RELINQUISHMENT OF SECOND-FORM LANDS

An act to amend section 5 of the act of Congress of June 25, 1910, entitled "An act to authorize advances to the 'reclamation fund,' and for the issue and disposal of certificates of indebtedness in reimbursement therefor, and for other purposes." (Act February 18, 1911, ch. 111, 36 Stat. 917)

[Sec. 1. Entries prior to June 25, 1910-Disposal of relinquished lands.]-That section five of an act entitled "An act to authorize advances to the 'reclamation fund,' and for the issue and disposal of certificates of indebtedness in reimbursement therefor, and for other purposes," approved June twenty-fifth, nineteen hundred and ten (Thirty-sixth Statutes at Large, page eight hundred and thirty-five), be, and the same hereby is, amended as follows:

"SEC. 5. That no entry shall be hereafter made and no entryman shall be permitted to go upon lands reserved for irrigation purposes until the Secretary of the Interior shall have established the unit of acreage and fixed the water charges and the date when the water can be applied and made public announcement of the same: Provided, That where entries made prior to June twenty-fifth, nineteen hundred and ten, have been or may be relinquished in whole or in part, the lands so relinquished shall be subject to settlement and entry under the homestead law as amended by an act entitled 'An act appropriating the receipts from the sale and disposal of the 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 (Thirty-second Statutes at Large, page three hundred and eighty-eight)." (36 Stat. 917.)

NOTES

Amendment.-Section 10, act of August 13, 1914 (38 Stat. 686), amends this

act.

Establishment of farm unit.-Under the act of June 25, 1910, as subsequently amended, lands reserved for irrigation purposes are not subject to settlement or entry until the Secretary of the Interior shall have established the unit of acreage per entry and announced that water is ready to be delivered, and no exception to the rule can be made in favor of an applicant who seeks to make an additional entry of such lands in the exercise of a preference right acquired by contest. (Departmental decision, Bert Scott, April 21, 1921, 48 L. D. 85.)

Entries affected.-This act applies to all entries embracing lands reserved for irrigation purposes made prior to June 25, 1910, which have been or may be relinquished, where the entrymen, by means of the provisions of the act of June 25, 1910 (36 Stat. 835), prohibiting entries for such lands until public notice of water charges, etc., has been issued, have been or may be prevented from realizing the value of the improvements placed by them on their entries by selling such improvements to others desiring to make entry for the lands upon relinquishment of the existing entries therefor. (Fredrek Steebner, 43 L. D. 263.)

The provision that upon relinquishment of an entry within a reclamation withdrawal the lands so relinquished shall be subject to homestead settlement

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125

and entry under the reclamation act, has reference only to lands covered by second-form withdrawals, and has no application to lands withdrawn under the first form. (Annie G. Parker, 40 L. D. 406; Ernest Farrington, 40 L. D. 627; Robert H. Williams, 41 L. D. 68. General Land Office instructions of January 25, 1921, 47 L. D. 625.)

The act contemplates only entries legally made prior to the act of June 25, 1910, and afterwards relinquished, and has no application where the former entry was one in form only and in legal contemplation a mere nullity, having been erroneously allowed while the lands were embraced in a first form withdrawal under the reclamation act. (Annie G. Parker, 40 L. D. 406.)

The act has no application where cancellation of the entry was the result of a contest and not of a relinquishment. (Fred V. Hook, 41 L. D. 67.)

It is applicable only to entries under the reclamation act and can not be invoked as to entries canceled prior to the reclamation act or made before and afterwards canceled for fraud. (Ethel M. Catron, 42 L. D. 7.)

It applies only to entries of record next previous to the passage of the act of June 25, 1910, and can not be invoked upon the basis of a relinquished entry preceding the entry of record at the date of the passage of the act. (Fred Anderson, 45 L. D. 504.)

