rights up to the limit of single ownership fixed for the 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 thereon have been paid in full. The limit of area of the farm units and of single private-land holdings to which water rights are appurtenant, and as to which water-right charges have not been paid in full, shall in no case exceed 160 acres. (Departmental decision, July 22, 1914, 43 L. D. 339.) Departmental instructions of July 1, 1920, amend paragraph 41 of general reclamation circular of May 18, 1916 (45 L. D. 385). See C. L. 911, July 6, 1920, or 47 L. D. 417. See act of August 9, 1912 (37 Stat. 265), and notes thereunder.) See amendment of section 23, regulations of May 18, 1916 (45 L. D. 390) as printed at 48 L. D. 113.

4. Residence and occupancy.-Where a tract of land under a reclamation project is owned by two or more persons jointly, unless each is a resident" or an occupant on the land, no right to use water to irrigate the same can be acquired under this section. (Departmental decision, January 12, 1910.)

To entitle an applicant to the use of water for lands held in private ownership within the irrigable area of an irrigation project under this act to the benefits of this act, he must hold the title in good faith, and his occupancy must be bona fide and in his own individual right. (Secretary's instructions, May 21, 1904, 32 L. D. 647.)

The residence requirements provided for in this section apply to all persons acquiring by assignment water-right contracts with the United States, unless prior to such assignment the final water-right certificate contemplated by section 1 of the act of August 9, 1912 (37 Stat. 265), has been issued, in which event the land may be freely alienated, subject to the lien of the United States. (H. G. Colton, 43 L. D. 518.)

The residence requirement of this section in reference to private lands is fully complied with if at the time the water-right application is made the applicant is a bona fide resident upon the land or within the neighborhood. After approval of the application further residence is not required of such applicant, and final proof may therefore be made under the act of August 9, 1912 (37 Stat. 265), without the necessity of proving residence at the time proof is offered. (Departmental decision, April 19, 1916.)

The term "in the neighborhood" held to mean within 50 miles. mental decision, January 20, 1909.)

(Depart

Paragraph 105 of the general reclamation circular approved May 18, 1916(45 L. D. 385), provides that in case of the sale of all or any part of the irrigable area of a tract of land in private ownership covered by a waterright application which is not recorded in the county records, the vendor will be required to have his transferee make new water-right application for the land transferred. Held, that in making the new application it is immaterial whether or not the transferee be "an actual bona fide resident on such land or occupant thereof residing in the neighborhood." (Reclamation decision, July 25, 1917, in re J. W. Merritt, Truckee-Carson.)

Order withdrawing land from entry under section 3, reclamation act, did not relieve entryman from the duty of reclaiming land under section 5, reclamation act, and complying with homestead law as to residence and cultivation under Revised Statutes United States, sections 2289-2291, 2297, prior to amendment of 1912, where the land officials made a public announcement that the withdrawals of lands were not permanent, but were for the purpose of enabling preliminary investigations to be made as to feasibility of irrigation project (Bowen v. Hickey (1921), (Cal. App.) 200 Pac. 46; certiorari denied (1921), 42 Sup. Ct. 168, 257 U. S. 656, 66 L. Ed. 420.)

An entryman under this act does not acquire or maintain a residence by occasional visits or by going upon the land for the purpose of merely formal compliance with the law, substantial residence and good faith being necessary. Determination of officials of the Land Department that entryman under this act failed to establish a residence upon the land held justified by the evidence. (Idem.)

5. Payment of water charges. The provision in section 5 of the reclamation act that failure to make payment of any two annual installments when due shall render the entry subject to cancellation, with forfeiture of all rights under the act, is not mandatory, but it rests in the sound discretion of the Secretary of the Interior whether the entryman in such case may thereafter be permitted to cure his default by payment of the water charges, where he has continued to comply with the provisions of the homestead law; and in event an entry has

been canceled for such failure, the Secretary may, in the absence of adverse claim, authorize reinstatement thereof with a view to permitting the entryman to cure his default. (Marquis D. Linsea, 41 L. D. 86.)

Inasmuch as the acts of June 17, 1902, and August 13, 1914, did not peremptorily declare in mandatory language that forfeitures must be declared, or that they will necessarily result by operation of law as soon as defaults in payments by water users on reclamation projects have occurred, it rests within the sound discretion of the Secretary of the Interior to determine whether an entryman may thereafter be permitted to cure the default by payment of the charges. (Departmental opinion, December 31, 1923, in re Shoshone irrigation project, 50 L. D. 223.)

