***Provided, That no person shall at any one time or in any manner, except as hereinafter otherwise provided, acquire, own, or hold irrigable land for which entry or water-right application shall have been made under the said reclamation act of June seventeenth, nineteen hundred and two, and acts supplementary thereto and amendatory thereof, before final payment in full of all installments of building and betterment charges shall have been made on account of such land in excess of one farm unit as fixed by the Secretary of the Interior, as the limit of area per entry of public land or per single ownership of private land for which a water right may be purchased respectively, nor in any case in excess of one hundred and sixty acres, nor shall water be furnished under said acts nor a water right sold or recognized for such excess; but any such excess land acquired at any time in good faith by descent, by will, or by foreclosure of any lien may be held for two years and no longer after its acquisition; and every excess holding prohibited as aforesaid shall be forfeited to the United States by proceedings instituted by the Attorney General for that purpose in any court of competent jurisdiction; and this proviso shall be recited in every patent and water-right certificate issued by the United States under the provisions of this act.

Several significant points are covered by the above proviso. First, although acreage limitations provided throughout reclamation law have consistently applied only to the irrigable lands within an ownership, the specific reference to "irrigable lands" appears for the first time in the acreage limitation provided in section 3 of the 1912 act. Second, the proviso established that, in the determination of excess lands, the lands in private ownership and entered public lands were to be included. Third, the proviso introduced the exception to permit holding of excess lands involuntarily acquired by descent, by will, et cetera, for a period of 2 years to permit equitable disposition thereof. Before proceeding to the next major reclamation legislation, recognition should be given to the Warren Act (act of February 21, 1911; 36 Stat. 925). This act provides that, where excess storage capacity or excess canal capacity is available in connection with any project constructed under the reclamation laws, the Secretary of the Interior may contract with water users or their representatives for the "impounding, storage, and carriage of water" subject to the first proviso of section 1 of that act that "water so impounded, stored, or carried shall not be used otherwise than as prescribed by law, as to lands held in private ownership within Government reclamation projects." Clearly, this first proviso of section 1 of the Warren Act carries forward section 5 of the 1902 Reclamation Act which prohibits the sale of water for land in private ownership "for a tract exceeding 160 acres to any one landowner." Additionally, section 2 of the Warren Act contains the proviso that "*** water shall not be furnished from any such reservoir or delivered through any such canal or ditch to any one landowner in excess of an amount sufficient to irrigate one hundred and sixty acres." Thus again by special proviso, cooperation with water users is conditioned on the recognition and application of limitation on use of water to be furnished. This proviso might initially have been susceptible of the construction that the limitation was not on the area for which water was to be furnished, but rather on the quantity of water. In the light of the prior provisions of law, however, the construction adopted was that the private landowner was not to be furnished water for use on more than 160 acres of land. Nothing in the act warranted a conclusion that it was the intent to provide a limitation radically different from that applicable generally, or to substitute a limitation based on the quantity of water in place of the established limitation on the area to be served.

At the time the Reclamation Extension Act (act of Aug. 13, 1914; 38 Stat. 686) was being considered in the Congress, some 12 years of experience had been had with the reclamation law and certain serious. defects had been discovered. Principally, it had developed that,. notwithstanding the 1902 limitation on the delivery of water to 160 acres in single ownership, there had been continued failure on the part of owners of large blocks of lands to break up their holdings by sale in units eligible in size. This was because the act did not require a landowner to sell his excess land to be included in a project. While agreements had been entered into by the reclamation service with water user associations and other organizations by which privately owned lands were included in projects on the promise of the owners of excess lands to subdivide and sell to purchasers eligible to make waterright applications, the results had been disappointing and retention of ownership of excess lands remained widespread.

Not having sold their excess lands, private landowners had only to wait until the available lands had been taken up by other settlers. Although no water was being delivered to the excess lands, the lands could be made eligible for water deliveries by sale to qualified applicants. The private landowners thus could hold their lands until the prices had risen and then sell them, thus reaping for themselves the profits intended for the settlers.

Under the 1902 and 1912 acts, 10 years were allowed for the payment of construction charges. The pressures which induced the enactment of the 1914 act resulted from the fact that farmers who were actually cultivating their lands were finding it unduly burdensome to develop their farms while, at the same time, paying back the Government over a 10-year period. The Congress undertook to grant them relief, but, at the same time, to frustrate the designs of the excess landowners who wanted to retain their lands.

There was included in the act of August 13, 1914, supra, a section aimed specifically at the problem of the preexisting large landowners. This is section 12, reading:

That before any contract is let or work begun for the_construction of any reclamation project hereafter adopted the Secretary of the Interior shall require the owners of private lands thereunder to agree to dispose of all lands in excess of the area which he shall deem sufficient for the support of a family upon the land in question, upon such terms and at not to exceed such price as the Secretary of the Interior may designate; and if any landowner shall refuse to agree to the requirements fixed by the Secretary of the Interior, his land shall not be included. within the projects if adopted for construction.

