[Code of Federal Regulations]

[Title 43, Volume 2]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 43CFR2521.6]



[Page 113-116]

 

                    TITLE 43--PUBLIC LANDS: INTERIOR

 

    CHAPTER II--BUREAU OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR

 

PART 2520_DESERT-LAND ENTRIES--Table of Contents

 

                         Subpart 2521_Procedures

 

Sec.  2521.6  Final proof.



    (a) General requirements. The entryman, his assigns, or, in case of 

death, his heirs or devisees, are allowed 4 years from date of the entry 

within which to comply with the requirements of the law as to 

reclamation and cultivation of the land and to submit final proof, but 

final proof may be made and patent thereon issued as soon as there has 

been expended the sum of $3 per acre in improving, reclaiming, and 

irrigating the land, and one-eighth of the entire area entered has been 

properly cultivated and irrigated, and when the requirements of the 

desert-land laws as to water rights and the construction of the 

necessary reservoirs, ditches, dams, etc., have been fully complied 

with.

    (1) Where the proof establishes that the entryman cannot effect 

timely compliance with the law, the entry must be canceled unless 

statutory authority permits the granting of an extension of time or 

other relief.

    (b) Notice of intention to make final proof. When an entryman has 

reclaimed the land and is ready to make final proof, he should apply to 

the authorizing officer for a notice of intention to make such proof. 

This notice must contain a complete description of the land, give the 

number of the entry and name of the claimant, and must bear an 

endorsement specifically indicating the source of his water supply. If 

the proof is made by an assignee, his name, as well as that of the 

original entryman, should be stated. It must also show when, where and 

before whom the proof is to be made. Four witnesses may be named in this 

notice, two of whom must be used in making proof. Care should be 

exercised to select as witnesses persons who are familiar, from personal 

observation, with the land in question, and with what has been done by 

the claimant toward reclaiming and improving it. Care should also be 

taken to ascertain definitely the names and addresses of the proposed 

witnesses, so that they may correctly appear in the notice.

    (c) Publication of final-proof notice. The authorizing officer will 

issue the usual notice for publication. This notice must be published 

once a week for five successive weeks in a newspaper of established 

character and general circulation published nearest the lands (see 38 

L.D. 131; 43 L.D. 216). The claimant must pay the cost of the 

publication but it is the duty of authorizing officers to procure the 

publication of proper final-proof notices. The date fixed for the taking 

of the proof must be at least 30 days after the date of first 

publication. Proof of publication must be made by the statement of the 

publisher of the newspaper or by someone authorized to act for him.

    (d) Submission of final proof. On the day set in the notice (or, in 

the case of accident or unavoidable delay, within 10 days thereafter), 

and at the place and before the officer designated, the claimant will 

appear with two of the witnesses named in the notice and make proof of 

the reclamation, cultivation, and improvement of the land. The testimony 

of each claimant should be taken separately and apart from and not 

within the hearing of either of his witnesses, and the testimony of each 

witness should be taken separately and apart from and not within the 

hearing of either the applicant or of any other witness, and both the 

applicant and each of the witnesses should be required to state, in and 

as a part of the final-proof testimony given by them, that they have 

given such testimony without any actual knowledge of any statement made 

in the testimony of either of the others. In every instance



[[Page 114]]



where, for any reason whatever, final proof is not submitted within the 

4 years prescribed by law, or within the period of an extension granted 

for submitting such proof, a statement should be filed by claimant, with 

the proof, explaining the cause of delay.



The final proof may be made before any officer authorized to administer 

oaths in public land cases, as explained in Sec.  1821.3-2 of this 

chapter.

    (e) Showing as to irrigation system. The final proof must show 

specifically the source and volume of the water supply and how it was 

acquired and how it is maintained. The number, length, and carrying 

capacity of all ditches, canals, conduits, and other means to conduct 

water to and on each of the legal subdivisions must also be shown. The 

claimant and the witnesses must each state in full all that has been 

done in the matter of reclamation and improvements of the land, and must 

answer fully, of their own personal knowledge, all of the questions 

contained in the final-proof blanks. They must state plainly whether at 

any time they saw the land effectually irrigated, and the different 

dates on which they saw it irrigated should be specifically stated.

    (f) Showing as to lands irrigated and reclaimed. While it is not 

required that all of the land shall have been actually irrigated at the 

time final proof is made, it is necessary that the one-eighth portion 

which is required to be cultivated shall also have been irrigated in a 

manner calculated to produce profitable results, considering the 

character of the land, the climate, and the kind of crops being grown. 

