ACREAGE LIMITATION POLICY

SUMMARY OF THE HISTORY OF LAWS, REGULATIONS, AND POLICIES OF THE FEDERAL GOVERNMENT RESPECTING LIMITATIONS ON THE DELIVERY OF WATER FROM FEDERAL PROJECTS FOR IRRIGATION PURPOSES TO LANDS IN EXCESS OF A SPECIFIED OR LIMITED NUMBER OF ACRES IN INDIVIDUAL OWNERSHIP

A. LEGISLATION

Prior to 1902, the Congress had no experience with what we now know as reclamation law. The earlier homestead law, which had been found adequate to encourage the settlement of lands east of the 100th meridian, provided that, after compliance with its provisions, the United States would convey title by patent to the entryman or his successor in interest. Water was provided to such lands by nature. No great investment was required to bring such lands into production nor to insure the continuance of a water supply, as was later required on arid lands farther west. Thus, the first reclamation law, while obviously endeavoring to achieve an objective inherent in early public domain disposal legislation and which has continuously been reaffirmed in subsequent supplementary or amendatory legislative actions pertinent to reclamation law, was then to be regarded as of an experimental nature.

The Homestead Act was enacted in 1862 after long agitation. Under its provisions, any person who had filed his first papers or was a citizen and was 21 years old and the head of the family could enter 160 acres of land. Patent was issued after completion of cultivation requirements and after 5 years' residence (reduced in 1912 to 3 years by the act of June 6, 1912; 37 Stat. 123). The entryman could, however, commute these requirements by making appropriate payments to the Government. The act of March 3, 1891 (26 Stat. 1095, 1098), provided that no person who owned 160 acres of land could enter land under the homestead laws.

Attempts were made by the Congress at an early date to encourage irrigation. The Desert Land Act (act of Mar. 3, 1877; 19 Stat. 377) permitted entry by one person of 640 acres, subsequently reduced to 320 acres (act of Mar. 3, 1891; 26 Stat. 1095, 1096), with patent to be issued within 3 years upon proof of reclamation and upon payment to the Government of the price of the land. In 1894 the Carey Act (act of Aug. 18, 1894; 28 Stat. 422) was enacted to encourage irrigation development by the States. This act provided for a grant to each of the Western States of not to exceed 1 million acres of public land to be used for irrigation development and provided that the States could not "sell or dispose of more than 160 acres to any one person."

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As early as 1890 it was rapidly becoming apparent that the greater portion of the arable land contained in the public domain had been appropriated under terms of the Homestead Act, and the Nation was again faced with the problem of providing suitable lands as an outlet for the overcrowded population of the East. The only large blocks of public domain remaining were located in the arid regions which could support a substantial population only by irrigation. Additionally, the Congress noted that land which would be needed for reservoir sites and for irrigation works was rapidly disappearing under the liberal terms of the various acts designed to promote settlement of public land. The alarm and concern increased as it became apparent that, by various devious methods, immensely large landholdings were being accumulated by individuals and groups which, if permitted to continue, might seriously hamper any sort of comprehensive plan for irrigation of the arid lands remaining within the public domain.

Accordingly, in order to forestall such a possibility, legislation was enacted withdrawing all arid land from entry (act of Oct. 2, 1888; 25 Stat. 526). Although this withdrawal was subsequently removed by the act of August 30, 1890 (26 Stat. 391), which restored arid land to entry, the development of a national reclamation policy and program remained a vital issue. The 1890 act did, however, reserve to the United States a right-of-way for ditches or canals constructed by authority of the United States.

Finally, after prolonged and intense discussion, the act of June 17, 1902 (32 Stat. 388), was enacted and provided the authority for the establishment of the Federal reclamation program. Although the 1902 act may, in some respects, be regarded as an adaption of the homestead laws to regulate settlement upon arid lands susceptible of irrigation, the comprehensive nature of the undertaking there established resulted in the development of many additional provisions and safeguards in those statutes supplementary thereto or amendatory thereof. Our consideration here will essentially be limited to the provisions commonly referred to as excess land or acreage limitations. The Reclamation Act of 1902 provided that the receipts from the sales of public lands in the States in the arid West would be applied to the construction and maintenance of irrigation works for the storage and distribution of water. Those who benefited by the works were expected to pay the capital costs and the operation and maintenance cost of the works. The fundamental purpose of encouraging homebuilding and prevention of land monopoly and speculation, in particular, was to be accomplished through the operation of two specific provisions, with support in other related provisions. The first of these is found in section 3 of the 1902 act which authorized the Secretary of the Interior to withdraw from entry public lands required for proposed project works and public lands believed susceptible of irrigation. The section specifically established the conditions under which entry was to be made:

*** public lands which it is proposed to irrigate by means of any contemplated works shall be subject to entry only under the provisions of the homestead laws in tracts of not less than forty nor more than one hundred and sixty acres, and shall be subject to the limitations, charges, terms, and conditions herein provided: Provided, That the commutation provisions of the homestead laws shall not apply to entries made under this Act.