A number of provisions in addition to section 12 were included in the 1914 act to make it burdensome to retain excess lands. Section 2 of that act required initiation of payment of construction charges for private land even though no water-right application had been made. Section 5 required the payment of minimum operation and maintenance charges whether the land was irrigated or not. Section 8 authorized the Secretary to require the cultivation, each year, of additional acreages of irrigable land for each entry and for each water-right application with one-half the irrigable acreage required to be in cultivation in five irrigation seasons. Section 9 imposed a 5-percent surcharge on the construction charge in the event waterright applications were not made within 1 year after public notice of the availability of water; the surcharge was continued annually until the water-right application had been made and the initial in

stallment of construction charges had been paid. Sections 3 and 6 provided for penalties and forfeiture in the event of failure to pay construction or operation and maintenance charges when due. Section 13 required entries under homestead laws containing more than a single farm unit to be reduced and conformed, within a limited period, to a single unit. These provisions taken together, as well as section 12, paint a clear picture of congressional determination to supplement the excess land limitations of the 1902 act in order to bring about the early division and development of private as well as public lands.

Here was a giant stride forward in implementing the homebuilding purposes of the reclamation law. Under earlier statutes, an application for a water-right certificate was limited to 160 acres but no requirement to sell was imposed upon the owner of private lands in excess of that amount. Under the 1914 act, the owner of more than 160 acres could not participate in the project at all until he had agreed to sell his excess lands. Thus, with the passage of the 1914 act, the Congress supplemented the excess land requirements of the 1902 act and the 1912 act in order to cope more effectively with the problem of the preexisting excess landowner. Section 12 of the 1914 act was designed specifically to cope with the special probelm of initially breaking up these excess holdings and preventing the owners from capitalizing on the benefits of Federal construction in the form of high prices charged to purchasers of their lands.

In passing it should be noted that the Smith Act (act of Aug. 11, 1916; 39 Stat. 506) provided that entered public lands in irrigation districts could be designated to receive the benefits and bear the burdens of a project in the same manner as privately owned lands. Thus they could be subjected to assessments and liens and could be sold to satisfy these liens. The act, however, limited the sales in such cases to not more than 160 acres to any one person.

After World War I the reclamation program again came under close scrutiny. An exhaustive survey was undertaken by a special advisory committee appointed by the Secretary of the Interior, which committee came to be known as the Fact Finders. The report submitted by the Fact Finders led to the enactment of two measures: the Fact Finders' Act (act of Dec. 5, 1924; 43 Stat. 672) and the Omnibus Adjustment Act (act of May 25, 1926; 44 Stat. 636).

In listing the defaults of the Reclamation Service, the Fact Finders declared that "the greedy owner of private lands, ready to trade upon the natural desire of vigorous, hard-working men for independent homes should and could have been squelched" (S. Doc. 92, 68th Cong., 1st sess., p. xiii). It was noted that, despite the careful attention previously afforded the situation, the provisions of the 1914 act had proved to be ineffective; a system of tenantry was being developed on Federal reclamation projects, and the principal activity of the reclamation law had been to improve conditions on private lands in that a far greater area of private lands were under some form of Federal reclamation development than was evident on public lands (id., 95–96, 133).

The response of the Congress was first the enactment of modified versions of an antispeculation provision recommended by the Fact Finders, in the departmental appropriation acts for fiscal years 1926 and 1927 in regard to certain specific projects for which funds were

being appropriated; and, second, the enactment of a generally applicable modification of the Fact Finders' recommendation as section 46 of the Omnibus Adjustment Act (act of May 25, 1926; 44 Stat. 636, 649-650).

Section 46 of the 1926 act began with a statement that no water shall be delivered upon the completion of any new project or new division of a project until a contract or contracts shall have been made by the Secretary with an irrigation district or districts organized under State law. Such contracts were to provide for payment, over not to exceed 40 years, of the cost of constructing the works and also provide for payment of operation and maintenance costs, and such contracts were required to be confirmed by a court of competent jurisdiction. Then, looking specifically to the acreage limitation aspect of the matter, section 46 further provided that:

*** Such contract or contracts with irrigation districts herein before referred to shall further provide that all irrigable land held in private ownership by any one owner in excess of one hundred and sixty irrigable acres shall be appraised in a manner to be prescribed by the Secretary of the Interior and the sale prices thereof fixed by the Secretary on the basis of its actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works; and that no such excess lands so held shall receive water from any project or division if the owners thereof shall refuse to execute valid recordable contracts for the sale of such lands under terms and conditions satisfactory to the Secretary of the Interior and at prices not to exceed those fixed by the Secretary of the Interior; and that until one-half the construction charges against said lands shall have been fully paid no sale of any lands shall carry the right to receive water unless and until the purchase price involved in such sale is approved by the Secretary of the Interior and that upon proof of fraudulent representation as to the true consideration involved in such sales the Secretary of the Interior is authorized to cancel the water right attaching to the land involved in such fradulent sale. ***