One holding a mortgage against only a part of a tract of land in private ownership upon a Federal reclamation project for which entire tract a waterright application has been made, may pay up from time to time the charges on that portion of the tract covered by the mortgage in the event the landowner fails to pay. (Departmental decision, July 13, 1917.)

Fiscal agents upon United States reclamation projects are authorized to accept from water users money tendered in payment of an accrued installment of either construction, operation, and maintenance, or rental charges, for any year, even though installments for a previous year remain unpaid. (Reclamation decision, August 6, 1917; C. L. No. 680.)

In cases where the title to lands under water-right application upon a Federal reclamation project is in dispute, and the land is in possession of one other than the record owner, the Reclamation Service (Bureau of Reclamation) may deliver water to the party in possession, upon payment in advance of the operation and maintenance charges. (Reclamation decision, August 24, 1917, in re

Wood v. Eggleston, Truckee-Carson.)

Where entries and water-right applications have been held for cancellation for failure to pay the building charges, pending final action, water may be furnished for the land upon proffer of the portion of the installments for operation and maintenance. (Departmental decision, February 9, 1909.)

No power exists in the Secretary of the Interior to formally grant specific extension of time for payment of overdue water-right charges. (Departmental decision, April 22, 1909.)

The provisions of section 5 of the reclamation act of June 17, 1902 (32 Stat. 388), and of sections 3 and 6 of the reclamation extension act of August 13, 1914 (38 Stat. 686), regarding one year of grace for the payment of overdue water charges, refer only to the drastic remedies of cancellation and forfeiture and not to the right to bring suit in a court for collection of a water charge past due and unpaid. (Reclamation decision, December 4, 1917, U. S. v. Edison E. Kilgore, Shoshone. See Secretary's regulations of February 27, 1909, regarding delinquent payments, 37 L. D. 468.)

See notes 5 and 6 under section 4 of this act.

6. Parties to suit enjoining collection of water charges.-A corporation with which as the representative of its shareholders, who are parties accepted by the United States as holders of water rights in a project under the reclamation act, the United States makes a contract for the benefit of such shareholders relative to the supply of water due and the dues to be paid by the shareholders and which covenants in the contract to collect dues for the United States and guarantees the payment thereof, is the proper party plaintiff in a suit to enjoin officers of the United States from collecting unlawful charges from the shareholders, turning the water from their lands and canceling their water rights and homestead rights because they fail to pay such charges. (Magruder et al. v. Belle Fourche Valley Water Users' Association, 219 Fed. 72; 133 C. C. A. 524.)

7. Release of nonirrigable lands.-The director is authorized to assent to the release from stock subscription of any and all lands in any and all projects heretofore or hereafter shown by official survey or by the original or amended farm unit plats to be nonirrigable; also, to assent to the reduction of stock subscription for any such lands to the acreage so shown as irrigable. (Departmental decisions, March 11, 1912, and September 16, 1912.)

8. 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 all 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 genereal 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; Reclamation Record, 1916, p. 65.)

The equitable title to lands within a reclamation project does not pass to the homestead entryman on his compliance with the homestead act (Rev. Stat. sec. 2291), as amended by act June 6, 1912 (37 Stat. 123). Such title does not pass until after his compliance with the requirements of this act, and the rules and regulations established by the Secretary of the Interior under section 10 of the reclamation act so that the State can not tax the lands within the reclamation project until final certificate of compliance with the reclamation act is issued. (Irwin v. Wright (1922), 42 Sup. Ct. 293, 258 U. S. 219, 66 L. Ed. 573.)

The North Side Canal Co. entered into a contract with the United States for the purchase of storage rights in the Jackson Lake reservoir in Wyoming, the water stored therein to be used in Idaho. The State of Wyoming assessed taxes against the interest of the canal company in the reservoir and the canal company resisted the payment of such taxes. The trial judge held (North Side Canal Co. v. State Board of Equalization, Wyoming, September 26, 1925), in an unpublished manuscript decision, that the taxes were properly levied. The case was appealed to the Circuit Court of Appeals for the Eighth Circuit, which reversed the decision of the District Court of the United States for the District of Wyoming and held that the attempted tax is wholly null and void for the reason that the water rights in question are appurtenant to the lands on which the water has been applied to beneficial use, which lands are located in the State of Idaho and are therefore not within the jurisdiction of Teton County, Wyo., for taxation purposes. (Unpublished manuscript decision, December, 1926.) Similar ruling in Twin Falls Canal Co. v. State of Wyoming. 9. Miscellaneous.-Secretary's instructions of August 30, 1904, relating to form of contracts to be made between water users' associations and land owners. (33 L. D. 202.)

General Land Office instructions of January 18, 1908, to registers and receivers in reference to this section. (36 L. D. 256.)

General Land Office instructions of February 10, 1909, to registers and receivers in reference to reclamation of land. (37 L. D. 448.)

Secretary's regulations of February 27, 1909, regarding reclamation of land. (37 L. D. 468.)

General Land Office circular of September 17, 1909, to registers and receivers, regarding proofs. (38 L. D. 229.)

Secretary's instructions of November 15, 1909, as to information from fiscal records. (38 L. D. 311.)

Sections 100-115, inclusive, general reclamation circular, approved May 18, 1916. (45 L. D. 385.)

C. L. No. 720, January 2, 1918, water-right applications by landowners temporarily serving in the Army, Navy, or Marine Corps.

Sec. 6. [Reclamation fund to be used for operation and maintenance— Management of works to pass to landowners-Title.]-That the Secretary of the Interior is hereby authorized and directed to use the reclamation fund for the operation and maintenance of all reservoirs and irrigation works constructed under the provisions of this act: Provided, That when the payments required by this act are made for the major portion of the lands irrigated from the waters of any of the works herein provided for, then the management and operation of such irrigation works shall pass to the owners of the

lands irrigated thereby, to be maintained at their expense under such form of organization and under such rules and regulations as may be acceptable to the Secretary of the Interior: Provided, That the title to and the management and operation of the reservoirs and the works necessary for their protection and operation shall remain in the Government until otherwise provided by Congress. (32 Stat. 389.)

NOTES

Payment for operation and maintenance.-The Secretary of the Interior, being authorized to tax and determine the charges, is authorized to divide the same into two parts-one for construction and the other for maintenance and operation; and hence he is authorized to impose reasonable assessments on land irrigated prior to the time when payment of the major portion of the cost of construction had been made and the works passed under management of the owners of the irrigated land. (United States v. Cantrall, 176 Fed. 949.) Where by a contract between the United States and landowners tributary to a Federal irrigation system, such landowners agreed to pay to the United States the charges duly levied against their lands for the construction and maintenance of the system, they were only liable for such reasonable charges as the Government was authorized to collect proportionate to their share of the cost of maintaining and operating the system, and not such as might be arbitrarily fixed in advance by such Secretary or other governmental officer. (Idem.)

The Secretary of the Interior has authority to levy and collect assessments on land irrigated from any works to defray the cost of maintaining such works until the time when, under the act, the management passes to the landowners. Baker v. Swigart, 196 Fed. 569; reversed in 199 Fed. 865, 118 C. C. A. 313; but affirmed in Swigart v. Baker, 229 U. S. 187, 57 L. Ed. 1143, 33 Sup. Ct. 645.)

Fishing in Elephant Butte Reservoir.-On July 5, 1917, Hon. Harry L. Patton, attorney general of the State of New Mexico, rendered an opinion in which he held that, in accordance with sections 2435 and 2470, New Mexico Code, 1915, as amended by sections 7 and 13, chapter 101, Laws, 1915, a State license is required of persons fishing in the Elephant Butte Reservoir, Rio Grande project. In reference to the jurisdiction of the United States, he interprets sections 5562 and 5563 of the New Mexico Code as not applicable to the Elephant Butte Dam, the land involved having been acquired by the United States before the enactment of these sections. He also holds that the reservoir can not be classed as a private lake within the meaning of the New Mexico fish law, as there is open communication between it and the public waters of the State.

On August 3, 1917, the chief counsel of the Reclamation Service held that those who angle in the Elephant Butte Reservoir for fish protected by the New Mexico law must comply with the State law as to fishing, but the mere fact that a person has a State license does not of itself give that person a right to fish in the reservoir; he must also have the consent of the United States.

Transfer of project to water users.-The Secretary of the Interior is not authorized by the reclamation act to turn over the operation and maintenance of completed reclamation projects, in whole or in part, or to any extent, to water users' associations before the payments by such water users for water rights are made by the major portion of the lands irrigated by such works. (Op. Atty. Gen., July 28, 1913; 30 Op. Atty. Gen. 208; but see sec. 5, act August 13, 1914, 38 Stat. 686.)

Miscellaneous references.-For construction by the courts of powers of a corporation organized to cooperate with the United States see

Orme v. Salt River Valley Water Users' Association (1923), (Ariz.), 217 Pac. 935;

Greene & Griffith Real Estate & Investment Co. v. Salt River Valley Water Users' Association (1923), 217 Pac. 945;

Bethune v. Salt River Valley Water Users' Association (1924), 227 Pac. 989, 26 Ariz. 525;

Salt River Valley Water Users' Association v. Spicer (1925), 236 Pac. 728; Brewster v. Salt River Valley Water Users' Association (1924), 229 Pac. 929.

28038-27-4

Sec. 7. [Authority to acquire property-Attorney General to institute condemnation proceedings.]-That where in carrying out the provisions of this act it becomes necessary to acquire any rights or property, the Secretary of the Interior is hereby authorized to acquire the same for the United States by purchase or by condemnation under judicial process, and to pay from the reclamation fund the sums which may be needed for that purpose, and it shall be the duty of the Attorney General of the United States upon every application of the Secretary of the Interior, under this act, to cause proceedings to be commenced for condemnation within 30 days from the receipt of the application at the Department of Justice. (32 Stat. 389.)

NOTES

Property that may be acquired.—Under the provisions of the reclamation act, the Secretary of the Interior has power to acquire the rights and property necessary therefor, including those of allottee Indians by paying for their improvements, and giving them the right of selecting other lands. The restrictions on alienation of lands allotted to Indians within the area of the Milk River irrigation project do not extend to prohibiting an allottee Indian from selling his improvements to the United States and selecting other lands so that the United States could use the lands selected for purposes of an irrigation project as provided by act of Congress. (Henkel v. U. S., 237 U. S. 43, 59 L. Ed. 831, 35 Sup. Ct. 536, affirming 196 Fed. 345, 116 C. C. A. 165.)

The act does not authorize the use of the reclamation fund for the purchase of any land except such as may be necessary in the construction and operation of irrigation works. (California Development Co., 33 L. D. 391.)

There is no authority for the use of the reclamation fund, either directly by the Secretary or indirectly by advancement to others, for the purchase of lands or other property outside of the territorial limits of the United States. (Idem.)

Where an irrigation system already constructed and in operation may be utilized in connection with a greater system to be constructed under the act, its purchase for such purpose comes within the purview of the act. (Idem.) The act affords authority for the purchase of an incomplete irrigation system to be used in connection with and to become a part of a larger system contemplated by the Government. (Op. Asst. Atty. Gen., January 6, 1906, 34 L. D. 351.)

Until so authorized by Congress, neither the department nor the territorial government of Arizona has power to dedicate for use in connection with an irrigation project lands in said territory which, by section 2 of the act of February 2, 1863 (12 Stat. 664, sec. 1946, R. S.), have been reserved for school purposes to the future State to be erected, including the same. (Secretary's instructions, May 10, 1904, 32 L. D. 604.)

The secretary has no authority under the seventh section of this act to compensate settlers upon lands within the limits of a withdrawal made in connection with an irrigation project, unless they have in good faith acquired an inchoate right to the land by complying with the requirements of law up to the date of the withdrawal and have such a claim as ought to be respected by the United States. (Op. Asst. Atty. Gen., October 12, 1905, 34 L. D. 155.)

The Secretary has no authority to permit the owner of lands needed for a reservoir to be constructed under said act to select other lands of the same area within the district that may be made susceptible of irrigation from the proposed reservoir, in exchange for the lands so needed for reservoir purposes. (Op. Asst. Atty. Gen., February 20, 1904, 32 L. D. 459.)

The Secretary has no authority, under existing legislation, to permit the cutting of timber from the public lands for use in the construction of irrigation works under said act. (Op. Asst. Atty. Gen., March 12, 1904, 32 L. D. 495. But see act of February 8, 1905, 33 Stat. 706.)

The act does not authorize the expense of procuring mere options to purchase rights of way, water rights, or lands. (9 Comp. Dec. 569.)