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Act of June 10, 1920, as amended by section 201 of the Act of August 26, 1935, 49 Stat. 838, covers lands held or acquired in connection with reclamation projects, and applications for licenses for the transmission of hydroelectric power across the project lands should be made to the Federal Power Commission. Letter of Under Secretary, December 10, 1938, in re Yakima-Sunnyside project.

On December 18, 1941, the Under Secretary approved procedure for granting rights of way for electrical transmission, telegraph and telephone lines over lands acquired or withdrawn for reclamation purposes.

The General Railroad Right of Way Act of March 3, 1875, 18 Stat. 482, 43 U.S.C. §§ 934, et seq., does not apply to lands withdrawn through a first-form withdrawal. Southern Pacific Railroad Company, A-26143 (August 20, 1951). 33. -National forests

Reclamation withdrawals within the national forests are dominant, but until needed by the Reclamation Service, the lands will remain for administrative and protection purposes under control and direction of the Forest Service. Departmental decision, February 27, 1909.

While the Secretary of the Interior may determine what lands within national forests withdrawn for reclamation purposes are necessary for the proper protection of reservoirs constructed under the Reclamation Act, he has no power to lease such lands, since authority in that regard is specifically granted to the Secretary of Agriculture. But in recognition of the needs of the Reclamation Service and to forestall any contracts detrimental to a reclamation project, all leases should be subject to the prior approval of the Secretary of the Interior. 31 Op. Atty. Gen. 56 (1916). But see Act of July 19, 1919, conferring certain jurisdiction on the Secretary of the Interior.

34. -Sand and gravel

Removal of gravel from first form lands is unauthorized, as it contemplates a diminution in the freehold estate. Departmental decision, July 21, 1916, Huntley project.

The removal of surface rock on first-form lands may be permitted when such removal makes available for use of the service of the better class of rock in the interior of the deposit. Departmental decision, January 25, 1917, Rattlesnake Hill, Truckee-Carson.

The removal of sand and gravel for private purposes from land withdrawn under the first form is authorized, provided the privilege is granted under competitive conditions and on terms adequately protecting

the rights of the United States. Departmental decision, April 13, 1929, Boulder Canyon project.

41. Revocation of withdrawals Generally

A homestead entry, which was void when made, because the land was withdrawn as required for reclamation construction, is not validated by a subsequent order of the Secretary of the Interior declaring the land not needed for construction purposes. United States v. Fall, 276 Fed. 622 (App. D.C. 1921).

The Act of April 21, 1928, as amended, provides that the holder of a tax title on a reclamation homestead entry is entitled to the benefits of an assignee of such an entry under the Act of June 23, 1910; and the privileges under the Act of June 23, 1910, which are granted to the holder of a tax title under the Act of April 21, 1928, as amended, are not extinguished by the elimination of the entry from the reclamation withdrawal after the interest of the holder of the tax title was acquired. Ralph O. Baird, A-26773 (November 3, 1953).

A settlement upon public lands, withdrawn at date of settlement, is valid against everyone except the United States, and where one settles prior to survey, upon withdrawn lands embraced within a school section, the right of such settler to make entry upon approval of the survey and vacation of the withdrawal is paramount to the right of the State under its school land grant. State of Idaho v. Dilley, 49 L.D. 644 (1923).

Where revocation of order which withdrew land from entry in connection with reclamation project under this section, and approval of selection of patentee of part of such land in lieu of school land were simultaneous acts, approval of lieu selection took place before land became "unreserved" and "vacant" public land, subject to disposal under the Act of May 2, 1914, 38 Stat. 372, and gave patentee no rights therein except as against United States on expiration of period of limitation on patent under 43 U.S.C. § 1166. Capron v. Van Horn, 258 Pac. 77, 201 Cal. 486 (1927).

Though entry on public land was unauthorized, occupancy at time of revocation of order withdrawing land from entry under this section, became lawful, especially where occupant had applied for desert land entry, and made improvements, and land on revocation of withdrawal order ceased to be "vacant" or "unreserved" land under the Act of May 2, 1914, 38 Stat. 372. Capron v. Van Horn, 258 Pac. 77, 201 Cal. 486 (1927).

