122 FARM UNITS, TOWN SITES, DESERT LANDS mum [minimum?] entry," stating that this could apply to public land only; and expressed the opinion that no authority is vested in the Secretary to establish a farm unit composed partly of public land and partly of adjacent private land. Sec. 2. [Additional entries for relinquished lands.]-Wherever the Secretary of the Interior, in carrying out the provisions of the reclamation act, shall acquire by relinquishment lands covered by a bona fide unperfected entry under the land laws of the United States, the entryman upon such tract may make another and additional entry, as though the entry thus relinquished had not been made. (34 Stat. 519; 43 U.S.C. § 446) Sec. 3. [Disposal of town sites within irrigation projects.]—Any town site heretofore set apart or established by proclamation of the President, under the provisions of sections twenty-three hundred and eighty and twenty-three hundred and eighty-one of the Revised Statutes of the United States, within or in the vicinity of any reclamation project, may be appraised and disposed of in accordance with the provisions of the act of Congress approved April sixteenth, nineteen hundred and six, entitled "An act providing for the withdrawal from public entry of lands needed for town-site purposes in connection with irrigation projects under the reclamation act of June seventeenth, nineteen hundred and two, and for other purposes"; and all necessary expenses incurred in the appraisal and sale of lands embraced within any such town site shall be paid from the reclamation fund, and the proceeds of the sales of such lands shall be covered into the reclamation fund. (34 Stat. 519; 43 U.S.C. § 563) EXPLANATORY NOTE Reference in the Text. The Act of April 16, 1906, referred to in the text, which authorizes the withdrawal and disposition of reclamation town sites, appears herein in chronological order. Sec. 4. [Heyburn and Rupert, Idaho-Limitation not applicable-Withdrawal of larger town sites.]-In the town sites of Heyburn and Rupert, in Idaho, created and surveyed by the Government, on which town sites settlers have been allowed to establish themselves, and had actually established themselves prior to March fifth, nineteen hundred and six, in permanent buildings not easily moved, the said settlers shall be given the right to purchase the lots so built upon at an appraised valuation for cash, such appraisement to be made under rules to be prescribed by the Secretary of the Interior. Providing that the limitation on the size of town sites contained in the act of April sixteenth, nineteen hundred and six, entitled "An act providing for the withdrawal from public FARM UNITS, TOWN SITES, DESERT LANDS 123 entry of lands needed for town site purposes in connection with irrigation projects under the reclamation act of June seventeenth, nineteen hundred and two, and for other purposes," shall not apply to the town sites named in this section; and whenever, in the opinion of the Secretary of the Interior, it shall be advisable for the public interest, he may withdraw and dispose of town sites in excess of one hundred sixty acres under the provisions of the aforesaid act, approved April sixteenth, nineteen hundred and six, and reclamation funds shall be available for the payment of all expenses incurred in executing the provisions of this act, and the aforesaid act of April sixteenth, nineteen hundred and six, and the proceeds of all sales of town sites shall be covered into the reclamation fund. (34 Stat. 520; 43 U.S.C. §§ 561, 568) EXPLANATORY NOTES Codification. That part of this section which authorizes the Secretary to withdraw and dispose of town sites in excess of 160 acres is codified as a proviso in section 561, title 43, U.S. Code. The provisions relating to payment of expenses from, and crediting of proceeds to, the reclamation fund, are codified in section 568, title 43. Supplementary Provision: Block 223, Town Site of Heyburn. The Act of May 17, 1926 (44 Stat. 1471), authorizes issuance of patent under the above Act and the Act of April 16, 1906 (34 Stat. 116), to the Boyle Commission Company for block No. 223, town site of Heyburn, Idaho, without further payment on account of purchase price fixed for said land. The Act appears herein in chronological order. Supplementary Provision: Town Site of Rupert. The Act of February 14, 1931, 46 Stat. 1102, authorized the Secretary to quitclaim to the City of Rupert, Idaho, all right, title and interest of the United States in a certain tract of land in the Government townsite. Reference in the Text. The Act of April 16, 1906, referred to in the text, which authorizes the withdrawal and disposition of reclamation town sites, appears herein in chronological order. Sec. 5. [Allowance of time to desert-land entrymen-Where irrigation project. is abandoned-Relinquishment of excess areas if project is completed-Owners of water rights.]