was not actually upon the said land prior to the date of the notice aforesaid, and no application for the entry of said lands shall be received until after the expiration of the ninety days after the issuance of notice within which the entryman is hereby required to reestablish his residence and apply for water right. (37 Stat. 105.)

NOTES

Regulations. See General Land Office instructions of July 25, 1912, in reference to this act. (41 L. D. 115.)

ASSIGNMENT OF DESERT-LAND ENTRIES

An act relating to partial assignments of desert-land entries within reclamation projects made since March 28, 1908. (Act July 24, 1912, ch. 251, 37 Stat. 200)

[Sec. 1. Desert-land entries within_reclamation projects may be assigned To conform to farm units.]-That a desert-land entry within the exterior limits of a Government reclamation project may be assigned in whole or in part under the act of March twenty-eighth, nineteen hundred and eight (Thirty-fifth Statutes at Large, page fifty-two), and the benefits and limitations of the act of June twentyseventh, nineteen hundred and six (Thirty-fourth Statutes at Large, page five hundred and twenty), shall apply to such desert-land entryman and his assignees: Provided, That all such assignments shall conform to and be in accordance with farm units to be established by the Secretary of the Interior upon the application of the desert-land entryman. All such assignments heretofore made in good faith shall be recognized under this act. (37 Stat. 200.)

NOTES

Assignment of entries.--Where a desert-land entry within a reclamation project is assigned in part under this act the entry should be subdivided into farm units; but where such an entry is assigned in its entirety the establishment of a farm unit is unnecessary. (Catherine Baart, 44 L. D. 386.)

See sections 116-128, inclusive, general reclamation circular, approved May 18, 1916. (45 L. D. 385.)

PATENTS AND WATER-RIGHT CERTIFICATES-LIENS RESERVED— LIMIT OF LAND HOLDINGS-FISCAL AGENTS-JURISDICTION OF UNITED STATES COURTS

An act providing for patents on reclamation entries, and for other purposes. (Act August 9, 1912, ch. 278, 37 Stat. 265)

[Sec. 1. Homesteaders under reclamation act to receive patents when conditions completed-Purchasers of water-right certificates Payment in full required.]-That any homestead entryman under the act of June seventeenth, nineteen hundred and two, known as the reclamation act, including entrymen on ceded Indian lands, may at any time after having complied with the provisions of law applicable to such lands as to residence, reclamation, and cultivation submit proof of such residence, reclamation, and cultivation, which proof, if found regular and satisfactory, shall entitle the entryman to a patent, and all purchasers of water-right certificates on reclamation projects shall be entitled to a final water-right certificate upon proof of the cultivation and reclamation of the land to which the certificate applies, to the extent required by the reclamation act for homestead entrymen: Provided, That no such patent or certificate shall issue until all sums due the United States on account of such land or water right at the time of issuance of patent or certificate have been paid. (37 Stat. 265.)

NOTES

Amendment.-Act August 26, 1912 (37 Stat. 610), makes this act applicable to desert-land entries.

Act of July 17, 1914 (38 Stat. 510), extends the provisions of this act to lands in the Flathead Indian irrigation project, Montana.

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Act February 15, 1917 (39 Stat. 920), amends the proviso to this section. Water-right certificates.-The terms water-right certificate and certificate" as used in this section relate to final water-right certificates issued in connection with water rights for lands held in private ownership. (William E. Borah, 42 L. D. 207.)

The fact that remunerative crops may be raised without irrigation upon land lying within a reclamation project is not sufficient ground for exclusion of such land from the project; and final certificate should not issue upon an entry embracing such land until all the sums due the United States under the reclamation act on account of land or water right at the time of issuance of the certificate shall have been paid. (Lewis Wilson, 42 L. D. 8.)

Payment of charges.-In view of the proviso of this section there is no room for application of the doctrine of relation and holding payment of the charge due at the time of making final proof as meeting the requirements of the act. (William E. Borah, 42 L. D. 207.)

Taxation of land within reclamation project.-A patent to lands within a reclamation project issued to a homestead entryman under act of August 9, 1912 (37 Stat. 265), on proof of compliance with the provisions of law as to residence, reclamation, and irrigation, conveys a legal title, the Government reserving only a prior lien on the land and appurtenant water rights as security for the payment of ail sums due or to become due on such water rights, and such lands are taxable by the State; the lien of the tax, however, being subject to the prior lien reserved by the Government. Homestead entrymen on such lands who have made proof of compliance with the general homestead laws but have not fully complied with the additional requirements of the reclamation act as to reclamation and irrigation, have a vested interest, which may be sold, mortgaged, and inherited, and which also is subject to local

taxation. Generally speaking, one who has the right to real property and is not excluded from its use and enjoyment should not be permitted to use the legal title of the Government to avoid his just share of taxation. (United States v. Canyon County, Idaho, et al., 232 Fed. 985. See also Cheney v. Minidoka County, 26 Idaho 471, 144 Pac. 343. To the contrary, see law notes, Reclamation Record, 1915, p. 554; law notes, Reclamation Record, 1916, p. 65.) When entryman's interest taxable.-Under act of August 13, 1914 (38 Stat. 686), making the charges for rec.amation of arid lands payable in installments, act of August 9, 1912, and act of February 15, 1917 (39 Stat. 920), allowing a patent for such lands on payment of all installments due at the time of final proof, which patent conveys a full legal title, but reserves a prior lien to the Government for ali installments unpaid, an entryman who has received a patent subject to the lien can be taxed by the State on his interest in such lands. (Irwin v. Wright (1922), 42 Sup. Ct. 293, 258 U. S. 219, 66 L. Ed. 573.) Regulations. For regulations concerning issuance of final water-right certificates and certificates of full payment and release of liens see C. L. 1046, October 3, 1921; and C. L. 1085, March 1, 1922.

