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PATENTS AND WATER-RIGHT CERTIFICATES, ETC. 137

pay the water-right charges; nor does an extension of time accorded by the irrigation district for the payment of accrued charges operate as an extension by the Government unless approved by the latter. (Frank Zumpfe, 51 L. D. 608.)

Taxation of land within reclamation project.—A patent to lands within a reclamation project issued to a homestead entryman under act of August 9, 1912 (37 Stat. 265), on proof of compliance with the provisions of law as to residence, reclamation, and irrigation, conveys a legal title, the Government reserving only a prior lien on the land and appurtenant water rights as security for the payment of all sums due or to become due on such water rights, and such lands are taxable by the State; the lien of the tax, however, being subject to the prior lien reserved by the Government. Homestead entrymen on such lands who have made proof of compliance with the general homestead laws but have not fully complied with the additional requirements of the reclamation act as to reclamation and irrigation, have a vested interest, which may be sold, mortgaged, and inherited, and which also is subject to local taxation. Generally speaking, one who has the right to real property and is not excluded from its use and enjoyment should not be permitted to use the legal title of the Government to avoid his just share of taxation. (United States v. Canyon County, Idaho, et al. (D. C. Ida. 1916), 232 Fed. 985. See also Cheney v. Minidoka County (1914), 26 Idaho 471, 144 Pac. 343. To the contrary, see law notes, Reclamation Record, 1915, p. 554; law notes, Reclamation Record, 1916, p. 65.)

When entryman's interest taxable.--Lands entered within a reclamation project are not subject to State taxation before the equitable title has passed to the entryman; and that title does not pass until the conditions of reclamation and payment of water charges due at time of final proof, imposed by the amended reclamation act, have been fulfilled in addition to the requirements of the homestead act. (Iruin v. Wright (Ariz. 1922), 42 Sup. Ct. 293, 258 U. S. 219, 66 L. Ed. 573.) See also Wood et al. v. Canyon County (Sup. Ct. of Idaho, 1927), 253 Pac. 839.

Regulations.-For regulations concerning issuance of final water-right certificates and certificates of full payment and release of liens see C. L. 1046, October 3, 1921 ; and C. L. 1085, March 1, 1922.

C. L. 1159 September 27, 1922, incloses forms of application for permanent water right.

Sec. 2. (First lien on land reserved to United States—Title forfeited upon default of payment-Redemption within one year—Sale after failure to redeem United States may bid in.]-That every patent and water-right certificate issued under this act shall expressly reserve to the United States a prior lien on the land patented or for which water right is certified, together with all water rights appurtenant or belonging thereto, superior to all other liens, claims, or interests whatsoever for the payment of all sums due or to become due the United States or its successors in control of the irrigation project in connection with such lands and water rights.

Upon default of payment of any amount so due title to the land shall pass to the United States free of all encumbrance, subject to the right of the defaulting debtor or any mortgagee, lien holder, judgment debtor, or subsequent purchaser to redeem the land within one year after the notice of such default shall have been given by payment of all moneys due, with eight per centum interest and cost. And the United States, at its option, acting through the Secretary of the Interior, may cause land to be sold at any time after such failure to redeem, and from the proceeds of the sale there shall be paid into the reclamation fund all moneys due, with interest as herein provided, and costs. The balance of the proceeds, if any, shall be

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138 PATENTS AND WATER-RIGHT CERTIFICATES, ETC.

the property of the defaulting debtor or his assignee: Provided, That in case of sale after failure to redeem under this section the United States shall be authorized to bid in such land at not more than the amount in default, including interest and costs. (37 Stat. 266.)

Textual note.—Codified as section 542, title 43, United States Code, the introductory word “That" being omitted, and "under this act" reading "under the preceding section."

NOTES

Amendment.-Section 2, act of May 15, 1922 (42 Stat. 541), amends this section as to patents and water-right certificates for lands lying within irrigation districts.