—Where any bona fide desert-land entry has been or may be embraced within the exterior limits of any land withdrawal or irrigation project under the act entitled "An act appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands," approved June seventeenth, nineteen hundred and two, and the desert-land entryman has been or may be directly or indirectly hindered, delayed, or prevented from making improvements or from reclaiming the land embraced in any such entry by reason of such land withdrawal or irrigation project, the time during which the desert-land entryman has been or may be so hindered, delayed, or prevented from complying with the desert-land law shall not be computed in determining the time within which such entryman has been or may be required to make improvements or reclaim the land embraced within any such desert-land entry: Provided, That if after investigation the irrigation project has been or may be abandoned by the Government, time for compliance with the desert land law by any such entryman shall begin to run from the date of notice of such abandonment of the project and the restoration to the public domain of the lands withdrawn in connection therewith, and credit shall be allowed for all expenditures and improvements theretofore made on any such desert-land entry of which proof has been or may be filed; but if the reclamation project is carried to completion so as to make 124 FARM UNITS, TOWN SITES, DESERT LANDS available a water supply for the land embraced in any such desert-land entry the entryman shall thereupon comply with all the provisions of the aforesaid act of June 17, 1902, and shall relinquish within a reasonable time after notice as the Secretary may prescribe and not less than two years all land embraced within his desert-land entry in excess of one farm unit, as determined by the Secretary of the Interior, and as to such retained farm unit he shall be entitled to make final proof and obtain patent upon compliance with the regulations of said Secretary applicable to the remainder of the irrigable land of the project and with the terms of payment prescribed in said act of June 17, 1902, and not otherwise. But nothing herein contained shall be held to require a desert-land entryman who owns a water right and reclaims the land embraced in his entry to accept the conditions of said reclamation act. (34 Stat. 520; Act of June 6, 1930, 46 Stat. 502; 43 U.S.C. § 448) EXPLANATORY NOTES 1930 Amendment. The Act of June 6, 1930, 46 Stat. 502, amended the proviso in section 5 by, among other things, inserting in it the phrases "within a reasonable time after notice as the Secretary may prescribe and not less than two years" and "with the regulations of the said Secretary applicable to the remainder of the irrigable land of the project," and by substituting "one farm unit, as determined by the Secretary of the Interior" for "one hundred and sixty acres." The 1930 Act appears herein in chronological order. Cross Reference, Assignment of Direct Land Entries. The Act of July 24, 1912, which appears herein in chronological order, authorizes the assignment of desert land entries. NOTES OF OPINIONS This section, authorizing an extension of time for compliance with law on desert entries within reclamation projects, applies only to entrymen who have been directly or indirectly delayed or prevented from carrying out their plans and works for obtaining a water supply by creation of a reclamation project. Frank C. Jones, 41 L.D. 377 (1912). Section 5 of the act of June 27, 1906, which provides that the time that a desertland entryman is hindered or prevented from making improvements on or from reclaiming the lands in his entry by reason of the fact that the land has been within a reclamation withdrawal, shall not be computed in determining the period within which he must complete his entry, is not applicable where the method of irrigation is by the use of water to be procured from wells sunk on the land, and the failure to make timely reclamation is due solely to lack of funds. Donald K. McLennan, 53 L.D. 21 (1930). In certain circumstances desert-land entries in Imperial and Riverside Counties affected by the notice of December 2, 1965, repealing the suspension under Maggie L. Havens, A-5580 (October 11, 1923), which have been reclaimed or are in the process of being reclaimed, will be considered in accordance with the principles of equity and justice as authorized by 43 U.S.C. § 1161, even though development was not completed within the statutory life remaining in the entry after March 4, 1952. Clifton O. Myll, A-29920 (Supp. II), 72 I.D. 536 (1965), vacating 71 I.D. 458 (1964), as supplemented by 71 I.D. 486 (1964). 