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DESERT LANDS.

19 STAT. 377, Chap. 107, MARCH 3, 1877.

WATER RIGHTS.

AN ACT To provide for the sale of desert lands in certain States and Territories.

Be it enacted, etc., That it shall be lawful for any citizen of the United States, or any person of requisite age“who may be entitled to become a citizen, and who has filed his declaration to become such" and upon payment of 25 cents per acre, to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding 1 section, by conducting water upon same, within the period of three years thereafter: Provided, however, That the right to the use of water by the person so conducting the same, on or to any tract of desert land of 640 acres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes

subject to existing rights. Said declaration shall describe particularly said section of land if surveyed, and, if unsurveyed, shall describe the same as nearly as possible without a survey. At any time within the period of three years after filing said declaration, upon making satisfactory proof to the register and receiver of the reclamation of said tract of land in the manner aforesaid, and upon the payment to the receiver of the additional sum of $1 per acre for a tract of land not exceeding 640 acres to any one person, a patent for the same shall be issued to him. Provided, That no person shall be permitted to enter more than one tract of land and not to exceed 640 acres which shall be in compact form.

SEC. 2. That all lands exclusive of timber lands and mineral lands which will not, without irrigation, produce some agricultural crop, shall be deemed desert lands, within the meaning of this act, which fact shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in wnich said tract of land may be situated.

SEC. 3. That this act shall only apply to and take effect in the States of California, Oregon, and Nevada, and the Territories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota, and the determination of what may be considered desert land shall be subject to the decision and regulation of the Commissioner of the General Land Office.

A. SURFACE WATER-APPROPRIATION FOR MINING, ETC. See sec. 2339, p. 609.

This act by declaring that surface water on the public domain shall remain and be held free for the appropriation and use of the public for mining and other purposes subject to existing rights does not limit the right of appropriation by the owners of land upon which a beneficial use of the water is to be made, nor prevent a local legislature from empowering a water company to become an intermediary for furnishing water for such purposes to the lands of third persons not bordering upon the stream.

Gutierres v. Albuquerque Land, etc., Co., 188 U. S. 545, p. 555.

The water which may be appropriated under this statute is limited to the "surplus water of a stream over and above any water already appropriated and which shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights.

Gutierres v. Albuquerque Land, etc., Co., 188 U. S. 545, pp. 553, 555.

26 STAT. 1095, p. 1096, MARCH 3, 1891.

AMENDMENT.

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AN ACT To repeal timber-culture laws, and for other purposes. Be it enacted, etc., SEC. 2. That an act to provide for the sale of desert lands in certain States and Territories, approved March 3, 1877 (19 Stat. 377, chap. 107), is hereby amended by adding thereto the following sections:

SEC. 4. That at the time of filing the declaration herein before required the party shall also file a map of said land, which shall exhibit a plan showing the mode of contemplated irrigation, and which plan shall be sufficient to thoroughly irrigate and reclaim said land, and prepare it to raise ordinary agricultural crops, and shall also show the source of the water to be used for irrigation and reclamation. Persons entering or proposing to enter separate sections, or fractional parts of sections, of desert lands may associate together in the construction of canals and ditches for irrigating and reclaiming all of said tracts, and may file a joint map or maps showing their plan of internal improvements.

Sec. 5. That no land shall be patented to any person under this act unless he or his assignors shall have expended in the necessary irrigation, reclamation, and cultivation thereof, by means of main canals and branch ditches, and in permanent improvements upon the land, and in the purchase of water rights for the irrigation of the same, at least $3 per acre of whole tract reclaimed and patented in the manner following: Within one year after making entry for such tract of desert land as aforesaid the party so entering shåll expend not less than $1 per acre for the purpose, aforesaid; and he shall in like manner expend the sum of $1 per acre during the second and also during the third year thereafter, until the full sum of $3 per acre is so expended. Said party shall file during each year with the register proof, by the affidavits of two or more credible witnesses, that the full sum of $1 per acre has been expended in such necessary improvements during such year, and the manner in which expended, and at the expirtion of the third year a map or plan showing the character and extent of such improvements. If any party who has made such application shall fail during any year to file the testimony aforesaid the lands shall

revert to the United States, and the 25 cents advanced payment shall be forfeited to the United States, and the entry shall be canceled. Nothing herein contained shall prevent a claimant from making his final entry and receiving his patent at an earlier date than hereinbefore prescribed, provided that he then makes the required proof of reclamation to the aggregate extent of $3 per acre: Provided, That proof be further required of the cultivation of one-eighth of the land.

Sec. 6. That this act shall not affect any valid rights heretofore accrued under said act of March 3, 1877 (19 Stat. 377), but all bona fide claims heretofore lawfully initiated may be perfected, upon due compliance with the provisions of said act, in the same manner, upon the same terms and conditions, and subject to the same limitations, forfeitures, and contests as if this act had not been passed; or said claims, at the option of the claimant, may be perfected and patented under the provisions of said act, as amended by this act, so far as applicable; and all acts and parts of acts in conflict with this act are hereby repealed.

Sec. 7. That at any time after filing the declaration, and within the period of four years thereafter, upon making satisfactory proof to the register and the receiver of the reclamation and cultivation of said land to the extent and cost and in the manner aforesaid, and substantially in accordance with the plans herein provided for, and that he or she is a citizen of the United States, and upon payment to the receiver of the additional sum of $1 per acre for said land, a patent shall issue therefor to the applicant or his assigns; but no person or association of persons shall hold by assignment or otherwise prior to the issue of patent, more than 320 acres of such arid or desert lands but this section shall not apply to entries made or initiated prior to the approval of this act. Provided, however, That additional proofs may be required at any time within the period prescribed by law, and that the claims or entries made under this or any preceding act shall be subject to contest, as provided by the law, relating to homestead cases, for illegal inception, abandonment, or failure to comply with the requirements of law, and upon satisfactory proof thereof shall be canceled, and the lands, and moneys paid therefor, shall be forfeited to the United States.

