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provisions of this section, were contained in Public Resolution No. 3, May 17, 1921 (42 Stat. 4), and in section 2, act of March 31, 1922 (42 Stat. 490), as amended by section 4, act of February 28, 1923 (42 Stat. 1325).

"Calendar year."-The term as used in this section refers to a period from January 1 to December 31, inclusive. (Secretary's decision, May 24, 1916; C. L. 564, June 6, 1916.)

Water may be withheld from landowner in arrears for maintenance charge. Even if the Federal Government and its agents must conform to the State laws in the matter of initiating and perfecting appropriations from nonnavigable stream in Idaho, for an irrigation system constructed and maintained under the reclamation act, the manager of such Government project may, as authorized by section 6, act of August 13, 1914, withhold water from land within the project where owner is in arrears for year for maintenance charge, though under the general State rule, held applicable to Carey Act companies and other quasipublic corporations appropriating water for sale, water may be refused only in respect to charges for current expenses, after demanding payment in advance. (Mower v. Bond (D. C. Idaho, 1925), 8 Fed. (2d) 518.)

Estoppel to withhold water from a landowner in a Federal reclamation project held insufficiently pleaded.—Estoppel to withhold water from a landowner in a Federal reclamation project for being in arrears for more than a year in payment of maintenance charge held insufficiently pleaded, there being, besides a qualified and unsatisfactory allegation of plaintiff's inability to pay, only an allegation that defendant did not promptly, at the beginning of year, shut off the water. (Idem.)

Lien on crops.-Lien on delinquent's crops required as condition to right to continue use of water from Government's project. (Idem.)

Penalties. Under section 501, act of March 8, 1918 (40 Stat. 440), penalties arising under this section upon prior defaulted construction or operation and maintenance charges will not run during the period of the military service. (Departmental decision, May 16, 1919, 47 L. D. 167; C. L. 820.)

The same penalties as are provided for in this act apply to delinquent payments under the act of February 25, 1920 (41 Stat. 1920), for furnishing water for miscellaneous purposes. (Departmental instructions, June 9, 1920,

47 L. D. 404.)

When water charges become due.-A suit was brought by landowners to restrain the board of directors of the Elephant Butte irrigation district from including in its budget for the 1927 tax rolls the estimated cost of operation and maintenance for the ensuing year on the ground that the district would not disburse such amounts to the United States, under its contracts and annual notices, until the year following that in which the charges were incurred, or the second ensuing year from the one in which the budget in question was made. The court sustained the action of the board and denied a motion for rehearing upon the district's contention that it was deemed sound business practice at the time to anticipate the estimated operation and maintenance cost for the ensuing year even though, under the practice then prevailing, such amount would not necessarily be disbursed by the district during that year. (Sperry v. Elephant Butte Irrigation District (1928), 270 Pac. 889, 33 N. Mex. 482.)

See notes under sections 3 and 5 of this act with reference to time when water charges become due.

Suit for water charges.-The provisions of sections 3 and 6 of the extension act, in reference to 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.)

Extension of time not authorized. The provisions of the act of March 31, 1922 (42 Stat. 489), which affords relief to settlers on reclamation projects with reference to operation and maintenance charges, simply relax the requirements of section 6 of the act of August 13, 1914, by permitting the Secretary of the Interior, in his discretion, to furnish irrigation water, during the time specified therein, to landowners or entrymen who are in arrears for more than one calendar year, and nothing contained therein authorizes the extension of

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time for the payment of such charges. (Lower Yellowstone Irrigation Districts Nos. 1 and 2, 49 L. D. 301.)

Water withheld until back charges paid.-Where water is rented under a regution that the unpaid rentals upon the same land for previous years must be paid, before water is furnished, the regulation will be enforced even after a change of ownership, the new owner being required to pay up the water rental charges incurred by the previous owner before water will be delivered. (Decision of First Assistant Secretary, June 18, 1935.

Circular letters.-No. 378, October 17, 1914, regarding operation and maintenance charges.

No. 497, June 2, 1915, in reference to payments by nonresident landowners and effect thereof.

No. 524, December 11, 1915, regarding payment first installment of construction charge.

No. 633, February 10, 1917, collection of operation and maintenance charges. No. 680, acceptance of payments on current bills when prior bills are unpaid. No. 1005, May 18, 1921, re Public Resolution No. 3 (42 Stat. 4), authorizing water during season of 1921 to applicants or entrymen in arrears for more than one calendar year for payment of operation and maintenance charges.

Nos. 1027 and 1689, regarding procedure relative to delinquent water accounts. No. 1197, March 7, 1923 (paragraph 5 of regulations), regarding delivery of water in 1923.

Miscellaneous reference.-New York Canal Co. v. Bond (1920), (C. C. A. Ida.) 265 Fed. 228.

