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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.

The restriction in the reclamation laws against furnishing project water to an 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 holder. Memorandum of Chief Counsel Fix to Commissioner, May 12, 1948.

31. Ownership of excess lands-Generally

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.

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 (1913). 32. Coalescence of holdings

A widow who succeeds to her husband's unperfected homestead entry by operation of law is entitled to complete it upon the same terms and conditions as were required of her husband. Therefore, the fact that she had previously acquired a water right for lands held by her in private ownership, the acreage of which, when added to the acreage of the entry, exceeds 160 acres, does not prevent her from completing the entry under the reclamation act. Anna M. Wright, 40 L.D. 116 (1911).

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, 43 CFR 230.21.

One who acquires lands of a reclamation homestead entryman at a tax sale pursuant to the Act of April 21, 1928, as amended, is subject to the provisions of reclamation law including the excess lands provisions. This result follows from the provisions of the 1928 Act that the holder of such tax deed or tax title is entitled to the rights and privileges of an assignee under the Act of June 23, 1910; and the latter Act makes the assignee "subject to the limitations, charges, terms and conditions of the reclamation act." James P. Balkwill, 55 I.D. 241 (1935).

33. -Husband and wife

An administrative determination that 320 acres of irrigable land can be held in community ownership is a reasonable construction of the excess land provisions of the Federal Reclamation Laws. In the practical application of such a determination, technical differences in the quality and extent of a wife's interest in community property may properly be disregarded. Solicitor Harper Opinion, M-34172 (August 21, 1945). 34. -Corporations

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). 35. -Federal government

Homesteads

The Federal Subsistence Corporation, being wholly financed and controlled by the United States Government and serving no function other than aiding in the purchase of subsistence homesteads by individuals as provided by section 208 of the National Recovery Act, does not fall within the category of corporations which it was the intention of Congress should be barred from acquiring or controlling lands within Reclamation projects; nor does the statutory limitation of individual holdings to 160 acres apply to such a corporation. Solicitor Margold Opinion, 54 I.D. 566 (1934).

36. -Joint operations

A landowner may deed his excess acreage to one of his children, or anyone else for that matter, and arrange to operate the alienated property with his own as one unit, provided he has divested himself of ownership in good faith and the child or other recipient of the property receives the full benefits of the operation of his own acreage. Letter from Commissioner Straus to Senator Joseph C. O'Mahoney, December 29, 1948.

Several farmers each holding 160 acres may farm their lands jointly as a unit under a proper mutual agreement, assuming all other requirements of Reclamation law have been met. Letter from Commissioner Straus to Senator Joseph C. O'Mahoney, December 29, 1948.

41. Residency of landowner-Generally

To entitle an applicant for 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. Instructions, May 21, 1904, 32 L.D. 647.

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

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.

The residence requirements provided for in section 5 of the Reclamation Act of June

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17, 1902, 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, 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 (1915).

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, without the necessity of proving residence at the time proof is offered. Departmental decision, April 19, 1916.

Paragraph 105 of the general reclamation circular approved May 18, 1916, 45 L.D. 385, 43 C.F.R. 230.102 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 water-right 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, 46. Payment of charges-Generally

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 water-right 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 may deliver water to the party in possession, upon payment in advance of the operation and

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maintenance charges. Reclamation decision, August 24, 1917, In re Wood v. Eggleston, Truckee-Carson.

The Federal statutes relative to the payment of debts and demands due the United States do not require the acceptance of money only in the settlement of such debts and demands, and accordingly the proper administrative official representing the United States may, where it would be to the interest of the United States, accept a "call" warrant for indebtedness of an irrigation district under its contract with the United States Reclamation Service for drainage construction and reservoir storage capacity, such warrant to be held by the United States until paid. Pioneer Irrigation District, 54 I.D. 264 (1933).

47. —Overdue payments

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 (1912).

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 Iwithin 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. Shoshone irrigation project, 50 L.D. 223. (1923).

The Department on December 24, 1935, cancelled water right application of J. W. Thompson, Yuma irrigation project, for nonpayment of construction charges more than one year in arrears. Pablo Franco later acquired the land and applied for reinstatement of the water right application. The Under Secretary, in letter of May 9, 1936, rejected Franco's application, stating that the Department was without authority to grant the application for reinstatement because the money previously paid by Thompson on this water right application,

under section 5 of the Reclamation Act, had been forfeited to the United States.