Effect of relinquishment.-Upon relinquishment of an entry made prior to June 25, 1910, within a reclamation withdrawal, the lands so relinquished became subject generally to settlement and entry under the homestead law, subject to the provisions of the reclamation act, and there is no authority for further limiting the right of entry of such lands. (Lena Hektner, 42 L. D. 462.) Lands uncovered by conformation not relinquished.-Where a homestead entry covering lands within a reclamation withdrawal is conformed to a farm unit, the lands thereby uncovered are not relinquished within the meaning of this act, and are not subject to entry thereunder. (Robert H. Williams, 41 L. D. 69.) Canceled entry revived. This homestead entry of lands within a reclamation withdrawal, allowed after the entryman had in good faith purchased the relinquishment of a prior entry for the same land under this act, is permitted to remain intact, notwithstanding the prior entry had been canceled though not noted as canceled upon the records of the local office at the time the relinquishment was filed and the entry in question allowed, it appearing that the transaction was in entire good faith and neither the prior entryman, the present entryman, nor the local officers had actual knowledge of the cancellation at that time. (Fredrek Steebner, 43 L. D. 263.)

The rule that no application to enter shall be received until proper notation of the cancellation of a prior entry is made upon the records of the local land office was adopted for administrative purposes and designed primarily for the protection of the rights of contestants and will not be applied with the same strictness in cases solely between the Government and an entryman or an applicant for entry. (Idem.)

Miscellaneous.

thereunder.

See section 5, act June 25, 1910 (36 Stat. 835), and notes

See sections 1-4, inclusive, general reclamation circular, approved May 18, 1916 (45 L. D. 385).

DISPOSITION OF SURPLUS WATERS AND COOPERATION IN

IRRIGATION WORK

An act to authorize the Government to contract for impounding, storing, and carriage of water, and to cooperate in the construction and use of reservoirs and canals under reclamation projects, and for other purposes.1 (Act February 21, 1911, ch. 141, 36 Stat. 925)

[Sec. 1. Sale of excess water-Distribution to individual users-Restriction-Fixing of charges-Limitation on price to water users.]-That whenever in carrying out the provisions of the reclamation law, storage or carrying capacity has been or may be provided in excess of the requirements of the lands to be irrigated under any project, the Secretary of the Interior, preserving a first right to lands and entrymen under the project, is hereby authorized, upon such terms as he may determine to be just and equitable, to contract for the impounding, storage, and carriage of water to an extent not exceeding such excess capacity with irrigation systems operating under the act of August eighteenth, eighteen hundred and ninety-four, known as the Carey Act, and individuals, corporations, associations, and irrigation districts organized for or engaged in furnishing or in distributing water for irrigation. Water so impounded, stored, or carried under any such contract shall be for the purpose of distribution to individual water users by the party with whom the contract is made: Provided, however, That water so impounded, stored, or carried shall not be used otherwise than as prescribed by law as to lands held in private ownership within Government reclamation projects. In fixing the charges under any such contract for impounding, storing, or carrying water for any irrigation system, corporation, association, district, or individual, as herein provided, the Secretary shall take into consideration the cost of construction and maintenance of the reservoir by which such water is to be impounded or stored and the canal by which it is to be carried, and such charges shall be just and equitable, as to water users under the Government project. No irrigation system, district, association, corporation, or individual so contracting shall make any charge for the storage, carriage, or delivery of such water in excess of the charge paid to the United States except to such extent as may be reasonably necessary to cover cost of carriage and delivery of such water through their works. (36 Stat. 925.)

Textual note.-Section 1 of the Warren Act is codified as section 523, United States Code, the introductory word "That" being omitted, and reference being made to "chapter 14 of this title" instead of to "the act of August eighteenth, eighteen hundred and ninety-four."

NOTES

Contract to supply water.-Under the provisions of the reclamation act, June 17, 1902, and the Warren Act, February 21, 1911, the Secretary of the Interior is authorized and has the power to contract with an irrigation district for supplying water to such district, or partially supplying it with water, for the irrigation of the lands therein and for the drainage of other lands within such

Popularly known as the Warren Act, being so named for Senator Francis E. Warren, of Wyoming.

