THE IRRIGATION AGE. 



45T 



Decisions of the Department of the In- 

 terior and of the Public Land Uftice 



Homestead Entry Death of Entryman Right of Widow 

 Heirs of Mojck v. Widow of Mojck, March 16, 1910. Upon 

 the death of a homesteader prior to consummation of his 

 claim his widow, if there be one, succeeds under the home- 

 stead law to his right to the land; and the State courts have 

 no jurisdiction to interfere with or divert the succession so 

 fixed by federal statute. 



Additional Homestead Under Section 3 of the Act of Feb- 

 ruary 19, 1909. Clinton Browning. March 18, 1910. A home- 

 steader who made entry under the general law, upon which 

 patent has issued, Is not entitled to an additional entry under 

 Section 3 of the act of February 19, 1909. (320 acre home- 

 stead act.) 



Public Lands Aggregate Area Act of August 30, 1890 

 Courtier v. Hogan, March 18, 1910. Lands embraced in entries 

 made prior to the act of August 30, 1890, or in settlements 

 made prior thereto and subsequently carried to entry, are 

 not considered in determining the quantity of lands a settler 

 or entryman may acquire under the limitation in that act 



Office and is pending before the department on appeal is 

 not, in such case, sufficient reason for refusing to accept a 

 contest against the entry based upon a charge, which, if 

 proven, would necessitate cancellation of the entry. 



In a contest against a homestead entry on the ground 

 of abandonment it is not necessary, under the act of June 

 16, 1898, to either allege or prove that the entryman's absence 

 was not due to military service, where the United States 

 was not engaged in war during the period of abandonment. 

 Credit for constructive residence during absence on account of 

 official employment cannot be allowed where actual residence 

 has never in good faith been established. 



National Forest Homestead Qualification Acts of Aug- 

 ust 30, 1890, and June 11, 1906 William P. Wall, April 14, 

 1910. One who since the act of August 30, 1890, has ac- 

 quired title to 320 acres, In the aggregate, under the agri- 

 cultural public land laws, Is disqualified to make entry In a 

 national forest under Section 2 of the act of June 11, 1906. 



Right of Way Reservoir Site Application Discretion- 

 ary Power of Secretary Sierra Ditch and Water Co. When- 

 ever, in his judgment, the granting of an application for 

 rifrht of way under the act of March 3, 1891, over a national 

 forest oV reservation, would interfere with the proper occu- 

 pancy of the reservation by the Government, it is within the 

 power of the Secretary of the Interior to withhold his ap- 

 proval therefrom. 



Prior to approval the inchoate right acquired by an appli- 

 cation for right of way over a national forest under the act 



Showing Weir Conducting Water from Main Canal to Lateral, Patterson Ranch, California. 



that not more than 320 acres in the aggregate may be ac- 

 quired by any one person under the public land laws. 



Carey Act Coal Classification Subsequent to Approval of 

 Segregation List Act of March 3, 1909 State of Wyoming, 

 March 19, 1910. No complete equitable Interest or title vests 

 in a state by the approval of a segregation list under the 

 Carey Act; and if, subsequent to such approval and prior to 

 final approval of the patent list, lands In the segregation list 

 are classified as coal, the department is without authority, 

 so long as such classification stands, to approve or patent 

 such lands to the state except in accordance with the act of 

 March 3, 1909. 



Insane Entryman Residence Act of June 8, 1880 

 Welsh v. Hackett, March 30, 1910. The homestead entry of 

 one who became insane before expiration of six months from 

 entry, without having established residence, Is not protected 

 by the act of June 8, 1880. 



Homestead Commutation Proof Residence Mary E. El- 

 son, April 5, 1910. Commutation proof upon an entry made 

 prior to November 1, 1907, submitted immediately after the 

 expiration of fourteen months from date of entry, showing 

 that residence was not established until just before the expir- 

 ation of six months and that the entryman was absent an 

 intermediate period of about two months during the succeed- 

 ing eight months, will not be accepted as sufficient. 



Contest Abandonment Military Service Constructive 

 Residence McKeen v. Johnson, April 14, 1910. -Rejection of 

 the commutation proof offered by a homestead entryman does 

 not necessarily, in the absence of an adverse claim, and 

 where sufficient time remains within which the entryman 

 may comply with law and submit new proof, result in can- 

 cellation of the entry; and the fact that commutation proof 

 was rejected by the local officers and the General Land 



of March 3, 1891, is subject to the power of Congress to deny 

 the right by intervening legislation affecting the land. 



SUPREME COURT NOTE. 



RIGHT TO CONSTRUCT DAM. 



One who had a prior appropriation of surplus and 

 flood waters in a gulch or wash could construct a dam 

 above a subsequent appropriator, and impound so much of 

 the water falling above' it as he required for beneficial pur- 

 poses, but must maintain the dam so as to permit such 

 water as he does not require to pass to the lower appro- 

 priator, and so construct the dam as not to endanger the 

 dam of the other appropriator. Sullivan v. Jones. Su- 

 preme Court of Arizona. 108 Pacific 476. 

 ACQUISITION OF RIGHT TO USE WATERS. 



An owner of land bordering on a stream, who, by 

 means of ditches, used the waters thereof for irrigation 

 and allowed the waters to run through his own ditch 

 across his land and permitted his neighbors to make use 

 of it as they desired, but who did not by any act give his 

 neighbors reason to believe that such permission was to 

 be permanently continued, or that it would be recog- 

 nized as a right, was not estopped from denying that his 

 neighbors had any right to the ditch or waters. -Davis v. 

 Martin. Supreme Court of California. 108 Pacific 866. 



