private holdings, the Secretary may (but need not) permit delivery of water under individual water-right applications after payout to lands in excess of 160 acres. Solicitor Barry Opinion, 68 I.D. 372, 383 (1961), limiting Chief Counsel King Memorandum Opinion of July 1, 1914, approved by the First Assistant Secretary, July 22, 1914, 43 L.D. 339.

The Act of August 9, 1912, relates to individual contracts, in contrast to the joint liability contract specifically required by section 46 of the Omnibus Adjustment Act of 1926; and the provisions of the former relating to the effect of payout on excess lands cannot be infused with a new life for the purpose of implementing the latter, which contains no comparable provisions. Solicitor Bennett Opinion, 64 I.D. 273 275-6 (1957), in re proposed contract with Kings River Conservation District.

The memorandum opinion by Associate Solicitor Cohen, M-35004 (October 22, 1947), concluding that "upon full payment of construction obligation under a jointliability repayment contract, the lands receiving water under such contract are, under the provisions contained in section 3 of the Act of August 9, 1912, relieved of the statutory excess-land restrictions," and Administrative Letter 303 of December 16, 1947, based on the opinion, are in error. Solicitor Barry Opinion, 68 I.D. 372, 376, 395 (1961) in re proposed repayment contracts for the Kings and Kern River projects.

Where there are on a project two farm units, which together include less than 160 acres of irrigable land, the owner of one unit will, if he purchases the other, be entitled to receive water for it if all project building charges on account of either tract have been paid in full. Amaziah Johnson, 42 L.D. 542 (1913).

3. —Delivery of water

an

The restriction in the reclamation laws against furnishing project water to acreage greater than 160 acres in a single ownership does not permit the furnishing of water alternately or in rotation to two or more 160-acre parcels of a larger single holding. Memorandum of Chief Counsel Fix to Commissioner, May 12, 1948. 4. -Supplemental water supply

The limitation intended by the reclamation law, as set forth in section 5 of the Reclamation Act of 1902 and as supported by the plain language of section 3 of the Act of August 9, 1912, relates to the area in private ownership to which water may be delivered, and not to the quantity of water. A private owner will not be supplied

181

with water, whether a full or supplemental supply, for use upon a tract exceeding 160 acres. The language in section 2 of the Warren Act referring to "an amount sufficient to irrigate 160 acres" is not intended to change this rule. Solicitor Patterson Opinion, M-21709 (March 3, 1927), in re proposed contract concerning Gravity Extension Unit, Minidoka project.

10. Ownership of excess lands-Generally

Congress is without power to control or regulate the sale or acreage of lands in private ownership within reclamation projects, but so long as the projects are under Government control, Congress may determine the acreage for which water may be supplied through such projects to any one land owner, Amaziah Johnson, 42 L.D. 542 (1913), and the ownership of a water right purchased under the project from the Government, Keebaugh and Cook, 42 L.D. 543 (1913).

The limitation in the proviso to section 3 of the Act of August 9, 1912, as to the area of lands for which water right may be acquired or owned by any one person, has reference to irrigable lands only. Amaziah Johnson, 42 L.D. 542 (1913).

The Secretary of the Interior has authority under the Act of February 25, 1920, 41 Stat. 451, to enter into a contract to supply to the City of El Paso an amount of water from the Rio Grande reclamation project representing the water service for certain project lands acquired by the city and retired from irrigation farming, but not to exceed a maximum of 32 acre-feet of water a year for each acre of such land acquired by the city. The city's ownership of some 1400 acres of such land does not violate the 160-acre limitation of reclamation law. El Paso County Water Improvement District No. 1 v. City of El Paso, 133 F. Supp. 894, 918-920 (W.D. Tex. 1955), affirmed, 243 F. 2d. 927 (5th Cir. 1957), cert. denied, 355 U.S. 820 (1957).

11. Farm units and entries

Where there are on a project two farm units (containing 69.95 and 56 acres, respectively, of irrigable land), and the project building charges have not been paid in full for either, the owner of one unit will not, if he purchases the other, be entitled to receive water for it. Amaziah Johnson, 42 L.D. 542 (1913).