Sec. 7. [Local association may be appointed fiscal agent for the United States to collect charges-Official receipt.]-That the Secretary of the Interior is hereby authorized, in his discretion, to designate and appoint, under such rules and regulations as he may prescribe, the legally organized water users' association or irrigation district, under any reclamation project, as the fiscal agent of the United States to collect the annual payments on the construction charge of the project and the annual charges for operation and maintenance and all penalties: Provided, That no water-right applicant or entryman shall be entitled to credit for any payment thus made until the same shall have been paid over to an officer designated by the Secretary of the Interior to receive the same. (38 Stat. 688.)

Textual note. This section codified as section 477, title 43, United States Code, the only change being the omission of the introductory "That" at the beginning of the section.

NOTES

Equitable relief from contract.-Where a contract between the United States and a water users' association provided that the latter should promptly collect such charges as should be apportioned to its shareholders, the fact that the cost was greater than expected can not be urged as a ground for equitable relief. (Yuma County Water Users' Ass'n v. Schlect (C. C. A. Ariz. 1921), 275 Fed. 885; affirmed (1923), 43 Sup. Ct. 498, 262 U. S. 138, 67 L. Ed. 909.) See circular letter, No. 500, June 4, 1915, as to fiscal agents.

See Nampa and Meridian Irrigation Dist. v. Petrie (153 Pac. 425, and 223 Pac. 531).

Sec. 8. [Authority to make regulations governing use of water, reclamation, and cultivation-Penalty for noncompliance with regulations.]— That the Secretary of the Interior is hereby authorized to make general rules and regulations governing the use of water in the irrigation of the lands within any project, and may require the reclamation for agricultural purposes and the cultivation of one-fourth the irrigable area under each water-right application or entry within three full irrigation seasons after the filing of water-right application or entry, and the reclamation for agricultural purposes and the

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cultivation of one-half the irrigable area within five full irrigation seasons after the filing of the water-right application or entry, and shall provide for continued compliance with such requirements. Failure on the part of any water-right applicant or entryman to comply with such requirements shall render his application or entry subject to cancellation. (38 Stat. 688.)

Textual note.-This section is codified as section 440, title 43, United States Code, the introductory word "That" being omitted.

1

NOTES

Miscellaneous references.-Questions and answers, November 7, 1914, regarding the act in general.

Departmental regulations of May 3, 1915, concerning reclamation and cultivation, 44 L. D. 89.

Sec. 9. [Additional construction charges for certain lands.]-That in all cases where application for water right for lands in private ownership or lands held under entries not subject to the reclamation law shall not be made within one year after the passage of this act, or within one year after notice issued in pursuance of section four of the reclamation act, in cases where such notice has not heretofore been issued, the construction charges for such land shall be increased five per centum each year until such application is made and an initial installment is paid. (38 Stat. 689.)

Textual note.-The substance of this section is codified as section 464, title 43, United States Code. NOTES

Purpose of section and lands affected.-Section 9 of the extension act is intended to encourage the early filing of water-right applications for land which has not been subjected to the reclamation law. In the extension act Congress kept clear the distinction between the two classes of land involved, one subjected to the reclamation law and one not subjected to that law. In the former case Congress fixed a definite rate when the first installment of the construction charge should become due and provided a penalty of 1 per cent a month for nonpayment. In the latter case, where the lands were not bound by any prior agreement, Congress provided the 5 per cent increase in section 9 to induce early application. From a careful survey of the entire law it appears evident that the application of section 9 is limited to lands in private ownership not subject to the reclamation law and to entries not subject to the reclamaion law. Section 9, therefore, does not apply to any lands under section 2, which section deals exclusively with lands "subject to the terms and conditions of the reclamation law." (Departmental decision, October 18, 1919, C. L. 852; 47 L. D. 285, C. L. 862, December 19, 1919, gives further instructions regarding the interpretation of section 9.)

Date when increase attaches.-The date on which the increase in construction charges provided by this section first becomes effective is the day next following the expiration of one year after date of approval of the act, or one year after date of public notice, as the case may be. In the former instance the increases accrue on August 14. (Reclamation decision, October 18, 1917, C. L.

704, supplementing C. L. 516.)

Status of State lands.--Lands owned by the State of South Dakota under its school land grant do not literally fall within the term "lands in private ownership or lands held under entries not subject to the reclamation law" as used in section 9 of the act of August 13, 1914 (38 Stat. 686). Under the legis lation of the State several conditions must be present before they may be offered for sale and, further, within irrigation projects of the United States, they can not be sold until the farm units have been established. The State has an important interest in these lands and its interest is entitled to consideration, so that the sale will be in harmony with its laws and made at a

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time when, under all the circumstances, it will prove beneficial to the fund to be used for common schools, without unnecessary delay to the injury of the reclamation project. The purpose of section 9 was to induce private owners of lands and entrymen promptly to subject their lands to the construction, operation, and maintenance charges, secure a general use of the water, and rapidly place the lands in cultivation to the benefit both of the United States and the water users. The State does not irrigate and cultivate its lands, but disposes of them to private individuals. Such individuals are unable to present any water-right application until the State has offered the lands for sale, and the addition to the construction charge of the penalty under section 9 would penalize the purchaser from the State because the State officers acting within the discretion conferred upon them by the State law had not made an earlier sale. Such State lands are also not within the spirit of said section 9, but fall rather in the same category as unentered public lands of the United States. (Departmental decision, May 31, 1918, re Benjamin F. Newkirk (Belle Fourche), 46 L. D. 400.)

