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Whenever it is reasonably necessary for the preservation of the buildings, works, and other property, or for the proper protection and efficiency of any reclamation project, or where special conditions make it advisable, first-form withdrawn or purchased lands may be leased to the highest bidder for a term to be decided upon by the Reclamation Service (Bureau of Reclamation) as the conditions may arise. (Reclamation decision, March 23, 1917.)

See Departmental regulations, May 7, 1917, for leasing lands withdrawn under the first form. (46 L. D. 108; C. L. 660.)

See 14 Comptroller's Decision, 285, which touches right of Reclamation Service (Bureau of Reclamation) to lease lands of Uintah Indian Reservation.

See note 14 under this section, and notes under section 7 of the reclamation act.

Leases for grazing lands should be awarded to the high bidder, even if the previous lessee of the land is low. (Decision of First Assistant Secretary of the Interior, dated January 30, 1934.)

Lease of withdrawn lands.--The Secretary of the Interior has authority to lease first and second form withdrawn lands without advertisement, and to prescribe method of determining the lease value by such plan as he deems expedient and for the best interests of the United States and the project. (Decision M-27790 of the Solicitor, December 18, 1934.)

Grazing lease, deposit by bidder, set-off.-When a lease of grazing lands is canceled for failure to pay the agreed rental but the lessor still continues occupancy and later submits a bid for a new lease upon the same land, accompanied by a deposit of the first year's rent under the new lease, it is proper to apply such deposit against the indebtedness to the United States arising out of the old lease. (Comptroller General's decision A-58113, December 3, 1934.)

The President's power to withdraw public lands for public purposes is derived from nonstatutory and statutory sources, and the exercise of this withdrawal power requires the concomitant power to regulate the lands for the purposes for which the withdrawn lands are reserved. (Decision of the Solicitor, January 25, 1934. 54 L. D. 353.)

21. Indemnity school selection.-A first-form withdrawal under the reclamation act does not defeat the equitable title of the selector acquired under an indemnity school selection if the selection was legal and completed prior to withdrawal. (State of California and Overland Trust and Realty Company (on petition). 48 L. D. 614.)

Court decisions cited: Payne v. Central Pacifio Ry. Co. (255 U. S. 228); Payne v. State of New Mexico (255 U. S. 367); State of Wyoming v. Uni.ed States (255 U. S. 489).

Miscellaneous.--See Wells v. Fisher (47 L. D. 288, 294).

(C) SECOND-FORM WITHDRAWALS

22. Entries not permitted-Desert-land entries.-Lands withdrawn from entry, except under the homestead laws, in accordance with this act, are not, during the continuance of such withdrawal, subject to entry under the desert-land laws. (James Page, 32 L. D. 536.)

Additional entries.--The right of additional homestead entry granted by section 6 of the act of March 2, 1889 (25 Stat. 854), can not be exercised upon lands within a reclamation project. (Gjerluf Hanson, 40 L. D. 234.)

An entry of lands subject to the provisions of the reclamation act will not be allowed as additional to a prior entry subject only to the provisions of the general homestead law. (Charles 0. Hanna, 36 L. D. 449.)

See note 39 under this section.

Soldiers' additional entries.-By the provision that lands susceptible of irrigation under a project shall be withdrawn “from entry, except under the homestead laws", Congress intended to inhibit any mode of private appropriation of such lands except by such entry under the homestead laws as requires settlement, actual residence, improvement, and cultivation; hence such lands are not subject to soldiers' additional entry under section 2306, Revised Statutes. (Cornelius J. McNamara, 33 L. D. 520; William M. Wooldridge, 33 L. D. 525; Mary C. Sands, 34 L. D. 653.)

An application to make soldiers' additional entry, although filed prior to the passage of the act and pending at the date of an order withdrawing the

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lands covered thereby under the provisions of said act, is not effective to except the lands from such withdrawal. (Nancy C. Yaple, 34 L. D. 311.)

