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LEAVE OF ABSENCE TO HOMESTEADERS

An act granting leaves of absence to homesteaders on lands to be irrigated under the

provisions of the act of June 17, 1902. (Act June 25, 1910, ch. 432, 36 Stat. 864)

[Sec. 1. Certain homesteaders allowed leave until water is turned onRequired residence not lessened.]—That all qualified entrymen who have heretofore made bona fide entry upon lands proposed to be irrigated under the provisions of the act of June seventeenth, nineteen hundred and two, known as the national irrigation act, may, upon application and a showing that they have made substantial improvements, and that water is not available for the irrigation of their said lands, within the discretion of the Secretary of the Interior, obtain leave of absence from their entries until water for irrigation is turned into the main irrigation canals from which the land is to be irrigated : Provided, That the period of actual absence under this act shall not be deducted from the full time of residence required by law. (36 Stat. 864.)

Textual note.-Codified as section 414, title 43, United States Code, with the following changes : "That" at the beginning is omitted ; "heretofore", in the second line, is changed to read "prior to June 25, 1910"; "act of June seventeenth, nineteen hundred and two, known as the national irrigation act", is changed to read “reclamation law"; and the word "act”, in the last line but one, is changed to read "section."

NOTES

Residence.—While this act was intended to relieve entrymen who had made entry for lands within a reclamation project prior to the passage of said act, and prior to the applying of water by the project, from the necessity of maintaining residence upon the land "until water for irrigation is turned into the main irrigation canal from which the land is to be irrigated", it condones the prior failure of the entryman to maintain residence where water has not been available for irrigation of the land, and suspends the running of the sevenyear limitation of the life of the entry by allowing the period of residence to commence from the time when the water is made available. (Roberts v. Spencer, 40 L. D. 306.)

By virtue of the acts of June 25, 1910 (36 Stat. 864), and April 30, 1912 (37 Stat. 105), one who made entry of lands within a reclamation project prior to the act of June 25, 1910, and in good faith established residence, is not subject to contest for failure to maintain residence prior to the time water is available for irrigation of the land, provided residence is established and application for water right filed within 90 days after the issuance of public notice fixing the date when water will be available; and where an entrywoman marries after establishing residence, and removes to the unperfected homestead entry of her husband, she does not thereby forfeit the protection accorded by these acts, where after final proof upon her husband's claim she returns and reestablishes residence upon her own claim within the time fixed therefor. (Jensen v. K noyer, 42 L. D. 528.)

This act applies to all bona fide qualified entrymen who made entry prior to the act and have made substantial improvements, regardless of whether they hare established and maintained residence. (John William Roatcap, 42 L. D. 422.)

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LEAVE OF ABSENCE TO HOMESTEADERS

Seven-year period suspended.-By virtue of the provision of this act, a homestead entry within a reclamation project is not limited to the seven-year period fixed for consummation of ordinary homestead entries elsewhere on the public domain, but may be completed within the time fixed in the public notice for compliance with the requirements of the reclamation act, unless the project be abandoned, notice of which abandonment will terminate the suspension of the seven-year period, and thereafter the entry will fall within the general class of homestead entries and be governed by the general homestead laws. (John H. Haynes, 40 L. D. 291.)

Application for leave.--Applications for leave of absence should be in the form of an affidavit, duly corroborated by two witnesses, contain a specific description of the land, show the good faith of the applicant, and set forth in detail the character, extent, and approximate value of the improvements placed on the lands, which must be such as to satisfy the requirement of the law that the entryman has made substantial improvements, and must show, as a matter of fact, that water is not available for the irrigation thereof. (General Land Office instructions, September 13, 1910, 39 L. D. 202.)

Length of absence.-Leave of absence will be granted until such time as water for irrigation is turned into the main irrigation canals from which the land is to be irrigated, or, in the event that the project is abandoned by the Government, until the date of notice of such abandonment and the restoration to the public domain of the lands embraced in the entry. (Idem.)

Effect of granting leave of absence.-Attention is directed to the provision that "the period of actual absence shall not be deducted from the full time of residence required by law.” The effect of the granting of leave of absence under this act is to protect the entry from contest for abandonment and, by the necessary implication of the act, the period of seven years within which the entryman is required to submit final five-year proof will be extended and the entry will not be subject to cancellation for failure to submit proof until seven years from the date of entry, exclusive of the period for which leave of absence may be granted. (Idem.)

See sections 31–34, inclusive, general reclamation circular, approved May 18, 1916, 45 L. D. 385.

SALE OF LANDS ACQUIRED UNDER THE RECLAMATION ACT An act to provide for the sale of lands acquired under the provisions of the reclamation act and which are not needed for the purposes of that act. (Act February 2, 1911, ch. 32, 36 Stat. 895)

[Sec. 1. Sale of lands not needed for irrigation works-AppraisalSale at public auction.]—That whenever in the opinion of the Secretary of the Interior any lands which have been acquired under the provisions of the act of June seventeenth, nineteen hundred and two (Thirty-second Statutes, page three hundred and eighty-eight), commonly called the "reclamation act," or under the provisions of any act amendatory thereof or supplementary thereto, for any irrigation works contemplated by said reclamation act are not needed for the purposes for which they were acquired, said Secretary of the Interior may cause said lands, together with the improvements thereon, to be appraised by three disinterested persons, to be appointed by him, and thereafter to sell the same for not less than the appraised value at public auction to the highest bidder, after giving public notice of the time and place of sale by posting upon the land and by publication for not less than thirty days in a newspaper of general circulation in the vicinity of the land. (36 Stat. 895.)