SURPLUS WATERS AND COOPERATION IN IRRIGATION WORK 127

district.

(Pioneer Irrigation District v. Stone (1913), 23 Idaho, 344, 130 Pac. 382. Followed in Hillcrest Irrigation District v. Brose (1913), 24 Idaho, 376, 133 Pac. 663; Nampa and Meridian Irrigation District v. Petrie et al. (1915), 153 Pac. 425; and Nampa and Meridian Irrigation District v. Petrie (1924, 223 Pac. 531; 37 Ida. 45.)

Validity of contract.-Under the Warren Act a contract between the United States and a land company for the delivery to the latter of water which escaped by seepage from the canal of a reclamation project was a valid contract, which gave the United States the right to conserve and deliver water thereunder. (Ramshorn Ditch Co. v. U. S. (C. C. A. Neb. 1920) 269 Fed. 80, affirming U. S. v. Ramshorn Ditch Co. (D. C. 1918) 254 Fed. 842.)

In view of the reclamation act, the Warren Act, and the legislation of Wyoming and Nebraska, an appropriation of water by the Reclamation Service (Bureau of Reclamation) for the irrigation of lands in Nebraska is valid, though the source of the supply is in Wyoming. (Idem.)

Application of plan of payment under fact-finders' law. There appears to be nothing in subsection F, section 4, act of December 5, 1924 (fact-finders' law) to prevent the application of the new plan of payment to Warren Act contractors in cases where the new plan is desired by the water users and found by the Secretary to be desirable. (51 L. D. 209-210; C. L. 1360, February 3, 1925.)

Estoppel to question Government's claim.-On June 14, 1915, the Bridgeport irrigation district entered into a Warren Act contract with the United States for the purchase of a water supply from Pathfinder Reservoir, North Platte project. The contract was not authorized by a vote of the electorate of the district. The district paid the amounts due under the contract for the years 1915 to 1919, but failed to make the construction charge payments due under the terms of the contract for the years 1920 to 1924, amounting to $54,334. Suit was brought by the United States to enforce collection. To the Government's complaint the district answered that the board of directors did not, under the Statutes of Nebraska, have the authority to execute the contract, unless authorized to do so by a vote of the electorate of the district. The Government demurred. On July 15, 1929, the District Court of the United States for the District of Nebraska held that the district board of directors was authorized, without an election, to make the contract under sections 3465 and 3466, Revised Statutes of Nebraska, 1913, and under chapter 69 of Nebraska Session Laws, 1915, amending section 3466. Furthermore, the court held that the defendant was estopped, by reason of its long delay to assert the claim of its answer against the Government. The court cited various cases (see New Reclamation Era, Oct., 1929, p. 160) as upholding the contention of the United States. (Memorandum decision by Judge Woodrough, dated July 15, 1929, In re U. S. v. Bridgeport Irr. Dist. Affirmed by U. S. C. C. A., 8th Circuit, May, 1930, 40 Fed. (2d) 827). Petition for certiorari to Sup. Ct. denied October 20, 1930 (282 U. S. 866).

Timber. Under this act authorizing the Reclamation Service (Bureau of Reclamation) to cooperate with private parties in carrying out projects under the Carey Act, the Kuhn Irrigation & Canal Co. may be permitted to take timber from the Teton National Forest free of charge for use in raising the dam at Jackson Lake, Wyo., which is a project authorized under the reclamation act of June 17, 1902. (1915) (30 Op. Atty. Gen. 398.)

