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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 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, nineteen 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

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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 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

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 taking 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 112

ASSIGNMENT OF RECLAMATION HOMESTEAD ENTRIES

to mortgage which can not be defeated by acts of the entryman or his assignee, and such entry can not be canceled upon contest in derogation of the right of the mortgagee to comply with the further provisions of the law looking to completion of title. (Watson v. Barney et al., 48 L. D. 325.)

One who purchases a reclamation homestead entry at a mortgage foreclosure sale upon which satisfactory final five-year proof had previously been submitted is entitled to have the foreclosure deed treated as an assignment of the entry under the act of June 23, 1910. (Benner, Powell, Transferee, 50 L. D. 4.)

Final proof.--The departmental rule that where a desert-land entry upon which final certificate had not issued is acquired by an assignee through mesne transfers, that assignee, if qualified, is entitled to hold the entry, although the intervening assignees were not qualified to take an assignment, is applicable prior to payment of final commissions to reclamation homestead entries upon which final proof of compliance with the ordinary requirements of the homestead law has been submitted and accepted. (Amos N. S. Kelly, 50 L. D. 268.)

Water right.--The limitations imposed on assignments of reclamation homestead entries are limitations, not on the qualifications of the assignee, but on the right of the assignee to receive water. (Idem.)

Taxation by State.—Permission to entrymen within reclamation projects, under this act, to assign their entries, and by circular of the Secretary of the Interior, to mortgage their interests, does not establish that the equitable title is thereby vested in the entryman, so as to be subject to taxation by the State. (Irwin v. Wright (Ariz. 1922), 42 Sup. Ct. 293, 258 U. S. 219, 66 L. Ed. 573.)

Certainly the equitable title to lands within a reclamation project can not pass to the entryman, so as to subject it to State taxation before the size of the farm unit is determined by the Secretary of the Interior, since until such time it can not be determined how much land the entryman will receive. (Idem.)

Relinquishment of part of entry not required.-On July 2, 1902, a quarter section of land under the Salt River project was included in a first form withdrawal. On August 26, 1902, the withdrawal was changed to the second form. In 1910 homestead entry was made for the land by Emile J. Robichaux. In 1914 the north half of said quarter section was restored from reclamation withdrawal. In 1928 an assignment of the land to Edith J. Robichaux was filed in the local land office. The department held that the assignment was proper, it being stated that prior to the establshment of a farm unit for the south half of the tract neither the entryman nor his assignee could be required to relinquish any part of the entry. (Decision A 12228 dated February 23, 1929, by First Assistant Secretary In re Edith J. Robichaux, assignee. of Emile J. Robichaux.)

Patents for entries bid in by association at tax sales.—The Grand Valley Water Users Association bought in at tax sale three farm units for which it requested patents. The Solicitor held that a water users association may receive patent to one farm unit if it shows it desires patent only for security purposes and that it owns no other units on which building charges remain unpaid. It was also held that an association may bid in land at tax sales without restriction as to area in order to protect its liens, if the interest so acquired is reassigned within a reasonable time to qualified entrymen. (Departmental decision, M-27789, March 19, 1935.)

Miscellaneous.-General Land Office circular of December 17, 1910 (39 L. D. 421), amending General Land Office instructions of September 13, 1910 (39 L. D. 202).

Sections 35–46, inclusive, of general reclamation circular approved May 18, 1916. (45 L. D. 385.)

Section 41 of general reclamation circular of May 18, 1916 (45 L. D. 394 ; 46 L. D. 229), amended by instructions of July 1, 1920 (47 L. D. 417).

Section 43 of general reclamation circular of May 18, 1916 (45 L. D. 396), amended by department September 30, 1925 (51 L. D. 240). See C. L. 1473, October 31, 1925.

See section 13, act August 13, 1914 (38 Stat. 686), in reference to conforming entries to farm units.

See paragraphs 44, 45, and 46 of general reclamation circular of May 18, 1916 (45 L. D. 396). (Marshall Humphrey, 46 L. D. 371.)

See United States v. Canyon County of Idaho (232 Fed. 985); Cheney v. Minidoka Co. (144 Pac. 343).

ADVANCES TO THE RECLAMATION FUND

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 June 25, 1910, ch. 407, 36 Stat. 835)

[Sec. 1. Advances to reclamation fund to complete projects—Not to exceed $20,000,000—Appropriation-Reimbursement Board of Engineers to report upon projects-Approval by President-New projects not included. ]—That to enable the Secretary of the Interior to complete Government reclamation projects heretofore begun, the Secretary of the Treasury is authorized, upon request of the Secretary of the Interior, to transfer from time to time to the credit of the reclamation fund created by the act 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, such sum or sums, not exceeding in the aggregate $20,000,000, as the Secretary of the Interior may deem necessary to complete the said reclamation projects, and such extensions thereof as he may deem proper and necessary to the successful and profitable operation and maintenance thereof or to protect water rights pertaining thereto claimed by the United States, provided the same shall be approved by the President of the United States; and such sum or sums as may be required to comply with the foregoing authority are hereby appropriated out of any money in the Treasury not otherwise appropriated: Provided, That the sums hereby authorized to be transferred to the reclamation fund shall be so transferred only as such sums shall be actually needed to meet payments for work performed under existing law: And provided further, That all sums so transferred shall be reimbursed to the Treasury from the reclamation fund, as hereinafter provided : And provided further, That no part of this appropriation shall be expended upon any existing project until it shall have been examined and reported upon by a board of engineer officers of the Army, designated by the President of the United States, and until it shall be approved by the President as feasible and practicable and worthy of such expenditure; nor shall any portion of this appropriation be expended upon any new project. (36 Stat. 835.) Textual note.—The substance of this section is codified as section 397, title 43, United

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States Code.

NOTES

Report of Board of Army Engineers.—This report, made in pursuance of the above section, bears date November 28, 1910, and is published under the title “Fund for Reclamation of Arid Lands” as House Document No. 1262, Sixtyfirst Congress, third session.

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