Miscellaneous circular letters.-Questions and answers, November 7, 1914, regarding the act in general.

No. 497, June 2, 1915, in reference to payments by nonresident landowners and effect thereof.

No. 516, September 2, 1915, regarding accumulation of construction charges. No. 541, February 17, 1916, as to supplemental construction.

In the case of lands for which water-right application is made under section 2 of this act the 5 per cent increase in construction charges provided for by this section ceases when the water-right application is made; but in cases where water-right application is made for lands under section 1, said increase does not cease until both the application is made and the initial installment is paid. (Reclamation commission decision, March 17, 1917, C. L. 640.)

Sec. 10. [Entries prior to June 25, 1910-Disposal of relinquished lands.]-That the act of Congress approved February eighteenth, nineteen hundred and eleven, entitled "An act to amend section five of the act of Congress of June twenty-fifth, nineteen hundred and ten, entitled 'An act to authorize advances to the reclamation fund and for the issuance and disposal of certificates of indebtedness in reimbursement therefor, and for other purposes,"" be, and the same hereby is amended so as to read 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 per entry, and water is ready to be delivered for the land in such unit or some part thereof and such fact has been announced by the Secretary of the Interior: 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 reclamation law." (38 Stat. 689.)

Textual note. The substance of this section down to the proviso is codified as section 436, title 43, United States Code. The proviso is codified as section 437, title 43, United States Code.

NOTES

Lands not subject to entry before establishment of farm units. The proviso to section 10 of the act of August 13, 1914, which amended section 5 of the act of June 25, 1910, does not contemplate that lands entered prior to June 25, 1910, and relinquished subsequently to the creation of a second form withdrawal, shall be subject to entry before the establishment of farm units and announcement of the availability of water, except by one who had acquired an equity in the relinquished entry. (William Warnke, 48 L. D. 557.)

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Rights of entry.-In United States ex rel. Harden v. Fall (1921), Secretary of the Interior (276 Fed. 622), the Circuit Court of Appeals of the District of Columbia holds with the appellant Harden that the right, given by section 10 of act of August 13, 1914 (38 Stat. 686), to enter lands withdrawn for irrigation purposes under the reclamation law, if the lands were acquired by a prior entry since relinquished, is not limited to those in privity with the original entryman through purchase of the relinquishment or otherwise. The appellant Harden was denied relief, however, on the ground that his entry was initiated at a time when the land was withdrawn under the first form and it was therefore void and could not be made valid by a subsequent order of the Secretary of the Interior declaring the land was not needed for construction purposes. Cross reference.-See notes under section 5, act of June 25, 1910 (36 Stat. 835), and under act of February 18, 1911 (36 Stat. 917).

See Chapman v. Pervier, 46 L. D. 114 and 188.

See departmental decision of April 21, 1921. (Bert Scott, 48 L. D. 85.)

Sec. 11. [Furnishing water before regular rates are fixed.]—That whenever water is available and it is impracticable to apportion operation and maintenance charges as provided in section five of this act, the Secretary of the Interior may, prior to giving public notice of the construction charge per acre upon land under any project, furnish water to any entryman or private landowner thereunder until such notice is given, making a reasonable charge therefor, and such charges shall be subject to the same penalties and to the provisions for cancellation and collection as herein provided for other operation and maintenance charges. (38 Stat. 689.)

Textual note.-The substance of this section is codified as section 465, title 43, United States Code.

NOTES

Regulations.-Subsection H, section 4, act of December 5, 1924 (fact finders' act) is applicable to rental charges under section 11 of the reclamation extension act. See C. L. 1387, March 25, 1925, or 51 L. D. 218.

See circular letter No. 533 A, February 5, 1916, in reference to payment of water rental charges, C. L. 1186, January 3, 1923, penalties on account of water rental charges.

Sec. 12. [Owners of private lands under new projects must dispose of excess area-Lands excluded upon refusal.]-That before any contract is let or work begun for the construction of any reclamation project. hereafter adopted the Secretary of the Interior shall require the owners of private lands thereunder to agree to dispose of all lands. in excess of the area which he shall deem sufficient for the support of a family upon the land in question, upon such terms and at not to exceed such price as the Secretary of the Interior may designate; and if any landowner shall refuse to agree to the requirements fixed by the Secretary of the Interior, his land shall not be included within the projects if adopted for construction. (38 Stat. 689.)

Textual note.-Codified as section 418, title 43, United States Code, the introductory word "That" being omitted, and the words "hereafter adopted" changed to read "adopted after August 13, 1914."

Sec. 13. [Entries to be reduced to single farm units-Time for making proof Cancellation of excess entries-Issue of patents-Assignments restricted.]-That all entries under reclamation projects containing more than one farm unit shall be reduced in area and conformed to a single farm unit within two years after making proof of residence, improvement, and cultivation, or within two years after the issuance of a farm-unit plat for the project, if the same issues subsequent