Two individuals, each of whom is holding under the homestead laws an irrigable farm unit (containing 104 acres and 77 acres, respectively, of irrigable land) for which all building and betterment charges have not been paid, may not acquire a water right for an additional area of private

182

land (78 acres of irrigable land), owned by them jointly or severally, on which charges have not been paid. Keebaugh and Cook, 42 L.D. 543 (1913).

The owner of a homestead entry under the Reclamation Act is not qualified to take by assignment another such entry. Instructions, 46 L.D. 227 (1917).

12. Coalescence of holdings

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 term "excess land" as used in the Act of July 11, 1956, an act which provides that "excess land" acquired involuntarily in certain cases may be furnished water for five years thereafter, means only lands which are excess after, but not before, the acquisition. The purpose of the act is to prevent a sudden diminution in the privileges respecting the land as the result of the transfer, not to enlarge the estate or its privileges in the hands of the new owner over that or those of the person from whom it was acquired. Memorandum of Associate Solicitor Fisher to Regional Solicitor, Sacramento, April 28, 1959.

The Act of July 11, 1956, does not apply in a case where the death of the prior owner took place before the water service contract was executed, because the land was neither excess nor nonexcess when acquired by the heirs or devisees. Memorandum of Deputy Solicitor Weinberg, December 10, 1965, in re Orlando trusts.

There is no legal objection to the acquisition of a water right by a water users association or other corporation if it is not otherwise disqualified under the excess land laws by reason of ownership of other lands on which there exist unpaid betterment and building charges. However, the Department has ruled as a matter of policy that water applications will not be accepted from corporations, Instructions, 42 L.D. 250 (1913), Pleasant Valley Farm Co., 42 L.D. 253 (1913), unless the corporation acquires a patent and water right solely to protect its security in a loan transaction and with the intention of reselling it at more propitious times, Great Western Insurance Co., A-16335 (February 8, 1932). Consequently, under this policy, where the Grand Valley Water Users Association has acquired several farm units at tax sales to protect

its lien, it may receive a patent to one farm unit for security purposes and may bid at tax sales for unlimited acreage for the purpose of protecting its lien and with the intent of reassigning its interest to qualified persons within a reasonable time. James P. Balkwill, 55 I.D. 241 (1935).

The two year limitation for the holding of excess lands in section 3 of the Act of August 9, 1912, does not apply to irrigation districts which have bid in the lands at tax sales under the Act of August 11, 1916. Glen L. Kimmel and Goshen Irrigation District, 53 I.D. 658 (1932).

An irrigation district or other entity with similar powers may receive water for lands acquired by foreclosure or other process of law for five years after acquisition as permitted by the Act of July 11, 1956, 70 Stat. 524. Memorandum of Associate Solicitor Weinberg to Acting Regional Solicitor, Denver, September 25, 1961.

A person who involuntarily acquires lands which become excess in his hands, cannot extend his eligibility to receive water beyond the 5-year period provided by the Act of July 11, 1956, 70 Stat. 524, by executing a recordable contract. Acting Solicitor Fisher Opinion, 68 I.D. 433, 434 (1961) (dictum), limited on other grounds, Deputy Solicitor Weinberg Opinion, 72 I.D. 245, 247 (1965).

For purposes of the Act of July 11, 1956, an act which allows lands that become excess by virtue of certain involuntary acquisitions to receive water for five years thereafter, the date of the "acquisition" with respect to an heir or devisee should be considered to be the date of death, whether or not the property is covered by a will and irrespective of provisions of local law relating to the estate of the decedent. Memorandum of Associate Solicitor Fisher to Regional Solicitor, Sacramento, April 28, 1959.

Where one who has entered into a contract to purchase privately owned lands, title remaining in the vendor, files waterright application and makes payments on account of the construction or building charge, and all rights of the vendee under the contract are reacquired by the vendor, the latter is entitled to receive credit for such payments and to complete the same upon showing proper qualifications to acquire and hold, notwithstanding that the transfer was the result of voluntary action instead of foreclosure proceedings; provided, however, that if the original vendor is not so qualified he must within two years from reacquisition of the land, dispose of such excess holding as directed by paragraph 76 of the departmental regulations of