NEW MEXICO AND ARIZONA ENABLING ACT

[Extracts from] An act to enable the people of New Mexico to form a constitution and State government and be admitted into the Union on an equal footing with the original States; and to enable the people of Arizona to form a constitution and State government and be admitted into the Union on an equal footing with the original States. (Act June 20, 1910, ch. 310, 36 Stat. 557)

[Sec. 2. Acquiescence in reclamation projects.]-Seventh. That there be and are reserved to the United States, with full acquiescence of the State (New Mexico) all rights and powers for the carrying out of the provisions by the United States of the act of Congress entitled "An act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands," approved June seventeenth, nineteen hundred and two, and acts amendatory thereof or supplementary thereto, to the same extent as if said State had remained a Territory. (36 Stat. 559.)

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An identical provision regarding the State of Arizona will be found in the same act, at page 570.

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[Sale of lands-Relinquishment for irrigation works-Lieu grants.]— no lands (in New Mexico) which are or shall be susceptible of irrigation under any projects now or hereafter completed or adopted by the United States under legislation for the reclamation of lands, or under any other project for the reclamation of lands, shall be sold at less than twenty-five dollars per acre: Provided, That said State, at the request of the Secretary of the Interior, shall from time to time relinquish such of its lands to the United States as at any time are needed for irrigation works in connection with any such Government project; and other lands in lieu thereof are hereby granted to said State, to be selected from lands of the character named and in the manner prescribed in section eleven of this act. (36 Stat. 564.)

A similar provision regarding the State of Arizona will be found in the same act, at page 574.

Prospecting permit.-Lands reconveyed to the United States by the State of New Mexico for reclamation purposes pursuant to the enabling act of June 20, 1910, which contains an indemnity provision as consideration for such transfers, occupy a status similar to that of withdrawn public lands rather than that of lands acquired by purchase or condemnation, and the granting of permits to prospect for oil or gas upon such lands will be dependent upon the determination of whether or not their restoration will be detrimental to the project. (J. D. Mell et al., 50 L. D. 309.)

[Water-power reservations-Lieu selections.]-There is hereby reserved to the United States and exempted from the operation of any and all grants made or confirmed by this act to said proposed State

all land actually or prospectively valuable for the development of water powers or power for hydroelectric use or transmission and which shall be ascertained and designated by the Secretary of the Interior within five years after the proclamation of the President declaring the admission of the State; and no lands so reserved and excepted shall be subject to any disposition whatsoever by said State, and any conveyance or transfer of such land by said State or any officer thereof shall be absolutely null and void within the period above named; and in lieu of the land so reserved to the United States and excepted from the operation of any of said grants there be, and is hereby, granted to the proposed State an equal quantity of land to be selected from land of the character named and in the manner prescribed in section eleven of this act. (36 Stat. 564.)

A similar provision regarding the State of Arizona will be found in the same act, at page 575.

Sec. 24. [Additional grant for common schools-Selections in lieu of mineral, etc., lands.]—That in addition to sections sixteen and thirtysix, heretofore reserved for the Territory of Arizona, sections two and thirty-two in every township in said proposed State not otherwise appropriated at the date of the passage of this act are hereby granted to the said State for the support of common schools; and where sections two, sixteen, thirty-two, and thirty-six, or any parts thereof, are mineral, or have been sold, reserved, or otherwise appropriated or reserved by or under the authority of any act of Congress, or are wanting or fractional in quantity, or where settlement thereon with a view to preemption or homestead, or improvement thereof with a view to desert-land entry has been made heretofore or hereafter, and before the survey thereof in the field, the provisions of sections twenty-two hundred and seventy-five and twenty-two hundred and seventy-six of the Revised Statutes, and acts amendatory thereof or supplementary thereto, are hereby made applicable thereto and to the selection of lands in lieu thereof to the same extent as if sections two and thirty-two, as well as sections sixteen and thirty-six, were mentioned therein. (36 Stat. 572.)

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NOTES

A substantially similar provision regarding the State of New Mexico will be found in section 6 of the same act (36 Stat. 561).

Withdrawal.-A reclamation withdrawal existent at the date of the grant made to the State of Arizona by section 24 of the act of June 20, 1910, of certain designated sections of public lands for school purposes, does not defeat the operation of the grant as to lands subsequently restored from the withdrawal, but the right of the State attaches to surveyed lands within the specified sections immediately upon their restoration from the withdrawal, if the State has not selected indemnity therefor. (Elizabeth J. Laurence, 49 L. D. 611.)

