
    THE UNITED STATES EX REL ELIZABETH FAULL, etc., v. HAROLD L. ICKES, Secretary of the Interior
    Law No. 84267
    George R. Wickham, F. M. Goodwin, and F. W. Clements for plaintiff,
    Nathan R. Margold, J. Kennard Cheadle, and Frederic L. Kirgis for defendant.
   MEMORANDUM

ADKINS, J.

This is a petition for writ of mandamus to compel the Secretary of the Interior to direct that a certain desert-land declaration should be allowed and a certificate to that effect issued.

The application was filed on August 4, 1921, by petitioner’s husband and predecessor in interest, now deceased. He declared his intention to reclaim a certain tract of desert-land according to the terms of the Act of March 3, 1877 (18 . Stat. 337), as amended by the Act of March 3, 1891 (26 Stat. 1095), commonly known as the Desert-land Act.

In the application he gave as his source of water supply the Rush Creek Mutual Ditch Company. The application was one of a number of applications for land located in the same general territory, in which applications the Rush Creek Mutual Ditch Company or the Sierra Land & Water Company was named as a source of water supply. Apparently the projects of the two companies comprise one project.

In March, 1921, the Land Office held that the Rush Creek Mutual Ditch Company was unsatisfactory as a source of water supply for desert-land entries.-

Because the Sierra Land & Water Company was engaged in litigation in the state courts of California with respect to its claim to the right to use certain waters, final action on the application in question was withheld until March 15, 1934, when the Commissioner of the Land Office rejected the application. He then directed that notice be given to the applicant that the source of water supply was one that had been denied recognition, and that he would be allowed thirty days within which to name a new and acceptable source of water supply, and that on his failure to act or appeal the application be finally rejected.

The applicant did not name another source of water supply but appealed, and on June 14,1934, the application was finally rejected by the First Assistant Secretary of the Interior. The right of the Sierra Land & Water Company to the use of the water claim was denied by the Supreme Court of California in Sierra Land & Water Company v. Cain Irr. Co., 25 Pac. (2nd) 223.

Section 4 of the Act of 1891, beforementioned, provides that at the time of filing the declaration of intention to reclaim a tract of desert-land the party shall also file a map of the land which shall exhibit a plan showing the mode of contemplated irrigation and shall also show the source of water to be used for irrigation and reclamation.

Since it affirmatively appears that the source of water supply named by declarant owns no water I think the declaration does not meet the statutory requirements.

I think also the regulations promulgated in 1914 by the Secretary of the Interior were reasonable and appropriate under the statute and that petitioner’s declaration did not comply with those regulations.

It follows that the demurrer to the answer must be overruled and the application for writ of mandamus denied.  