a stream flowing over the same from appropriation under the laws of the State, or will in any manner interfere with its laws relating to the control, appropriation, use, or distribution of water. (Op. Asst. Atty. Gen., 32 L. D. 254.)

7. Rights of way over withdrawn lands.-The use of rights of way over public lands within reservations for the purposes contemplated by either the act of February 15, 1901 (31 Stat. 790), or the act of June 17, 1902 (32 Stat. 388), will not be permitted if such use is incompatible with the public interest; and if at any time the public interest is jeopardized by the use of such rights of way after they have been granted, they may be revoked. (Op. Asst. Atty. Gen., 33 L. D. 389.)

8. Failure to note withdrawal on tract book.-Any withdrawal otherwise valid shall not be effected by failure to note same on tract book or otherwise follow the usual procedure. (Secretary's instructions of August 12, 1913; 42 L. D. 318.) See 48 L. D. 153, amending paragraphs 13, 14, and 16 and revoking paragraph 15 of general reclamation circular of May 18, 1916.

9. Contests affecting withdrawn lands.-See Secretary's instructions of August 24, 1912 (41 L. D. 171), overruling Fairchild v. Eby (37 L. D. 362), revoking General Land Office regulations of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 instructions 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).

See note 46 under this section.

10. Miscellaneous references.-General Land Office circular of September 9, 1902, giving notice of the reclamation act of June 17, 1902, to registers and receivers. (31 L. D. 420.)

General Land Office circular of October 25, 1902, to registers and receivers, in reference to withdrawals for surveys. (31 L. D. 423.)

Secretary's instructions of February 11, 1903, regarding withdrawals. L. D. 6.)

(32

Geological Survey circular of March 31, 1904, regarding withdrawals and other matters.

(32 L. D. 537.)

General Land Office circular of June 15, 1904, in reference to notice to entrymen. (33 L. D. 38.)

General Land Office circular of June 6, 1905, to registers and receivers in reference to withdrawals. (33 L. D. 607.)

Secretary's instructions of October 12, 1905, regarding withdrawals. (34 L. D. 158.)

Secretary's order of October 3, 1912, directing notice to persons unlawfully settled upon withdrawn lands. (41 L. D. 293.)

D. 385), super(42 L. D. 349.) amended by

General reclamation circular, approved May 18, 1916 (45 L. seding general reclamation circular, approved February 6, 1913. General reclamation circular approved May 18, 1916, was instructions printed at 47 L. D. 417; 48 L. D. 113; 48 L. D. 153. For digest of decisions and opinions in connection with oil and gas permits for withdrawn lands issued under act of February 25, 1920 (41 Stat. 437), see 47 L. D. 463.

(B) FIRST-FORM WITHDRAWALS

11. Effect of withdrawal.-Withdrawals made by the Secretary of the Interior under the first form, of lands which are required for irrigation works have the force of legislative withdrawals and are effective to withdraw from other disposition all lands within the designated limits to which a right has not vested. (Secretary's instructions of January 13, 1904; 32 L. D. 387.)

Under this act withdrawal is absolute, and no rights can be initiated by a settler during the existence of the withdrawal order. (Donley v. Van Horn (1920), (Cal. App.), 193 Pac. 514; Donley v. West (1920), (Cal. App.), 193 Pac. 519.)

12. Discretion of the Secretary.--The discretion of the Secretary of the Interior in making first-form withdrawals of lands can not be questioned, and no application to enter can be allowed on the ground that the land is not needed. (Ernest Woodcock, 38 L. D. 349.)

The withdrawal of land for irrigation purposes under this section is a matter that was committed to the Land Department exclusively, and, in the absence of fraud on the part of the officials of that department, can not be reviewed by the courts. (Donley v. West (1920), (Cal. App.), 189 Pac. 1052. See also Donley v. Van Horn (1920), 193 Pac. 514, 519.)