Release of liens.-For instructions regarding release of liens pursuant to the act of May 15, 1922 (42 Stat. 541), see 49 L. D. 604; C. L. 1226, June 6, 1923.

Effect of law.–For discussion of effect of this section, see printed hearings, “Application of the Reclamation Law to Irrigation Districts,” had before the Committee on Irrigation of Arid Lands, House of Representatives, Sixty-sixth Congress, first session, on H. R. 2702, "A bill to provide for the application of the reclamation law to irrigation districts."

Collection of water charges.-For regulations governing collection of water charges under this section see C. L. 1027, July 9, 1921, which directs that the provisions of the act of August 13, 1914 (38 Stat. 686), shall be followed in all cases of failure to pay charges for construction and operation and maintenance. See also circular letters 952, 1001, 1059, and 1689.

Sec. 3. [Certificate for final payment-Single holdings limited—Excess acquired by descent, etc.—Forfeiture of prohibited excess. ]—That upon fuīl and final payment being made of all amounts due on account of the building and betterment charges to the United States or its successors in control of the project, the United States or its successors, as the case may be, shall issue upon request a certificate certifying that payment of the building and betterment charges in full has been made and that the lien upon the land has been so far satisfied and is no longer of any force or effect except the lien for annual charges for operation and maintenance: Provided, That no person shall at any one time or in any manner, except as hereinafter otherwise provided, acquire, own, or hold irrigable land for which entry or waterright application shall have been made under the said reclamation act of June seventeenth, nineteen hundred and two, and acts supplementary thereto and amendatory thereof, before final payment in full of all installments of building and betterment charges shall have been made on account of such land in excess of one farm unit as fixed by the Secretary of the Interior, as the limit of area per entry of public land or per single ownership of private land for which a water right may be purchased respectively, nor in any case in excess of one hundred and sixty acres, nor shall water be furnished under said acts nor a water right sold or recognized for such excess; but any such excess land acquired at any time in good faith by descent, by will, or by foreclosure of any lien may be held for two years and no longer after its acquisition; and every excess holding prohibited as aforesaid shall be forfeited to the United States by proceedings instituted by the Attorney General for that purpose in any court of competent jurisdiction; and this proviso shall be recited

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in every patent and water-right certificate issued by the United States under the provisions of this act. (37 Stat. 266.)

Textual note.-The substance of this section is embodied in section 543 and section 544, title 43, Un ed States Code.

NOTES

Limitations as to lands and water rights.-C'nder the proviso to this section no person shall, at any one time, acquire or own a water right, or be furnished water on account of a water right acquired from the United States, in excess of such quantity as may be necessary for the proper irrigation of one farm unit, as fixed by the Secretary of the Interior, unless all installments contracted to be paid on the additional supply to be purchased shall first be paid in full, and the water right purchased for the lands in excess of one unit shall be limited to a supply sufficient for 160 acres. (Amaziah Johnson, 42 L. D. 542.)

The limitations in this section as to the area of lands for which water right may be acquired or owned by any one person have reference to irrigable lands only. (Idem.)

No one can at the same time hold and obtain water rights for both a farm unit of public land and a tract of privately owned land unless the installments on water right, either for the farm unit or for the private lands not exceeding 160 acres, have been paid in full. (Keebaugh and Cook, 42 L. D. 543.)

A person who holds a farm unit shall not be permitted before full payment has been made on the appurtenant water right to acquire other lands with appurtenant water rights unless the water-right charges on the latter have been fully paid; similarly a person may hold private lands with appurtenant water rights up to the limit of single ownership fixed for a project in one or more parcels before full payment of the water-right charge, but may not acquire other lands with appurtenant water rights unless the water-right charges thereon have been paid in full. (Secretary's instructions, July 22, 1914, 43 L. D. 339-341. Departmental instructions of July 1, 1920, amend paragraph 41 of general reclamation circular of May 18, 1916 (45 L. D. 385, 394). See C. L. 911, July 6, 1920, or 47 L. D. 417.)