2. Acreage limit A desert entryman of lands falling within a Government reclamation project who seeks to secure water for the reclamation thereof from the project is required by this section as a condition precedent to his right to water, to relinquish to the Government all of the land embraced within his entry in excess of 160 acres. Instructions, 40 L.D. 386 (1912). A desert entryman whose land is included within a reclamation project may elect to proceed with the reclamation thereof on FARM UNITS, TOWN SITES, DESERT LANDS 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 be 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). The effect of the 1930 amendment to the proviso is to require a reduction of area of the desert-land entry, in case it is to be perfected under the project, to a farm unit instead of 160 acres as originally provided and to allow the entryman a minimum period of two years within which to make such a reduction. Instructions of General Land Office (Circular No. 1229), 53 I.D. 151 (1930). 3. Assignment of entry An unperfected desert-land entry in a reclamation project which has been reduced to 160 acres by relinquishment of the excess area under this act, and has thereby become subject to the reclamation act and qualified to take water from the project, may be assigned in part under the act of March 28, 1908 (35 Stat. 52). George H. Upthegrove, 40 L.D. 622 (1912). 4. Issue of patent Under the desert-land act as modified by this act, final proof upon a desert entry within a reclamation project cannot be held to have been made and completed until the payments required by said acts and the reclamation act have been made; and the department is without authority to accept or regard final proof in such cases as complete, or to issue patent thereon, until after such full compliance with the terms of payment imposed by the reclamation act. W.H. Skinner, et al., 39 L.D. 519 (1911). 125 When, however, the parties in interest are able to negotiate loans for amounts sufficient to pay the entire reclamation charges upon an entry, contingent upon the prompt issuance of final certificate and patent, consideration of the final proof and issuance of final certificate and patent, in cases otherwise regular, may be expedited. W. H. Skinner, et al., 39 L.D. 519 (1911). See also Leroy W. Furnas, 38 L.D. 194 (1909). 5. Abandonment of entry The failure of an entryman on arid lands withdrawn under the reclamation act, as susceptible of irrigation, continuously to reside upon or cultivate the land, which, though later withdrawn for irrigation works, was finally released during the time when no reclamation project had been devised or installed, cannot be deemed an abandonment; the act of June 27, 1906 (34 Stat. 520), expressly saving such cases, and the entryman having prepared the land for cultivation and established a residence thereon. Edwards v. Bodkin, 249 Fed. 562 (D.C. Cal. 1918) and 267 Fed. 1004 (D.C. Cal. 1919), affirmed, 265 Fed. 621 (9th Cir. 1920), affirmed, 255 U.S. 221 (1921). 6. Rule of approximation Rule applied to desert 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, March 30, 1910, 38 L.D. 513. 7. Farm units The 1930 amendment to the proviso contemplates that farm units shall be established in the case of all unpatented desert-land entries within the limits of Federal irrigation projects. C.L. 1928, January 2, 1931. EXPLANATORY NOTE Legislative History. H.R. 18536, Public Law 308 in the 59th Congress. H.R. Rept. No. 3717. S. Rept. No. 3897. H.R. Rept. No. 4958 (conference report). 126 EMPLOYMENT OF INDIAN LABOR, HIRING OF INDIAN PROPERTY, CONVEYANCE OF INDIAN LANDS, AND IRRIGATION IN PIMA INDIAN RESERVATION [Extracts froin] An act making appropriations for the current and contingent expenses of the Indian Department, for fulfilling treaty stipulations with various Indian tribes, and for other purposes, for the fiscal year ending June thirtieth, nineteen hundred and eight. (Act of March 1, 1907, ch. 2285, 34 Stat. 1015) [Employment of Indian labor and hiring of Indian property-Exemption.]—— the employment of such Indians and the hiring of their property, in connection with the construction of any irrigation project under the Reclamation Service, shall be exempt from the provisions of sections thirty-seven hundred and nine and thirty-seven hundred and forty-four, Revised Statutes. (34 Stat. 1015) [Irrigation for Pima Indians from Salt River project.]-The Secretary of the Interior may, in his discretion, use such part of the $300,000 heretofore appropriated for an irrigation system for the Pima Indians in the payment of such Indians' proportionate part of the construction of the Salt River project, and such funds may be transferred to the reclamation fund, to be expended by that service in accordance with its rules and regulations, the Indians to receive a credit upon the reclamation charge assessed against their lands under the Salt River project for the amount so transferred. (34 Stat. 1022) |