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<br />. <br /> <br />. <br /> <br />(~ ., ,... <br />.~; i:. ;. . . <br /> <br />-27- <br /> <br />'. <br /> <br />. <br />.. <br />In Interest, then the ExecutIve Order would have never ilttached.431 <br />In short, the decision holds that the 1926 Order does not apply to <br />man-made or artificial structures upon the public domain unless they <br />are abandoned by the original developer or hIs successor In Interest. <br /> <br />That same year, In A.T. West and Sons, the Solicitor hold, citIng Santa <br />Fe Pacific Railroad, supra, that, because the water hOlo was not natural <br />and had been deve loped and cont I nuous I y used by West s i Ilce 1887, It <br />was not of the character withdrawn by the 1926 Order.~1 <br /> <br />The above decIsions are the only ones found which relate to the pros- <br />pectIve effect of the 1926 Order and Its application to artificially <br />developed water sources. I agree with the general conclusions reached <br />In the earlier decisions of this Department that the 1026 Order does not <br />apply to man-made or artIfIcial structures on. the public domain If the <br />developer holds a valId, vested water rIght to such source under state <br />law at the tIme of development. <br /> <br />I cannot agree, however, wIth the 1nference In some of the opinions of <br />my predecessors that the 1926 Order causes a reservation of al I arti- <br />flclalIy developed water sources upon their abandonment.451 The Intent <br />of the 1926 Executive Order was, as I earlier stated at pages 21-22, <br />supra, to reserve naturally occurring water sources on the public domaIn <br />In order to prevent monopolization of large tracts of surrounding land <br />by one or a few Individuals. It was not Intended to reserve lands <br />contaIning artificial sources such as a metal stock tank. <br /> <br />-. ',:.;:=.::~ <br /> <br />431 The 1938 opinion Interpreted ExecutIve Order 5389 dated July 7, <br />1930, which withdrew all hot springs or springs with curative properties <br />existing on vacant, unappropriated, unreserved public lands. The order <br />authorized the lease of those springs for public purpo,es under the Act <br />of March 3, /925 (43 Stat. 1133), The SolicItor held ~hat the ExecutIve <br />Order wa~ a continual withdrawal attaching to lands which became of that <br />character after the date of the order. It was also halj that the order <br />app II ed to such water sources deve loped by other than natura I forces, <br />such as drll led wel Is, although all such wIthdrawals were held subject <br />to prIor rights established under state law. <br /> <br />44/ 56 1.0. 387 (1938). The decIsIon dId state that once such a source <br />was abandoned by the orIgInal developer anytIme after 1926, then the <br />withdrawal order would automatIcally attach, converting the once private <br />source Into a public water reserve. (The Solicitor clr~d the unreported <br />decIsion of Charles Lewis, July 29, 1935, for this preposition.) <br /> <br />451 I am therefore overruling expressIons In prIor opinions, such as <br />State of New Mexico, 55 1.0. 466 (1936) and Lee J, Esrl In, 56 1.0. <br />326 (1930) to the extent they apply the 1926 Order Te ~rrlflcal Iy <br />developed water sources on the public lands. <br /> <br />".OJ <br />