In action by patentee to quiet title against person who had possession and made im

provements while land was withdrawn from entry under this section, and who had applied for desert land entry, evidence was insufficient to support finding that defendant's unauthorized possession was not in good faith. Capron v. Van Horn, 258 Pac. 77, 201 Cal. 486 (1927).

Where lands formerly in Ute Reservation, which were withdrawn under this section, were subsequently restored to public domain, the Indians were not deprived of their interest therein. Confederated Bands of Ute Indians v. United States, 112 Ct. Cl. 123 (1948).

Lands formerly in the Ute Reservation, listed in the Secretary's return to the call, which were withdrawn for public purposes prior to June 28, 1938, under authority of this section, and which remained so withdrawn on June 28, 1938, were held for disposal for the benefit of the Indians on that date, since under this section, the lands had not been assigned to use or actually used, and had been subsequently restored to public use. Confederated Bands of Ute Indians v. United States, 112 Ct. Cl. 123 (1948).

Under the Act of May 14, 1880, 21 Stat. 140, providing that where any person has contested and procured the cancellation of any homestead entry he shall be allowed 30 days to enter the lands, where the Department of the Interior entertained a contest while the land involved was withdrawn from entry under the Reclamation Act, it properly permitted the successful contestant to enter the lands within 30 days after restoration of such lands to entry. Edwards v. Bodkin, 241 Fed. 931 (D. Cal. 1917), affirmed 265 Fed. 621 (9th Cir. 1920). Accord: McLaren v. Fleischer, 185 Pac. 961, 181 Cal. 607 (1919), affirmed 256 U.S. 477 (1921); Culpepper v. Ocheltree, 185 Pac. 971 (Cal. 1919), affirmed 256 U.S. 483 (1921).

Any right under regulation 7 of June 6, 1905, issued by the Secretary of the Interior, which successful contestant of homestead entry on land withdrawn as susceptible of irrigation might have had, was lost by promulgation of regulation 6 of January 19,

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1909, as land before termination of contest or entry by contestant was withdrawn for irrigation works. Edwards v. Bodkin, 249 Fed. 562, 161 C.C.A. 488 (Cal. 1918), overruling 42 L.D. 172; affirmed 267 Fed. 1004 (D. Cal. 1919), affirmed 265 Fed. 621 (9th Cir. 1920), affirmed 255 U.S. 221 (1921).

Where it did not appear that a contest was duly instituted, so as to give the land office jurisdiction to determine rights to the land, there being no question of fraud on the Government, the decision of the land office as to rights to arid land withdrawn after entry under this section, but later released, is not binding. Edwards v. Bodkin, 267 Fed. 1004 (D. Cal. 1919), affirmed 265 Fed. 621, affirmed 255 U.S. 221.

Where land embraced in a homestead entry was withdrawn for use in connection with a reclamation project pending a contest which resulted in cancellation of the entry, the successful contestant upon restoration of the land is entitled to a period of 30 days from the date of such restoration within which to exercise his preference right to entry. Beach v. Hanson, 40 L.D. 607 (1912); Wright v. Francis, et al., 36 L.D. 499 (1908).

A successful contestant cannot be permitted to make entry in exercise of his preference right while the lands he seeks to enter are embraced in a first form withdrawal under the Reclamation Act; but under the regulations of August 24, 1912, 41 L.D. 171, and September 4, 1912, 41 L.D. 421, he may exercise that right at any time within 30 days from notice that the lands involved have been released from withdrawal and made subject to entry. John T. Slaton, 43 L.D. 212 (1914). 44. Desert land entries

In view of this section, section 5 of the Act of June 27, 1906, as amended, is applicable to a homestead entry, and the failure of an entryman on arid lands withdrawn under this section to continuously reside or cultivate the same cannot, the lands being later released, be deemed an abandonment. Edwards v. Bodkin, 267 Fed. 1004 (D. Cal. 1919), affirmed 265 Fed. 621, affirmed 255 U.S. 221.

