DECISIONS OF THE SECRETARY OF THE INTERIOR

GENERAL STATEMENT

Below is given under suitable headings a digest of important decisions which have been rendered by the Secretary of the Interior during the past year relating to operations under the reclamation act:

LEASE OF GRAZING LANDS ACQUIRED THROUGH CONDEMNATION PROCEEDINGS

Temporary leases for grazing and other agricultural purposes may be made of lands acquired through condemnation proceedings for reservoir or canal purposes during the period which may elapse between the acquisition of title and the actual use of the same for reservoirs or canals. All such leases should state the purpose for which the lands were acquired, that such purpose will not in any way be interfered with or delayed by the proposed lease, and should specifically provide in each case for the immediate or speedy termination of the lease in the event that it is desired to use the land or any part thereof for reclamation purposes or in the event that the work of reclamation is found to be hindered or delayed by reason of the lease. The lease should be limited to a period of one year, but there would be no objection to incorporating therein a provision giving the lessee the right to renew the same for the following year in the event the lands are not sooner needed by the United States for reclamation works. (Secretary, Feb. 28, 1911, 39 L. D., 525.)

DESERT-LAND ENTRIES

Under the desert-land act as modified by the act of June 27, 1906, final proof upon a desert-land entry within a reclamation project can not be held to have been made and completed until the payment required by those acts and the reclamation act of June 17, 1902, has been made. The department is without authority to accept or regard final proof in such cases as complete or to issue patent thereon until after full compliance with the terms of payment imposed by the reclamation act. If, however, the parties in interest are able to negotiate loans for amounts sufficient to pay the entire reclamation charges upon any entry contingent upon the prompt issuance of final certificate and patent, the consideration of the final proof and issuance of final certificate and patent in cases otherwise regular may be expedited. (First Assistant Secretary, Feb. 24, 1911, 39 L. D., 519.)

A desert-land 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 he may accept the conditions of the reclamation act and acquire title thereunder to 160 acres. He can not, however, avail himself of both the waters of the reclamation project and other means of reclamation, and thus acquire title to more than 160 acres of land. (First Assistant Secretary, Dec. 6, 1910, 39 L. D., 380.)

HOMESTEAD ENTRIES

Where a homestead entry within a reclamation project is divided into farm units, the entryman is entitled to retain only one of such units to be designated by him, and as to the remaining units, the entry must be canceled or where satisfactory final proof has been submitted, assignment thereof may be made under the provisions of the act of June 23, 1910. (Secretary, Oct. 19, 1910, 39 L. D., 297.)

Where a homestead entry is made subject to the provisions of the reclamation act and a portion of the entry 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. (First Assistant Secretary, Feb. 21, 1911, 39 L. D., 502.)

Where a widow succeeds to the right of her husband in an unperfected homestead entry, the fact that she had previously secured water from the project for the reclamation of land held by her in private ownership does not affect her right to acquire water under the project for completion of such entry under the reclamation act. (First Assistant Secretary, May 29, 1911, 40 L. D., 116.)

ASSIGNMENT

A married woman may, under the act of June 23, 1910, take an assignment of homestead entry made under the reclamation act upon which satisfactory final proof of residence and cultivation has been made, but upon which not all of the water-right charges have been paid, provided the local laws permit a married woman to purchase and hold real estate. In addition to the usual requirements, however, she will be required to show that the purchase is made with her own separate means in which her husband has no interest or claim, that the assignment is not taken for the use or benefit of her husband, and that she has no agreement or understanding by which any interest therein will inure to his benefit, and that the water right thus sought, together with such other rights as may be already in possession by such assignee, will not aggregate water rights for more than 160 acres of land furnished under the reclamation act. (Secretary Feb. 21, 1911, 39 L. D., 504.)

