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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 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

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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Sec. 2. [Issue of certificates of indebtedness authorized—DisposalAggregate limited—Exempt from taxation-Appropriation for preparing. 1—That for the purpose of providing the Treasury with funds for such advances to the reclamation fund, the Secretary of the Treasury is authorized to issue certificates of indebtedness of the United States in such form as he may prescribe and in denominations of $50, or multiples of that sum; said certificates to be redeemable at the option of the United States at any time after three years from the date of their issue and to be payable five years after such date, and to bear interest, payable semiannually, at not exceeding three per centum per annum; the principal and interest to be payable in gold coin of the United States. The certificates of indebtedness herein authorized may be disposed of by the Secretary of the Treasury at not less than par, under such rules and regulations as he may prescribe, giving all citizens of the United States an equal opportunity to subscribe therefor, but no commission shall be allowed and the aggregate issue of such certificates shall not exceed the amount of all advances made to said reclamation fund, and in no event shall the same exceed the sum of $20,000,000. The certificates of indebtedness herein authorized shall be exempt from taxes or duties of the United States as well as from taxation in any form by or under State, municipal, or local authority; and a sum not exceeding one-tenth of one per centum of the amount of the certificates of indebtedness issued under this act is hereby appropriated, out of any money in the Treasury not otherwise appropriated, to pay the expense of preparing, advertising, and issuing the same.

(36 Stat. 835.)

Textual note.-Codified as section 398, title 43, United States Code. In the code the introductory word "That" is omitted ; and the words in the first sentence reading "such advances to the reclamation fund" are changed to read as follows: "The advances to the reclamation fund, provided for in the preceding section."

Sec. 3. [One-half of reclamation receipts to be paid into the Treasury.]—That beginning five years after the date of the first advance to the reclamation fund under this act, fifty per centum of the annual receipts of the reclamation fund shall be paid into the general fund of the Treasury of the United States until payments so made shall equal the aggregate amount of advances made by the Treasury to said reclamation fund, together with interest paid on the certificates of indebtedness issued under this act and any expense incident to preparing, advertising, and issuing the same. (36 Stat. 836.)

Textual note.—The substance of this section, with the addition of a proviso based on the amendatory act of June 12, 1917 (40 Stat. 149), is codified as section 399, United States Code.

NOTES

Amendment.--Act of June 12, 1917 (40 Stat. 149), amends this section by providing that reimbursement be made from the reclamation fund at the rate of $1,000,000 annually beginning July 1, 1920.

A provision in the first deficiency act of February 6, 1931 (46 Stat. 1069), grants a moratorium of two years, beginning with the fiscal year ending June 30, 1931, in the annual repayment of $1,000,000 to the Treasury. The act of April 1, 1932, extended the commencement of repayment to July 1, 1934. This was further extended by the act of March 3, 1933, which substitutes "1936" for “1934.” The Interior Department Appropriation Act for 1937 further extends the commencement of repayment to July 1, 1938.

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Sec. 4. [Limitation on use of fund-Order of President required for new projects. ]-That all money placed to the credit of the reclamation fund in pursuance of this act shall be devoted exclusively to the completion of work on reclamation projects heretofore begun as hereinbefore provided, and the same shall be included with all other expenses in future estimates of construction, operation, or maintenance, and hereafter no irrigation project contemplated by said act of June seventeenth, nineteen hundred and two, shall be begun unless and until the same shall have been recommended by the Secretary of the Interior and approved by the direct order of the President of the United States. (36 Stat. 836.)

Textual note.--The substance of this section is codified as sections 400 and 413, title 43, United States Code, the part codified as section 413 beginning with "No irrigation Project," and continuing to the end.

Cross reference. See subsection B, section 4, act of December 5, 1924 (43 Stat. 702), regarding new projects or new divisions of projects.

Sec. 5. [No entries allowed until announcement as to units, charges, and date water can be applied.]—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.

(36 Stat. 836.)

NOTES

Amendments.—Act of February 18, 1911 (36 Stat. 917); see notes thereunder.
Section 10, act of August 13, 1914. (38 Stat. 686.)
Act of March 4, 1915. (38 Stat. 1215.)