In action to recover real property and quiet title, defendant holding possession of Government land and making improvements under application for desert land entry during pendency of order withdrawing land from entry under this section and at and after time of revocation of such order, was entitled to land as against patentee whose selection thereof in lieu of school land under Act of May 2, 1914, c. 75, 38 Stat. 372, was approved at time of revocation of order,

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as defendant in possession and making improvements became rightful occupant when land was thrown open to entry. Capron v. Van Horn, 258 Pac. 77, 201 Cal. 486 (1927).

45. Second withdrawal

All entries of lands withdrawn under the Act are subject to the conditions imposed by this section, and a revocation of the withdrawal operates to remove those conditions and leaves the entries in the same situation as entries made prior to the withdrawal, and such conditions cannot, by force of a second withdrawal, be reimposed upon such of the entries made during the period of the first withdrawal as had not been perfected at the date of the second withdrawal. Op. Asst. Atty. Gen., 34 L.D. 445 (1906).

II. RECLAMATION ENTRIES

51. Reclamation entries-Generally

Congress, in establishing a limitation on the size of entries on public lands under section 3 of the Reclamation Act of 1902, and on the maximum acreage for which a water-right could be acquired under section 5 of that Act, had as its purpose to provide homes on the arid lands of the West, the prevention of land monopoly, and the avoidance of land speculation. Solicitor Barry Opinion, 68 I.D. 372, 378 (1961), in re proposed repayment contracts for Kings and Kern River projects.

52. -Homestead laws, generally

In the withdrawal of lands under the second form there was an exception in favor of homestead; that is to say, such lands were not withdrawn from public entry under the homestead laws, but were continued to be open to such entry, "subject to all the provisions, limitations, charges, terms, and conditions" of the Act. Edwards v. Bodkin, 249 Fed. 562 (1918); affirmed Edwards v. Bodkin 267 Fed. 1004 (D.C. Cal. 1919); decree affirmed, Bodkin v. Edwards, 265 Fed. 621 (C.C.A. 1920); decree affirmed, 255 U.S. 221 (1921).

Although an entry is made under the provisions of the Reclamation Act of 1902, it is subject to the same requirements as entries made under the homestead laws. Daniel H. Simkins, A-26274 (March 11, 1952).

Entry of lands within a reclamation project can be initiated by settlement. In section 3 of the Reclamation Act the word "only," in the provision that "public lands which it is proposed to irrigate by means of any contemplated works shall be subject to entry only under the provisions of the homestead laws," applies to and qualifies the

clause "under the provisions of the homestead law." Chapman v. Pervier, 46 L.D. 113 (1917).

A homestead entry of a farm unit within a reclamation project, regardless of the area embraced therein, is the equivalent of a homestead entry for 160 acres outside of a project; but in fixing the area that should be charged against the entryman by reason of such entry, under the provision in the Act of August 30, 1890, 26 Stat. 371, that not more than 320 acres in the aggregate may be acquired by any one person under the agricultural public-land laws, the reclamation entry should be taken into account at its actual area and not charged as 160 acres. Henry C. Taylor, 42 L.D. 319 (1913).

Entrymen on lands expected to be irrigated from a reclamation project must comply with all requirements of the homestead laws even though it is impossible to cultivate the land without irrigation from the project. Instructions, 32 L.D. 633 (1904); Jacob Fist, 33 L.D. 257 (1904).

A settler on unsurveyed land in a school section who after survey and after withdrawal of the land under the Reclamation Act as susceptible of reclamation under an irrigation project was permitted to make entry for the full area of 160 acres, acquires rights by such settlement and entry which bar the attachment of any rights to the land on behalf of the State under its school grant. He must, however, conform his entry to a farm unit. Sarah E. Allen, 44 L.D. 331 (1915), modifying Sarah E. Allen, 40 L.D. 586 (1912) and William Boyle, 38 L.D. 603 (1910).

