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FARM UNITS, TOWN SITES, AND DESERT-LAND ENTRIES

An act providing for the subdivision of lands entered under the reclamation act, and for

other purposes. (Act June 27, 1906, ch. 3559, 34 Stat. 519)

a

[Sec. 1. Minimum entries of less than 40 acres-Subdivision Entries of lesser areas.]—That whenever, in the opinion of the Secretary of the Interior, by reason of market conditions and the special fitness of the soil and climate for the growth of fruit and garden produce, a lesser area than forty acres may be sufficient for the support of a family on lands to be irrigated under the provisions of the act of June seventeenth, nineteen hundred and two, known as the reclamation act, he may

fix lesser area than forty acres as the minimum entry and may establish farm units of not less than ten or more than one hundred and sixty acres. That wherever it may be necessary, for the purpose of accurate description, to further subdivide lands to be irrigated under the provisions of said reclamation act, the Secretary of the Interior may cause subdivision surveys to be made by the officers of the Reclamation Service, which subdivisions shall be rectangular in form, except in cases where irregular subdivisions may be necessary in order to provide for practicable and economical irrigation. Such subdivision surveys shall be noted upon the tract books in the General Land Office, and they shall be paid for from the reclamation fund: Provided, That an entryman may elect to enter under said reclamation act a lesser area than the minimum limit in any State or Territory. (34 Stat. 519.)

Textual note.—This section, combined with one clause from section 3 of the act of June 17, 1902 (32 Stat. 388), is codified as section 434, title 43, United States Code. "Act of 'June 17, 1902," appears in the code as “reclamation law.'

NOTES

Cross reference.-The act of May 17, 1926 (44 Stat. Pt. 3, p. 1471), authorizes issuance of patent under the above act and the act of April 16, 1906 (34 Stat. 116), to the Boyle Commission Co. for block No. 223, town site of Heyburn, Idaho, without further payment on account of purchase price fixed for said land.

Subdivision of lands.—l'nder the authority conferred upon the Secretary by this act, to "fix a lesser area than 40 acres as the minimum entry” and to "establish farm units of not less than 10 or more than 160 acres," as to all lands withdrawn and entered under the reclamation act, he may make such subdivisions of the public land entered under the reclamation act as in his judgment may be deemed advisable in units of 10 acres or multiples thereof up to 160 acres. (Op. Asst. Atty. Gen. August 10, 1906, 35 L. D. 110.)

This act authorizes the Secretary to fix a lesser area than 40 acres as a farm unit when "by reason of market conditions and the special fitness of the soil and climate for the growth of fruit and garden produce a lesser area than 40 acres may be sufficient for the support of a family,” or when necessary "in order to provide for practical and economical irrigation," and there is no authority for subdividing a smallest legal subdivision under any other circumstances. (Jerome M. Higman, 37 L. D. 718.)

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Lands platted to farm units can only be taken in accordance with the established units; and there can not be included in the same entry lands within a farm unit and other lands without. (McDonald v. Rizor, 42 L. D. 554.)

See Reclamation Regulations of November 20, 1911, regarding amendment of farm units and adjustment of payments. (40 L. D. 312.)

March 8, 1930, the Commissioner, Bureau of Reclamation, requested the Secretary of the Interior to consider the matter of combining public and private land for the creation of a farm unit. This was thought advisable on the Kittitas division, Yakima project, in order that the lateral system might be more scientifically and economically laid out. The First Assistant Secretary, March 24, 1930, cited the act of June 27, 1906, fixing the area was the maximum (minimum?] entry,” stating that this could apply to public land only; and expressed the opinion that no authority is vested in the Secretary to establish a farm unit composed partly of public land and partly of adjacent private land.

Sec. 2. [Additional entries for relinquished lands.]—That wherever the Secretary of the Interior, in carrying out the provisions of the reclamation act, shall acquire by relinquishment lands covered by a bona fide unperfected entry under the land laws of the United States, the entryman upon such tract may make another and additional entry, as though the entry thus relinquished had not been made. (34 Stat. 519.)

Textual note.This section is codified as section 446, title 43, United States Code, the introductory word "That" being omitted, and “reclamation act" being changed to "reclamation law."

