176 ASSIGNMENT OF DESERT-LAND ENTRIES An act relating to partial assignments of desert-land entries within reclamation projects made since March 28, 1908. (Act of July 24, 1912, ch. 251, 37 Stat. 200) [Desert-land entries within reclamation projects may be assigned-To conform to farm units.]-A desert-land entry within the exterior limits of a Government reclamation project may be assigned in whole or in part under the act of March twenty-eighth, nineteen hundred and eight (Thirty-fifth Statutes at Large, page fifty-two), and the benefits and limitations of the act of June twenty-seventh, nineteen hundred and six (Thirty-fourth Statutes at Large, page five hundred and twenty), shall apply to such desert-land entryman and his assignees: Provided, That all such assignments shall conform to and be in accordance with farm units to be established by the Secretary of the Interior upon the application of the desert-land entryman. All such assignments heretofore made in good faith shall be recognized under this act. (37 Stat. 200; 43 U.S.C. § 449) 177 PATENTS AND WATER-RIGHT CERTIFICATES An act providing for patents on reclamation entries, and for other purposes. (Act of August 9, 1912, ch. 278, 37 Stat. 265) [Sec. 1. Homesteaders under reclamation act to receive patents when conditions completed-Purchasers of water-right certificates-Payment in full required.]—Any homestead entryman under the act of June seventeenth, nineteen hundred and two, known as the reclamation act, including entrymen on ceded Indian lands, may at any time after having complied with the provisions of law applicable to such lands as to residence, reclamation, and cultivation submit proof of such residence, reclamation, and cultivation, which proof, if found regular and satisfactory, shall entitle the entryman to a patent, and all purchasers of water-right certificates on reclamation projects shall be entitled to a final water-right certificate upon proof of the cultivation and reclamation of the land to which the certificate applies, to the extent required by the reclamation act for homestead entrymen: Provided, That no such patent or final water-right certificate shall issue until after the payment of all sums due the United States on account of such land or water right at the time of the submission of proof entitling the homestead or desert-land entryman to such patent or the purchaser to such final water-right certificate. (37 Stat, 265; Act of February 15, 1917, 39 Stat. 920; 43 U.S.C. § 541) EXPLANATORY NOTES 1917 Amendment. The Act of February 15, 1917, 39 Stat. 920, amended the proviso in section 1 to read as it appears above. Before amendment, the proviso read as follows: "Provided, That no such patent or certificate shall issue until all sums due the United States on account of such land or water right at the time of issuance of patent or certificate have been paid." The 1917 Act appears herein in chronological order. Cross Reference, Patents and WaterRight Certificates for Desert-Land Entrymen on Reclamation Projects. The Act of August 26, 1912, 37 Stat. 595, includes a provision making this act applicable to desert-land entries. The provision is found herein in chronological order. NOTES OF OPINIONS Under the provisions of this act patents may issue on reclamation entries where all water-right charges due at the time the entryman submits proof of reclamation of one-half of the irrigable area of the land embraced in his entry have been paid, regardless of the fact that other water-right charges may accrue and be unpaid prior to the issuance of patent. General Land Office The terms "water-right certificate" and The residence requirements provided for in section 5 of the Reclamation Act of June 17, 1902, apply to all persons acquiring by assignment water-right contracts with the United States, unless prior to such assignment the final water-right certificate 178 PATENTS AND WATER-RIGHT CERTIFICATES contemplated by section 1 of the Act of August 9, 1912, has been issued, in which event the land may be freely alienated, subject to the lien of the United States. H. G. Colton, 43 L.D. 518 (1915). 4. Lands covered The fact that remunerative crops may be raised without irrigation upon land lying within a reclamation project is not sufficient ground for exclusion of such land from the project. Lewis Wilson, 42 L.D. 8 (1913). 5. Ceded Indian lands If one who has made a reclamation homestead entry for ceded Indian lands but has not paid the full Indian price of the entered lands, seeks to make a second entry under the reclamation law, he must first have paid all reclamation construction charges assessed against the original entry additional thereto. James E. Hughes, 52 L.D. 560 (1929). 