The Oakley herald. [volume] (Oakley, Idaho) 1908-1961, 1921-03-04
ACKNOWLEDGEMENTS
DECISION
Circuit Court OF Appeals Upheld
Action of the State Board of Land
Commissioners N Reducing
Acreage to Amount Actually
Reclaimed in Carey
Act Projects
(By w. l.. DUNN

Plaintiff objects to such contem
plated act and takes the position
heretofore stated"
1.-THE particular injury which
plaintiff alleges is that the officers
of the state propose to relinquish
certain lands which have been seq
regated, the purpose being to restore
such lands to the authority of the
United States. Inasmuch as the
only interest which the appellant
corporation has in such lands is the
lien which it urges exists in it's favor
as security for the purchase price of
rights to the use of water which it
may furnish to users, we inquire
whether or not there is such lien
at all in its favor. Reverting to the
statute, which creates A
lien, we find that lien shall be
valid against the separate legal sub
divisions OF lands reclaimed for
cist of expenses of reclamation,
and interest from the date of re-
clamation until disposed of to the
actual settlers. No lien is created
against lands which may be but are
~,
an ample supply of water, not to be
estimated or furnished at some
future time. but actually furnished,
no patent can lawfully issue to the
state. The legislation of the state is
in harmony with this view
Congress provided that in the event
of a failure by the state within ten
years after segregation, to cause the
lands segregated to be irrigated
and reclaimed The Secretary of
the Interior may, in his discretion,
continue the segregation not to ex-
coed five years, or restore the land
to the public domain This author.
ity vested in the Secretary of the
Interior to use his discretion either
to continue the segregation not to
exceed five years or to restore the
land to the public domain, greatly
helps to gather the true meaning
OF the Congressional Act, for it is
most improbable that it was inten-
ded that a power to restore land to
the public domain. in the event Of
failure on the part of the con
struction company to cause lands to |
be irrigated and reclaimed, should |
be used if, by reason of the con-
struction of the works, a lien was
in the construction company. |
1t would give rise to confusion to re-
store subject to the lien; while #
here could be no restoration the
statute would be meaningless. IN
Adams VS.. Twin Falls-Oakley Land
md Water Company GO Idaho
$50 161 Pac. 1922, decided in 1916
~ the Supreme Court of Idaho, the
Court Analysed the Carey Act in re-
pect to the creation of a lien to in
ure to the construction company a
eturn of the initial cost of con-
truction and a reasonable profit ON
he investment, and after stating
hat there was lien on the land it.
elf which attached when the neces-
airy proof shall have been made
y the entryman and patent issued
D the state and conveyance pass
d by the state to the entryman,
aid: The existence of this lien de-
ends primarily upon the completion.
( the construction works and the
apply of water through the works
y the construction company as
ipulated in it's contracts with bith
lie state and the entryman.'
The opinion after citing Childs VS..
ethel, 14I Pac. n in support
the position taken, continues:
"In Idaho Irrigation Company.
i'd, VS.. Pugh. ct al, 141 Pac.
)99, the Supreme Court of the
ate, through Judge Ailshie, speak
6 in respect to the lien against
ngle purchaser of water right un-
II the Carey Act. said: The es-
ntial thing that concerns the
owner and purchaser of
water right is whether or not the
seTvoir and. main canal have been
far completed as to enable the
mpany to regularly and perma-