pay the assessments. The case cites the Idaho cases of Smith v. Dickerson (1931), 297 Pac. 402, and Payette-Boise Water Users' Association v. Fairchild (1922), 205 Pac. 258.

In returning a form contract proposed for execution by the United States, the Glasgow irrigation district and six landowners for the inclusion of the lands of the six landowners within the district, the First Assistant Secretary held that the proposed contract would increase the district's indebtedness and that therefore, under Session Laws of Montana, 1923, p. 461, and chapter 71 of Montana Session Laws, 1933, the authority of the district under the State law to execute the contract must be based upon a petition signed by at least 60 percent in number and acreage of the district landowners. (Decision of First Assistant Secretary, August 9, 1935.)

Preliminary surveys not reimbursable to reclamation fund.-In decision A32702, of September 14, 1935, the Comptroller General held that the reclamation fund could not be reimbursed for expenditures made over a period of prior years for surveys and investigations of the All-American canal, California, as the allotment for construction of this canal was secured under the N. I. R. A., an emergency relief measure to quickly increase employment, and that most of this preliminary work seemed to be general investigations chargeable only to the reclamation fund. 9. Miscellaneous references.-General Land Office circulars regarding applications for water rights. (April 4, 1906, 34 L. D. 544; March 22, 1909, 37 L. D. 521; and April 20, 1909, 37 L. D. 581.)

General Land Office instructions of January 18, 1908, to registers and receivers in reference to this section. (36 L. D. 256.)

Secretary's regulations in reference to water-right charges. (May 27, 1908, and July 8, 1908, 37 L. D. 11-16, supplemented by regulations of April 8, 1911, 40 L. D. 15.)

Secretary's instructions as to forms for water-right applications, etc. (September 9, 1910, 39 L. D. 197; January 30, 1911, 39 L. D. 532; and June 16, 1911, 40 L. D. 139.)

Secretary's order of February 26, 1913, 42 L. D. 203, and public notice of June 23, 1913, 42 L. D. 201, regarding collection of operation and maintenance charges as affected by case of Swigart v. Baker, ante.

Sections 100-115, inclusive, general reclamation circular, approved May 18, 1916, 45 L. D. 385.

Clyde v. Cummings (101 Pac. 106.)

Sec. 5. [Requirements of entrymen-Limit of 160 acres Residence Payments Disposal of receipts - Commissions.] That the entryman upon lands to be irrigated by such works shall, in addition to compliance with the homestead laws, reclaim at least one-half of the total irrigable area of his entry for agricultural purposes, and before receiving patent for the lands covered by his entry shall pay to the Government the charges apportioned against such tract, as provided in section 4. No right to the use of water for land in private ownership shall be sold for a tract exceeding 160 acres to any one landowner, and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made. annual installments shall be paid to the receiver of the local land office of the district in which the land is situated, and a failure to make any two payments when due shall render the entry subject to cancellation, with the forfeiture of all rights under this act, as well as of any moneys already paid thereon. All moneys received from the above sources shall be paid into the reclamation fund.

The

Registers and receivers shall be allowed the usual commissions on all moneys paid for lands entered under this act. (32 Stat. 389.)

Textual note. The portion of the first sentence of this section from the beginning through "agricultural purposes", is codified as section 439, title 43, United States Code, the first word "That" and the words "by such works" being omitted. The second sentence is codified as section 431, title 43, United States Code. The substance of the portion of the third sentence from the beginning to the word "situated" (with "receiver" changed to "register") is codified as section 476, title 43. United States Code. However, section 476 was repealed by act of December 16, 1930 (46 Stat. 1029). The fourth sentence is codified as section 392, title 43. United States Code, "the above sources" reading "entrymen or applicants for water rights." The last sentence is codified as section 381, title 43, United States Code, the words "and receivers" being omitted.

NOTES

Repeal. The third sentence of section 5 was repealed by act of December 16. 1930 (46 Stat. 1029). The first part of said third sentence is superseded by section 4 of act of August 9, 1912 (37 Stat. 267), which authorizes the Secretary to designate fiscal agents to whom shall be paid sums due on reclamation entries, etc. With regard to the second clause of the third sentence, the present law as to the cancellation of water-right applications is found in the second sentence of section 3, act August 13, 1914 (38 Stat. 689).

See act of August 10, 1917 (40 Stat. 273), suspending residence requirements during World War.

See notes under section 4 of this act.