A homesteader whose entry is within the irrigable area of an irrigation project, but not subject to the restrictions, limitations, and conditions of the Act, cannot under the law, prior to the acquisition of title to the land, enter into an agreement to convey to a water users' association any portion of the land embraced in his entry, to be held in trust and sold for the benefit of the homesteader to persons competent to make entry of such lands. Op. Asst. Atty. Gen., 34 L.D. 532 (1906).

53. Residence

Temporary withdrawal order does not suspend the requirements as to residence and irrigation until the lands are restored to entry, particularly where the Department notifies entrymen that it does not so construe the withdrawal. Bowen v. Hickey, 200 Pac. 46, 53 Cal. App. 250 (1921), cert. denied, 257 U.S. 656 (1921).

A reclamation homestead entry may be canceled where it is shown that the statutory requirement of the homestead laws with respect to the maintenance of residence has

not been met. Kind v. Selstad, 60 I.D. 382 (1949).

A homestead entry is subject to cancellation where the entryman has not resided upon the entry for the minimum length of time required by the homestead law. Visits of a transitory and temporary character to a homestead entry by the entryman are not sufficient to constitute actual residence. United States v. Jesse J. Shaw, A-26247 (December 29, 1951).

The requirement of the homestead law that the entryman must establish residence on his entry within a maximum period of 12 months from the allowance of his entry is not satisfied by clearing and leveling the land and cultivating it, where the entryman has lived with his family in rented premises in the vicinity of the entry and has never eaten, slept, or kept any possessions on the entry. Boyd L. Hulse v. William H. Griggs, A-28288, 67 I.D. 212 (1960).

Where an entryman fails to establish residence on his entry within 12 months from the allowance of his entry, the entry must be canceled. Boyd L. Hulse v. William H. Griggs, A-28288, 67 I.D. 212 (1960).

Where an entryman spent most of his waking hours upon the homestead, and had a habitable house thereon in which he ate some of his meals, took daytime naps, and entertained visitors, but slept every night in his son's home two miles from the homestead, he was not actually residing upon the homestead within the meaning of the homestead laws. Daniel H. Simkins, A-26274 (March 11, 1962).

54. -Preference right of entry

A successful contestant in exercising his preference right of entry upon lands within a reclamation project is limited to one farm unit, although such unit may embrace less than the area covered by the entry he contested. Joseph F. Gladieux, 41 L.D. 286 (1912).

Lands subject to entry within reclamation projects are no exception to the rule of law that an outstanding preference right of entry of certain lands is not, of itself, a bar to settlement thereupon, the settlement being subject, however, to the preference right if exercised. Chapman v. Pervier, 46 L.D. 113 (1917).

55. Additional entries

The right of additional homestead entry granted by section 6 of the Act of March 2, 1889, 25 Stat. 854, cannot be exercised upon lands within a reclamation project. Gjerluf Hanson, 40 L.D. 234 (1911).

An entry of lands subject to the provisions of the Reclamation Act will not be allowed as additional to a prior entry sub

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ject only to the provisions of the general homestead law. Charles O. Hanna, 36 L.D. 449 (1908).

A person who has made homestead entry for any area within a reclamation project cannot make an additional entry for lands outside a project. Bert Scott, 48 L.D. 85, 87 (1921); see also 48 L.D. 113. 56. -Relinquishment of entry

An applicant who has been granted a water right in connection with a reclamation homestead application for land within a petroleum reserve is entitled, upon withdrawal of the application rather than accept a surface patent, to repayment of the water charges, where he had no knowledge of the petroleum withdrawal and the public notice pursuant to which he made payment failed to state that any of the land was within a reserve. Dorsey L. Rouse, 50 L.D. 379 (1924).

57. -Desert land entry

A desert 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 accept the conditions of the Reclamation Act and acquire title thereunder to 160 acres; but he cannot avail himself of both the reclamation project and other means of reclamation and thus acquire title to more than 160 acres of land. Robert J. Slater, 39 L.D. 380 (1910).