Textual note.-The three sections of this act are codified as section 374, title 43, l'nited States Code, with the following changes : The word “That" at the beginning of each section is omitted; the words beginning "the act of June," etc., in the third line abore, and ending with "supplementary thereto,” in the sixth line, are changed to read this chapter"; and "said reclamation act,” in the seventh line, read “the reclamation

law."

NOTES

Sale of canal easement.-A right-of-way easement for a canal, involving not more than 15 acres of land, acquired by the United States under the reclaination act, comes within the meaning of the word “lands" as used in this section, and may be sold pursuant to the provisions of this act. (Departmental decision, May 29, 1918, in re Ankeny Canal, Klamath. See p. 328, Reclamation Record, August, 1918.)

Private lands.- In the case of private lands acquired by purchase or condemnation, said lands are from the outset definitely segregated from the public domain. The cost of their acquisition must be paid from the reclamation fund, and the lands, when no longer needed for the project, can not be opened to entry under the public land laws but must be sold at public auction, after appraisal, and the moneys received therefor must be paid into the reclamation fund and credited to the project for which it was purchased. (J. D. Mell et al., 50 L. D. 313.)

Publication of notice of sale of lands.-In the acts of February 2, 1911 (36 Stat. 895), and May 20, 1920 (41 Stat. 605), relating to the sale of lands on Federal irrigation projects, the language "by publication for not less than 30 days" deals with the period during which notice is to be given, and is not a statutory requirement that publication be had for 30 consecutive days in a daily newspaper. Where a weekly newspaper of general circulation is the paper nearest the land, the purpose of the statutes will be fully subserved by publication in five consecutive issues of such newspaper. (Departmental decision, June 21, 1920; printed at p. 382, Reclamation Record, August, 1920).) 88508_-37

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122 SALE OF LANDS ACQUIRED UNDER THE RECLAMATION ACT

Taxation.—Copp v. West Virginia (1911), 71 S. E. 580, 35 L. R. A. N. S. 669, would seem to hold that where the United States sells land in installments the land so sold is not taxable by the State until all installments are paid to the United States. But see Baltimore Shipbuilding Co. v. Baltimore, 195 U. S. 375, which, semble, is to the contrary.

Sec. 2. [Conveyance of title—Limitation of 160 acres to a person.] That upon payment of the purchase price, the Secretary of the Interior is authorized by appropriate deed to convey all the right, title, and interest of the United States of, in, and to said lands to the purchaser at said sale, subject, however, to such reservations, limitations, or conditions as said Secretary may deem proper: Provided, That not over one hundred and sixty acres shall be sold to any one person. (36 Stat. 895.) Textual note.-See textual note under section 1.

Sec. 3. [Proceeds to credit of irrigation project.]—That the moneys derived from the sale of such lands shall be covered into the reclamation fund and be placed to the credit of the project for which such lands had been acquired. (36 Stat. 895.) Textual note.See textual note under section 1.

WITHDRAWAL OF PUBLIC NOTICES

An act to authorize the Secretary of the Interior to withdraw public notices issued under

section 4 of the reclamation act, and for other purposes.1" (Act February 13, 1911, ch. 49, 36 Stat. 902)

[Sec. 1. Withdrawal of public notices—Modification and abrogation of water-right applications and contracts.]—That the Secretary of the Interior may, in his discretion, withdraw any public notice heretofore issued under section four of the reclamation act of June seventeenth, nineteen hundred and two, and he may agree to such modification of water-right applications heretofore duly filed or contracts with water users' associations and others entered into prior to the passage of this act as he may deem advisable, or he may consent to the abrogation of such water-right applications and contracts and proceed in all respects as if no such notice had been given. (36 Stat. 902.)

Textual note.—This act is codified as section 468, title 43, United States Code. As codified the act reads as follows:

"468. Withdrawal of notice given and modification of applications and contracts made prior to February 13, 1911.-The Secretary of the Interior may, in his discretion, withdraw any public notice issued prior to February 13, 1911, under section 419 of this chapter, and he may agree to such modification of water-right applications duly filed prior to February 13, 1911, or contracts with water users' associations and others, entered into prior to February 13, 1911, as he may deem advisable, or he may consent to the abrogation of such water-right applications and contracts, and proceed in all respects as if no such notice had been given. (February 13, 1911, ch. 49, 36 Stat. 902.)”

NOTES

Authority of Secretary.—The Secretary of the Interior has no general statutory authority to suspend, even temporarily, public notices issued by him pursuant to section 4 of the act of June 17, 1902, of lands irrigable under reclamation projects, nor does he possess supervisory power to do so in the absence of a specific statute authorizing it. (Departmental opinion, December 31, 1923, in re Shoshone Irrigation Project, 50 L. D. 223.) Popularly known as the Curtis Act, being so named for Senator Charles Curtis, of

Kansas.

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