The destruction of the dugout at the hands of Cannon shortly followed. No further effort appears to have been made on the part of claimant to establish his residence on the tract and no attempt was ever made by him to reside upon or cultivate any of the land other than said lot 5, though it is not entirely clear from the testimony whether or not Johanson had reason to believe that his residence on any other portion of the land would be molested or his attempts to cultivate it interfered with. Apparently Cannon asserted no claim to any of the land except said lot 5, but his threats were in their nature general and the drastic measures taken by him to enforce his claim may have given some foundation to the belief on the part of Johanson that it would be unsafe for him to attempt residence on or cultivation of the remainder of the land. There is some evidence in the record to support this assumption. Though he made no attempt to rebuild, prior to initiation of contest, Johnson testifies that he often slept upon the land and on one occasion this action was resented by Cannon and he viciously assaulted the party who accompanied claimant, for which assault he was arrested and fined. Since the initiation of contest Johanson has erected a house and established residence on the land, though not upon lot 5, and apparently has not been molested.

Your office, relying upon departmental decision in the case of Swain e. Call (9 L. D., 22), held that even though Johanson was prevented by the acts of Cannon from occupying the portion of the land entered by him and claimed by Cannon, he was not excused from fully complying with the law as to the remainder of his entry to which the claims and threats of Cannon did not extend.

Duress sufficient to excuse claimant from complying with the requirements of law has been repeatedly defined by the Department. (See Kinman e. Appleby, on review, 32 L. D., 526, and cases therein cited). That such duress existed as to said lot 5, through the threats and acts of Cannon, is beyond controversy. Whether as a reasonable man, exercising ordinary prudence, Johanson was justified in the belief that the threats and acts of Cannon extended to the remainder of his entry, is not so clear. Conceding that he was not so justified. the question is presented as to whether he was bound to establish residence at another place upon the land and cultivate and improve the land open to him.

The object and intent of the law was to confer upon and secure to the homestead claimant, the "exclusive benefit of his homestead right" (Anderson e. Carkins, 135 U. S., 483, 489). Alienation, contrary to the usual rule in respect to land, is restricted as against the policy of the statute, for to permit it might defeat the enjoyment of the exclusive right by the persons sought to be benefitted. This right extends to all the land covered by the homestead entry and the law

has sought to protect it by suitable and effective safeguards. It follows therefore that the entryman's absolute right to the entire possession and enjoyment of the land carries with it the right to build his house wherever he sees fit, and any obstruction of this right is an interference with the exclusive possession and enjoyment of the entire tract.

The good faith of the claimant was evidenced by his attempts to establish a residence on lot 5 of his entry, and there can be no presumption of bad faith because of his failure to maintain such residence in the face of the unlawful interference by Cannon, which clearly excused such failure. Your office held, in effect, that as between claimant and contestant, the equities of claimant were superior and that cancellation should not be ordered if by such action Cannon would be allowed to take advantage of his own wrong, But as Cannon could secure no rights by his contest, under your said decision, the question was left solely between the government and the entryman and as to the government Johanson was bound to evidence his good faith by establishing residence upon and cultivating and improving the remainder of the tract. In other words, the government is permitted to take advantage of Cannon's wrong to the prejudice of the entryman. To this doctrine the Department is unwilling to accede. The general and more liberal rule that where good faith is apparent and the controversy is one solely between the gov ernment and the entryman, the entry should be held intact, is more in keeping with the spirit of the homestead law, and the Department is of opinion the rule announced in the case of Parsons. Hughes (8 L. D., 593, 595) is controlling in the case at bar. It was there held that where the claimant had been wrongfully ejected from that portion of the land upon which she had established residence, it was not incumbent upon her to go upon another portion of the land and establish another. The right of selection in such matters goes hand in hand with the right to the exclusive enjoyment of the entire tract, and a denial of one is an interference with the other.

In the case cited in your said decision (Swain ». Call, supra) it was stated that "the evidence relied upon as showing duress on the part of Swain is not by any means sufficient to sustain such finding." That case should not therefore be allowed to control in cases similar to the one here under consideration, where the evidence clearly established the plea of duress.

For the reasons herein stated, the decision appealed from is affirmed in so far as it holds for dismissal the contest of Cannon, and modified in so far as it holds for cancellation the entry of Johanson upon the rejection of the final proof submitted by him. The entry will remain intact and he will be permitted to submit a supplemental showing as to his compliance with the law during the lifetime of the entry.

ARID LAND-IRRIGATION PROJECT-ACT OF JUNE 17, 1902.

OPINION.

The act of June 17, 1902, affords authority for the purchase by the United States of an incomplete irrigation system to be used in connection with, and to become a part of, a larger system contemplated by the government. The provision of section 5 of the act of June 17, 1902, restricting the sale of a right to use water for land in private ownership to not more than one hundred and sixty acres, will not prevent the recognition of a vested water right for a larger area and protection of the same by allowing the continued flowage of the water covered by the right through the works constructed by the government.

The Secretary of the Interior has no authority to enter into any agreement providing that an entry of public lands may be consummated in any manner or at any time other than as provided by the law under which such entry is made.

Assistant Attorney-General Campbell to the Secretary of the Interior, January 6, 1906.

(W. C. P.)

