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 applicable— Withdrawal 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 the 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). 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.) TREATY WITH MEXICO REGARDING THE RIO GRANDE CONVENTION BETWEEN THE UNITED STATES AND MEXICO, PROVIDING FOR THE EQUITABLE DISTRIBUTION OF THE WATERS OF THE RIO GRANDE FOR IRRIGATION PURPOSES [Signed at Washington, May 21, 1906; ratification advised by the Senate June 26, 1906; ratified by the President December 26, 1906; ratified by Mexico January 5, 1907; ratifications exchanged at Washington January 16, 1907; proclaimed January 16, 1907; 34 Stat. 2953] BY THE PRESIDENT OF THE UNITED STATES OF AMERICA A PROCLAMATION Whereas a convention between the United States of America and the United States of Mexico, providing for the equitable distribution of the waters of the Rio Grande for irrigation purposes, and to remove all causes of controversy between them in respect thereto, was concluded and signed by their respective plenipotentiaries at Washington on the 21st day of May, 1906, the original of which convention, being in the English and Spanish languages, is word for word as follows: The United States of America and the United States of Mexico being desirous to provide for the equitable distribution of the waters of the Rio Grande for irrigation purposes, and to remove all causes of controversy between them in respect thereto, and being moved by considerations of international comity, have resolved to conclude a convention for these purposes and have named as their plenipotentiaries: The President of the United States of America, Elihu Root, Secretary of State of the United States; and The President of the United States of Mexico, His Excellency Senor Don Joaquin D. Casasus, ambassador extraordinary and plenipotentiary of the United States of Mexico at Washington. Who, after having exhibited their respective full powers, which were found to be in good and due form, have agreed upon the following articles: ARTICLE 1. After the completion of the proposed storage dam near Engle, N. Mex., and the distributing system auxiliary thereto, and as soon as water shall be available in said system for the purpose, the United States shall deliver to Mexico a total of 60,000 acre-feet of water annually, in the bed of the Rio Grande at the point where the head works of the Acequia Madre, known as the Old Mexican Canal, now exist above the city of Juarez, Mexico. ART. 2. The delivery of the said amount of water shall be assured by the United States and shall be distributed through the year in the same proportions as the water supply proposed to be furnished from the said irrigation system to lands in the United States in the vicinity of El Paso, Tex., according to the following schedule, as nearly as may be possible: 92 In case, however, of extraordinary drought or serious accident to the irrigation system in the United States, the amount delivered to the Mexican Canal shall be diminished in the same proportion as the water delivered to lands under said irrigation system in the United States. ART. 3. The said delivery shall be made without cost to Mexico, and the United States agrees to pay the whole cost of storing the said quantity of water to be delivered to Mexico, of conveying the same to the international line, of measuring the said water, and of delivering it in the river bed above the head of the Mexican Canal. It is understood that the United States assumes no obligation beyond the delivering of the water in the bed of the river above the head of the Mexican Canal. ART. 4. The delivery of water as herein provided is not to be construed as a recognition by the United States of any claim on the part of Mexico to the said waters; and it is agreed that in consideration of such delivery of water Mexico waives any and all claims to the waters of the Rio Grande for any purpose whatever between the head of the present Mexican Canal and Fort Quitman, Tex., and also declares fully settled and disposed of, and hereby waives, all claims heretofore asserted or existing, or that may hereafter arise, or be asserted, against the United States on account of any damages alleged to have been sustained by the owners of land in Mexico by reason of the diversion by citizens of the United States of waters of the Rio Grande. ART. 5. The United States in entering into this treaty does not thereby concede, expressly or by implication, any legal basis for any claims heretofore asserted or which may be hereafter asserted by reason of any losses incurred by the owners of land in Mexico due or alleged to be due to the diversion of the waters of the Rio Grande within the United States; nor does the United States in any way concede the establishment of any general principle or precedent by the concluding of this treaty. The understanding of both parties is that the arrangement contemplated by this treaty extends only to the portion of the Rio Grande which forms the international boundary from the head of the Mexican Canal down to Fort Quitman, Tex., and in no other case. ART. 6. The present convention shall be ratified by both contracting parties in accordance with their constitutional procedure, and the ratification shall be exchanged at Washington as soon as possible. In witness whereof the respective plenipotentiaries have signed the convention, both in the English and Spanish languages, and have thereunto affixed their seals. Done in duplicate at the city of Washington this 21st day of May, 1906. ELIHU ROOT. And whereas the said convention has been duly ratified on both parts, and the ratifications of the two Governments were exchanged in the city of Washington on the 16th day of January, 1907: Now, therefore, be it known that I, Theodore Roosevelt, President of the United States of America, have caused the said convention to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof. |