NOTES Entries affected. This section refers to entries so initiated under the land laws as to confer on the entryman vested rights which are voluntarily relinquished. (United States v. Hanson, 167 Fed. 881 (Wash. 1909) ; 93 C. C. A. 371.)

Settlers on unsurveyed lands.—The statutes contain no provision for recognition or protection of any right of a settler on unsurveyed public lands which may be withdrawn and reserved thereunder for construction of irrigation works, and he has no right to oppose taking the land therefor. (Idem.)

Sec. 3. [Disposal of town sites within irrigation projects. ]—That any town site heretofore set apart or established by proclamation of the President, under the provisions of sections twenty-three hundred and eighty and twenty-three hundred and eighty-one of the Revised Statutes of the United States, within or in the vicinity of any reclamation project, may be appraised and disposed of in accordance with the provisions of the act of Congress approved April sixteenth, nineteen hundred and six, entitled "An act providing for the withdrawal from public entry of lands needed for town-site purposes in connection with irrigation projects under the reclamation act of June seventeenth, nineteen hundred and two, and for other purposes”; and all necessary expenses incurred in the appraisal and sale of lands embraced within any such town site shall be paid from the reclamation fund, and the proceeds of the sales of such lands shall be covered into the reclamation fund. (34 Stat. 519.)

Textual note. The substance of this section is codified as section 563, title 43, United States Code, the words "heretofore set apart or established" being changed to “set apart or established prior to June 25, 1906," and references to previous acts of Congress being changed to references to sections of the United States Code.

FARM UNITS, TOWN SITES, AND DESERT LAND ENTRIES 89

NOTES

Cross reference.-See notes under section 2, act of April 16, 1906. (34 Stat. 116.) Regulations.-For General Land Office regulations see 52 L. D. 118.

Sec. 4. (Heyburn and Rupert, Idaho-Limitation not applicableWithdrawal of larger town sites.]—That in the town sites of Heyburn and Rupert, in Idaho, created and surveyed by the Government, on which town sites settlers have been allowed to establish themselves, and had actually established themselves prior to March fifth, nineteen hundred and six, in permanent buildings not easily moved, the said settlers shall be given the right to purchase the lots so built upon at an appraised valuation for cash, such appraisement to be made under rules to be prescribed by the Secretary of the Interior. Providing that the limitation on the size of town sites contained in

act of April sixteenth, nineteen hundred and six, entitled "An act providing for the withdrawal from public entry of lands needed for town site purposes in connection with irrigation projects under the reclamation act of June seventeenth, nineteen hundred and two, and for other purposes,” shall not apply to the town sites named in this section; and whenever, in the opinion of the Secretary of the Interior, it shall be advisable for the public interest, he may withdraw and dispose of town sites in excess of one hundred and sixty acres under the provisions of the aforesaid act, approved April sixteenth, nineteen hundred and six, and reclamation funds shall be available for the payment of all expenses incurred in executing the provisions of this act, and the aforesaid act of April sixteenth, nineteen hundred and six, and the proceeds of all sales of town sites shall be covered into the reclamation fund. (34 Stat. 520.) )

Textual note.-Portions of this section appear in sections 561 and 568, respectively, title 43, United States Code.

Sec. 5. [Allowance of time to desert-land entrymen—Where irrigation project is abandoned—Relinquishment of excess areas if project is completed— Owners of water rights. ]—That where any bona fide desertland entry has been or may be embraced within the exterior limits of any land withdrawal or irrigation project under the act entitled "An act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands," approved June seventeenth, nineteen hundred and two, and the desert-land entryman has been or may be directly or indirectly hindered, delayed, or prevented from making improvements or from reclaiming the land embraced in any such entry by reason of such land withdrawal or irrigation project, the time during which the desert-land entryman has been or may be so hindered, delayed, or prevented from complying with the desert-land law shall not be computed in determining the time within which such entryman has been or may be required to make improvements or reclaim the land embraced within any such desert-land entry: Provided, That if after investigation the irrigation project has been or may be abandoned by the Government,

88508—37-7

90 FARM UNITS, TOWN SITES, AND DESERT LAND ENTRIES

time for compliance with the desert-land law by any such entryman shall begin to run from the date of notice of such abandonment of the project and the restoration to the public domain of the lands withdrawn in connection therewith, and credit shall be allowed for all expenditures and improvements heretofore made on any such desert land entry of which proof has been filed; but if the reclamation project is carried to completion so as to make available a water supply for the land embraced in any such desert-land entry, the entryman shall thereupon comply with all the provisions of the aforesaid act of June seventeenth, nineteen hundred and two, and shall relinquish all land embraced within his desert-land entry in excess of one hundred and sixty acres, and as to such one hundred and sixty acres retained, he shall be entitled to make final proof and obtain patent upon compliance with the terms of payment prescribed in said act of June seventeenth, nineteen hundred and two, and not otherwise. But nothing herein contained shall be held to require a desert-land entryman who owns a water right and reclaims the land embraced in his entry to accept the conditions of said reclamation act. (34 Stat. 520.)

Textual note. This section is codified as section 448, title 43, United States Code, the introductory word “That" being omitted from the code; reference to the reclamation act, which occurs four times, being changed to "reclamation law"; and the words “improvements heretofore made" in the proviso being changed to "improvements made prior to June 27, 1906."

NOTES

Amendment.—The proviso to this section was amended by act of June 6, 1930 (46 Stat. 502).

Cross reference.--See section 3, act of March 28, 1908 (35 Stat. 52).
See act of July 24, 1912. (37 Stat. 200.)

Extension of time. This section, authorizing an extension of time for compliance with law on desert entries within reclamation projects, applies only to entrymen who have been directly or indirectly delayed or prevented from carrying out their plans and works for obtaining a water supply by creation of a reclamation project. (Frank C. Jones, 41 L. D. 377.)

Section 5 of the act of June 27, 1906, which provides that the time that a desert-land entryman is hindered or prevented from making improvements on or from reclaiming the lands in his entry by reason of the fact that the land has been within a reclamation withdrawal, shall not be computed in determining the period within which he must complete his entry, is not applicable where the method of irrigation is by the use of water to be procured from wells sunk on the land, and the failure to make timely reclamation is due solely to lack of funds. (Donald K. McLennan, 53 L. D. 21.)

Right to water.-A desert entryman of lands falling within a Government reclamation project who seeks to secure water for the reclamation thereof from the project is required by this section as a condition precedent to his right to water, to relinquish to the Government all of the land embraced within his entry in excess of 160 acres. (Secretary's instructions, January 20, 1912, 40 L. D. 386.)

Assignment of entry.-An unperfected desert-land entry in a reclamation project which has been reduced to 160 acres by relinquishment of the excess area under this act, and has thereby become subject to the reclamation act and qualified to take water from the project, may be assigned in part under the act of March 28, 1908 (35 Stat. 52). (George H. Upthegrove, 40 L. D. 622.)

Issue of patent.- Under the desert-land act as modified by this act, final proof upon a desert entry within a reclamation project can not be held to have been made and completed until the payments required by said acts and the reclamation act have been made; and the department is without authority to accept or regard final proof in such cases as complete, or to issue patent

FARM UNITS, TOWN SITES, AND DESERT LAND ENTRIES 91

thereon, until after such full compliance with the terms of payment imposed by the reclamation act. (W. H. Skinner et al., 39 L. D. 519.)

When, however, the parties in interest are able to negotiate loans for amounts sufficient to pay the entire reclamation charges upon an entry, contingent upon the prompt issuance of final certificate and patent, consideration of the final proof and issuance of final certificate and patent, in cases otherwise regular, may be expedited. (Idem. See also Leroy W. Furnas, 38 L. D. 194.)

Abandonment of entry.-The failure of an entryman on arid lands withdrawn under the reclamation act, as susceptible of irrigation, continuously to reside upon or cultivate the land, which, though later withdrawn for irrigation works, was finally released during the time when no reclamation project has been devised or installed, can not be deemed an abandonment; the act of June 27, 1906 (34 Stat. 520), expressly saving such cases, and the entryman having prepared the land for cultivation and established a residence thereon. (Edwards v. Bodkin (1918), 249 Fed. 562; affirmed (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.)

Rule of approximation.-Rule applied to desert 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 of Mar. 30, 1910, 38 L. D. 513.)

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