In his letter of November 8, 1905, the Director of the Geological Survey stated that the Umatilla project, in Oregon, had been found feasible; that it would irrigate about 20,000 acres of land east of the Umatilla River, at an estimated cost of fifty dollars per acre, and recommended that the sum of $1,000,000 be set aside for the project. With this letter he transmitted a copy of a proposed contract, by which the Maxwell Land and Irrigation Company, which has partially completed the construction of a canal system to irrigate its lands, by which said company is to turn over to the United States its irrigation works and water rights and to place its lands under the project and bind itself to make sale thereof in such manner as to conform to the provisions of the reclamation act. The original of this agreement, which had been signed on behalf of the company, had been returned for certain corrections.

This letter was returned to the Director for report on the following propositions:

1. Do not the provisions of paragraph 2 of the enclosed agreement conflict with the provisions of paragraph 5 of the reclamation act prohibiting the right to the use of water on land in private ownership in excess of 160 acres? 2. Are not the provisions of paragraph 11 likewise in conflict with the provisions of said paragraph 5 of the reclamation act?

3. What authority has the Secretary of the Interior, under existing law, to approve the provisions of paragraph 13 of said agreement which contemplates the extension of time for compliance with the provisions of the desert land act?

The Director, in his report of November 16, answers that the first and second propositions in the reference are not, in his opinion, in conflict with the provisions of the reclamation act, and submits the third proposition to the Department for consideration.

The letter of November 16 has been submitted to me for “ an opinion, first, upon the questions presented herein, and, second, as to whether any legal objection exists to the approval of the accompanying agreement to sell' of the Maxwell Land and Irrigation Company."

Paragraph 1 of the proposed agreement provides that the Maxwell Land and Irrigation Company will sell and convey to the United States for the uses and purposes contemplated by the reclamation act of June 17, 1902 (32 Stat., 388), its main canal, laterals, diversion works, structures for impounding or distributing water, rights of way, and all water rights held or claimed, with all appurtenances in any wise used in connection with the company's canal system, for the sum of $15,000.

Paragraph 2 reads as follows:

It is further agreed that the United States shall recognize a rested water right in the said company, or its assigns for three hundred (300) acres, to be hereafter selected by it in tracts, not less than twenty acres conforming to the public land subdivisions within the limits of the East Umatilla project of the Reclamation Service, to the extent of the water supply furnished to other lands under the said project. The water right for the said three hundred (300) acres shall be a perpetual water right, subject to the same regulations as to quantity and time of delivery prevailing under the said project, but shall be subject to no other condition than the payment to the United States of an annual maintenance charge of the same amount as that fixed for other lands under said project.

Paragraph 3 provides that the company will place under the provisions of the reclamation act its lands irrigable under said project, aggregating between 8000 and 9000 acres, excepting the tracts reserved in paragraphs 2 and 5.

Paragraph 4 provides that the lands referred to in paragraph 3 shall be conveyed to a trustee satisfactory to both parties, that they may be sold to parties competent to take and hold the same under the reclamation act.

Paragraph 5 provides that there shall be excepted from the provisions of paragraphs 3 and 4 a townsite of 160 acres, and in addition thereto forty acres of land as a water-shed to protect the spring from which water is supplied and intended to be supplied to said townsite, and the right of way from said forty acres to the townsite.

Paragraph 6 provides that the company shall convey the premises to the United States by a good and sufficient deed of conveyance. Paragraph 7 provides that the United States shall purchase the property upon the terms expressed in the previous paragraphs.

Paragraph 8 provides that existing liens or incumbrances of said premises may be provided for by retention of a sufficient amount of the purchase money.

Paragraph 9 provides that the officers of the United States may have unrestricted access to said premises for the purpose of surveying for the construction of reclamtaion works.

Paragraph 10 provides that the company will sell to the United States any lands required for reservoirs, canals, or other irrigation works, at a consideration not to exceed six dollars per acre.

Paragraph 11 provides that the company may retain possession of, maintain and operate its present water system so far as may be necessary to supply water to lands now irrigable by the same and dependent thereon until the government project shall replace the same, and that the company may supply to the parties named in Schedule A water sufficient to complete their cultivation under the desert land act of the tracts as set forth in said schedule.

Paragraphs 12 and 13 provide that parties named in Schedule B, being claimants under the desert land act and dependent upon water to be supplied them by the company under that portion of its system not yet constructed, may complete the acquisition of said public lands by obtaining water under the reclamation act, "and that they shall have such extension of time in which to conform to the requirements of the desert land act as may become necessary on account of their obtaining water for such lands from the reclamation project." with the provision that the lands so to be furnished with water shall not exceed 160 acres to each claimant.

Paragraph 14 provides that the agreement shall not operate to bind the United States to purchase said premises until approval by the Secretary of the Interior, and

Paragraph 15 provides that the provisions of the agreement shall inure to the successors and assigns of the respective parties thereto.

The Director of the Geological Survey states that a water right for at least 300 acres has now vested in the company and that to eliminate this water right by purchase would require a larger expenditure than would be justified. He states that the proposition to leave this water right in the company and to provide for the flowage of the water through the canal to be constructed is the course usually pursued by individuals under like conditions.

When an abstract of title in connection with the Klamath Falls irrigation project was under consideration in this office it disclosed an apparent obligation upon the property perpetually to deliver water without charge for expense of operation or maintenance, to certain parties, and the opinion was expressed that these obligations were of such character as to prohibit acquiring the property under the irrigation act. At that time the agreement involved in that matter was not before this office and its conditions were not set forth. Reference is made to this because it is stated that the agreement there is substantially the same as the one under consideration now. That the act of June 17, 1902, affords authority for the purchase of a partially constructed irrigation system has heretofore been held by