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jected to said law after entry and before August 13, 1914. Such land is not considered public land in respect to water-right applications, Form B of the application being used; (c) public land entered subject to the reclamation law on or after August 13, 1914. As a general rule, for land of this class, both entry and water-right application are initiated simultaneously. Sometimes, however, entries are permitted under the last proviso of section 1 before public notice is issued, in which event, the order opening the lands should specify a reasonable time after date of public notice within which water-right application must be made and the initial installment paid. In each of the above cases, the initial installment of the construction charge is payable at the time of filing water-right application, and the second on December 1 of the fifth calendar year. For example, if the initial payment was made December 2, 1914, the second installment would be payable on December 1, 1919. There can be no accumulation of either construction or operation and maintenance charges prior to filing water-right application in these cases. (Departmental decision, October 18, 1919; C. L. 852 or 47 L. D. 285. C. L. 862, Dec. 19, 1919, outlines the accounting procedure to be followed under C. L. 852.)

Circular letters.--No. 409, December 9, 1914, as to revised forms of waterright applications.

No. 536, January 26, 1916, in reference to credit on new entries under act of March 4, 1915. (38 Stat. 1215.)

No. 640, March 23, 1917, increased construction charge under section 9 of this act.

No. 745, March 11, 1918, applicability of section 2 of this act instead of section 1 to State lands, Idaho. No. 751, on same subject.

See public notice, September 24, 1914, regarding water-right charges, 43 L. D. 406.

Sec. 2. [Payments of construction charges under existing rights.]— That any person whose land or entry has heretofore become subject to the terms and conditions of the reclamation law shall pay the construction charge, or the portion of the construction charge remaining unpaid, in twenty annual installments, the first of which shall become due and payable on December first of the year in which the public notice affecting his land is issued under this act, and subsequent installments on December first of each year thereafter. The first four of such installments shall each be two per centum, the next two installments shall each be four per centum, and the next fourteen each six per centum of the total construction charge, cr the portion of the construction charge unpaid at the beginning of such installments. (38 Stat. 687.)

Textual note.—The substance of the above section is codified as the first paragraph of section 475, title 43, United States Code. The remainder of section 475 is derived from act July 26, 1916 (39 Stat. 390), which amends section 14 of act of August 13, 1914.

NOTES

Amendment.--Sections 1, 2, 3, 5, and 6 of this act amended by section 1 of act May 15, 1922 (42 Stat. 541). (See departmental opinion of September 29, 1923, 50 L. D. 142.)

Sections 1 and 2 amended by acts December 5, 1924 (43 Stat. 703), and May 25, 1926. (44 Stat. 636.)

Lands affected.-All persons whose land was, prior to August 13, 1914, subscribed to any reclamation project through the medium of a water-user's association, an irrigation district, a trust deed, a water-right application, a homestead entry, or any form of contract or agreement with the United States under the terms of which the United States may at any time be required to deliver water to said land, were subject to the terms and conditions of the reclamation law within the meaning of this section. (Departmental decision, October 17, 1914.)

Lands of the State of Idaho and of other States having similar laws prior to August 13, 1914, in reference to the Federal reclamation law, are subject 148

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to the terms and conditions of the reclamation law within the meaning of this section. (Departmental decisions, February 8, 1918, and April 1, 1918, overruling departmental decisions, October 17, 1914, and January 14, 1915; C. L. 745 and C. L. 751.)

Lands not affected.—The following-named lands are not subject to the terms and conditions of the reclamation law within the meaning of this section : (a) Railroad lands unsold on or before August 13, 1914, whether or not affected by a declaration of the railroad company that purchasers shall comply with the terms of the reclamation law; and (b) railroad lands sold on or before August 13, 1914, which on that date had not been included in a water-right application duly accepted. (Departmental decision, January 14, 1915.)