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 and of sections 3 and 6 of the Reclamation Extension Act of August 13, 1914, 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.

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.

Where a water-right application for land held in private ownership has been canceled for default in payment of building, operation, and maintenance charges, such application may be reinstated upon full payment of all accrued charges. Instructions, 45 L.D. 23 (1916).

49.

Litigation to enjoin collection

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 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 be

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for maintenance and operation; and hence he is authorized to impose reasonable assessments on land irrigated prior to the time when payment of the major portion of the cost of construction had been made and the works passed under management of the owners of the irrigated land. United States v. Cantrall, 176 Fed. 949 (C.C. Ore. 1910).

Where by a contract between the United States and landowners tributary to a Federal irrigation system, such landowners agreed to pay to the United States the charges duly levied against their lands for the construction and maintenance of the system, they were only liable for such reasonable charges as the Government was authorized to collect proportionate to their share of the cost of maintaining and operating the system, and not such as might be arbitrarily fixed in advance by such Secretary or other governmental officer. Ibid.

3. Transfer of

The Secretary of the Interior is not authorized by the Reclamation Act to turn over the operation and maintenance of completed reclamation projects, in whole or in part, or to any extent, to water users' associations before the payments by such water users for water rights are made by the major portion of the lands irrigated by such works. 30 Op. Atty. Gen. 208 (1913); but see section 5 of the Act of August 13, 1914, which authorizes the Secretary to transfer the care, operation and maintenance of all or any part of a project to a water users' association or irrigation district.

4. Negligence actions

A petition for damages against a State irrigation district for negligent maintenance of a canal was held to be no cause of action, in view of the State statutes and the contract making the district merely a fiscal agent for the United States, which operated and maintained the works. Malone v. El Paso County Water Improvement Dist. No. 1, 20 S.W. 2d 815 (Tex. Cir. App. 1929).

Where alleged negligence of federal government, while in control of maintenance and operation of irrigation system, could not be imputed to irrigation district, defendant in suit by district to foreclose land for delinquent assessments could not maintain a claim for affirmative relief against district by way of recoupment, set-off or counterclaim based on such negligence. Klamath Irr. Dist. v. Carlson, 157 P. 2d 514, 176 Ore. 336 (1945).

11. Title to property-Generally

The gravity extension unit (Gooding division) of the Minidoka project was con

structed by the United States under a repayment contract with American Falls Reservoir District No. 2. It diverts water from the Snake River below Minidoka dam in an area of slack water caused by Milner dam, which was built in 1903 by the Twin Falls Land and Water Company, and is operated and maintained by the Twin Falls Canal Company. The latter brought suit against the American Falls Reservoir District No. 2 for a proportionate share of the costs of construction and operation of Milner dam. The suit was dismissed on the grounds: (1) that the United States, not the reservoir district, was the proper party defendant, notwithstanding a provision in the repayment contract that the district would hold the United States harmless against claims in favor of the owners of Milner dam, because under section 6 of the Reclamation Act title to and management and operation of the works remained in the Government; and (2) that the gravity diversion works were not damaging plaintiff's water rights or its use of Milner dam. Twin Falls Canal Co. v. American Falls Reservoir Dist. No. 2, 59 F. 2d 19 (9th Cir. 1932); affirming 49 F. 2d 632 (D. Idaho 1931); see also 45 F. 2d 649 (D. Idaho 1930) overruling demurrer amended complaint.

to

The United States is not an indispensable party to a suit by a landowner receiving water from the Yakima project to enjoin the Secretary of the Interior from imposing additional charges for water delivery, representing part of the cost of the new Cle Elum reservoir, beyond those stated in a repayment contract with a water users' association and in the public notice issued by the Secretary, because the landowner, not the United States, is the owner of the water right under Federal and State law and under contract with the Secretary. This ownership is wholly distinct from the property right of the Government in the irrigation works. The suit is to enjoin the Secretary from enforcing an order, the wrongful effect of which will be to deprive the landowner of vested property rights, and may be maintained without the presence of the United States. Ickes v. Fox, 300 U.S. 82 (1937). See also Fox v. Ickes, 137 F. 2d 30 (D.C. Cir. 1943), cert. denied, 320 U.S. 792.

In suit by irrigation district to foreclose for delinquent taxes and assessments, evidence adduced by defendant under claim for affirmative relief by way of recoupment, set-off or counterclaim was insufficient to sustain allegation that alleged federal control, which would defeat defendant's right to affirmative relief against district, was a