2. Homestead entry requirements.-Persons making homestead entry of lands within the irrigable area of any project commenced or contemplated under the act, will be required to comply fully with the requirements of the homestead law as to residence, cultivation, and improvement; and failure to supply water from such works in time for use upon the land entered will not justify a failure to comply with the law and to make proof thereof within the time required by the statute. (Secretary's instructions (Minidoka) May 17, 1904, 32 L. D. 633. See act of June 25, 1910, 36 Stat. 864.)

There is no authority for granting a leave of absence to a homesteader who made entry of lands believed to be susceptible of irrigation under a contemplated project, on the ground that he can raise no crops on the land in its present arid state and that it is impossible to procure water for the irrigation thereof prior to completion of the project. (Jacob Fist, 33 L. D. 257. See act of June 25, 1910, 36 Stat. 864.)

The provisions of the three-year homestead act of June 6. 1912 (37 Stat. 123), respecting cultivation, have no application to entries made under the reclamation act; but the reclamation laws require, as a prerequisite to the issuance of final certificate and patent, that the entryman shall have reclaimed, for agricultural purposes, at least one-half of the total irrigable area of his entry and paid all reclamation charges at that time due. (Wilbur Mills, 42 L. D. 534.)

The provisions of the three-year homestead law respecting cultivation do not apply to entries made subject to the reclamation act. (Rosa Voita, 43 L. D. 436.)

Upon the death of an entryman who has made satisfactory homestead final proof on a reclamation farm unit, the homestead becomes a part of his estate and as such subject to distribution, and is not an unperfected entry subject to the provisions of section 2291, Revised Statutes. The conditions imposed by the reclamation act as to reclamation, payment of charges, and filing of waterright application are conditions not of homestead law or proof but arising out of reclamation and imposed as a further requirement. (Heirs of Wm. L. Naftzger, 46 L. D. 61. See also Edward Pierson, 47 L. D. 625.)

3. Limit of acreage.—The provision of this section, restricting the sale of a right to use water for land in private ownership to not more than 160 acres. will not prevent the recognition of a vested water right for a larger area, and protection of the same by allowing the continued flowage of the water covered by the right through the works constructed by the Government. (Op. Asst. Atty. Gen., 34 L. D. 351; Anna M. Wright, 40 L. D. 116.)

A qualified water-right applicant may, after having disposed of a previously acquired water right, make another application, and as to the latter, may be considered in the position of an original applicant. A landowner may be the purchaser of the right to the use of water for separate tracts at the same time, provided he can properly qualify and the tracts involved do not exceed 160 acres in the aggregate. (Departmental decision, In re Wm. B. Bridgman (Sunnyside), November 20, 1909.)

The fact that a widow who under section 2291, Revised Statutes, succeeds to the right of her husband in an unperfected homestead entry within a reclamation project has previously secured water from the project for reclamation of land held by her in private ownership in no wise affects her right to acquire water under the project for completion of such entry under the reclamation act. (Anna M. Wright, 40 L. D. 116.)

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, may determine the acreage for which water may be supplied through such projects to any one landowner. (Amaziah Johnson, 42 L. D. 542.)

A person who holds a farm unit shall not be permitted before full payment has been made on the appurtenant water right, to acquire other lands with appurtenant water rights unless the water-right charges on the latter have been fully paid. A person may hold private lands with appurtenant water rights up to the limit of single ownership fixed for the project in one or more parcels before full payment of the water-right charge, but may not acquire other lands with appurtenant water rights unless the water-right charges thereon have been paid in full. The limit of area of the farm units and of single private-land holdings to which water rights are appurtenant, and as to which water-right charges have not been paid in full, shall in no case exceed 160 acres. (Departmental decision, July 22, 1914, 43 L. D. 339.) Departmental instructions of July 1, 1920, amend paragraph 41 of general reclamation circular of May 18, 1916 (45 L. D. 385). See C. L. 911, July 6, 1920, or 47 L. D. 417. See act of August 9, 1912 (37 Stat. 265), and notes thereunder. See amendment of section 23, regulations of May 18, 1916 (45 L. D. 390), as printed at 48 L. D. 113.