Even though approved by the Commissioner of the General Land Office, an application to make soldiers' additional entry will not, prior to the allowance of entry thereon, prevent a withdrawal of the land covered thereby. (Charles A. Guernsey, 34 L. D. 560.)

Exchange selections.-Lands withdrawn under the second form are not subject to selection under the exchange provisions of act of June 4, 1897 (30 Stat. 36). (Santa Fe Pacific R. R. Co., 33 L. D. 360.)

Entry under trust deed to water-users' association.-A homesteader whose entry is within the irrigable area of an irrigation project, but not subject to the restrictions, limitations, and conditions of the act, can not under the law, prior to the acquisition of title to the land, enter into an agreement to convey to a water-users' association any portion of the land embraced in his entry, to be held in trust and sold for the benefit of the homesteader to persons competent to make entry of such lands. (Op. Asst. Atty. Gen., March 29, 1906, 34 L. D. 532.)

See note 39 under this section.

23. Mineral lands.-Lands valuable for mineral deposits and embraced within a withdrawal of lands susceptible of irrigation by means of a reclamation project are not thereby taken out of the operation of the mining laws, but continue open to exploration and purchase under such laws. (Secretary's instructions of October 6, 1906, 35 L. D. 216; Loney v. Scott, 57 Or. 378, 112 Pac. 172.)

Withdrawals under the second form do not affect coal lands. (Albert M. Crafts, 36 L. D. 138, overruling John Hopkins, 32 L. D. 560.)

24. Railroad rights of way.-Homesteaders without patents, but lawfully in possession of lands withdrawn for irrigation under a reclamation project, may grant rights of way over their settlements to a railroad company, and approval of the Secretary of the Interior is not required. (Minidoka & S. W. R. R. Co. v. United States, 235 U. S. 211 ; 59 L. Ed. 200; 35 Sup. Ct. 46, reversing 190 Fed. 491 and affirming 176 Fed. 762.) In this case the court said: It has always been the policy of the Government to encourage the building of railroads in the Western States, and many land grants have been made by it to aid in their construction. Congress has also provided a means by which these companies having any such grants could acquire rights of way over any portion of the public land by filing a map of definite location and securing its approval by the Secretary of the Interior. (18 Stat. 482, ch. 152.) This law, however, by its very terms, applies only to 'public lands,' and hence can not be construed to empower the Secretary to authorize the building of roads across land which had been segregated from the public domain by the entry and possession of homesteaders or preemptors. (Bardon v. Northern P. R. Co., 145 U. S. 538; 36 L. Ed. 809; 12 Sup. Ct. 856; United States v. Buchanan, 232 U. S. 76; 58 L. D. 514; 34 Sup. Ct. 237, and cases cited.) On the other hand, settlers without patent were not in a position to make deeds to right of way, not only because they had no title, but also because they were prohibited from alienating such lands before final proof. (R. S. sec. 2291.)"

(See Minidoka & S. W. R. Co. v. Weymouth, 19 Idaho 234, 113 Pac. 455.)

25. Farm-unit plats.—Where the Secretary of the Interior by approval of farm-unit plats under the provisions of the act of June 17, 1902 (32 Stat. 388), heretofore or hereafter given, has determined, or may determine, that the lands designated thereon are irrigable, the filing of such plats in the office of the Commissioner of the General Land Office and in the local land offices shall be regarded as equivalent to an order withdrawing such lands under the second form under said act, and as an order changing to the second form any withdrawal of the first form then effective as to any such tracts. (Department decision, July 13, 1908; 37 L. D. 27.)

26. Second withdrawal after revocation of first.--All entries of lands withdrawn under the act are subject to the conditions imposed by this section, and a revocation of the withdrawal operates to remove those conditions and leaves the entries in the same situation as entries made prior to the withdrawal, and such conditions can not, by force of a second withdrawal, be reimposed upon such of the entries made during the period of the first withdrawal as had not been perfected at the date of the second withdrawal. (Op. Asst. Atty. Gen., 34 L. D. 445.)