13. Rights of settlers and entrymen.-The reclamation act contains no provision for the recognition or protection of any right of a settler on unsurveyed public lands which may be withdrawn and reserved thereunder for use in the construction of irrigation works, nor is there any such provision in the act of June 27, 1906 (34 Stat. 519), or other statute of the United States, and such settler has no right which he can oppose to the taking of the land for such purpose. (United States v. Hanson, 167 Fed. 881; 93 C. C. A. 371.)

An application to make homestead entry for land embraced within a firstform withdrawal should not be allowed nor received and suspended to await the possible restoration of the lands to entry, but should be rejected. (Ernest Woodcock, 38 L. D. 349.)

See instructions of General Land Office, January 25, 1921, 47 L. D. 624, directing attention to sections 4, 13, and 20 of general reclamation circular May 18, 1916, 45 L. D. 385.

Where homestead or desert-land entries are included within first-form reclamation withdrawals, they should not be suspended, but allowed to proceed to final proof, certificate, and patent, and the land, if thereafter needed by the United States for reclamation purposes, reacquired by purchase or condemnation. (Secretary's instructions of August 26, 1914, 43 L. D. 374, overruling Op. Asst. Atty. Gen., 34 L. D. 421, and Agnes C. Pieper, 35 L. D. 459.)

14. Forest reserve lands.-Under the act of February 15, 1901 (31 Stat. 790), lands in forest reserves created under authority of the act of March 3, 1891 (26 Stat. 1095), may be appropriated and used for irrigation works constructed under authority of the act of June 17, 1902 (32 Stat. 388), as well as for works constructed by individuals. (Op. Asst. Atty. Gen., 33 L. D. 389.)

Reclamation withdrawals within the national forests are dominant, but until needed by the Reclamation Service (Bureau of Reclamation) the lands will remain for administrative and protection purposes under control and direction of the Forest Service. (Departmental decision, February 27, 1909.)

While the Secretary of the Interior may determine what lands within national forests withdrawn for reclamation purposes are necessary for the proper protection of reservoirs constructed under the reclamation act, he has no power to lease such lands, since authority in that regard is specifically granted to the Secretary of Agriculture. But in recognition of the needs of the Reclamation Service (Bureau of Reclamation) and to forestall any contracts detrimental to a reclamation project, all leases should be subject to the prior approval of the Secretary of the Interior. (31 Op. Atty. Gen. 56.)

But see act of July 19, 1919 (41 Stat. 163, 202), conferring jurisdiction on the Secretary of the Interior.

15. Mineral lands. The right of the Government to appropriate public land for use in the construction and operation of irrigation works under the act of June 17, 1902 (32 Stat. 388), is not affected by the fact that the land is mineral in character. (Secretary's instructions of October 6, 1906; 35 L. D. 216; Loney v. Scott, 57 Or. 378; 112 Pac. 172.)

A mining claim as to which the claimant was in default in the performance of annual assessment work at the date of a withdrawal for the construction of irrigation works under the reclamation act does not except the land from the force and effect of the withdrawal. (Mrs. E. C. Kinney, 44 L. D. 580.)

16. Railroad rights of way.-No such right is acquired by virtue of an application for right of way for a railroad under the act of March 3, 1875 (18 Stat. 482), before the approval thereof, and prior to the construction of the road, as will prevent the Secretary of the Interior withdrawing the lands covered thereby for use as a reservoir under the act of June 17, 1902 (32 Stat. 388). (Op. Asst. Atty. Gen. 32 L. D. 597.)

17. Reservoirs for domestic purposes.-The Secretary of the Interior has no authority under this act to withdraw lands for reservoir sites with a view to the use of the waters impounded therein for domestic purposes. (Op. Asst. Atty. Gen. 33 L. D. 415.)

18. Reservoir lands.-Under this act the Secretary of the Interior had authority to withdraw from public entry lands constituting a reservoir site sought to be appropriated by a water and power company. (Verde Water & Power Co. v. Salt River Valley Water Users' Ass'n (1921), (Ariz.) 197 Pac. 227.)

!

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 leases 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.

66

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 approval of the Secretary of the Interior is not required. (Minidoka, etc.,

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