C. L. 1159, September 27, 1922, incloses forms of application for permanent water right.

Sec. 2. [First lien on land reserved to United States-Title forfeited upon default of payment-Redemption within one year-Sale after failure to redeem-United States may bid in.]-That every patent and water-right certificate issued under this act shall expressly reserve to the United States a prior lien on the land patented or for which water right is certified, together with all water rights appurtenant or belonging thereto, superior to all other liens, claims, or demands whatsoever for the payment of all sums due or to become due to the United States or its successors in control of the irrigation project in connection with such lands and water rights.

Upon default of payment of any amount so due title to the land shall pass to the United States free of all encumbrance, subject to the right of the defaulting debtor or any mortgagee, lien holder, judgment debtor, or subsequent purchaser to redeem the land within one year after the notice of such default shall have been given by payment of all moneys due, with eight per centum interest and cost. And the United States, at its option, acting through the Secretary of the Interior, may cause land to be sold at any time after such failure to redeem, and from the proceeds of the sale there shall be paid into the reclamation fund all moneys due, with interest as herein provided, and costs. The balance of the proceeds, if any, shall be the property of the defaulting debtor or his assignee: Provided, That in case of sale after failure to redeem under this section the United States shall be authorized to bid in such land at not more than the amount in default, including interest and costs. (37 Stat. 266.)

NOTES

Amendment.-Section 2, act of May 15, 1922 (42 Stat. 541), amends this section as to patents and water-right certificates for lands lying within irrigation districts.

Release of liens.-For instructions regarding release of liens pursuant to the act of May 15, 1922 (42 Stat. 541), see 49 L. D. 604; C. L. 1226, June 6, 1923. Effect of law. For discussion of effect of this section, see printed hearings, "Application of the Reclamation Law to Irrigation Districts," had before the Committee on Irrigation of Arid Lands, House of Representatives, Sixty-sixth Congress, first session, on H. R. 2702, "A bill to provide for the application of the reclamation law to irrigation districts."

Collection of water charges. For regulations governing collection of water charges under this section see C. L. 921, August 3, 1920, canceled by C. L. 1027, July 9, 1921, which directs that the provisions of the act of August 13, 1914

(38 Stat. 686), shall be followed in all cases of failure to pay charges for construction and operation and maintenance. See also circular letters 952, 1001, and 1059.

Sec. 3. [Certificate of final payment-Single holdings limited-Excess acquired by descent, etc.-Forfeiture of prohibited excess.]—That upon full and final payment being made of all amounts due on account of the building and betterment charges to the United States or its successors in control of the project, the United States or its successors, as the case may be, shall issue upon request a certificate certifying that payment of the building and betterment charges in full has been made and that the lien upon the land has been so far satisfied and is no longer of any force or effect except the lien for annual charges for operation and maintenance: Provided, That no person shall at any one time or in any manner, except as hereinafter otherwise provided, acquire, own, or hold irrigable land for which entry or water-right application shall have been made under the said reclamation act of June seventeenth, nineteen hundred and two, and acts supplementary thereto and amendatory thereof, before final payment in full of all installments of building and betterment charges shall have been made on account of such land in excess of one farm unit as fixed by the Secretary of the Interior as the limit of area per entry of public land or per single ownership of private land for which a water right may be purchased respectively, nor in any case in excess of one hundred and sixty acres, nor shall water be furnished under said acts nor a water right sold or recognized for such excess; but any such excess land acquired at any time in good faith by descent, by will, or by foreclosure of any lien may be held for two years and no longer after its acquisition; and every excess holding prohibited as aforesaid shall be forfeited to the United States by proceedings instituted by the Attorney General for that purpose in any court of competent jurisdiction; and this proviso shall be recited in every patent and water-right certificate issued by the United States under the provisions of this act. (37 Stat. 266.)

NOTES

Limitations as to lands and water rights.-Under the proviso to this section no person shall, at any one time, acquire or own a water right, or be furnished water on account of a water right acquired from the United States, in excess of such quantity as may be necessary for the proper irrigation of one farm unit, as fixed by the Secretary of the Interior, unless all installments contracted to be paid on the additional supply to be purchased shall first be paid in full, and the water right purchased for the lands in excess of one unit shall be limited to a supply sufficient for 160 acres. (Amaziah Johnson, 42 L. D. 542.)

The limitations in this section as to the area of lands for which water right may be acquired or owned by any one person have reference to irrigable lands only. (Idem.)

No one can at the same time hold and obtain water rights for both a farm unit of public land and a tract of privately owned land unless the installments on water right, either for the farm unit or for the private lands not exceeding 160 acres, have been paid in full. (Keebaugh and Cook, 42 L. D. 543.)

A person who holds a farm unit shall not be permitted before full payment has been made on the appurtenant water right to acquire other lands with appurtenant water rights unless the water-right charges on the latter have been fully paid; similarly a person may hold private lands with appurtenant water rights up to the limit of single ownership fixed for a project in one or more parcels before full payment of the water-right charge, but may not acquire other lands with appurtenant water rights unless the water-right charges