THE IRRIGATION AGE. 



20:? 



THE CAREY ACT 



How to Acquire Title to Public Lands Under 

 the Act. 



A Comprehensive Survey of the Regulations in 

 Force in the Various States. 



I'oiiyrighted, 1910. by E. F. Bohm. 



IV. 

 The Water. 



As previously stated, the proposal of the "Company" 

 asking for the withdrawal of Lands desired for reclam- 

 ation, must describe, among other things, "the cost of 

 such works and the price at which they will be sold to 

 those who desire to settle upon the land" and the Statutes 

 further provide that "the works will be sold to the set- 

 tlers who enter the land, at a price agreed upon with 

 the State. Before the settler may enter the land, he 

 must contract to purchase a share in such works for each 

 acre of land which he desires to enter (In some States 

 one share is apportioned to each 40 acres Ed.) each of 

 the shares representing a certain carrying capacity in 

 the canal system, which, in every case, must be sufficient 

 to deliver the water required for the irrigation of his 

 land. The Board shall provide suitable rules for tiling 

 proposals," etc. 



"The plan adopted for the administration of the works 

 while in the possession of the company, the annual main- 

 tenance fee, the system of distribution of water, and all 

 contracts between the company and the settler must be 

 approved by the State Land Board." 



"To enable it to carry on its work, the company will 

 be permitted to mortgage its equity in the project but its 

 contract with the State must provide that the settler will 

 be given a proper release from the terms of the mort- 

 gage when he has made full payment for his shares." 



"There shall "be kept at the office for public inspec- 

 tion, copies of all maps, plats and contracts for con- 

 struction and settlers' entries." 



The above is an almost verbatim excerpt from the 

 "Regulations" of the State of Idaho. While the phraseol- 

 ogy in the case of the other States varies somewhat, and 

 may differ from this recital, it contains the essence of 

 their regulations upon the subject. The Federal Statutes, 

 of course, are the fundamental Law to which all state 

 legislation and regulation must conform, and space per- 

 mitting, the regulations of the Department of the In- 

 terior, together with the forms prescribed for this pro- 

 cedure, as well as the various forms prescribed by the 

 States, will be presented jn a later issue. 



So far as the purposes of this article are concerned, 

 an orderlv presentation of the various phases of "Water 

 Rights" will, of necessity, begin with the "Contract be- 

 tween the State and the Company," and "Contract be- 

 tween Company and Settler." 



Contracts Between States and Companies. 



The contracts between the States and the Companies, 

 are not, as a matter of course, in all States, or in all 

 individual cases, so far as the limitations of statutes or 

 regulations permit elasticity, similar. The varying re- 

 quirements of local conditions do not lend themselves to 

 inflexibility in this regard. It would be clearly impossible 

 in an article of this character, to even attempt to set 

 forth, in detail, the principal recitals of ALL the contracts 

 of this nature, in force and operation at this date. Such 

 a proceeding would, of necessity, be too voluminous and 

 too technical for a work designed for popular reading. 

 The writer will, therefore, confine himself to a detailed 

 discussion of typical contracts operative in the State of 

 Wyoming, to be followed by a less extended reference 

 to the salient features of various contracts in other 

 States, which, for the purpose in view, will prove entirely 

 sufficient. 



Typical Contract Between the State of Wyoming And 

 Company. 



Preceded by the usual introductory recitals common 

 to all contracts the "Company" being organized under 

 the laws of the State of Wyoming, the State acting 

 through its State Board of Land Commissioners, there 

 follows the recital of the segregation of the lands "here- 

 inafter described," under the Carey act, recital of water 

 appropriations, of readiness of company to proceed with 

 the construction of the works, and of the delivery of ap- 

 proved bond; it then proceeds to specify as follows, 

 viz: 



Clause 1 Agreement of the company to build irri- 

 gating system, according to specifications adopted, with 

 reference to list of lands segregated under the Carey act 

 and of other lands, if any, for which company is permitted 

 to furnish water estimated cost of construction, descrip- 

 tion of main canal lines and laterals length of time re- 

 quired for completion of system, carrying capacity of 

 canal, and recital of conditions as to time for completion 

 of stated portions of the work and penalties for un- 

 authorized lapse of work, as prescribed by the regulations. 

 (Recital in all contracts.) 



Clause 2 Duty of water (amount to be delivered to 

 settlers expressed in units) method of delivery of water, 

 and provisions for headgates, etc. (Recital in all 

 contracts.) 



Clause 3 Provision for division of irrigation works 

 and water appropriation into shares 1 to each acre of 

 land. 



Clause 4 Company reserves exclusive right to dis- 

 pose of such shares to settlers. 



Clause 5' Price of shares. (Water rights.) 



Clause 6 Terms of payment for shares. 



(Clauses 3 to 6 inclusive evidence of ownership 

 whether by "shares," or otherwise, in substance, in all 

 contracts). 



Clause 7 Right of way for company's ditches grant- 

 ed by State across its lands, and across all Carey act lands 

 segregated. 



Clause 8 Company permitted to enlarge and extend 

 its system upon approval of Board, for irrigation of 

 other lands, and for power purposes. 



Clause 9 FVovision for transfer of ownership of 

 canal system to settlers through the instrumentality of 

 a subsidiary "operating" company (or an association"). 



(Whether by this means, or otherwise, essential re- 

 cital in all contracts.) 



Clause 10 Provision for operation of irrigation works 

 by such operating company, for apportionment of cost 

 of such operation and maintenance; maintenance fee; de- 

 termination of system for measurement and distribution of 

 water to settlers. (All contracts provide method of 

 operation.) 



Clause 11 Definition of the interest represented by 

 shares in the "operating company." The rights of the 

 constructing company which are reserved from disposal, 

 confined to the right to enlarge irrigation works and the 

 right to use water for power purposes. Water rights at- 

 tached to individual tracts of land and made inseparable 

 therefrom. 



Clause 12 Company prohibited from selling water- 

 rights, or "shares," to any but qualified entrymen. (All 

 States.) 



Clause 13 Company required to issue to settlers 

 shares in "operating company" at time of purchase, pro- 

 vision for securing interests of company and for the vot- 

 ing power of shares. 



Clause 14 Company prohibited from selling "shares'" 

 until water ready for delivery to lands to be designated 

 by the land board. Company permitted to sell Contracts 

 for the sale of shares, prior to water being ready, pro- 

 vided all advance payments for water rights be deposited, 

 in escrow, with the State Land Board. 



Clause 15 Company permitted to issue bonds, secur- 

 ed by mortgage upon its interest in the system. (All 

 States.) 



Clause 16 Company granted the right, when 90 per 

 cent of the shares are sold, at its option, to assign to 

 "operating company," the unsold balance of "shares,"' 

 free of all claim, and thereupon to be released from 

 further obligation to contribute toward the maintenance 