WATER-RIGHT CHARGES

An applicant for water rights under a reclamation project is required to pay for water for the entire irrigable area of his entry as shown on the plat, and where mistake in the plat is alleged as to the irrigable area of the entry, application for correction thereof should be made to the local officer of the Reclamation Service. (First Assistant Secretary, June 4, 1910, 39 L. D., 2.)

IRRIGABLE AREA

No deduction from the irrigable area subject to water-right charges will be made on account of right of way for highways or irrigating ditches. (First Assistant Secretary, June 4, 1910, 39 L. D., 2.)

APPEALS

The instructions of June 27, 1910, providing for appeals from the action of a project engineer to the Director of the Reclamation Service and the Secretary of the Interior, successively, are applicable only to cases involving questions which properly rest for decision within the jurisdiction of the Reclamation Service. (First Assistant Secretary, May 29, 1911, 40 L. D., 116.)

WATER RIGHT

Upon the issuance of a certificate of water-right application the right evidenced thereby becomes appurtenant to the land, subject to forfeiture for failure to pay the annual installments at the time and in the manner prescribed by law and the regulations. A subsequent purchaser of the land succeeds to the rights and status of the original owner, subject to the same charges and conditions. (First Assistant Secretary, Mar. 20, 1911, 39 L. Ď., 580.)

FURNISHING WATER TO TOWN LOTS

Applications by individual lot owners for water rights under the reclamation act for lands which have been subdivided into town lots will not be allowed. Water may be supplied to towns from reclamation projects, but delivered to some convenient point to be handled and distributed to the inhabitants by the municipal authorities in accordance with the provisions of the act of April 16, 1906. (Secretary, Mar. 21, 1911, 39 L. D., 591.)

RIGHTS OF WAY

The evident purpose of the act of August 30, 1890 (26 Stat., 391), was to reserve to the United States such lands as might be needed in the prosecution and furtherance of the plan of reclamation subsequently outlined by legislation of Congress. All public lands west of the one hundredth meridian taken up under allotment, sale, homestead, or other form of disposition, subsequent to said act as to which there is no claim by reason of settlement, occupancy, or otherwise, prior to that date are subject to the reservation provided for by that act to be expressed in the patent for right of way for ditches or canals constructed by authority of the United States. (First Assistant Secretary, Apr. 12, 1911, 40 L. D., 28.)

VESTED RIGHT

The rule that 160 acres is the maximum for which a water right may be acquired under the reclamation act does not prevent the recognition of a vested right for a larger area and protection of the same by allowing the continual flowing of the water covered by such right through the works constructed by the United States under appropriate regulations and charges. (First Assistant Secretary, May 29, 1911, 40 L. D., 116.)

FUNDS DERIVED IN PURSUANCE OF THE ACT OF JUNE 25, 1910

Money derived under the provisions of the act of Congress approved June 25, 1910, authorizing advances to the reclamation fund may be used for extensions of existing projects under the terms and upon the conditions prescribed by section 1 of the said act. (Secretary, Nov. 21, 1910.)

LITIGATION

COLORADO, GRAND VALLEY PROJECT

The taking of testimony in the proceedings to adjudicate the priorities of water rights in district No. 42, Mesa County, Colo. (which district includes the Grand Valley project and its supply canal), was completed early in the year, and the referee's report in the case was submitted April 15, 1911. Exceptions were filed by the attorneys for the United States to the excessive amount of water reported for decree to adverse claimants. On June 30 the judge had not yet set a date for hearing argument on the exceptions.

COLORADO, UNCOMPAHGRE VALLEY PROJECT

In the suit instituted in the District Court of the State of Colorado, for the adjudication of water rights in water district No. 40, affecting the Uncompahgre Valley project, a statement of the claims of the United States has been filed, but the proceedings will not be closed until some time in the fall of 1911 or later. Hearings for the presentation of evidence by the various claimants have been held from time to time. The United States has not yet presented evidence in support of its claim, but will do so whenever called on by the referee.