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27. Right of settler superior to that of State.-A settlement upon public lands, withdrawal at date of settlement, is valid against everyone except the United States, and, where one settles prior to survey, upon withdrawn lands embraced within a school section, the right of such settler to make entry upon approval of the survey and vacation of the withdrawal is paramount to the right of the State under its school-land grant. (State of Idaho v. Dilley, 49 L. D. 644.)

II. ENTRY UNDER THE RECLAMATION LAW 28. Entry must be under homestead laws. In the withdrawal of lands under the second form there was an exception in favor of homestead; that is to say, such lands were not withdrawn from public entry under the homestead laws, but were continued to be open to such entry, “subject to all the provisions, limitations, charges, terms, and conditions" of the act. (Edwards v. Bodkin, 1918, 249 Fed. 562; affirmed, Edwards v. Bodkin (D. C. Cal., 1919), 267 Fed. 1004; decree affirmed (C. C. A. 1920), Bodkin v. Edwards, 265 Fed. 621; decree affirmed (1921), 41 Sup. Ct. 268, 255, U. S. 221, 65 L. Ed. 595.)

29. Secretary can not prevent entry.—The Secretary of the Interior has no power to withhold lands withdrawn under the second form from disposition under the homesetad laws pending sufficient progress in the construction of the works to assure a sufficiency of water for the irrigation of the land. (Secretary's instructions of July 12, 1904, 33 L. D. 104. But see sec. 5, act of June 25, 1910, 36 Stat. 835, as amended by act of February 18, 1911, 36 Stat. 917, and sec. 10, act of August 13, 1914, 38 Stat. 686.)

30. Entry may be initiated by settlement.--Entry of lands within a reclamation project can be initiated by settlement. In section 3 of the reclamation act the word "only," in the provision that “public lands which it is proposed to irrigate by means of any contemplated works shall be subject to entry only under the provisions of the homestead laws," applies to and qualifies the clause "under the provisions of the homestead law." (Chapman v. Pervier, 46 L. D. 113.)

Lands subject to entry within reclamation projects are no exception to the rule of law that an outstanding preference right of entry of certain lands is not, of itself, a bar to settlement thereupon, the settlement being subject, however, to the preference right if exercised. (Chapman v. Pervier, 46 L. D. 188.)

Settlement upon any portion of a farm unit entitles the settler to claim, by virtue of such settlement, only lands contained in that farm unit. (

(McDonald v. Rizor, 42 L. D. 554.)

31. Rule of approximation.-Rule applied to reclamation homestead entries coming within the provisions of the reclamation act, that when the excess area in an entry above 160 acres is less than the deficiency would be if the smallest subdivision were excluded, it may be included in the entry; where it is greater it must be excluded. (General Land Office Instructions, March 30, 1910, 38 L. D. 513.)

32. Limit of area of entry.--The Secretary of the Interior is empowered to fix the limit of area for each homestead entry under the same project according to the quality and character of the land with reference to its productive value; but all entries must be of contiguous tracts and of not less than 40 nor more than 160 acres. (Secretary's instructions, August 21, 1903, 32 L. D. 237. But see act June 27, 1906, 34 Stat. 519, and notes thereunder.)

33. Entries must be by legal subdivisions.-All entries must be made according to the ordinary legal subdivisions, and the Secretary of the Interior has no authority to allow an entry for less than 40 acres, nor to subdivide a 40-acre tract for combination with other subdivisions. (Idem. But see act June 27, 1906, 34 Stat. 519, and notes thereunder.)

34. Uniformity of area not required.-The Secretary of the Interior may require that homestead entries shall comprise certain specified tracts, selected with reference to soil and water supply, whether the areas of the entries are uniform or not. (Idem.) 35. All entries subject to reduction to farm unit.-Every entry of lands within the limits of a withdrawal under the act is subject to reduction to a farm unit as thereafter established by the Secretary of the Interior, and improvements placed upon the different subdivisions by the entryman prior to such reduction are at his risk. (Jerome M. Higman, 37 L. D. 718.)