It is readily observable that the genesis of section 46 is to be found in section 12 of the 1914 act which had attempted to effect the sale of excess land but had, as previously noted, failed for a number of reasons (hearings before House Committee on Irrigation and Reclamation on H.R. 8836 and H.R. 9611, 68th Cong., 1st sess., pp. 350351.) Thus there can be no question that the requirement of section 46 that the excess landowner contractually agree to the disposition of excess lands as a condition to receiving project water for such excess lands was deliberately enacted by the Congress in further pursuance of its policy designed to secure the breakup of preexisting excess holdings benefiting from the expenditure of Federal funds, and to prevent the owners of such holdings from reaping unearned profit at the expense of purchasers. It is this congressionally expressed policy, as enacted into law in section 46 of the 1926 act, which today provides the basis for administration of the acreage limitation provisions of reclamation law.

Little general legislation affecting acreage limitation provisions of law has been enacted since the 1926 act. Under the Small Tracts Act (act of Mar. 31, 1950; 64 Stat. 39), any tract of withdrawn land which, in the opinion of the Secretary is too small to be opened to homestead entry as a farm unit, or has insufficient irrigable acreage for the support of a family may be sold to resident farmowners or entrymen on the project. The resident owner or entryman may purchase not more than 160 acres of such land or an area which, together with land already owned or entered on such project, does not exceed 160 irrigable acres. Additionally, under the Farm Unit Exchange Act

(act of Aug. 13, 1953; 67 Stat. 566), the Secretary is authorized either for purposes of amendment of an insufficient farm unit of a qualified entryman or resident owner, or for the establishment of public land farm units to be entered under applicable statutes, to establish such units at a size not to exceed 320 acres containing not more than 160 acres of irrigable land. As previously noted, section 3 of the 1912 act provided that any excess lands acquired in good faith by descent, by will, or by foreclosure of any lien could be held for 2 years and no longer after its acquisition. The Congress, by the act of July 11, 1956 (70 Stat. 524), recognized that the 2-year period previously afforded for the disposition of such involuntarily acquired excess lands often failed to afford the owners equitable opportunity to make the contemplated disposition in a manner that gave reasonable consideration to normal fluctuations in market values. Accordingly the 1956 act provided for the amendment of both the 1912 act and section 46 of the 1926 act to establish that:

*** if excess land is acquired by foreclosure or other process of law, by conveyance in satisfaction of mortgages, by inheritance, or by devise, water therefor may be furnished temporarily for a period not exceeding five years from the effective date of such acquisition, delivery of water thereafter ceasing until the transfer thereof to a landowner duly qualified to secure water therefor.

The 1956 act further authorized the Secretary of the Interior, upon request of any holder of an existing contract under Federal reclamation laws, to amend the contract to conform to its provisions.

Additionally, by the act of September 2, 1960 (74 Stat. 732), the Congress recognized that, in instances where husband and wife had held eligible land in excess of 160 irrigable acres not under recordable contract, the involuntary state of excess ownership occasioned by the demise of one or the other, often worked unreasonable hardship on the surviving spouse. Accordingly, this 1960 act provides that:

* * * where the death of husband or wife causes lands in private ownership to become excess lands, as the term is used in Section 46 of the Act of May 25, 1926, *** and those lands had theretofore been eligible to receive water from a project under Federal reclamation laws *** without execution of a recordable contract *** the Secretary of the Interior is authorized to furnish water to them, without requiring execution of such a contract, so long as they remain in the ownership of the surviving spouse: Provided, That in the event of the remarriage of the surviving spouse, such lands shall be governed by applicable law without regard to the provisions of this Act.

Finally it should be noted that the Congress has, from time to time, enacted by special legislation specifically applicable to the project or project unit in question exemptions, modifications, waivers, and special provisions of the basic acreage limitation provisions of reclamation

law.

A summarization of all such special legislative actions is concontained in the chronological listing furnished herewith. In considering such actions it must be borne in mind that the underlying justification therefor is almost without exception found in the peculiar circumstances imposed by unfavorable climatic conditions and similarly related physical factors which made application of the basic acreage limitation provisions economically unsound in the particular instance under consideration.

Thus examination of the main body of Federal statutes governing the construction and operation of the conventional reclamation project reveals a consistent and determined effort on the part of the Congress to maintain appropriate controls over project lands and