Vested rights.-The right of the State of Arizona which attaches to surveyed school lands immediately upon their restoration from a reclamation withdrawal can not be defeated by the initiation of a desert-land claim subsequently to the date of the restoration. (Idem.)

COAL LANDS MAY BE WITHDRAWN UNDER RECLAMATION ACT

[Extracts from] An act to provide for agricultural entries on coal lands. (Act June 22, 1910, ch. 318, 36 Stat. 583)

[Sec. 1. Agricultural entries for surface allowed-Selection under Carey Act-Withdrawal under Reclamation act-Right to prospect, etc., for coal reserved-Limit and conditions-Perfection of present entries.]That from and after the passage of this act unreserved public lands of the United States exclusive of Alaska which have been withdrawn or classified as coal lands, or are valuable for coal, shall be subject to appropriate entry under the homestead laws by actual settlers only, the desert-land law, to selection under section four of the act approved August eighteenth, eighteen hundred and ninetyfour, known as the Carey Act, and to withdrawal under the act approved June seventeenth, nineteen hundred and two, known as the reclamation act, whenever such entry, selection, or withdrawal shall be made with a view of obtaining or passing title, with a reservation to the United States of the coal in such lands and of the right to prospect for, mine, and remove the same. But no desert entry made under the provisions of this act shall contain more than one hundred and sixty acres, and all homestead entries made hereunder shall be subject to the conditions, as to residence and cultivation, of entries under the act approved February nineteenth, nineteen hundred and nine, entitled "An act to provide for an enlarged homestead ": Provided, That those who have initiated nonmineral entries, selections, or locations in good faith prior to the passage of this act on lands withdrawn or classified as coal lands may perfect the same under the provisions of the laws under which said entries were made, but shall receive the limited patent provided for in this act. (36 Stat. 583.)

Sec. 2. [Applications to state nature of entry.]--That any person desiring to make entry under the homestead laws or the desert-land law, any State desiring to make selection under section four of the act of August eighteenth, eighteen hundred and ninety-four, known as the Carey Act, and the Secretary of the Interior, in withdrawing under the reclamation act lands classified as coal lands, or valuable for coal, with a view of securing or passing title to the same in accordance with the provisions of said acts, shall state in the application for entry, selection, or notice of withdrawal that the same is made in accordance with and subject to the provisions and reservations of this act. (36 Stat. 584.)

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ASSIGNMENT OF RECLAMATION HOMESTEAD ENTRIES

An act providing that entrymen for homesteads within reclamation projects may assign their entries upon satisfactory proof of residence, improvement, and cultivation for five years, the same as though said entry had been made under original homestead act. (Act June 23, 1910, ch. 357, 36 Stat. 592)

[Sec. 1. Assignment of homestead entries within reclamation projectsPatent Conditions.]-That from and after the filing with the Commissioner of the General Land Office of satisfactory proof of residence, improvement, and cultivation for the five years required by law, persons who have, or shall make, homestead entries within reclamation projects under the provisions of the act of June seventeenth, nineteen hundred and two, may assign such entries, or any part thereof, to other persons, and such assignees, upon submitting proof of the reclamation of the lands and upon payment of the charges apportioned against the same as provided in the said act of June seventeenth, nineteen hundred and two, may receive from the United States a patent for the lands: Provided, That all assignments made under the provisions of this act shall be subject to the limitations, charges, terms, and conditions of the reclamation act. (36 Stat. 592.)

NOTES

Amendment.—Act May 8, 1916 (39 Stat. 65), amends this act.

What may be assigned.-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, must conform his entry to a farm unit, but is entitled under the provisions of this act to assign the remaining portion of his entry; and the rights acquired by such settlement and entry bar the attachment of any rights to the land on behalf of the State under its school grant. (Sarah E. Allen, 44 L. D. 331.)

Where a homestead entry with n a reclamation project was, after the submission of final proof, conformed to a farm unit and canceled on relinquishment as to the remainder, prior to the act of June 23, 1910, the entry will not be reinstated as to the canceled portion for the purpose of permitting the entryman to assign such portion under the provisions of that act. (Douglas Lytle,

42 L. D. 157.)

The act has no application to entries which prior thereto had been adjusted to farm units and canceled as to the residue, after due notice; and an attempted assignment under the act of land so eliminated as residue is without authority of law and can not be recognized. (Dennis Bell, 41 L. D. 394.)