In the suit for the adjudication of water rights in district No. 62, on April 25, 1910, the court ordered an adjudication of water rights and appointed a referee. A statement of claim on behalf of the United States has been filed, and hearings will be had from time to time during the summer of 1911 and the proceedings may possibly be closed at the fall term of court.

On March 7, 1911, condemnation proceedings were commenced in the United States District Court for the District of Colorado against Aylmer F. Reeves to secure a strip of land for canal right of way across the northwest quarter of the southwest quarter (NW. SW. †) of section 21, township 49 north, range 10 west, N. M. P. M., for the King lateral extension ditch. On May 7, 1911, an order giving the United States immediate possession of the premises sought to be condemned was filed. On May 6, 1911, the respondent, Aylmer F. Reeves, filed a reply, which, among other things, raises the question of the constitutionality of the reclamation act. Reply of the United States was filed June 13, 1911. The cause may be tried at the fall term of the United States District Court, sitting at Montrose, Colo.

IDAHO, BOISE PROJECT

On July 5, 1910, the United States Circuit Court of Appeals rendered its decision in the condemnation suit against David E. Burley, upholding the constitutionality of the reclamation act in its application to both public and private lands. (179 Fed., 1.) Right of appeal has been lost.

15623°-12- -2

Suit was commenced February 2, 1911, in the United States Circuit Court against the Highland Valley Power Co. et al. to quiet title to certain reservoir and canal right of way lands, and on March 3, 1911, the Highland Valley Power Co. entered its appearance.

In the early part of May, 1911, condemnation proceedings were commenced against lands of Andrew Dowling et al. for railroad right of way in connection with the Arrowrock Dam. Subsequently contract to purchase was entered into and approved.

September 26, 1910, the United States Circuit Court decreed the forfeiture of reservoir site by the defendants in the case of the United States v. W. Grant Whitney. Notice of appeal has been given.

IDAHO, MINIDOKA PROJECT

The appeal in the case of the United States v. Minidoka & Southwestern Railway Co. et al. (176 Fed., 762) to enjoin defendants from constructing its line across withdrawn land without compliance with conditions was argued February 15, 1911, and the court has the case now under advisement.

January 28, 1911, the Supreme Court of Idaho sustained the temporary restraining order of the lower court in the case of the Minidoka & Southwestern Railway Co. v. F. E. Weymouth et al., prohibiting defendants who, though not so described in the complaint, are officers of the Reclamation Service from constructing canals or other works on plaintiff's right of way.

On March 17, 1911, Jesse S. Plain commenced action in the State court against P. F. Horne et al. (being register and receiver of the land office and the officers of the Reclamation Service) to restrain defendants from extending on the books of the land office and the Reclamation Service any assessments in excess of $26 for charges for the irrigation season and from shutting off water for the nonpayment of any excess charge. March 28 the case was dismissed for lack of jurisdiction.

On March 31, 1911, similar action was commenced by the same plaintiff against the same defendants in the United States Circuit Court. The court dismissed the case for lack of jurisdiction.

The suit of Twin Falls Canal Co. v. Charles N. Foster et al. is an action to determine the priorities to the waters of Snake River, and nearly all applicants for water under the project were joined as defendants. On June 21, 1911, the District Court of Idaho overruled the motion of the defendants, settlers under the Minidoka project, to dismiss as to them.

September 14, 1910, three actions were commenced in the United States Circuit Court against W. T. Johns, L. C. Johnson and W. B. Morgart, respectively, for injunction restraining the respective defendants from unlawful use of the waters of the project. September 21, 1910, temporary restraining orders were issued in each case.

MONTANA, HUNTLEY PROJECT

On August 31, 1909, an action was instituted in the United States Circuit Court for the District of Colorado by the United States against Piper Bros. Co., and Whitney Newton and George A. Newton, their bondsmen, for the recovery of extra expense incurred in completing the suspended contract for construction work on Huntley project.