In an action of foreclosure brought by the Enterprise Irrigation District against the Enterprise Land & Investment Co. to foreclose delinquency-assessment certificates issued for delinquent assessments over a period of several years, the defendant company, owner of more than 160 acres of irrigable land within the district, interposed a defense of fraud on the part of the district directors. These officers were charged with constructive fraud in assessing benefits to lands which could not receive water for irrigation from works constructed by the United States because of the ineligibility of the owner to receive water under rules imposed by section 5 of the act of June 17, 1902, limiting the furnishing of water from such works to lands in single ownership in excess of 160 acres. The defense was denied by the trial court, whose decision was reversed by the Supreme Court of Oregon, the latter holding that the answer stated a valid defense to the foreclosure action. (Enterprise Irrigation Dist. v. Enterprise Land & Investment Co. (Ore. 1931), 300 Pac. 507.)

But see Klamath County v. Colonial Realty Co. (Sup. Ct. Ore. 1932), 7 Pac. (2d) 976, 139 Ore. 311, in which the same court under a slightly different state of facts, reached a different conclusion, and in which said court now appears to be in harmony in this matter with the courts of the other arid States and with its own earlier decisions.

In an opinion dated May 24, 1933. the Superior Court of California held that there was nothing in the Boulder Canyon Project Act of December 21, 1928, or in the contract (for the construction of the All-American Canal) with the Imperial Irrigation District, signed by the Secretary of the Interior, December 1. 1932, limiting the acreage to which water may be sold and delivered, and that section 5 of the act of June 17, 1902 (32 Stat. 389), was not applicable in the proceedings to validate the said contract of December 1, 1932 (Evan T. Hewes (substituted for John L. DuBois) et al. v. All Persons et al. Charles Malan v. Imperial Irrigation District et al.).

See notes above of case entitled Saylor v. Gray, 20 Pac. (2d) 441.

Right of Federal Subsistence Homestead Corporation in reclamation projects.— Inasmuch as the Federal Subsistence Homestead Corporation is a Government agency, serving no function other than aiding in the purchase of subsistence homesteads by individuals, the section of the reclamation law prohibiting corporations from acquiring lands in a Federal reclamation project and the section limiting holdings to 160 acres, do not apply to this corporation. (Opinion of Assistant Secretary, August 14, 1934.)

4. Residence and occupancy.-Where a tract of land under a reclamation project is owned by two or more persons jointly, unless each is a "resident" or an occupant on the land, no right to use water to irrigate the same can be acquired under this section. (Departmental decision, January 12, 1910.)

To entitle an applicant to the use of water for lands held in private ownership within the irrigable area of an irrigation project under this act to the benefits of this act, he must hold the title in good faith, and his occupancy must be bona fide and in his own individual right. (Secretary's instructions, May 21, 1904, 32 L. D. 647.)

The residence requirements provided for in this section apply to all persons acquiring by assignment water-right contracts with the United States, unless prior to such assignment the final water-right certificate contemplated by section 1 of the act of August 9, 1912 (37 Stat. 265), 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.)

The residence requirement of this section in reference to private lands is fully complied with if, at the time the water-right application is made, the applicant is a bona fide resident upon the land or within the neighborhood. After approval of the application further residence is not required of such applicant, and final proof may therefore be made under the act of August 9, 1912 (37 Stat. 265), without the necessity of proving residence at the time proof is offered. (Departmental decision, April 19, 1916.)

The term "in the neighborhood" held to mean within 50 miles. mental decision, January 20, 1909.)

(DepartParagraph 105 of the general reclamation circular approved May 18, 1916 (45 L. D. 385), provides that in case of the sale of all or any part of the irrigable area of a tract of land in private ownership covered by a waterright application which is not recorded in the county records, the vendor will be required to have his transferee make new water-right application for the land transferred. Held, that in making the new application it is immaterial whether or not the transferee be "an actual bona fide resident on such land or occupant thereof residing in the neighborhood." (Reclamation decision, July 25, 1917, In re J. W. Merritt, Truckee-Carson.)

Order withdrawing land from entry under section 3, reclamation act, did not relieve entryman from the duty of reclaiming land under section 5, reclamation act, and complying with homestead law as to residence and cultivation under Revised Statutes United States, sections 2289-2291, 2297, prior to amendment of 1912, where the land officials made a public announcement that the withdrawals of lands were not permanent, but were for the purpose of enabling preliminary investigations to be made as to feasibility of irrigation project (Bowen v. Hickey (1921), 53 Cal. App. 250; 200 Pac. 46; certiorari denied (1921), 42 Sup. Ct. 168, 257 U. S. 656, 66 L. Ed. 420).

An entryman under this act does not acquire or maintain a residence by occasional visits or by going upon the land for the purpose of merely formal compliance with the law, substantial residence and good faith being necessary. Determination of officials of the Land Department that entryman under this act failed to establish a residence upon the land held justified by the evidence. (Idem.)

