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at date of settlement, is valid against everyone except the United States, and, where one settles prior to survey, upon withdrawn lands embraced within a school section, the right of such settler to make entry upon approval of the survey and vacation of the withdrawal is paramount to the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of lands under the second form there was an exception in favor of homestead; that is to say, such lands were not withdrawn from public entry under the homestead laws, but were continued to be open to such entry, "subject to all the provisions, limitations, charges, terms, and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 Secretary can not prevent entry.-The Secretary of the Interior has no power to withhold lands withdrawn under the second form from disposition under the homesetad laws pending sufficient progress in the construction of the works to assure a sufficiency of water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.)

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 limits 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 22 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

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. v. 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. 807; 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. (Edwards 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.)

Where there was no contest against an entryman on public lands, which for a time were withdrawn under this act, but were later released, the one attempting contest could have no preference right of entry. (Idem.)

Any right under regulation 7 of June 6, 1905 (33 L. D. 607), issued by the Secretary of the Interior under section 10 of the reclamation act, which a successful contestant of a homestead entry on land withdrawn as susceptible of irrigation might have had, was lost by the promulgation of regulation 6 of January 19, 1909 (37 L. D. 365), declaring that where contest has been allowed prior to first-form withdrawal if made before the determination of the contest or entry of the successful contestant will terminate all rights acquired by such contest where the land before termination of the contest or entry by contestant was withdrawn under the first form for irrigation works, and the contestant had only a preference. (Idem.)

See note 9 under this section.

47. Regulations.-General Land Office instructions, June 12, 1914, governing restoration of withdrawn lands. (43 L. D. 274.)

Sec. 4. [Contracts for construction-Public notice of irrigable lands, limit of area, charges per acre, and method of payment-Limit of work hours-Mongolian labor.]-That upon the determination by the Secretary of the Interior that any irrigation project is practicable, he may cause to be let contracts for the construction of the same, in such portions or sections as it may be practicable to construct and complete as parts of the whole project, providing the necessary funds for such portions or sections are available in the reclamation fund, and thereupon he shall give public notice of the lands irrigable under such project, and limit of area per entry, which limit shall represent the acreage which, in the opinion of the Secretary, may be reasonably required for the support of a family upon the lands in question; also of the charges which shall be made per acre upon the said entries, and upon lands in private ownership which may be irrigated by the waters of the said irrigation project, and the number of annual installments, not exceeding ten, in which such charges shall be paid and the time when such payments shall commence. The said charges shall be determined with a view of returning to the reclamation fund the estimated cost of construction of the project, and shall be apportioned equitably: Provided, That in all construction work eight hours shall constitute a day's work, and no Mongolian labor shall be employed thereon. (32 Stat. 389.)

Textual note. The first sentence with the proviso of section 4 is codified as section 419, title 43, United States Code, with the following changes: The first two lines read "Upon the determination that any irrigation project is practicable, the Secretary of the Interior"; in the seventh line from the bottom the words "not exceeding ten" are omitted. The remainder of the section is codified as a part of section 461, title 43, United States Code.

NOTES

1. Amendment.-Act August 13, 1914 (38 Stat. 686), amends this section as to installments of water charges. Further amendments made by subsection F of act of December 5, 1924 (43 Stat. 701), and by section 46, act of May 25, 1926 (44 Stat. 636).

See section 1, act August 9, 1912 (37 Stat. 265).

2. Construction.-Under the authority conferred upon the Secretary by the act he may, in his discretion, enter into contracts for the construction of irrigation works or construct such works by labor employed and operated under the superintendence and direction of Government officials. (Op. Asst. Atty. Gen., April 16, 1906, 34 L. D. 567).

The act of February 4, 1887 (24 Stat. 379), to regulate commerce, is not violated by a reduction in freight rates, authorized by section 22 of that act, amended March 2, 1889 (25 Stat. 862), on materials and machinery used by the United States, or by parties contracting with them for work upon irrigation systems under construction in the arid regions of the West, provided the Government receives the whole benefit of the reduced rate or concession; but it is violated if the contractor receives any portion of such benefi.. (25 Op. Atty. Gen. 408.)

There is no provision in the act to regulate commerce (act of February 4, 1887, 24 Stat. 379), or in its various amendments, which justifies the granting of reduced rates by railroads to employees of the Reclamation Service (Bureau of Reclamation) and dependent members of their families and servants accompanying them and laborers destined. for work in that service. If railroads accord these reduced rates, they will be obliged to grant the same rates to the public in general in order to avoid a violation of section 2 of the act of June 29, 1906 (34 Stat. 584, 587; 26 Op. Atty. Gen. 47).

In decision M-27714, dated June 5, 1934, the Department held that the Secretary had authority to contract for a lower freight rate for the movement of freight than the rate filed with the Interstate Commerce Commission, and that he was under no obligation to advertise for rates.

* *

The national irrigation act of June 17, 1902, gives the Secretary of the Interior authority to let contracts for the construction of reclamation works only when "the necessary funds are available in the reclamation fund," and if these funds are not available and sufficient, no such authority exists (27 Op. Atty. Gen. 590.)

Contracts by engineers of the Reclamation Service (Bureau of Reclamation), acting for and on behalf of the United States, with water users or water users' associations or with representative committees of settlers to advance certain moneys and perform work in the construction of irrigation works, certificates to be issued therefor redeemable at face value in part or full payment of the charges against the lands of the holders of the certificates, are unauthorized by the national irrigation act of June 17, 1902, and the Secretary of the Interior has no authority to enter into such contracts. (27 Op. Atty. Gen. 360.)

The Secretary of the Interior need not proceed with the construction of an irrigation project if existing conditions are not such as will enable him to enter into a contract contemplated by a statute appropriating funds for such project (1926). (35 Op. Atty. Gen. 125. See also (1925) 34 Atty. Gen. 545.) There is no statute authorizing the Secretary of the Interior to enter into contracts contemplating a cooperative plan whereby the United States enters into an agreement with a water users' association, by which the association undertakes to perform certain work within certain maximum prices, the work to become the property of the United States upon acceptance, payment therefor to be made by the association in certificates of work performed, which certificates are to be accepted by the United States in reduction of charges against particular tracts, as an equitable apportionment thereof. (27 Op. Atty. Gen. 590.)

For regulations as to commencement of construction work before the necessary rights over the property required for such construction have been secured, see departmental decision, January 30, 1912, Grand Valley.

During the construction of a Government project the temporary use of the canals of an irrigation system purchased by the Government for conveying to lands water that would otherwise be allowed to go to waste, is not incompatible with the purpose, but is directly in pursuance of the object for which the property was acquired. (Departmental decision, December 6, 1906.)

Where a steam shovel with operators is loaned by a railroad company to the Reclamation Service (Bureau of Reclamation) such operators are employees of the company and not of the United States. (Comp. Dec., in re Southern Pacific Railroad Co., October 20, 1915.)

Where a contract for Government work in connection with an irrigation project provided that the Secretary of the Interior might suspend the contract, take over the work, and complete the same at the cost of the contractor, and it appeared that the work contracted for was a novel undertaking, neither