(Alonzo B. Cole, 38 L.D. 420.) The cultivation and irrigation of the 

one-eighth portion of the entire area entered may be had in a body on 

one legal subdivision or may be distributed over several subdivisions. 

The final proof must clearly show that all of the permanent main and 

lateral ditches, canals, conduits, and other means to conduct water 

necessary for the irrigation of all the irrigable land in the entry have 

been constructed so that water can be actually applied to the land as 

soon as it is ready for cultivation. If pumping be relied upon as the 

means of irrigation, the plant installed for that purpose must be of 

sufficient capacity to render available enough water for all the 

irrigable land. If there are any high points or any portions of the land 

which for any reason it is not practicable to irrigate, the nature, 

extent, and situation of such areas in each legal subdivision must be 

fully stated. If less than one-eighth of a smallest legal subdivision is 

practically susceptible of irrigation from claimant's source of water 

supply and no portion thereof is used as a necessary part of his 

irrigation scheme, such subdivision must be relinquished. (43 L.D. 269.)

    (g) Showing as to tillage of land. As a rule, actual tillage of one-

eighth of the land must be shown. It is not sufficient to show only that 

there has been a marked increase in the growth of grass or that grass 

sufficient to support stock has been produced on the land as a result of 

irrigation. If, however, on account of some peculiar climatic or soil 

conditions, no crops except grass can be successfully produced, or if 

actual tillage will destroy or injure the productive quality of the 

soil, the actual production of a crop of hay of merchantable value will 

be accepted as sufficient compliance with the requirements as to 

cultivation. (32 L.D. 456.) In such cases, however, the facts must be 

stated and the extent and value of the crop of hay must be shown, and, 

as before stated, that same was produced as a result of actual 

irrigation.

    (h) Showing as to water right. (1) In every case where the 

claimant's water right is founded upon contract or purchase the final 

proof must embrace evidence which clearly establishes the fact and legal 

sufficiency of that right. If claimant's ownership of such right has 

already been evidenced in connection with the original entry or some 

later proceeding, then the final proof must show his continued 

possession thereof. If the water right relied on is obtained under 

claimant's appropriation, the final proof, considered together with any 

evidence previously submitted in the matter, must show that the claimant 

has made such preliminary filings as are required by the laws of the 

State in which the land is located, and that he has also taken all other 

steps necessary under said laws to secure and perfect the claimed water



[[Page 115]]



right. In all cases the water right, however it be acquired, must 

entitle the claimant to the use of a sufficient supply of water to 

irrigate successfully all the irrigable land embraced in his entry, 

notwithstanding that the final proof need only show the actual 

irrigation of one-eighth of that area.

    (2) In those States where entrymen have made applications for water 

rights and have been granted permits but where no final adjudication of 

the water right can be secured from the State authorities owing to delay 

in the adjudication of the watercourses or other delay for which the 

entrymen are in no way responsible, proof that the entrymen have done 

all that is required of them by the laws of the State, together with 

proof of actual irrigation of one-eighth of the land embraced in their 

entries, may be accepted. This modification of the rule that the 

claimant must furnish evidence of an absolute water right will apply 

only in those States where under the local laws it is impossible for the 

entryman to secure final evidence of title to his water right within the 

time allowed him to submit final proof on his entry, and in such cases 

the best evidence obtainable must be furnished. (35 L.D. 305.)

    (3) It is a well-settled principle of law in all of the States in 

which the desert land acts are operative that actual application to a 

beneficial use of water appropriated from public streams measures the 

extent of the right to the water, and that failure to proceed with 

reasonable diligence to make such application to beneficial use within a 

reasonable time constitutes an abandonment of the right. (Wiel's Water 

Rights in the Western States, Sec.   172.) The final proof, therefore, 

must show that the claimant has exercised such diligence as will, if 

continued, under the operation of this rule result in his definitely 

securing a perfect right to the use of sufficient water for the 

permanent irrigation and reclamation of all of the irrigable land in his 

entry. To this end the proof must at least show that water which is 

being diverted from its natural course and claimed for the specific 

purpose of irrigating the lands embraced in claimant's entry, under a 

legal right acquired by virtue of his own or his grantor's compliance 

with the requirements of the State laws governing the appropriation of 

public waters, has actually been conducted through claimant's main 

ditches to and upon the land; that one-eighth of the land embraced in 

the entry has been actually irrigated and cultivated; that water has 

been brought to such a point on the land as to readily demonstrate that 

the entire irrigable area may be irrigated from the system; and that 

claimant is prepared to distribute the water so claimed over all of the 

irrigable land in each smallest legal subdivision in quantity sufficient 

for practical irrigation as soon as the land shall have been cleared or 

otherwise prepared for cultivation. The nature of the work necessary to 

be performed in and for the preparation for cultivation of such part of 

the land as has not been irrigated should be carefully indicated, and it 

should be shown that the said work of preparation is being prosecuted 

with such diligence as will permit of beneficial application of 

appropriated water within a reasonable time.