Implementing this provision, section 4 of the 1902 act required the Secretary of the Interior, when the project was determined to be feasible, to announce by public notice the limit of the area per entry, having regard for the acreage required for the support of a family. Such public notice was also to prescribe the construction charges per acre on entered lands and lands in private ownership to be irrigated under the project, and the number of annual installments, not exceeding 10, in which the charges should be paid. The charges were to be determined with the view of returning to the reclamation fund the estimated cost of construction of the project. In passing it should be noted that the Senate Committee on Public Lands, in commenting on the power of the Secretary to limit entry to units required for the support of a family, recognized that the size of such units might vary in different situations between the 40- and 160-acre limits because of the inherent nature and productivity of the specific lands in question as further influenced by climatic and related factors (S. Rept. 254, 57th Cong., 1st sess., p. 2).

Section 5 of the 1902 act then provided that until payment had been made of all the charges allocated against such lands under the preceding section 4, patent was not to be issued in the case of public lands, nor should right to the use of water permanently attach to private lands. Thus, the apparent effect of the 1902 act would have limited the initiation of a right to the use of water and, in the case of public lands, to the ownership of the land itself to the acreages provided by the act. The specific wording is as follows:

*** No right to the use of water for land in private ownership shall be sold for a tract exceeding one hundred and sixty acres to any one landowner, and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land, and no such right shall permanently attach until all payments therefor are made. * * * Further clarification of the intent is found in the Congressional Record, volume 35, page 6678:

*** Under nearly every project undertaken by the Government there will undoubtedly be some lands in private ownership; and it would be manifestly unjust and inequitable not to provide water for those lands, providing their owners are willing to comply with the conditions of the act; and in order that no such lands may be held in large quantities or by nonresident owners, it is provided that no water right for more than 160 acres shall be sold to any landowner, who must also be a resident or occupant of his land. This provision was drawn with a view to breaking up any large landholdings which might exist in the vicinity of Government works and to insure occupancy by the owner of the land reclaimed.

As a further safeguard to insure the bona fide nature of prospective settlers, section 5 required that, additional to the occupancy and payment of charges therein required, the entryman on public lands under the reclamation law must comply with the homestead laws and must reclaim at least one-half of the irrigable area of his entry for agricultural purposes before receiving patent.

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The act of June 27, 1906 (34 Stat. 519), authorized the Secretary of the Interior, upon his finding that a lesser area than 40 acres might be sufficient for the support of a family on irrigated project lands, to fix farm units for entry at not less than 10 or more than 160 acres. act also provided that, as to desert land entries included within reclamation withdrawals, the entryman might retain not to exceed 160 acres and be subject to the requirements and entitlements of the

reclamation laws. This act contained no additional provisions with respect to private lands for which a water right under the project was sought to be acquired.

In the implementation of the 1906 act, it was noted that some entrymen had entered 160 acres of land and had lived thereon for several years prior to the time water became available or farm units were established. In order to relieve certain hardships experienced by those entrymen who sought to conform their earlier entries to the farm units as subsequently established, the Congress enacted the act of June 23, 1910 (36 Stat. 592), permitting the entryman who had complied with the residence requirements of homestead law to assign his entry in whole or in part. It is significant to note, however, that the act additionally made such assignments involving entries on reclamation project lands subject to the terms and conditions and the limitations of the Reclamation Act. Hence, the excess land restrictions applied to entries thus assigned and the assignee was required to furnish proof of his compliance therewith.

It may also be noted, incidentally, that the act of February 2, 1911 (36 Stat. 895), authorized the Secretary of the Interior, with respect to lands acquired under the 1902 act for irrigation works and not needed therefor, to cause such lands to be sold, under stated conditions, in tracts not to exceed 160 acres to any one person.

The 1902 act contained no requirement that a private landowner include all his land in the project. Thus, he might legally have applied for water for one farm unit and held his excess lands for sale to settlers at far higher prices than could have been obtained had the project not been built.

Another feature of the 1902 act, as previously noted, was that an entryman under homestead laws could not receive title until the building and betterment charges had been paid in full, nor could a private landowner receive a water-right certificate until that time. This proved to be a burdensome provision for entrymen and landowners as their lands and water rights could not be used as collateral to borrow money necessary to finance the development of their farms. Accordingly, the next significant reclamation legislation to be considered by the Congress resulted in the act of August 9, 1912 (37 Stat. 265). This act authorized the issuance of patents to entrymen upon completion of residence, reclamation, and cultivation requirements and payment of charges then due. Issuance of waterright certificates to private landowners was authorized upon proof of reclamation and cultivation requirements and payment of charges then due. Thus, with respect to the requirements for payment of building and betterment charges, the provisions carried in section 1 of the 1912 act were as nearly parallel as might be for public lands under entry and private lands covered by water-right application. In this manner both homestead entrymen and the owners of private lands who had applied for water-right certificates could be afforded a vested right so that they could raise money with which to finance their farming activity. The manner in which this was accomplished was at no time considered to have as its purpose the modification, in any way, of the basic objectives of the excess land provisions of the 1902 act. This becomes apparent when consideration is given to the wording of section 3 of the 1912 act which reads: