32

2. Punishment for timber depre-
dations on public lands--.

Time, Computation of.

See Potash Lands, 1.

Title, State and United States.

See Arkansas River Islands, 1,
2; District of Columbia, 1, 2;
Homestead, subtitle "Subsistence."

1. The circumstances that lands
ceded by a State to the United
States were ceded in contemplation
of their devotion to a particular
use, and for a considerable length
of time were so devoted, do not
warrant the inference that upon
the termination of such particular
use or the substitution of other
uses, title to the land reverts to
the State, the cession containing
no such reservation---

Transportation.

See Right of Way.

1. In the carriage of freight by
use of railway lines, the provisions
of section 3709 of the Revised
Statutes of the United States, re-
quiring advertisement for competi-
tive bidding, have not been held
applicable to purchases and other
contracts made or entered into by
Federal officials____

2. The head of an Executive De-
partment of the Federal Govern-
ment is authorized to enter into a
contract for transportation of
Government freight over the lines
of a common carrier at a rate
lower than that in the schedule
filed with the Interstate Commerce
Commission--

Treaties.

See Indians and Indian Lands,
14, 15, 23, 27, 36-47.

32

492

489

489

in any trust created under the
act which has • ✦✦ promised
to pay to any person other than
an officer or employee on the regu-
lar pay roll thereof any
remuneration for any service or
influence in
attempting

to secure for it the trusteeship in
any trust ", a company is disquali-
fied to act as trustee in cases
where it has entered into contrac-
tual relations with one not on its
regular pay roll, such person to re-
ceive a compensation for obtain-
ing for the company the consents
of said Indians to its trusteeship
in the creation of trusts under
said act---

2. The criterion for determining
whether a company has placed it-
self within the class inhibited
from acting as Indian trustee
under the provisions of the act of
January 27, 1933, is the circum-
stance, whether or not the person
dealing in its behalf with the In-
dians in endeavoring to obtain
consents to the creation of trusts
was at the time of the transac-
tions an officer or employee on the
company's regular pay roll, the
statute and regulations clearly ex-
pressing an intention to limit
promises of compensation to per-
sons already on the regular pay
roll of the company for purposes
other than the procural of trusts
under the act, and prohibiting any
and all sorts of promises of re-
muneration so long as they are
made to persons who are not al-
ready officers or employees on the
regular pay roll____

3. Held, that a trust company
permanently disqualifies itself
from acting as trustee in Indian
trusts under the provisions of the
act of January 27, 1933, where,

Trusts and Trustees-Contd.

after filing the certificate pre-
scribed by paragraph 2 of the De-
partment's regulations of June 2,
1933, "to the effect that it has
not paid or promised to pay any
person other than an officer or em-
ployee on its regular pay roll ***
any remuneration for any service
or influence in * * * attempting
to secure for it the trusteeship in
that or in other trusts to which
these regulations apply", it is es-
tablished that said company had
entered into contractual relations
with one not at the time an of-
ficer, employee, or on the pay roll
of the company, under the terms
of which he was to engage in ef-
forts to procure Indian trustee-
ships for the company under said
act of January 27, 1933----

See Oil and Gas Lands, 3.

Wages and Hours of Labor.

1. The order of the Secretary of
the Interior of August 23, 1933,
requiring that all work performed
with funds granted by the Federal
Emergency Administration of Pub-
lic Works shall be subject to the
labor policies and wage require-
ments prescribed by said organiza-
tion, embraces work performed in
National Parks, whether under
contract or by the Government's
own forces____

2. By subsection (b) of section
8, Article II, Circular No. 1, it is
provided that, if work is located

Wages and Hours of Labor- Page
Continued.

at points remote and inaccessible,
40 hours' work in one week shall
be permitted after it is determined
by the State Engineer (P. W. A.),
prior to advertisement, that the
work is remote and inaccessible;
and this regulation vests authority
in the State Engineer (P. W. A.)
for determining whether 40 hours
shall constitute a week's work on
any designated project with au-
thority lodged in the Federal
Emergency Administration of Pub-
lic Works to modify such regula-
tion ---

3. To be legally effective, a
change from or waiver of the stat-
utory 30-hour work week pre-
scribed by the National Industrial
Recovery Act and the Federal
Emergency Administration of Pub-
lic Works, as applied to National
Parks, must be authorized by of-
ficials of the latter organization
or the State Engineer (P. W. A.),
in such persons residing the duty
of determining whether it is im-
practicable or infeasible to do the
work required on the 30-hour
week basis or to substitute there-
for the 40-hour week authorized in
Circular No. 1 and the rules and
regulations approved August 9,
1933

4. The Secretary of the Inte-
rior, as such, is without authority
to approve and make effective
plans submitted by the Director of
the Office of National Parks,
Buildings, and Reservations, for
changing the hours of labor from
30 to 40 per week, upon work in
National Parks, within the scope
of the Federal Emergency Ad-
ministration of Public Works, his
authority in this connection being
that conferred upon him as head
of the Federal Emergency Admin-
istration of Public Works--

5. Nothing in the National In-
dustrial Recovery Act or the regu-
lations adopted to give it effect
forbids payment by Government
check for work performed with
funds granted by the Federal
Emergency Administration of Pub-
lic Works; but where, owing to
difficulties in the way of cashing
checks, such method of payment
would work a hardship, the pur-
pose of the regulations would seem
to require payment in cash------
6. Congress having fixed the
minimum hours of labor per day
for employees in the Executive

327

328

328

328

Wages and Hours of Labor— Page
Continued.

Departments in Washington at not
less than seven hours per day, ex-
cept employees whose compensa-
tion is determined by special wage-
fixing authorities, and declared
that service shall be required

each day except Sundays and days
declared public holidays, there is
no authority of law for elimina-
tion of Saturday as a partial
workday by adding to the other
workdays the four hours of service
required by the act of March 3,
1931__.

Waste Matter, Shrinkage, Etc.

See Opinion of Secretary in
Humble Oil and Refining Co. et al.
Water Users, Irrigation Proj-
ects.

See Indian Irrigation Projects,
10-13; also, generally, Reclama-
tion.

1. Where a water user or water
users' association or irrigation dis-
trict that has been granted defer-
ments under the moratorium act
of April 1, 1932, defaults in the
payment of the annual interest
when due, simple interest may
thereafter be charged upon the
sums of interest due annually
upon the principal debt as long as
they remain unpaid----

2. The procedure for the collec-
tion of defaulted interest upon the
principal debt and of simple inter-
est which may accumulate upon
the interest due from a water user,
water users' association, or irriga-
tion district, is to be governed by
the terms of the contract or of
the applicable Federal statute; but
where neither the contract nor the
statute is applicable because of
the particular conditions, then the
remedy is to be pursued in ac-
cordance with the law of the State
in which the project is located---

3. The moratorium act of April
1, 1932, which afforded temporary
relief to water users on irrigation
projects constructed and operated
under the Reclamation law, being
a relief act, should be liberally
construed, and when so construed,
sections 1 and 2 thereof, which
are descriptive of the two large
bodies of water users, namely, or-
ganizations and individuals, in-
clude the nonconsenters on the
Garland Division of the Shoshone
project, Wyoming, and on other
projects

565

247

86

86

133

Wages and Hours of Labor-
Continued.

4. The common object of the
acts of April 1, 1932, and March
27, 1934, being the relief of set-
tlers on Reclamation projects by
extending the period of payment
of construction charges, such legis-
lation should receive a liberal con-
struction and the two acts be con-
sidered in pari materia‒‒‒‒

5. Although the act of April 1,
1932, for the relief of water users
on irrigation projects of the Recla-
mation Service by extending the
period of payment of construction
charges, provides for the deferment
of "regular construction charges",
and a charge already deferred is
not a regular construction charge,
it does not of necessity follow
that the deferred charges cannot
be further deferred under the later
act of March 27, 1934, enacted to
extend the operation of the earlier
act. Such a further extension
comes reasonably within the scope
of the language, "all similar
charges coming due for the year
1934" contained in the later act__
Waters and Water Rights.