    (4) Desert-land claimants should bear in mind that a water right and 

a water supply are not the same thing and that the two are not always or 

necessarily found together. Strictly speaking, a perfect and complete 

water right for irrigation purposes is confined to and limited by the 

area of land that has been irrigated with the water provided thereunder. 

Under the various State laws, however, an inchoate or incomplete right 

may be obtained which is capable of ripening into a perfect right if the 

water is applied to beneficial use with reasonable diligence. A person 

may have an apparent right of this kind for land which he has not 

irrigated, and which, moreover, he never can irrigate because of the 

lack of available water to satisfy his apparent right. Such an imperfect 

right, of course, cannot be viewed as meeting the requirements of the 

desert-land law which contemplates the eventual reclamation of all the 

irrigable land in the entry. Therefore, and with special reference to 

that portion of the irrigable land of an entry not required to be 

irrigated and cultivated before final proof, an incomplete (though real) 

water



[[Page 116]]



right will not be acceptable if its completion appears to be impossible 

because there is no actual supply of water available under the 

appropriation in question.

    (i) Showing where water supply is derived from irrigation project. 

(1) Where the water right claimed in any final proof is derived from an 

irrigation project it must be shown that the entryman owns such an 

interest therein as entitles him to receive from the irrigation works of 

the project a supply of water sufficient for the proper irrigation of 

the land embraced in his entry. Investigations by field examiners as to 

the resources and reliability, including particularly the source and 

volume of the water supply, of all irrigation companies associations, 

and districts through which desert-land entrymen seek to acquire water 

rights for the reclamation of their lands are made, and it is the 

purpose of the Bureau of Land Management to accept no annual or final 

proofs based upon such a water right until an investigation of the 

company in question has been made and report thereon approved. The 

information so acquired will be regarded as determining, at least 

tentatively, the amount of stock or interest which is necessary to give 

the entryman a right to a sufficient supply of water; but the entryman 

will be permitted to challenge the correctness of the report as to the 

facts alleged and the validity of its conclusions and to offer either 

with his final proof or subsequently such evidence as he can tending to 

support his contentions.

    (2) Entrymen applying to make final proof are required to state the 

source of their water supply, and if water is to be obtained from the 

works of an irrigation company, association, or district the authorizing 

officer will endorse the name and address of the project upon the copy 

of the notice to be forwarded to the State Director. If the report on 

the company has been acted upon by the Bureau of Land Management and the 

proof submitted by claimant does not show that he owns the amount of 

stock or interest in the company found necessary for the area of land to 

be reclaimed, the authorizing officer will suspend the proof, advise the 

claimant of the requirements made by the Bureau of Land Management in 

connection with the report, and allow him 30 days within which to comply 

therewith or to make an affirmative showing in duplicate and apply for a 

hearing. In default of any action by him within the specified time the 

authorizing officer will reject the proof, subject to the usual right of 

appeal.

    (j) Final-proof expiration notice. (1) Where final proof is not made 

within the period of 4 years, or within the period for which an 

extension of time has been granted, the claimant will be allowed 90 days 

in which to submit final proof. (44 L.D. 364.)

    (2) Should no action be taken within the time allowed, the entry 

will be canceled. The 90 days provided for in this section must not be 

construed as an extension of time or as relieving the claimant from the 

necessity of explaining why the proof was not made within the statutory 

period or within such extensions of that period as have been 

specifically granted.

    (k) Requirements where township is suspended for resurvey. No 

claimant will be required to submit final proof while the township 

embracing his entry is under suspension for the purpose of resurvey. (40 

L.D. 223.) This also applies to annual proof. In computing the time when 

final proof on an entry so affected will become due the period between 

the date of suspension and the filing in the local office of the new 

plat of survey will be excluded. However, if the claimant so elects, he 

may submit final proof on such entry notwithstanding the suspension of 

the township.