SEC. 8. That the provisions of the act to which this is an amendment, and the amendments thereto, shall apply to and be in force in the State of Colorado, as well as the States named in the original act; and no person shall be entitled to make entry of desert land except he be a resident citizen of the State or Territory in which the land sought to be entered is located.

28 STAT. 372, p. 422, AUGUST 18, 1894.

CAREY ACT.

AN ACT Making appropriations for sundry civil expenses of the Government for the

fiscal year ending June 30, 1895. Be it enacted, etc. That the following sums be, and the same are hereby, appropriated, for the objects hereinafter expressed, for the fiscal year ending June 30, 1895, namely:

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. Sec. 4. That to aid the public-land States in the reclamation of the esert lands therein, and the settlement, cultivation, and sale thereof

in small tracts to actual settlers, the Secretary of the Interior, with the approval of the President, be, and hereby is, authorized and empowered, upon proper application of the State to contract and agree, from time to time, with each of the States in which there may be situated desert lands as defined by the act entitled “An act to provide for the sale of desert land in certain States and Territories," approved March 3, 1877 (19 Stat. 377), and the act amendatory thereof, approved March 3, 1891 (26 Stat. 1095), binding the United States to donate, grant, and patent to the State free of cost for survey or price such desert lands, not exceeding 1,000,000 acres in each State, as the State may cause to be irrigated, reclaimed, occupied and not less than 20 acres of each 160 acre tract cultivated by actual settlers, within 10 years next after the passage of this act, as thoroughly as is required of citizens who may enter under the said desert land law.

Before the application of any State is allowed or any contract or agreement is executed or any segregation of any of the land from the public domain is ordered by the Secretary of the Interior, the State shall file a map of the said land proposed to be irrigated which shall exhibit a plan showing the mode of the contemplated irrigation and which plan shall be sufficient to thoroughly irrigate and reclaim said land and prepare it to raise ordinary agricultural crops and shall also show the source of the water to be used for irrigation and reclamation, and the Secretary of the Interior may make necessary regulations for the reservation of the lands applied for by the States to date from the date of the filing of the map and plan of irrigation, but such reservation shall be of no force whatever if such

and plan of irrigation shall not be approved. That any State contracting under this section is hereby authorized to make all necessary contracts to cause the said lands to be reclaimed, and to induce their settlement and cultivation in accordance with and subject to the provisions of this section; but the State shall not be authorized to lease any of said lands or to use or dispose of the same in any way whatever, except to secure their reclamation, cultivation and settlement.

As fast as any State may furnish satisfactory proof according to such rules and regulations as may be prescribed by the Secretary of the Interior, that any of said lands are irrigated, reclaimed and occupied by actual settlers, patents shall be issued to the State or its assigns for said lands so reclaimed and settled: Provided, That said States shall not sell or dispose of more than 160 acres of said lands to any one person, and any surplus of money derived by any State from the sale of said lands in excess of the cost of their reclamation, shall be held as a trust fund for and be applied to the reclamation of other desert lands in such State. That to enable the Secretary of the Interior to examine any of the lands that may be selected under the provisions of this section, there is hereby appropriated out of any moneys in the Treasury not otherwise appropriated, $1,000.

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A. DE SERT LAND ACT.

1. COAL LANDS NOT SUBJECT TO PATENT.
2. MINERAL CHARACTER OF LAND-DETERMINATION.
3. STATE LANDS MUST BE NONMINERAL.

A. DE SERT LAND ACT.

1. COAL LANDS NOT SUBJECT TO PATENT.

Where lands in the segregation list provided for in this act are classified as coal the department has no authority to patent the same to the State where there has been no approval of the patent list except under the provisions of the act of March 3, 1909 (35 Stat. 844).

Wyoming, In re, 38 L. D. 508, p. 512.
See Martin v. Gilbert, 38 L. D. 536, p. 537.

The Land Department has no authority to approve or.patent to the State any known valuable deposits of coal or other minerals, and where lands sought by the State are actually coal lands, in the absence of the remedial legislation contained in the act of March 3, 1909 (35 Stat. 844), the listed tracts must be canceled, but that act saves to the claimant under the nonmineral laws who has initiated his claim in good faith the right to obtain patent to the surface, though it be shown that the land contains valuable deposits of coal.

Wyoming, In re, 38 L. D. 508, p. 512.
See Martin v. Gilbert, 38 L. D. 536, p. 537.

2. MINERAL CHARACTER OF LANDDETERMINATION.

The character of the lands for which patent is sought, whether mineral or otherwise, is an open question subject to investigation and adjudication up to the time of final departmental approval of the patent list which then becomes the basis of the issuance of a patent to the State.

Wyoming, In re, 38 L. D. 508,

p. 512.

3. STATE LANDS MUST BE NONMINERAL.

This act contemplates that the lands which are subject to listing for patent and for which patent is to issue to the State must be nonmineral in character and the acquirement of minerals by the State is expressly inhibited.

Wyoming, In re, 38 L. D. 508, p. 510.

29 STAT. 413, p. 434, JUNE 11, 1896.

LIEN OF STATE FOR COST OF RECLAMATION.

AN ACT Making appropriations for sundry civil expenses of the Government for the

fiscal year ending June 30, 1897, and for other purposes. Be it enacted, etc., That the following sums be, and the same are hereby, appropriated, for the objects hereinafter expressed, for the fiscal year ending June 30, 1897:

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That under any law heretofore or hereafter enacted by any State, providing for the reclamation of arid lands, in pursuance and acceptance of the terms of the grant made in section 4 of an act entitled

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