The Twin Falls times. [volume] (Twin Falls, Idaho) 1905-1916, 1912-04-09
PROTECTION FOR
THE fNTRYMfN
Law is Not 0ne-Sided in Re-
quirementS to Settlers.
NOTICE OF AVAILABILITY OF
WATER NOT CONCLUSIVE
State Land Board Will Protect Sett.
lers Against Contests Where Water
Cannot be Had.

lers Against Contests Where Water
Cannot be Had.
President Moomaw Of the Salmon
River Settlers Association during the
past week received the following let
ter with regard to the status OF the
settlers concerning proving up after
the receipt Of notice of availability
OF water by the water company. No
tice of the delivery of water makes
the settler liable for his proving up
on land but on the other hand such
notice will not be taken as absolute
In case of contest and il the entry
man can prove lack of water his
rights shall not become jeopardized
thereby.
April l, 1912.
State of Idaho, State Board of Land
Commissioners, Boise, Idaho,
Carey Act Department. BENZ. P.
Shawhan, Manager.
Mr.. w. A. Moomaw, Twin Falls.
Dear Sir:-Replying to your favor
of the oath instant, l beg to submit,
from the opinion of the Supreme Court
in the case of Hanes versus Idaho
Irrigation Company. the following,
touching the effect Of the publication
notice OF the availability of water:
Under the provisions of Section
1928. Revised Codes, it is made the
duty OF the irrigation company to no.
tify the settlers when water is ready
for delivery, in order that the settler
may do his cultivation and make the
reclamation required in order to Sc
cure title to his land. That must
be done within specified time after
notice. When the settler receives
such notice, In accordance with the
terms OF the statutes, he cannot delay
but must proceed. The giving Of no
tice was no doubt intended to have
a double effect; it gave the settler
notice. thareby fixing the time within
which he must cultivate and reclaim
his land under the Carey Act and
statutes, and thus enable him to pro-
cure title. 1t also had the effect of
notifying the settler that interest on
all deferred payments on his water
contract would begin at the commen-
cement OF the next irrigation sea-
son. as provided in the contract. In
any event, under the law the settler
could not disregard the notice, for
then he was required to proceed with
his requirements in order to secure
title to his land, and 1t placed him un-
der obligations to pay interest and
make payment on the principal.
"The giving of such notice under the
contract and law served to fix the
time within which the settler must
cultivate and reclaim his land, and
also fixes the time, II water is fur
nished, when interest shall begin on
deferred payments ON his water con-
tract. and it was the duty Of the
construction company to furnish wa
ter after 1t had given the notice."
1t would be strange rule of law
that would require an entryman to
comply with the requirements Of rec
lamation within specified time to
be fixed by the notice published by
company over which he had no con-
troll, whereby his entry might be
placed in jeopardy or lost through
failure to procure water within the
time required by law, IL the notice
were not required to be true notice
OF fact, and 1t appears obvious that
the Court did not intend that notice
when the water was not ready for de-
livery should serve to fix the time,
but that such notice should serve to fix
the time only in case water was avail
able as provided by law and the con-
tract at the time specified by the
notice.
In the preparation OF the rules re-
Gently adopted by the Board. it was
provided that such notice shall be
prima facie evidence that water was
available at such date for such lands
as are approved by the Board as hav-
ing water actually available, leaving
1t open to proof to establfsh the &C.
tual date water was available ia case
the notice should not have been 4 true
notice; and 1t was further provided
that contest for failure to cultiynke
and irrigate or make pnal proof within
the time required by law. will not be
entertained BY the Board unless water
was actually available In pufflojent.
quantities to properly frrigAte crops,
Notwithstanding that notlca NJ. G3v-
on for the delivery Of Nafer AF 4
fixed date; anA the tiIgle GASsR bNk4n
to run from tke date Of eek0S1 do1>y1rx
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