5. Payment of water charges.-The provision in section 5 of the reclamation act that failure to make payment of any two annual installments when due shall render the entry subject to cancellation, with forfeiture of all rights under the act, is not mandatory, but it rests in the sound discretion of the Secretary of the Interior whether the entryman in such case may thereafter be permitted to cure his default by payment of the water charges, where he has continued to comply with the provisions of the homestead law; and in event an entry has been canceled for such failure, the Secretary may, in the absence of adverse claim, authorize reinstatement thereof with a view to permitting the entryman to cure his default. (Marquis D. Linsea, 41 L. D. 86.)

Inasmuch as the acts of June 17, 1902, and August 13, 1914, did not peremptorily declare in mandatory language that forfeitures must be declared, or that they will necessarily result by operation of law as soon as defaults in payments by water users on reclamation projects have occurred, it rests within the sound discretion of the Secretary of the Interior to determine whether an entryman may thereafter be permitted to cure the default by payment of the charges. (Departmental opinion, December 31, 1923, In re Shoshone irrigation project, 50 L. D. 223.)

One holding a mortgage against only a part of a tract of land in private ownership upon a Federal reclamation project for which entire tract a waterright application has been made, may pay up from time to time the charges on that portion of the tract covered by the mortgage in the event the landowner fails to pay. (Departmental decision, July 13, 1917.)

Fiscal agents upon United States reclamation projects are authorized to accept from water users money tendered in payment of an accrued installment of either construction, operation and maintenance, or rental charges, for any year, even though installments for a previous year remain unpaid. (Reclamation decision, August 6, 1917; C. L. No. 680.)

In cases where the title to lands under water-right application upon a Federal reclamation project is in dispute, and the land is in possession of one other than the record owner, the Reclamation Service (Bureau of Reclamation) may deliver water to the party in possession, upon payment in advance of the operation and maintenance charges. (Reclamation decision, August 24, 1917, In re Wood v. Eggleston, Truckee-Carson.)

Where entries and water-right applications have been held for cancellation for failure to pay the building charges, pending final action, water may be furnished for the land upon proffer of the portion of the installments for operation and maintenance. (Departmental decision, February 9, 1909.)

No power exists in the Secretary of the Interior to formally grant specific extension of time for payment of overdue water-right charges. (Departmental decision, April 22, 1909.)

The provisions of section 5 of the reclamation act of June 17, 1902 (32 Stat. 388), and of sections 3 and 6 of the reclamation extension act of August 13, 1914 (38 Stat. 686), regarding one year of grace for the payment of overdue water charges, refer only to the drastic remedies of cancellation and forfeiture and not to the right to bring suit in a court for collection of a water charge past due and unpaid. (Reclamation decision, December 4, 1917, U. S. v. Edison E. Kilgore, Shoshone. See Secretary's regulations of February 27, 1909, regarding delinquent payments, 37 L. D. 468.)

See notes 5 and 6 under section 4 of this act.

Warrants may be reaccepted after presentation and default.-The Pioneer irrigation district issued a warrant in payment of its indebtedness to the United States, which upon presentation to the district for payment was not paid due to insufficient funds. The Department ruled that an administrative officer may accept a "call" warrant in payment of indebtedness under a contract to be held by the United States until paid in due course, as provided by the State statutes. Or, if it is deemed to the best interest of the United States, the administrative officer may refuse to accept the warrant, instituting suit for recovery of the money. (Decision of Acting Solicitor, approved by First Assistant Secretary, August 2, 1933.)

6. Parties to suit enjoining collection of water charges.-A corporation with which, as the representative of its shareholders, who are parties accepted by the United States as holders of water rights in a project under the reclamation act, the United States makes a contract for the benefit of such shareholders relative to the supply of water due and and the dues to be paid by the shareholders and which covenants in the contract to collect dues for the United States and guarantees the payment thereof, is a proper party plaintiff in a suit to enjoin officers of the United States from collecting unlawful charges from the shareholders, turning the water from their lands, and canceling their water rights and homestead rights because they fail to pay such charges. (Magruder et al. v. Belle Fourche Valley Water Users' Association (1914), 219 Fed. 72; 133 C. C. A. 524.)

In Moody v. Johnson, project manager of the Flathead Indian reclamation project, decided by the Circuit Court of Appeals, Ninth Circuit, July 27, 1933,