58. -Farm units and area of entry

The Secretary of the Interior is empowered to fix the limit of area for each homestead entry under the same project according to the quality and character of the land with reference to its productive value, whether the areas of the entries are uniform or not. Instructions, 32 L.D. 237 (1903).

Every entry of lands within the limits of a withdrawal under this Act is subject to reduction to a farm as thereafter established by the Secretary of the Interior, and improvements placed upon the different subdivisions by the entryman prior to such reduction are at his risk. Jerome M. Higman, 37 L.D. 718 (1909).

Rule applied to reclamation homestead 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, 38 L.D. 513 (1910).

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Where a portion of a homestead entry made subject to the provisions of the Reclamation Act 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. In view of the equities in this particular case, direction is given that if the entryman so desires the portion of the entry eliminated from the project may be again brought thereunder and added to the farm unit with a view to permitting him to complete entry for the entire tract. Laurel L. Shell, 39 L.D. 502 (1911).

A successful contestant in exercising his preference right of entry upon lands within a reclamation project is limited to one farm unit, although such unit may embrace less than the area covered by the entry he contested. Joseph F. Gladieux, 41 L.D. 286 (1912).

Settlement upon any portion of a farm unit entitles the settler to claim, by virtue of such settlement, only lands contained in that farm unit. McDonald v. Rizor, 42 L.D. 554 (1913).

Where an entryman of lands within a reclamation project fails, after notice, to conform his entry to an established farm unit, the Secretary of the Interior has the power to so conform the entry. Mangus Mickelson, 43 L.D. 210 (1914).

Where a farm unit which has been surveyed without segregation of a railroad right-of-way contains lands on both sides thereof, disposition of such unit under the reclamation homestead act will be made in accordance with the survey without any deduction from the purchase price as to diminution in area caused by the rightof-way, but the water charges will be based on the irrigable area only. James A. Power, et al., 50 L.D. 392 (1924).

Under the Act of June 25, 1910, as subsequently amended, lands reserved for irrigation purposes are not subject to settlement or entry until the Secretary of the Interior shall have established the unit of acreage per entry and announced that water is ready to be delivered, and no exception to the rule can be made in favor of an applicant who seeks to make an additional entry of such lands in the exercise of a preference right acquired by contest. The prior holding in Henry W. Williamson, 38 L.D. 233 (1909), that a person holding an original homestead entry for less than 160 acres could be permitted to make additional

homestead entry for land embraced in a second-form withdrawal where farm units had not been established is no longer applicable under the Act of June 25, 1910. Bert Scott, 48 L.D. 85 (1921); see also 48 L.D. 113.

59. -Entryman's interest

Upon the death of a homesteader, having an entry within an irrigation project, leaving a widow, and only minor heirs, his right may, under section 2292, Revised Statutes, be sold for the benefit of such heirs. If in such case the land has been subdivided into farm units, the purchaser takes title to the particular unit to which the entry has been limited; but if subdivision has not been made, he will acquire an interest in only the land which would have been allotted to the entryman as his farm unit; in either case taking subject to the payment of the charges authorized by the Reclamation Act and regulations thereunder and free from all requirements as to residence and cultivation. Heirs of Frederic C. De Long, 36 L.D. 332 (1908).

A homestead entry, within a reclamation project, upon which the ordinary requirements of the homestead laws have been completed, is a property subject to mortgage which cannot be defeated by acts of the entryman or his assignee, and such entry cannot be cancelled upon contest in derogation of the right of the mortgagee to comply with the further provisions of the law looking to completion of title. Watson v. Barney, et al, 48 L.D. 325 (1921).

Issuance of a patent to a reclamation homestead entryman is mandatory (assuming no pending contest) under the proviso to section 7 of the Act of March 3, 1891, 26 Stat. 1095, two years after he has completed all requirements for entry, that is, conforms his entry to a farm unit, shows reclamation of one-half the irrigable area of the unit, assumes the payment of a water right, pays all the water-right charges which have accrued, makes proof of these facts, and pays the required final commissions, for which receipt issues. Instructions, 50 L.D. 506 (1924).