Water charges.-Section 2 of the extension act specifically provides that the first installment of the construction charge "shall become due on December 1 of the year in which public notice

is issued.” The subjecting of his land to the reclamation law is an agreement on the part of the owner or entryman to abide by the law and regulations issued thereunder. Such owner or entryman therefore has no right, after the issuance of public notice, to defer the filing of water-right application or to postpone the payment of installments of water-right charges. Congress evidently had this thought in mind in fixing the date so definitely. This construction charge is due and payable on December 1, as stated in the law, without reference to whether a water-right application is filed, and if payment is not made on that due date the penalties provided by section 3 of the extension act become effective. Public notices covering lands subject to section 2 will not be issued, as a rule, in the month of December. Section 9 of the extension act does not apply to lands subject to section 2. (Departmental decision, October 18, 1919; C. L. 852, or 47 L. D. 285.)

Construction charge installments not cumulative.--The reclamation extension act taken as a whole does not require that installments of the construction charge, prior to water-right application for either private or public lands, be cumulative. Therefore, the first installment upon a water-right application made under section 2 of the act will fall due on December 1 of the year in which application is made. (Circular letter No. 516, September 2, 1915.) See circular letter No. 595, September 21, 1915, and paragraph 4, circular letter No. 603, October 7, 1916.

Miscellaneous references.-Section (c) of circular letter No. 394, November 9, 1914, in reference to lands affected.

Circular letter No. 409, December 9, 1914, regarding revised forms of waterright application.

Circular letter No. 497, June 2, 1915, relative to payments by nonresident landowners who have accepted the reclamation extension act, but have not made water-right application.

Sec. 3. [Penalties for nonpayment of construction charges—Cancellation and forfeiture-Action for recovery. ]—That if any water-right applicant or entryman shall fail to pay any installment of his construction charges when due, there shall be added to the amount unpaid a penalty of one per centum thereof, and there shall be added a like penalty of one per centum of the amount unpaid on the first day of each month thereafter so long as such default shall continue. If any such applicant or entryman shall be one year in default in the payment of any installment of the construction charges and penalties, or any part thereof, his water-right application, and if he be a homestead entryman his entry also, shall be subject to cancellation, and all payments made by him forfeited to the reclamation fund, but no homestead entry shall be subject to contest because of such default: Provided, That if the Secretary of the Interior shall so elect, he may cause suit or action to be brought for the recovery of the amount in default and penalties; but if suit or action be brought, the right to declare a cancellation and for

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feiture shall be suspended pending such suit or action. (38 Stat. 687.)

Textual note.-The above section is codified in sections 478, 480, and 481, of title 43, United States Code. Section 478 also contains the substance of subsection H, section 4, act of December 5, 1924 (43 Stat. 703), as it affects section 3 of the act of August 13, 1914.

NOTES

Amendments.--Sections 1, 2, 3, 5, and 6 of this act amended by section 1 of act May 15, 1922. (42 Stat. 541.) (See Departmental opinion of September 29, 1923, 50 L. D. 142.)

Subsection H, Section 4, act of December 5, 1924 (43 Stat. 703), reduces the penalty of 1 per centum per month provided for herein to one-half of 1 per centum per month. (See Departmental instructions of March 19, 1925, 51 L. D. 218.)

When construction charges become due.-Construction charges against lands subject to section 1 of this act can not become due until after waterright application has been made; as to lands subject to section 2 of this act, construction charges against same become due on December 1 of the year in which public notice affecting the land is issued, and if not paid they accumulate against the land. (Departmental decision October 18, 1919; C. L. 852. C. L. 862 outlines the accounting procedure under C. L. 852.)

Suit for water charges.-The provisions of sections 3 and 6 of the extension act in reference to one year of grace for the payment of overdue water charges, refer only to drastic remedies of cancellation and forfeiture, and not to the right to bring suit in a court for collection of a water charge past due and unpaid. (Reclamation decision, December 4, 1917, U. S. v. Edison E. Kilgore, Shoshone.)

Penalties.-Under Section 501, act March 8, 191 (40 Stat. 440), penalties arising under this section will not run during the period of the military service. (Departmental instructions of May 16, 1919, 47 L. D. 167; C. L. 820; also C. L. 849.)