Where one who has entered into a contract to purchase privately owned lands, title remaining in the vendor, files water-right application and makes payments on account of the construction or building charge, and all rights of the vendee under the contract are reacquired by the vendor, the latter is entitled to receive credit for such payments and to complete the same upon showing proper qualifications to acquire and hold, notwithstanding that the transfer was the result of voluntary action instead of foreclosure proceedings; provided, however, that if the original vendor is not so qualified he must within two years from reacquisition of the land, dispose of such excess holding as directed by paragraph 76 of the departmental regulations of May 18, 1916. (John Mulligan, 49 L. D. 155.)

See note under section 1, act of June 27, 1906 (34 Stat. 519), citing the First Assistant Secretary's decision, dated March 24, 1930, regarding subdivision of lands.

The prohibition in section 3 of the act of August 9, 1912, against holding lands within reclamation entries in excess of 160 acres acquired by descent, will, or foreclosure for a longer period than 2 years has no application to jrrigation districts bidding in lands under the acts of August 11, 1916, and May 15, 1922, but section 6 of the former act fixes the procedure as to them. (Glen L. Kimmel and Goshen Irrigation District, 53 I. D. 658.)

See note entitled “Excess acreage,” following Section 2, act of Feb. 21, 1911.

After an irrigation district has bid in delinquent lands at a tax sale, it should be allowed a reasonable time in which to convey the land to a person qualified to receive patent. (Decision of Assistant Secretary, July 17, 1933.)

Sec. 4. [United States fiscal agents upon projects—Public record of payments to be kept-Authenticated copies of records to be furnished.] – That the Secretary of the Interior is hereby authorized to designate such bonded fiscal agents or officers of the Reclamation Service as 140 PATENTS AND WATER-RIGHT CERTIFICATES, ETC.

he may deem advisable on each reclamation project to whom shall be paid all sums due on reclamation entries or water rights, and the officials so designated shall keep a record for the information of the public of the sums paid and the amount due at any time on account of any entry made or water right purchased under the reclamation act; and the Secretary of the Interior shall make provision for furnishing copies of duly authenticated records of entries upon payment of reasonable fees, which copies shall be admissible in evidence, as are copies authenticated under section eight hundred and eightyeight of the Revised Statutes. (37 Stat. 267.)

Textual note.-Codified as section 545, title 43, United States Code, the word "That" at the beginning being omitted and the words "section eight hundred and eighty-eight of the Revised Statutes" being changed to "section 669 of chapter 17 of title 28, Judicial Code and Judiciary."

NOTES

See C. L. 1236, July 9, 1923, regarding changes in designations of certain officials of the Reclamation Service and change of the name of the bureau.

Sec. 5. [United States district courts given jurisdiction.]—That jurisdiction suits by the United States for the enforcement of the provisions of this act is hereby conferred on the United States district courts of the districts in which the lands are situated. (37 Stat. 267.)

Textual note. This section is codified as section 546, title 43, United States Code, the first word "That" being omitted ; and "this act” reading "the five preceding sections."

GRANT OF LAND FOR SCHOOL PURPOSES IN SHOSHONE IRRIGA

TION PROJECT

An act making a grant of lands for school purposes in block numbered thirty-one, town

site of Powell, Shoshone reclamation project, Wyoming. (Act August 21, 1912, ch. 319, 37 Stat. 322)

[Sec. 1. Grant of block for school purposes. ]—That the Secretary of the Interior is hereby authorized and directed to issue patent conveying block thirty-one, town site of Powell, on Shoshone reclamation project, Wyoming, to school district numbered two, Park County, Wyoming. (37 Stat. 322.)

NOTES

Cross reference.--See act of October 31, 1919 (41 Stat. 326), which gives the Secretary of the Interior general authority to convey public lands in reclamation town sites for school purposes.

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