6. Taxation Lands entered within a reclamation project are not subject to State taxation before the equitable title has passed to the entryman; and that title does not pass until the conditions of reclamation and payment of water charges due at time of final proof, imposed by the amended reclamation act, have been fulfilled in addition to the requirements of the homestead act. Irwin v. Wright, 258 U.S. 219 (1922), overruling United States v. Canyon County, 232 Fed. 985 (D. Idaho 1916) and Cheney v. Minidoka County, 26 Idaho 471, 144 Pac. 343 (1914), which held that the entryman has a taxable interest after compliance with the requirements of the homestead laws but before compliance with the additional requirements of the reclamation act. Lands within an irrigation project, as to which reclamation proof had not been made nor certificate of proof issued, was not taxable. Wood v. Canyon County, 253 P. 839, 43 Idaho 556 (1927). 7. Irrigation district The provision of the reclamation law requiring payment by an entryman of all sums due the United States on account of the land or water right at the time of submission of proof as a condition precedent to the issuance of patent is not satisfied by the assumption by an irrigation district of an obligation to pay the water-right charges; nor does an extension of time accorded by the irrigation district for the payment of accrued charges operate as an extension by the Government unless approved by the latter. Frank Zumpfe, 51 L.D. 608 (1926). Sec. 2. [First lien on land reserved to United States-Title forfeited upon default of payment-Redemption within one year-Sale after failure to redeem-United States may bid in.]-Every patent and water-right certificate issued under this act shall expressly reserve to the United States a prior lien on the land patented or for which water right is certified, together with all water rights appurtenant or belonging thereto, superior to all other liens, claims, or interests whatsoever for the payment of all sums due or to become due the United States or its successors in control of the irrigation project in connection with such lands and water rights. Upon default of payment of any amount so due title to the land shall pass to the United States, free of all encumbrance, subject to the right of the defaulting debtor or any mortgagee, lien holder, judgment debtor, or subsequent purchaser to redeem the land within one year after the notice of such default shall have been given by payment of all moneys due, with eight per centum interest and cost. And the United States, at its option, acting through the Secretary of the Interior, may cause land to be sold at any time after such failure to redeem, and from the proceeds of the sale there shall be paid into the reclamation fund all moneys due, with interest as herein provided, and costs. The balance of the proceeds, if any, shall be the property of the defaulting debtor or his assignee: Provided, That in case of sale after failure to redeem under this section the United States shall be authorized to bid in such land at not more than the amount in default, including interest and costs. (37 Stat. 266; 43 U.S.C. § 542) Sec. 3. [Certificate for final payment-Single holdings limited-Excess acquired by descent, etc.-Forfeiture of prohibited excess.]—Upon full and final payment being made of all amounts due on account of the building and betterment charges to the United States or its successors in control of the project, the United States or its successors, as the case may be, shall issue upon request a certificate certifying that payment of the building and betterment charges in full has been made and that the lien upon the land has been so far satisfied and is no longer of any force or effect except the lien for annual charges for operation and maintenance: Provided, That no person shall at any one time or in any manner, except as hereinafter otherwise provided, acquire, own, or hold irrigable land for which entry or water-right application shall have been made under the said reclamation act of June seventeenth, nineteen hundred and two, and acts supplementary thereto and amendatory thereof, before final payment in full of all installments of building and betterment charges shall have been made on account of such land in excess of one farm unit as fixed by the Secretary of the Interior, as the limit of area per entry of public land or per single ownership of private land for which a water right may be purchased respectively, nor in any case in excess of one hundred and sixty acres, nor shall water be furnished under said acts nor a water right sold or recognized for such excess; but any such excess land acquired by foreclosure or other process of law, by conveyance in satisfaction of mortgages, by inheritance, or by devise, may be held for five years and no longer after its acquisition, and water may be temporarily