Right to declare forfeiture.-Inasmuch as the acts of June 17, 1902, and August 13, 1914, did not peremptorily declare in mandatory language that forfeitures must be declared, or that they will necessarily result by operation of law as soon as defaults in payments by water users on reclamation projects bave occurred, it rests within the sound discretion of the Secretary of the Interior to determine whether an entryman may thereafter be permitted to cure the default by payment of the charges. (Departmental opinion of December 31, 1923, 50 L. D. 224.)

The Secretary of the Interior, in his discretion, may follow the procedure outlined in sections 3 and 6 of the extension act of August 13, 1914, with respect to construction and operation and maintenance charges more than one year in arrears, rather than apply to the courts under the forfeiture provisions of the act of August 9, 1912 (37 Stat. 265) ; i. e., the Secretary may cancel the water right in such cases and declare a forfeiture of the reclamation charges theretofore paid, at the same time allowing title to the lands to remain in the patentee or his successor. (Departmental decision January 16, 1928, Tieton division, Yakima project. C. L. 1689.)

Circular letters.- No. 497, June 2, 1915, in reference to payments by nonresident landowners and effect thereof, No. 516. September 2, 1915, regarding accumulation of construction charges.

No. 1027, July 9, 1921, regarding procedure relative to delinquent water accounts.

No. 1186, January 3, 1923, penalties on account of delinquent water charges. No. 1205, March 26, 1923, modification of penalty.

Sec. 4. (Restriction on increasing construction charges—Time for paying increase—Charges subject to certain conditions.]—That no increase in the construction charges shall hereafter be made, after the same have been fixed by public notice, except by agreement between the Secretary of the Interior and a majority of the water-right applicants and entrymen to be affected by such increase, whereupon all

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water-right applicants and entrymen in the area proposed to be affected by the increased charge shall become subject thereto. Such increased charge shall be added to the construction charge and payment thereof distributed over the remaining unpaid installments of construction charges: Provided, That the Secretary of the Interior, in his discretion, may agree that such increased construction charge shall be paid in additional annual installments, each of which shall be at least equal to the amount of the largest installment as fixed for the project by the public notice theretofore issued. And such additional installments of the increased construction charge, as so agreed upon, shall become due and payable on December first of each year subsequent to the year when the final installment of the construction charge under such public notice is due and payable : Provided further, That all such increased construction charges shall be subject to the same conditions, penalties, and suit or action as provided in section three of this act. (38 Stat. 687.)

Textual note.—Codified as section 469, title 43, United States Code, with the following changes : The introductory word “That" is omitted ; "hereafter" in the second line is changed to "after August 13, 1914"; and "section 3 of this act," in the last line, is changed to read “sections 478, 480, and 481 of this chapter."

NOTES

Amendment.-Act March 3, 1915 (38 Stat. 861), provides that no work shall be undertaken or expenditure made which will increase an announced construction charge until an agreement to repay the cost shall have been made in accordance with the provisions of this section.

Change of date of payment of construction charges.--The act of August 13, 1914, provided for the payment of irrigation construction charges upon a specified date, the only authority for change of which is contained in the act of May 15, 1922 (42 Stat. 541), and where the latter act is invoked to change the date of payment under a prior contract, the procedure prescribed therein must be followed in order to give validity to the amended contract. (Departmental opinion September 29, 1923, 50 L. D. 143.)

Cost of drainage system on completed project chargeable to operation and maintenance rather than to construction.-When an irrigation system has been completed under the reclamation act, subsequent construction of a drainage system to remove injurious consequences of its normal operation on the lands included is chargeable to maintenance and operation rather than to construction and section 4 of the reclamation extension act, preventing increase of construction charges when once fixed except by agreement between the Secretary of the Interior and a majority of water-right applicants and entrymen affected, does not apply. (Nampa & Meridian Irrigation District v. Bond (Ida. 1925), 268 U. S. 50; 45 S. Ct. 383; 69 L. Ed. 843; 283 Fed. 569 (D. C. 1922), 288 idem, 541 (C. C. A. 1923), affirmed.)

This is consistent with attributing to construction the cost of drainage provided for in the original plan because the need for it was existent or foreseen. (Idem.) (See notes under this case appended to section 5 of this act.)

