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NEW MEXICO AND ARIZONA ENABLING ACT

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[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, the word "exempted" in the second line reading "excepted,” and reference being made to "section twenty-four" instead of to "section eleven," in the last line.

Sec. 24. [Additional grant for common schoolsSelections 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 twentytwo hundred and seventy-five and twenty-two hundred and seventysix 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.

1910, ch. 318, 36 Stat. 583)

(Act June 22,

[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.)

Textual note.-The substance of this section is codified as section 83, title 30, United States Code, the words "That from and after the passage of this act,"'at the beginning of the section, being omitted ; and citation to sections of the code being made instead of to the Statutes at Large.

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.)

Textual note.—The substance of this section is codified as section 84, title 30, United States Code, the introductory word "That" being omitted ; and citation to sections of the code being made instead of to the Statutes at Large.

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 projects Patent—Conditions.]—That from and after the filing with the Commissioner of the General Land Office of satisfactory proof of residence, improvements, 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.)

Textual note.-This act is codified as section 441, title 43, United States Code, with the following changes : The introductory word "That''is omitted ; "act of June seventeenth, nineteen hundred and two," reads "reclamation law"; "said act of June seventeenth Dineteen hundred and two' reads "said law"; and the last word of the act is changed from "act” to “law."

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 within 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 bel 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 units, 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 110

ASSIGNMENT OF RECLAMATION HOMESTEAD ENTRIES

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 units 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, Assignee 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 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 ASSIGNMENT OF RECLAMATION HOMESTEAD ENTRIES 111

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.)

Minors.-Minors are not qualified to take by assignment farm units upon which reclamation charges have not been paid in full. (Secretary's instructions of February 1, 1916, 45 L, D. 22.)

Aliens.—The act of June 23, 1910, authorizing assignments of homestead entries within reclamation projects after the submission of satisfactory final proof, does not limit such assignments to citizens of the United States; and assignment under that act may be made and patent issued to an alien, the rights thereby acquired depending upon the statutes of the State respecting the rights of aliens to acquire and hold real property. (Secretary's instructions of July 16, 1915, 44 L, D. 202.)

An alien who has submitted five-year proof upon a reclamation homestead entry which is satisfactory except as to his citizenship qualifications may make a valid assignment of the entry under the act of June 23, 1910. (Benner, Powell, Transferee, 50 L. D. 4.)

Corporations.—To entitle a corporation to take an assignment of a portion of a reclamation entry under the act of June 23, 1910, it must show that it is not claiming any other farm unit or entry under the reclamation act, and that each of its stockholders is duly qualified to take an assignment under that act, notwithstanding the entryman from whom the corporation is seeking to take the assignment has complied with the provisions of the homestead law as to residence, improvement, and cultivation upon the land involved. (Pleasant Valley Farm Co., 42 L, D. 253.)

In decision A-16335, dated March 8, 1932, the Assistant Secretary reversed the decision of the Commissioner of the General Land Office in the case of the Great Western Insurance Co., a corporation, assignee of reclamation homestead entry for lands in the Cheyenne, Wyo., land district. It was found that the appellant company did not take the assignment and apply for a water right with intention of holding and cultivating the land in competition with individuals or families, and it was believed that the recognition of the assignment and the granting of a water right to the company would not be in violation of the spirit of the regulations of July 11, 1913, there being no statute which prohibits a corporation from tak a reclamation entry by assignment. (Digest of instructions of July 11, 1913, 42 L. D. 250, may be found in par. 5 of notes following section 4 of act of June 17, 1902.)

Purchaser at sheriff's sale.—The purchaser at sheriff's sale of the land embraced in a homestead entry within a Federal irrigation project is an assignee of such entry under this act, if otherwise qualified, as of the date of the sheriff's sale, even though the land be eliminated from the project prior to delivery of the sheriff's deed. (Marshall Humphrey, 46 L. D. 370.)

Descent of entry.- Where a reclamation homestead entryman dies after he has offered satisfactory final proof the entry becomes a part of the assets of his estate, and when duly sold as such by the administrator, the purchaser, if otherwise qualified, will be recognized as the assignee of the entryman under the act of June 23, 1910. (Edward Pierson, 47 L. D. 625.)

Mortgage.—The departmental regulations relating to an assignment of a homestead entry, within a reclamation project, contemplate that such assignment shall be submitted to the General Land Office for its acceptance or denial and where a party chooses, with the view to effecting a transfer in derogation of law, to proceed contrary to the regulations, he must abide by the consequence of such attempted evasion when the transaction is brought to the attention of the land department by contest; and a breach of the law can not be excused on the ground that recognition of the transfer had not been sought. A homestead entry, within a reclamation project, upon which the ordinary requirements of the homestead laws have been completed, is a property subject

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