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A successful contestant in exercising his preference right of entry upon lands within a reclamation project is limited to one farm unit, although such unit may embrace less than the area covered by the entry he contested. (Joseph F. Gladieux, 41 L. D. 286.)

Where an entryman of lands within a reclamation project fails, after notice, to conform his entry to an established farm unit, the Secretary of the Interior has the power to so conform the entry. (Mangus Mickelson, 43 L. D. 210.)

36. Farm units not confined to limits of entry.-In subdividing such an entry the Secretary of the Interior is not required to confine the farm units to the Himits of the entry, but may combine any legal subdivision thereof with a contiguous tract or tracts lying outside of the entry so as to equalize in value the several farm units. (Jerome M. Higman, 37 L. D. 718.)

37. Homestead entry partly within and partly without reclamation project.Where a portion of a homestead entry made subject to the provisions of the reclamation act is subsequently eliminated from the project, and the portion remaining within the project is designated as a farm unit, the entryman may retain either the farm unit or the portion lying without the limits of the project, at his election, and the entry will be canceled as to the remainder. (Laurel L. Shell, 39 L. D. 502.)

In view of the equities in this particular case, direction is given that if the entryman so desires the portion of the entry eliminated from the project may be again brought thereunder and added to the farm unit with a view to permitting him to complete entry for the entire tract. (Idem.)

38. Conflicting rights regarding school-section lands.-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, acquires rights by such settlement and entry which bar the attachment of any rights to the land on behalf of the State under its school grant. He must, however, conform his entry to a farm unit. (Sarah E. Allen, 44 L. D, 331, modifying Sarah E. Allen, 40 L. D. 586, 589, and William Boyle, 38 L. D. 603.)

39. Additional entries.-The fact that lands are within a reclamation withdrawal does not prevent additional entry thereof under section 2, act of April 28, 1904 (33 Stat. 527), where farm units have not been established and where the original entry, to which the additional must be contiguous, was made subject to the restrictions and conditions of the reclamation act, the combined original and additional entry, however, being subject to adjustment to a farm unit when established. (Henry W. Williamson, 38 L. D. 233.) The case of Henry W. Williamson (38 L. D. 233), distinguished, and section 24 of the regulations of May 18, 1916 (45 L. D. 385, 390), declared obsolete and inoperative. Bert Scott (48 L. D. 85, 113.)

See note under this section.

40. Desert entryman may adopt one of two courses.---A desert entryman whose land is included within a reclamation project may elect to proceed with the reclamation thereof on his own account, and thus acquire title to all, or so much of, the land included within his entry as he can secure water to irrigate or accept the conditions of the reclamation act and acquire title thereunder to 160 acres; but he can not avail himself of both the reclamation project and other means of reclamation and thus acquire title to more than 160 acres of land. (Robert J. Slater, 39 L. D. 380.)

41. Aggregate area of public land.-A homestead entry of a farm unit within a reclamation project, regardless of the area embraced therein, is the equivalent of a homestead entry for 160 acres outside of a project; but in fixing the area that should be charged against the entryman by reason of such entry, under the provision in the act of August 30, 1890 (26 Stat. 371), that not more than 320 acres in the aggregate may be acquired by any one person under the agricultural public-land laws, the reclamation entry should be taken into account at its actual area and not charged as 160 acres. (Henry C. Taylor, 42 L. D. 319.)

42. Descent of homestead entryman's rights. Upon the death of a homesteader having an entry within an irrigation project, leaving a widow, and only minor heirs, his right may, under section 2292, Revised Statutes, be sold for the benefit of such heirs. (Heirs of Frederic C. De Long, 36 L. D. 332.)