Cancelation of rights of way. The Secretary of the Interior properly canceled rights of way on the failure of the irrigation company to secure necessary financial arrangements pursuant to contract entered into under this section. (Verde River Irrigation & Power District v. Work (D. C. Ariz. 1928) 24 Fed. (2d) 886.) Certiorari denied (1929) 49 Sup. Ct. 350, 279 U. S. 854, 73 L. Ed. 996. Circular letters.-No. 868, February 10, 1920, and No. 872, February 21, 1920, concerning requirement for map showing boundaries of lands covered by Warren Act and other contracts.

No. 1171, November 3, 1922. Form of contract for sale of water under the Warren Act for a single farm.

Sec. 2. [Cooperation with water users for reservoirs-Title to worksLimit on water furnished-Water rights of United States not enlarged.]—That in carrying out the provisions of said reclamation act

128 SURPLUS WATERS AND COOPERATION IN IRRIGATION WORK

and acts amendatory thereof or supplementary thereto, the Secretary of the Interior is authorized, upon such terms as may be agreed upon, to cooperate with irrigation districts, water users' associations, corporations, entrymen, or water users for the construction or use of such reservoirs, canals, or ditches as may be advantageously used by the Government and irrigation districts, water users' associations, corporations, entrymen or water users for impounding, delivering, and carrying water for irrigation purposes: Provided, That the title to and management of the works so constructed shall be subject to the provisions of section six of said act: Provided further, That water shall not be furnished from any such reservoir or delivered through any such canal or ditch to any one landowner in excess of an amount sufficient to irrigate one hundred and sixty acres: Provided, That nothing contained in this act shall be held or construed as enlarging or attempting to enlarge the right of the United States, under existing law, to control the waters of any stream in any State. (36 Stat. 926.)

Textual note. This section is codified as section 524, United States Code, the introductory word "That" being omitted, and reference being made to "reclamation law,” etc., instead of to "reclamation act.'

NOTES

The second proviso to this section is intended to be a restriction upon the area which may be irrigated from water furnished from a Government project. It is not a restriction upon the amount of water which may be delivered to a tract of land in single ownership. (Dec. Sol. Int. Dept., March 3, 1927, M-21709.)

Contract with irrigation district. Where a State irrigation district had purchased from the Reclamation Service (Bureau of Reclamation) a water right which was not yet paid for, and had contracted to carry through its canals water for the reclamation project, and there was grave danger that the irrigation district would be unable to operate its system, the Reclamation Service (Bureau of Reclamation) had such an interest in the district that it might contract for the operation of the district under this section. (New York Trust Co. v. Farmers' Irr. Dist. (C. C. A. Nebr. 1922), 280 Fed. 785.)

The Reclamation Service (Bureau of Reclamation) has authority to take over the operation of a State irrigation district system for the purpose of protecting its claims against the district without acquiring absolute title to the project. (Idem.)

Nevada Supreme Court holds contract valid.-The Truckee-Carson Irrigation District under date of January 22, 1921, entered into a contract with the United States by which the United States agreed to expend a maximum of $700,000 toward the drainage of the district lands, which comprise a portion of the Newlands project. Statutory proceedings to confirm the contract were brought and upon appeal to the Supreme Court of the State the court (April 5, 1926) upheld the constitutionality of the Nevada irrigation district law and confirmed the proceedings, finding the irrigation district to have been duly organized and the contract to be valid. The court also upheld the power, given to the district by a State statute, to assess high lands for drainage charges when such high lands contributed to the seeped condition of the lower lands of the district. It was also held that drainage assessments might be levied at a flat rate, if the district board found as a fact that the benefits to the land in the district were equal. (McLean v. Truckee-Carson Irrigation District (1926), 245 Pac. 285; 49 Nev. 278.) (See also In re Lovelock Irr. Dist., 273 Pac. 983.)

Authority to execute contract.-The Solicitor for the Interior Department in an opinion approved by the department April 17, 1928, considered section 2 of the Warren Act (act of February 21, 1911, 36 Stat. 925), in connection with section 16 of the act of August 13, 1914 (38 Stat. 686), and held that section 16 of the latter act did not prohibit the execution by the United States of a con