See also, Boulder Dam and
Project.

Generally.

Sil-

1. This Department has repeat-
edly decided that it is without
jurisdiction to determine the ques-
tion as to the right to water, that
being a matter solely within the
province of the State courts.
ver Lake Power & Irrigation Com-
pany v. City of Los Angeles (37
L. D. 152, 153) and cases there
cited; and
the
the remedy of
owner of such a water right lies in
recourse thereto..

2. A withdrawal for a public
water reserve (see Executive order
of Apr. 17, 1926, and regulations
thereunder, in 51 L. D. 457) does
not contemplate the withdrawal of
tracts containing mere dry depres-
sions or draws which do not, in
their natural condition, furnish or
retain a supply of water available
for public use, and the owner of
a right, obtained from the State
to such water, acquires no color of
title or exclusive possessory right
to the subdivision upon which the
water was appropriated and used,
but, at most, merely an easement_
3. In Colorado seepage or waste
waters which return to a stream

Waters and Water Rights- Page

Continued.

Generally-Continued.

become a part of the water supply
of the stream and cannot be taken
or diverted by a new claimant
when such diversion or use would
interfere with the right of use by
prior appropriators downstream__

4. Lands abutting on a stream
the entire flow of which is insuffi-
cient to supply the priorities for
irrigation already established and
which are not therefore susceptible
to irrigation may be designated
under the stock-raising homestead
act, if otherwise of the character
contemplated by the act‒‒‒‒‒‒

5. Authority to contract to de-
liver water from a canal to be con-
structed of necessity carries with
it authority to contract for a canal
capacity sufficient to carry the
water to be delivered in addition
to any other water to be carried,
if said canal is to carry other
water-

6. The water rights acquired
and safeguarded by section 2339,
Revised Statutes, are distinct from
any right in the land itself, and
the existence of such rights is no
bar to acquisition of the land
under subsequent homestead en-
tries or locations, but all patents
granted or homesteads allowed are
subject to any vested accrued
rights that may have been ac-
quired under or recognized by this
section.

Section 2339, Revised Statutes.

7. The water rights acquired
and safeguarded by section 2339,
Revised Statutes, are distinct from
any right in the land itself, and
the existence of such rights is no
bar to acquisition of the land un-
der subsequent homestead entries
or locations, but all patents
granted or homesteads allowed are
subject to any vested accrued
rights that may have been
quired under or recognized by this
section.

Wheeler-Howard Act.

See Words and Phrases, 9.

ac-

1. Instructions of September 19,
1934 (date of submission, Aug. 10,
1934), to govern restoration
lands formerly Indian to tribal
ownership--

182662-33-VOL 54- -43

83

83

414

144

144

of

559

Wild Life Conservation.

See Yellowstone Park, 1-6.

Wills.

See Indians and Indian Lands,
12, 13.

Wisconsin Lands Erroneously
Meandered.

1. Regulations of December 8,
1932, regarding Wisconsin lands
erroneously meandered. (Circular
No. 994, reprint) --

Withdrawal.

See Grazing and Grazing Lands,
1-3; Oil and Gas Lands, Etc., 41;
Taylor Grazing Act, at p. 539.

1. Where a State, possessed of
the right, files an indemnity
school-land selection for public
land subject thereto, and performs
all things needful to perfect the
selection, its right may not be
defeated by a subsequent with-
drawal of the lands from entry,
and a homestead entry of lands in-
cluded within such withdrawal
will not prevail against the State
or a qualified grantee of the State-

2. A withdrawal for a public
water reserve (see Executive order
of Apr. 17, 1926, and regulations
thereunder. in 51 L. D. 457) does
not contemplate the withdrawal of
tracts containing mere dry depres-
sions or draws which do not, in
their natural condition, furnish or
retain a supply of water available
for public use, and the owner of a
right, obtained from the State to
such water, acquires no color of
title or exclusive possessory right
to the subdivision upon which the
water was appropriated and used,
but, at most, merely an easement-

3. A withdrawal of public lands
from disposal, made by the Presi-
dent under the authority of the
act of June 25, 1910 (36 Stat.
847), continues in effect until re-
voked by the President or by act
of Congress---

4. The Federal courts have re-
peatedly held that an appropria-
tion of public lands for a public
purpose by proper Executive with-
drawal prevents their further use
by private persons for any purpose
which is in conflict with the pur-
pose for which the withdrawal was
made_

Witnesses.