furnished during that time; and every excess holding prohibited as aforesaid shall be forfeited to the United States by proceedings instituted by the Attorney General for that purpose in any court of competent jurisdiction; and this proviso shall be recited in every patent and water-right certificate issued by the United States under the provisions of this act. (37 Stat. 266; Act of July 11, 1956, 70 Stat. 524; 43 U.S.C. §§ 543, 544) 180 PATENTS AND WATER-RIGHT CERTIFICATES EXPLANATORY NOTES 1956 Amendment. The Act of July 11, 1956, 70 Stat. 524, amended section 3 by deleting that portion which reads "but any such excess land acquired at any time in good faith by descent, by will, or by foreclosure of any lien may be held for two years and no longer after its acquisition;" and adding in lieu thereof that portion which now reads "but such excess land acquired by foreclosure or other process of law, by conveyance in satisfaction of mortgages, by inheritance, or by devise, may be held for five years and no longer after its acquisition, and water may be temporarily furnished during that time;". Additionally, the 1956 Act authorizes the Secretary of the Interior, upon request of any holder of an existing contract under the Federal reclamation laws, to amend the contract to conform to the provisions of sections 1 and 2 of the Act, section 2 being the amendment of this Act and section 1 being an amendment to section 46 of the Omnibus Adjustment Act of May 25, 1926. Both the 1956 Act, and that of 1926, appear herein in chronological order. Supplementary Provision: Death of Spouse. The Act of September 2, 1960, 74 Stat. 732, provides that where lands which were eligible to receive water become excess 12 11 because of the death of a husband or wife, they may continue to receive water while owned by the surviving spouse until remarriage. The Act appears herein in chronological order. (Editor's comment: Although the 1960 Act specifically refers only to excess lands as defined in section 46 of the Omnibus Adjustment Act of May 25, 1926, it presumably also modifies the provision in section 3 of the 1912 Act which otherwise imposes a 5-year limit on the delivery of water to lands which become excess by inheritance or devise.) Contemporaneous Construction. Secretary Fisher's letter of August 6, 1912, to the President urging approval of the bill states in part: "The main purpose of this bill is to authorize the issuance of land patents and water right certificates in reclamation projects in advance of full payment of the building charge. * "Section 3✶✶✶ contains a proviso to prevent the consolidation of holdings until such time as full and final payment of the building charge shall have been made. By that time it is believed that the land will be in the hands of permanent settlers and speculative holdings eliminated." NOTES OF OPINIONS Supplemental water supply 4 Joint operations 14 1. Excess land laws-Generally The provisions of reclamation law of general application dealing with land limitations include section 5 of the Act of June 17, 1902, sections 1 and 2 of the Warren Act of 1911, section 3 of the Act of August 9, 1912, section 12 of the Reclamation Extension Act of 1914, and section 46 of the Omnibus Adjustment Act of 1926. Solicitor Barry Opinion, 71 I.D. 496, 501 (1964), in re application of excess land laws to private lands in Imperial Irrigation District; Solicitor Harper Opinion, M-33902 (May 31, 1945), in re application of excess land laws to Coachella Valley lands. The purpose of the 1912 legislation was to give to homestead entrymen and to the owners of private lands who had applied for water right certificates a vested right so they could raise money to finance their farming activity. At no time was it ever suggested that there was any purpose to modify basic objectives of the excess land provisions of the 1902 Act. Solicitor Barry Opinion, 68 I.D. 372, 382 (1961), in re proposed repayment contracts for Kings and Kern River projects. Section 46 of the 1926 Act and section 12 of the 1914 Act deal specifically with the breakup of pre-existing holdings, while the 1902 and the 1912 Acts are relevant to the issue of the effect of excess land limitations on the coalescence of holdings. Solicitor Barry Opinion, 68 I.D. 372, 375, 376, 390, 404 (1961), in re proposed repayment contracts for Kings and Kern River projects. The drainage system authorized by reclamation law is that which will provide drainage necessary to the successful operation of the complete project, and as a general matter the acreage limitations of the law do not apply to it. Memorandum of Chief Counsel Fix to Commissioner, May 12, 1948. 2. Payout, effect of Where it will help accomplish the purposes of fostering family-size farms and opposition to monopoly and speculation in |