Increase of construction charge over amount originally estimated.--A suit was brought by the United States to foreclose a lien for construction charges on land within the Orland project. Jessie Donohoe, owner of the land, purchased a water right therefor in 1917, after the construction charges had been estimated and announced at $44 an acre. In 1918 the Secretary of the Interior, with the consent of a majority of the water-right applicants, including Donohoe, increased the construction charges $11 more an acre. In 1926 the charges were again increased, by an amount of $68 an acre, and a majority of the water users, not including the defendant, the successor to Jessie Donohoe, agreed to the increased cost. The issue was whether the latter increase was a lien upon the land. The contract provided for increases of construction charges in accordance with the act of August 13, 1914, and that the lien shall extend to the increased charges. The court decided in favor of the plaintiff. (U. 8. v. Charles L. Donohoe Co. (District Court, N. D., Calif., 1929), 33 Fed. (20) 362.) 151

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Circular letters.-See (e) No. 394, November 9, 1914, regulations of reclamation commission.

No. 400, November 21, 1914, No. 447, February 20, 1915, No. 506, June 24, 1915.

No. 556, April 17, 1916, and No. 611, November 14, 1916, in reference to supplementary construction.

No. 659, May 3, 1917, amending C. L. No. 611.

Sec. 5. [Operation and maintenance charges—Basis therefor—Minimum charge—Secretary may transfer care and operation of project—Reduction or increase of charges. ]—That in addition to the construction charge, every water-right applicant, entryman, or landowner under or upon a reclamation project shall also pay, whenever water service is available for the irrigation of his land, an operation and maintenance charge based upon the total cost of operation and maintenance of the project, or each separate unit thereof, and such charge shall be made for each acre-foot of water delivered; but each acre of irrigable land, whether irrigated or not, shall be charged with a minimum operation and maintenance charge based upon the charge for delivery of not less than one acre-foot of water: Provided, That whenever any legally organized water users' association or irrigation district shall so request, the Secretary of the Interior is hereby authorized, in his discretion, to transfer to such water users' association or irrigation district the care, operation, and maintenance of all or any part of the project works, subject to such rules and regulations as he may prescribe. If the total amount of operation and maintenance charges and penalties collected for any one irrigation season on any project shall exceed the cost of operation and maintenance of the project during that irrigation season, the balance shall be applied to a reduction of the charge on the project for the next irrigation season, and any deficit incurred may likewise be added to the charge for the next irrigation season. (38 Stat. 687.)

Textual note.—The first clause of the above section (with the omission of the introductory word "That"), down through the colon, and the last sentence of the section are codified as section 492, title 43, United States Code. The proviso is codified as section 499, title 43, United States Code.

NOTES

Amendment.-Sections 1, 2, 3, 5, and 6 of this act amended by section 1 of act May 15, 1922 (42 Stat. 541). (See Departmental opinion of September 29, 1923, 50 L. D. 142.)

Operation and maintenance charges.—These charges follow the same rule as construction charges and do not accumulate against lands for which waterright application has not been made. The effect is that all operation and maintenance charges since December 1, 1914, under the extension act are to be considered as not accumulating. (C. L. No. 622, December 16, 1916.)

The word "year" used in connection with the operation and maintenance costs is the 12 months ending with December 31. (C. L. No. 555, April 17, 1916.)

In Oregon Short 'Line R. R. CO. v. Minidoka Irrigation District (Idaho, 1929) the trial court held that there was no water available for the right of way of the Oregon Short Line R. R. Co. through lands of the Minidoka irrigation district, Minidoka project. The Minidoka irrigation district assessed the right of way of the Oregon Short Line R. R. Co. for operation and maintenance charges. The railway company paid the taxes under protest and brought suit to recover them. The State supreme court held that Idaho Compiled Statutes, section 4489, under which operation and maintenance charges for an irrigation district on a Federal reclamation project are leviable, makes the charges apportionable under section 5 of the act of Congress of August 13, 1914, which section in turn requires a landowner to pay operation and maintenance charges "whenever

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