See Practice, 4-6.

Words and Phrases.

1. "Actual permanent resi-
dence"

2. "Actual production".

3. "Actual residence", under
the homestead laws, means physi-
cal occupation of the premises;
it means precisely the same thing
as actual inhabitancy for seven
months each year, subject to
proper credit for military service-
4. "Charge and control”.

and

5. As used in sections 13 and
14 of the Mineral Leasing Act of
February 25, 1920 (41 Stat. 437),
the expressions "compact"
"reasonably compact" relate to
squares, so that, to be "compact",
the selection of primary lease
acreage must be in the form of a
square wherever possible, and
where that is not possible, a rec-
tangle or approximate rectangle
approaching as nearly as possible
a square in dimensions would con-
form to the statutory require-
ment

6. Considering the circum-
stances that led to the enactment
of section 23 of the General Leas-
ing Act (see 41 Stat. 448) as dis-
closed in the proceedings before
the Public Lands Committees of
Congress, by the phrase in that
section reading dissolved in and
soluble in water and accumlated
by concentration" was meant nat-
ural evaporation residues dissolved
in and accumulated by surface or
ground-water drainage in the form
of brines and later crystallized___

7. The transactions provided for
by the terms of the authority
granted the Federal Subsistence
Homesteads Corporation are bona
fide loans, and any such loan as
is proposed would be an "expendi-
ture of appropriated funds

8. The expressions "have actu-
ally resided" and "actual perma-
nent residence", as used in sec-
tions 2291 and 2297, Revised Stat-
utes, as amended by the act of
June 6, 1912 (37 Stat. 123), con-
template the performance of actual
residence as distinguished from
constructive residence

9. In section 4 of the Wheeler-
Howard Act, limiting the class of
persons to whom may be devised
restricted Indian lands, it is pro-
vided that "in all instances such
lands or interests shall descend or

Words and Phrases-Contd.
be devised
to any mem-
ber of such tribe or of such corpo-
ration or any heirs of such mem-
ber." Held, that the phrase, “heirs
of such member", therein em-
ployed, should be construed to
mean " heirs of the testator",
such construction being reasonable,
consistent with legal usage, and in
harmony with the general plan
and expressed intent of Congress-
10. A mill site appurtenant to a
lode is a "location" under the
mining laws of the United States_
11. "Oil produced ”.

13. The term "producing oil or
gas field ", as used in section 13 of
the Leasing Act, must be con-
strued to include areas in which
there has been production and
which will continue to produce oil
or gas, and the fact that there has
been a cessation of production and
abandonment of wells in a given
field is not of itself sufficient to
warrant a redefinition of the struc-
ture or the revocation of the clas-
sification of the field in the ab-
sence of a proper showing persua-
sive that the area does not in
fact contain valuable deposits of
oil or gas--

14. "Production" (oil)_
15. "Reasonably compact ".

16. The term "sodium borate"
in section 23 of the Leasing Act of
February 25, 1920 (41 Stat. 437),
related to the character of the de-
posit as found in the ground;
therefore, the fact that the prod-
ucts produced from kernite, a so-
dium borate mineral, such as
borax and boric acid, are chiefly
valuable for their boron content,
does not exclude kernite from the
purview of the act-----

17. As to what tribes of Alas-
kan natives were included within
the term, "uncivilized tribes", as
employed in Article III of the
treaty under which Alaska was
ceded to the United States (15)
Stat. 593), it was held, in In re
Minook (2 Alaska Reports, 200,
221), that they were those inde-
pendent pagan tribes who ac-
knowledged no allegiance to Russia,
and lived the wild life of their
savage ancestors"; and this in-
cludes those natives who, today,
live under primitive conditions in
regions remote and difficult of ac-
cess, influenced by superstition,
and following the crude customs