Purpose of act.-This act was designed to withhold lands within a reclamation project from entry of every character until public announcement of the date when the water could be applied. (Roberts v. Spencer, 40 L. D. 306.)

Existing rights not affected.--Existing entries are not affected by this act, and where settlements have been effected in good faith, prior to June 25, 1910, on lands embraced within second-form withdrawals, persons showing such settlement will be allowed to complete entry thereof in the manner and within the time provided by law. (General Land Office instructions of September 13, 1910, 39 L. D. 202.)

A homestead entry of land within a reclamation project, allowed subsequent to this act, upon an application in all respects regular filed prior to the act, and upon which action was delayed only because of pressure of business in the local office, is not in violation of the provisions of this section. (Charles C. Conrad, 39 L. D. 432.)

Contests.-A successful contestant of an entry within a reclamation withdrawal is not barred of his preference right by this section. The section has the effect to postpone the exercise of such right until the project is so far completed that water can be applied to the land and the Secretary of the Interior has made public announcement of that fact. (Joseph F. Gladieux, 41 L. D. 286.)

Where prior to the regulations of October 15, 1910 (39 L. D. 296), a contest was properly initiated, under then-existing laws and regulations, against an entry within a second-form withdrawal under the reclamation act, and the entry was canceled as a result of such contests after the passage of this act, either prior or subsequent to October 15, 1910, the contestant thereby acquired a preference right of entry to the lands involved, notwithstanding the limitations contained in this act, as to entries thereafter allowed for lands within second-form withdrawals, and notwithstanding the said regulations of October 15, 1910, which preference right he is entitled to exercise upon the lands again becoming subject to entry; but contests heretofore dismissed under said regu116

ADVANCES TO RECLAMATION FUND

lations will not be reopened where third parties have acquired rights under such adjudications. (Long v. Lee, 41 L. D. 326.)

See General Land Office circular of October 15, 1910, regarding contests against entries embraced within reclamation withdrawals (39 L. D. 296), amending circular of May 31, 1910 (38 L. D. 620). Also, see Roberts v. Spencer (40 L. D. 306), and Secretary's instructions, September 4, 1912 (41 L. D. 241).

Under the act of June 25, 1910 (36 Stat. 835), 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. Section 24 of departmental regulations of May 18, 1916 (45 L. D. 385, 390), are obsolete and inoperative. (Bert Scott, North Platte project, 48 L. D. 85, idem 113.)

See William Warnke (48 L. D. 557), syllabus given under section 10, act August 13, 1914.

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

See General Land Office circular dated June 18, 1921, amending paragraph 16 of general reclamation circular of May 18, 1916, printed at 48 L. D. 154.

Entry of lands withdrawn for irrigation.—The right to enter lands withdrawn under the reclamation act for purposes of irrigation, if the lands were covered by a prior entry, which has since been relinquished, given by act of June 25, 1910, section 5, as amended by act of August 13, 1914, section 10, is not limited to those in privity with the original entryman, through purchase of the relinquishment or otherwise. (U. S. v. Fall (App. D. C., 1921), 276 Fed. 622.)

The proviso of act of June 25, 1910, section 5, as amended by act of August 13, 1914, section 10, making lands reserved for irrigation purposes and relinquished from prior entries subject to entry under the reclamation act, applies only to lands withdrawn under reclamation act of June 17, 1902, section 3, as susceptible of irrigation under a proposed project, and not to lands withdrawn under the latter act, as required for the construction of irrigation works. (Idem.)

Second-form withdrawn lands may be leased for grazing purposes.-In letter of July 8, 1933, to the Commissioner of Reclamation the Secretary ruled that until lands have been opened to entry there is no reason why they may not be leased, the form of withdrawal being unimportant. Statement was made that the distinction formerly made between the two classes of withdrawals was greatly modified by the act of June 25, 1910, which provided that no entry should be made upon lands withdrawn under the reclamation act until the unit of acreage has been established, water charges fixed, and water has become available, etc. (decision re Milk River project).

Sec. 6. [Former provision for expenditures repealed.]—That section nine of said act of Congress, approved June seventeenth, nineteen hundred and two, 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," is hereby repealed. (36 Stat. 836.)

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