Where, in conforming a homestead entry, within a reclamation project to farm un ts, a legal subdivision thereof, not retained by the entryman, is, with other vacant land, embraced in a farm unit, the entryman can not thereafter, under the provisions of this act, assign such tract as a legal subdivision, for the reason that the legal subdivision, as such, no longer exists, having been merged in the farm unit; nor can he make assignment under the act of the farm unit into which such legal subdivision has been merged, for the reason that the farm unit includes land not embraced in his original entry. (Robert C. Newlon et al., 41 L. D. 422.)

Where a homestead entry within a reclamation project was conformed to a farm unit and canceled as to the remainder, at a time when the entryman could not have made five-year proof, the entry will not thereafter be reinstated as to the canceled portion for the purpose of permitting the entryman to submit final five-year proof thereon with a view to assigning such portion under the provisions of the act of June 23, 1910. (Alexander P. Jacobs, 40 L. D. 322.)

The act of June 23, 1910, authorizing assignments of entries within reclamation projects, after the acceptance of final proof thereon, does not limit such assignments to legal subdivisions; and an entryman may thereunder assign his entry as a whole or "any part thereof." (Blanche W. Peabody, 44 L. D. 219.)

Where farm un ts have been established within a reclamation project, they become the smallest legal subdivisions subject to disposition, and assignments of lands within the project under the act of June 23, 1910, can thereafter be made only in accordance with such subdivisions. (Sarah S. Long, 39 L. D. 297.)

Where, prior to an exchange of reclamation farm units under the act of March 4, 1915 (38 Stat. 1215), the entryman has, in connection with the original unit, fulfilled the ordinary homestead requirements and submitted proper proof thereof, the lieu farm unit may be assigned under this act, subject to compliance with the requirements of the reclamation law as to payment, reclamation, and cultivation. (Sarah E. Lewellen, 46 L. D. 385.)

This act, which authorizes the assignment of a reclamation homestead, does not require that an assignee shall have the qualifications of a homesteader, nor does it contemplate that the assignment shall in any sense be considered as a "homestead entry," and consequently a transfer thereunder is not invalid for the reason that it embraces two incontiguous tracts. (Breipohl, Ass gnee of Minnick, 48 L. D. 295.)

Fraudulent assignment may be annulled.—The land department has jurisdiction to determine the truth of a charge that an assignment of a homestead entry within a reclamation project, under the act of June 23, 1910, was obtained by fraud, and if found to have been so obtained, to annul the assignment. (Delano v. Messer et al., 44 L. D. 199.)

Assignees, qualifications of. To entitle one to take by assignment under the act of June 23, 1910, he must show that he has not acquired title to and is not claiming any other farm unit or entry under the reclamation act. (Sarah S. Long, 39 L. D. 297.)

Assignments of homestead entries within reclamation projects under the act of June 23, 1910, may be made only to persons qualified to make entry under the general homestead laws, and subject to the limitations, charges, terms, and conditions of the reclamation act. (Robert C. Newlon et al., 41 L. D. 421.) Reversed: It is not necessary that assignees of homestead entries within reclamation projects under the act of June 23, 1910, be qualified to make entry under the general homestead laws. (Sadie A. Hawley, 43 L. D. 365.)

An assignee under the act of June 23, 1910, of a homestead entry within a reclamation project, made under the provisions of the reclamation act, is not required to reside upon the land or in the vicinity thereof as a condition prerequisite to obtaining a patent and water right. (Secretary's instructions of April 2, 1914, 43 L. D. 456.)

The owner of a homestead entry under the national irrigation act of June 17, 1902, is not qualified to take by assignment another such entry. (Departmental decision, November 7, 1917, 46 L. D. 227.)

Married women.-A married woman, otherwise qualified, is competent to take an assignment of lands within a reclamation project under the act of June 23, 1910. (Sadie A. Hawley, 43 L. D. 364. Robert C. Newlon, 41 L. D. 421, and

Noah A. Snook et al., 41 L. D. 428, overruled in so far as in conflict.) A married woman may, under the act of June 23, 1910, take an assignment of a homestead entry made under the reclamation act, upon which satisfactory final proof has been made, showing residence and cultivation for the required time, but upon which not all of the water-right charges have been paid, provided the laws of the State or Territory in which the entry is located permit a married woman to purchase and hold real estate as a femme sole; but she will be required to show, in addition to the usual requirements in such cases, that the purchase is made with her own separate money, in which her husband has no interest or claim; that the assignment is not taken for the use or benefit of her husband, and that she has no agreement or understanding by which any interest therein will inure to his benefit; and that the water right thus sought by assignment, together with such other water rights as may be already held in possession by such assignee, will not aggregate water rights for more than 160 acres of land, furnished under the reclamation act. (Secretary's instructions of February 21, 1911, 39 L. D. 504.)