If in such case the land has been subdivided into farm units, the purchaser takes title to the particular unit to which the entry has been limited; but if

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subdivsion has not been made, he will acquire an interest in only the land which would have been allotted to the entryman as his farm unit; in either case taking subject to the payment of the charges authorized by the reclamation act and regulations thereunder and free from all requirements as to residence and cultivation. (Idem.)

43. Reclamation homestead subject to oil and gas rights.-An applicant who has been granted a water right in connection with a reclamation homestead application for land within a petroleum reserve is entitled, upon withdrawal of the application rather than accept a surface patent, to repayment of the water charges, where he had no knowledge of the petroleum withdrawal and the public notice pursuant to which he made payment failed to state that any of the land was within a reserve. (Dorsey L. Rouse, 50 L. D. 379.)

III. RESTORATION

44. When order of restoration effective. Where lands which have been withdrawn from all disposition are restored to entry, no application will be received or any rights recognized as initiated by the tender of an application for any such lands until the order of restoration is received at the local land office. (George B. Pratt et al., 38 L. D. 146.)

45. Restoration to entry does not validate previous void entry.-A homestead entry which was void when made because the land was withdrawn as required for reclamation construction is not validated by a subsequent order of the Secretary of the Interior declaring the land not needed for construction purposes. (U. S. y. Fall (App. D. C., 1921), 276 Fed. 622.)

46. Rights of successful contestants.--A successful contestant can not be permitted to make entry in exercise of his preference right while the lands he seeks to enter are embraced in a first-form withdrawal under the reclamation act; but under the regulations of August 24, 1912, 41 L. D. 171, and September 4, 1912, 41 L. D. 241, he may exercise that right at any time within 30 days from notice that the lands involved have been released from withdrawal and made subject to entry. (John T. Slaton, 43 L. D. 212.)

Where land embraced in a homestead entry was withdrawn for use in connection with a reclamation project pending a contest which resulted in cancellation of the entry, the successful contestant upon restoration of the land is entitled to a period of 30 days from the date of such restoration within which to exercise his preference right to entry. (Beach v. Hanson, 40 L. D. 607; Wright v. Francis et al., 36 L. D. 499.)

Under the act of May 14, 1880 (21 Stat. 140), providing that where any person has contested and procured the cancellation of any homestead entry he shall be allowed 30 days to enter the lands, where the Department of the Interior entertained a contest while the land involved was withdrawn from entry under the reclamation act, it properly permitted the successful contestant to enter the lands within 30 days after the restoration of such lands to entry. (Edward: v. Bodkin (D. C. Cal. 1917), 241 Fed. 931; affirmed (C. C. A. 9th Cir. 1920), 265 Fed. 621.• See also McLaren v. Fleischer (1919), 185 Pac. 967; 181 Cal. 607 ; certiorari granted (1920), 40 Sup. Ct. 482, 253 U. S. 479, 64 L. Ed. 1023 ; and Culpepper v. Ocheltree (Cal. 1919), 185 Pac. 971; certiorari granted (1920), 40 Sup. Ct. 482, 253 U. S. 480, 64 L. Ed. 1023.)

While section 10 of the reclamation act authorizes the Secretary of the Interior to make such regulations as may be necessary and proper to carry the act into full force and effect, he is not authorized to amend, modify, or change the act of May 14, 1880 (21 Stat. 141), fixing the rights of a successful contestant who has secured the cancellation of any preemption, homestead, or timberculture entry. (Edwards v. Bodkin, 249 Fed. 562, overruling Edwards v. Bodkin, 42 L. D. 172; affirmed Edwards v. Bodkin (D. C. Cal. 1919), 267 Fed. 1004; affirmed Bodkin v. Edwards (C. C. A. 1920), 265 Fed. 621; affirmed (1921), 41 Sup. Ct. 268, 255 U. S. 221, 65 L. Ed. 595.)

Where it did not appear that a contest was duly instituted, so as to give the land office jurisdiction to determine rights to the land, there being no question of fraud on the Government, the decision of the land office as to rights to arid land withdrawn after entry under this act, but later released, is not binding. (Idem.)

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